Li Sau Sing v. Ctma Holdings Ltd and Others

DCCJ4825/2014

CIVIL ACTION NO 4825 OF 2014

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DECISION

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1.This is the plaintiff’s second application for default judgment against the defendants under Order 19, rule 7, Rules of the District Court for declaratory reliefs in respect of a shop (“the Shop”) on the ground floor under the common staircase of two adjacent buildings (“the Application”).

2.The first application was dismissed by Deputy District Judge Liu Man Kin (“DDJ Liu”) for reasons set out in his reasons for decision of 5 October 2015.  The plaintiff has since further amended his statement of claim to plead what DDJ Liu considered as missing from the earlier version of the statement of claim, namely, that the possession in question was adverse to the defendants.

3.The background facts, including due service of the writ herein and absence of any notice of intention to defend from the defendants, as well as the legal principles applicable to such an application have been set out in paragraphs 3 to 7 of the DDJ Liu’s reasons for decision and shall not be repeated here.  For the present purpose, I need only highlight the development since the dismissal of the plaintiff’s earlier application.

4.As revealed by the Re-amended Statement of Claim, the Urban Renewal Authority (“URA”) as the 18^th defendant herein has since the issue of writ acquired 6 units of fellow defendants so that only the 2^nd, 3^rd, 8^th, 9^th, 12^th, 13^th, 17^th and 18^th defendants are the current co-owners of the building of which the Shop forms a part. 

5.Notwithstanding its interest in this action, the URA has not taken active participation other than sending a legal representative, Miss Yau, to attend today’s the hearing on a watching brief.  Regarding the latest position of URA’s acquisition of fellow defendants’ properties, Miss Yau informed this court that the URA has recently acquired also the property of the 8^th defendant so that only the 2^nd, 3^rd, 9^th, 12^th, 13^th, 17^th and 18^th defendants are the current co-owners. 

6.As per the Re-Amended Statement of Claim, the plaintiff’s case is as follows:-

“1. At all material times since about 1994, the Plaintiff has been the exclusive possessor, occupier and controller of a shop (“Shop”) situates at the ground floor under the common staircase of two adjacent buildings erected respectively on Nos. 217 and 219 Castle Peak Road, Kowloon, Hong Kong.

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3. (a) The Shop is located on the ground floor at the space next to the Staircase; and

(b) The area of the Shop which has been exclusively possessed, occupied and controlled by the Plaintiff includes:-

(i) the ground floor space next to the Staircase as particularized in pink on the plan annexed hereto (“Plan”);

(ii) the ground floor space underneath the Staircase as particularized in brown on the Plan;

(iii) the storage cabinet hanging from the ceiling above the entrance to the ground floor of the Staircase as particularized in green on the Plan; and

(iv) a display shelf on the wall at the entrance to the ground floor of the Staircase as coloured red on the Plan.

4. By the provisions of (a) the Deed of Mutual Covenant of No. 217 Castle Peak Road…and (b) the Deed of Mutual Covenant of No. 219 of Castle Peak Road..., the Shop is lying in the common area of No. 217 Castle Peak Road and No. 219 Castle Peak Road.

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5. When the Writ of Summons in this action was issued on 15^th December 2014, the 1^st to 13^th and 15^th to 17^th Defendants herein were the registered owners of No. 217 Castle Peak Road and/or No. 219 Castle Peak Road

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7. …since the issue of the Writ of Summons herein, the 2^nd, 3^rd, 8^th, 9^th, 12^th, 13^th, 17^th and 18^th Defendants are…the current co-owners of the No. 217 Castle Peak Road and/or No. 219 Castle Peak Road of which the Shop forms a part.

8.(a) In or about April 1968, the Plaintiff’s late father, namely Mr. Lee Wing Foon, purchased the right of exclusive possession, occupation and control of the Shop from one Mr. Au Ting Kin who was the then exclusive possessor and occupier of the Shop.

(b) The said purchase is evidenced by a Chinese memorandum dated 1^st April 1968.

(c) Neither the aforesaid Mr. Au Ting Kin nor the Plaintiff’s late father had ever sought or been given any consent from any of the co-owners of Nos. 217 and 219 Castle Peak Road for the exclusive occupation, possession and control of the Shop at any material time.

9. The Plaintiff’s late father commenced a business in time-piece repairs in the Shop since about 1^st April 1968.

10. In 1994, the Plaintiff succeeded his late father’s said business and continued the exclusive occupation, possession and control of the Shop.  The Plaintiff had never sought or been given any consent from any of the co-owners of Nos. 217 and 219 Castle Peak Road for the exclusive occupation, possession and control of the Shop at any material time.

11. At all material times since 1968, the Plaintiff’s late father and the Plaintiff have always treated the Shop as a property owned exclusively by them.

12. When the Shop is not open for business, it has always been locked up to bar anyone from entering into the same.

13. At all material times, no one has ever attempted to interfere with the exclusive possession, occupation and control of the Shop by the Plaintiff’s late father and/or the Plaintiff.

14. At all material times, no one has ever challenged the right of the Plaintiff’s late father and/or the Plaintiff in respect of their exclusive occupation, possession and control of the Shop and no one ever asked them to pay any rent for the said exclusive possession, occupation and control of the Shop.

15. Neither the Plaintiff nor his late father had ever paid any rent for their exclusive possession, occupation and control of the Shop.

16. By reason of the exclusive possession, occupation and control of the Shop by the Plaintiff’s late father which was continued by the Plaintiff with the requisite intention to exclude all others at large, the rights, interests and title of the Defendants and/or their predecessors-in-title in respect of the Shop have been extinguished and the Defendants are barred from recovering the same under the Limitation Ordinance (Chapter 347)…”

7.I gratefully adopt and would not repeat the legal principles applicable to a claim for adverse possession set out in paragraphs 10 to 12 of the DDJ Liu’s reasons for decision.

8.From the above, I am satisfied that the plaintiff has pleaded all the essential elements for a successful claim for adverse possession in terms of continuous possession adverse to the defendant for the necessary period and the necessary intention to possess.

9.The only observation I need to make is the plaintiff’s filing of further affidavit evidence in support of his application and the inclusion of evidence revealed therein in his draft order for the court’s consideration.  By the earlier decision of DDJ Liu, the plaintiff must have been alerted to the fact that the court could not refer to his earlier affirmation in support of his application.  I am therefore surprised by the repeated filing of evidence in support of his fresh application of the same kind, which is clearly inappropriate.  In like manner, I will not be making reference to any affidavit evidence filed in support of the earlier or the present application and my order will reflect only the reliefs sought in the Re-Amended Statement of Claim but not otherwise.

10.In light of the above, I grant the plaintiff the following reliefs:

(1) A declaration that all the rights, interests and title of the 2^nd, 3^rd, 9^th, 12^th, 13^th, 17^th and 18^th  defendants in the Shop have been extinguished; and

(2) A declaration that the plaintiff has acquired a possessory title in respect of the Shop;

11.Since no defendant has attended the hearing other than the representative of the 18^th Defendant on a watching brief, I make no order as to costs.

Ms Dora Chan, instructed by So, Lung & Associates, for the plaintiff

The 1^st to 17^th defendants were not represented and did not appear

Miss C Yau of P C Woo & Co, for the 18^th defendant