ATTORNEY GENERAL v. TAT FUNG ENTERPRISES CO. LTD.

IN THE COURT OF APPEAL

1996, Nos. 133-140
(Civil)

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J U D G M E N T

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Litton, V.-P.:

1. There are eight consolidated appeals before this court. The parties agree that the determination of Civ. App. No. 133/96 has the effect of determining Civ. App. Nos. 134-140/96 as well.

2. The background facts can be briefly stated. The appellant is the owner of various lots of land in DD 359 in Tsuen Wan. In March 1993 the Building Authority served on the appellant, at its registered office, a notice under s26(1) of the Buildings Ordinance, Cap 123 requiring structures described in the notices as "squatter huts" erected on the appellant's land to be demolished. Upon the expiration of the time limit in such notice, the Building Authority caused the huts to be demolished. Expenses were thereby incurred. By certificates issued under s33(1) of the Buildings Ordinance, the Building Authority certified the cost of demolition which the government sought to recover from the appellant.

3. Section 33(8) of the Buildings Ordinance reads:

"(8) A certificate purporting to be under the hand of the Building Authority, made under the provisions of subsection (1), and setting forth that the cost claimed is due or payable to the Building Authority and that the person sued is liable for the payment thereof, and specifying the nature and particulars of the claim shall be prima facie evidence of the facts certified therein and of the signature of the Building Authority thereto."

4. Writs were issued in the District Court and, in default of defence, judgment was entered against the appellant.

5. The appellant then took out a summons to have the default judgment set aside and for an extension of time to lodge its defence.

6. HH Judge Muttrie refused the applications. Hence the appeals to this court.

7. The primary consideration for this court is whether the appellant has a meritorious defence to the Building Authority's claim. The threshold is not high but the court must be satisfied that there is material upon which a viable defence is based. The appellant says that the s26(1) notices served under the Buildings Ordinance are bad because the appellant was never the owner of the squatter huts. Counsel submits that a s26(1) notice is aimed at the owner of the building, not the owner of the land: to serve the s26(1) notice on the landowner does not, he says, give the s26(1) notice any legal effect.

8. This point obviously depends upon the nature and extent of annexation of these "squatter huts" to the land, and that in turn depends upon the nature of these huts: Were they dwellings in which families had lived? If they were, then it would appear that the intention, as far as the squatters were concerned, was to stay there permanently: or as long as they were tolerated until, presumably, the time when they might have acquired a possessory title to the land they occupied. Or were these temporary structures for, say, the purpose of storage, or animal husbandry? The expression "squatter hut" in the s26(1) notice was merely for the purpose of identification; it says nothing about the nature of the structures involved.

9. The appellant has not put before the court any basis of facts from which an argument of law might be advanced. Mr Mok, for the appellant, says this: If the erection of the structures was not for the purpose of the permanent and substantial improvement of the land, then in law there has been no annexation; without annexation the appellant could not be regarded as the owner of the huts. And if that were so then a notice served on the landowner must be bad. But a default judgment cannot be set aside upon a mere supposition. The purpose of the presence of these squatter huts on the land can only be inferred from the primary facts. There are simply no facts in the affidavits put before the court on which an adjudication might be made in the appellant's favour.

10. On the other hand, there is a statutory presumption in the Building Authority's favour: By the operation of s33(8) of the Buildings Ordinance there is a presumption of liability which it is for the appellant to displace. Nothing before us suggests that the appellant will be able to displace that presumption against it. In these circumstances, plainly, these appeals must be dismissed and I would so order.

Bokhary, J.A.:

11. I agree.

12. There is, as my Lord has pointed out, a presumption in favour of the respondent. And the broad facts of this case, insofar as they appear, tend to reinforce rather than rebut that presumption.

13. A squatter on land is prima facie someone who may eventually get a "squatter's title".

14. Physically, his hut is prima facie to be thought of as something annexed to the land.

15. As to purpose, such a hut is prima facie to be thought of as a structure meant for the permanent improvement of the land rather than as a mere chattel placed on the land for its better enjoyment as a chattel.

16. There is not here the beginnings of a defence. And I, too, would dismiss these appeals.

Ching, J.A.:

17. I agree that these appeals should be dismissed for the reasons given by both of my Lords.