GRAND WAYFAIR INVESTMENT CO LTD v. NG TUNG AND OTHERS

FAMV No 8 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 8 OF 2015 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV 238 OF 2013)

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REASONS FOR DETERMINATION

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Mr Justice Tang PJ (Giving the reasons of the Appeal Committee):

1.  At the end of the hearing we dismissed the application for leave to appeal with costs on an indemnity basis.  These are our reasons.

2.  The plaintiff, the registered owner of Lot No 78 in DD133 (“the land”), since 7 January 1983, commenced these proceedings on 22 March 2007 against Chan Yung Kan trading as Luk Yau Yau Organic Vegetable as first defendant and “the occupier(s) of (the Land)” as second defendant.  In the defence of the first and second defendants filed on 7 May 2007 (apparently on the instruction of Mr Ng Tung), it was pleaded that the second defendant was made up of 2 families, namely, the family of Ng Tung and his deceased parents and the family of Wong Kin Min and his deceased parents.  It was pleaded that the Ng family started occupation and cultivation of the land in 1959 and the Wong family in 1963, and that the first defendant was the second defendant’s licensee under an agreement dated 1 May 2006.  Following the defence, the statement of claim was amended and Ng Tung became the second defendant and Wong Kin Min the third defendant.  In the second defendant’s amended defence, he claimed that he and his deceased parents had been occupying and cultivating the land since 1960.  There was no reference to the Wong family in the amended defence.  Wong Kin Min, the third defendant, did not file a defence and judgment in default was entered against him.  We mention these details because the plaintiff argued in the courts below and sought leave to appeal on the basis that the joint occupation with the Wong family precluded the Ng family from being in adverse possession of the land. Deputy Judge Seagroatt held that the Wong family only worked part of the land, “approximately 1964 until 1973”, and the one time occupation of part of the land by the Wong family had no effect on D1’s defence of adverse possession.

3.  Following a 4 day trial, Deputy Judge Seagroatt dismissed the plaintiff’s claim for possession and made a declaration in favour of the second defendant in respect of his “title as adverse possessor.”  As the learned judge’s recitation of the conveyancing documents showed, it was clear that the vendor was unable to give vacant possession of the land to the plaintiff.  Moreover, the evidence that the Ng family had been in possession of the land for many years was overwhelming.

4.  The plaintiff’s appeal against the dismissal of its claim was dismissed by the Court of Appeal (Lam VP, Barma and McWalters JJA), on 26 September 2014.  However, the court decided to rescind the declaration made in favour of D2 because D2 had made no counter-claim.

5.  The plaintiff’s application to the Court of Appeal for leave to appeal to this court was dismissed with indemnity costs.  In the reasons of the court given by Lam VP, he dealt with each of the points relied on by Mr Kenneth CL Chan who sought to repeat them before us.

6.  These arguments included: the fact that the Wong family was at one time according to Ng Tung in joint occupation of the land with the Wong family’ which in view of the finding of fact by the learned deputy judge became irrelevant; that the learned deputy judge wrongly preferred his own view of the old aerial pictures of the state of the land over P’s experts’ views.  These arguments were clearly dealt with by the learned deputy judge as well as clearly rejected by the Court of Appeal.  It is sufficient for our purpose to say that with such concurrent findings, there is no realistic chance that this court will allow such arguments to be repeated before this court.  With respect, the Court of Appeal was right to have refused leave and to have ordered indemnity costs.

7.  In deference to Mr Chan and his valiant effort, we will deal briefly with his best point.  It arises in this way.  Although, the plaintiff had not sought to rely on it and Deputy Judge Seagroatt’s attention was drawn to the matter on behalf of D2 against the plaintiff’s objection, it transpired that in June 1993, the plaintiff had commenced proceedings against the occupiers of 3 lots of land, including the land.  On 25 October 1993 judgment in default was entered against such occupiers.  Mr Ng Tung’s Father, one of such occupiers, sought to set aside the judgment but was unsuccessful. However, the judgment was never enforced and as Deputy Judge Seagraott held the Ng family remained in occupation of the land as before.  The plaintiff’s argument is that the issue of proceedings in 1993 stopped time from running and that the judgment resulted in the discontinuance of the second defendant’s occupation.  This was raised by way of submission.  Lam VP said in  the judgment of the court:

“21. … it is most unsatisfactory that the Plaintiff are now running arguments involving material facts which it should have pleaded in a reply and yet it did not even file one. The implied joinder of issue, in the absence of a reply to a defence of adverse possession, is not sufficient to raise issues like break of continuity of possession by the 1993 judgment …”

8.  That being the case the question of break of continuity of possession does not arise and we express no view about it.  More importantly, as Lam VP pointed out, and we respectfully agree, the 1993 judgment would not avail the plaintiff since D2 had been in adverse possession for more than 12 years prior to the commencement of these proceedings in 2007.

9.  Mr Chan’s other arguments do not require further discussion.

10.  For these reasons, we dismissed the application for leave to appeal. We also ordered costs on an indemnity basis.  As I have said the Court of Appeal dismissed the plaintiff’s application for leave with costs on an indemnity basis.  This application was not reasonably arguable and should not have been made.