Hintmax Development Ltd v. Wong Ho Chuen and Another

HCA 2586/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2586 of 2014

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BETWEEN

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JUDGMENT

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1.By the statement of claim, the plaintiff claims a declaration that the title of the defendants and/or their successor in title to the land registered in the Land Registry and known as Sub-section 1 of Section A of Inland Lot No 1832 ("the Defendants' Land") has been extinguished.

2.The plaintiff claims a further declaration that the plaintiff has acquired an indefeasible possessory title to the Defendants' Land and is entitled to remain in possession of the same.

3.By its summons dated 19 May 2016, the plaintiff seeks judgment in default of defence with no order as to costs.

4.As the defendants could not be located, the plaintiff obtained orders for substituted service of the writ and the summons. The writ and the summons have been properly served by the mode of substituted service ordered.

5.The Defendants' Land is shown in Appendix 1 annexed to the statement of claim.  It comprises of a small portion of land of about 30 square feet.  It is surrounded by various lots of land which have been referred to as "the Plaintiff's Land" as pleaded at para 2 of the statement of claim and as shown in Appendix 1 to the statement of claim.

6.The law on adverse possession is well settled. The claimant has the burden to prove factual possession and an intention to possess the land.  The plaintiff has to establish on the balance of probabilities that it has had the exclusive use, occupation and enjoyment of the Defendants' Land and an intention to exclusively possess the Defendants' Land for 12 years prior to the commencement of the proceedings herein.

7.The evidence before me shows that in or about 1993, the plaintiff's predecessor in title to the Plaintiff's Land jointly developed the Plaintiff's Land and the Defendants' Land by erecting a commercial building now known as FWD Financial Centre.  FWD Financial Centre was erected on the Plaintiff's Land and the Defendants' Land without the consent or permission of the defendants.  By the assignment dated 1 March 2002, the plaintiff has acquired from the plaintiff's predecessor in title the FWD Financial Centre. This included the Defendants' Land.  The units in FWD Financial Centre were continuously let out.  There was never any claim made by or on behalf of the defendants of any interest in FWD Financial Centre.

8.I am satisfied on the evidence that after the purchase of the FWD Financial Centre by the plaintiff, the plaintiff has continued to have exclusive possession of it.  The plaintiff has also continuously let out units in FWD Financial Centre.  There was never any claim made by or on behalf of the defendants in respect of FWD Financial Centre or any part thereof.

9.I am satisfied on the evidence that, at least from 1 March 2002, the plaintiff has had the continuous use and occupation of FWD Financial Centre which includes the Defendants' Land, after the assignment made on 1 March 2002 up to the present time to the exclusion of the defendants.

10.The writ was issued on 22 December 2014. By virtue of section 7(2) of the Limitation Ordinance (Cap 347), the relevant period of limitation is 12 years from the date on which the right of action accrued.  I am satisfied that, at least by 1 December 2014, the defendants' right of action to recover the Defendants' Land would have expired.  By virtue of section 17 of the Limitation Ordinance, at the expiration of the period to bring an action to recover land, the title of that person to the land shall be extinguished.

11.Although it is not the normal practice of the court to make a declaration without a trial, it is not an inflexible rule.  I am satisfied that the court will grant a declaration if the plaintiff has a genuine need for the declaration sought.  I am satisfied on the evidence that the declarations sought are necessary for the purpose of the plaintiff proving its interest in the Defendant's Land in the intended sale of FWD Financial Centre.  On the evidence, the plaintiff is in the process of negotiating the sale of FWD Financial Centre and the negotiations are coming to a close.

12.I am satisfied that the plaintiff is entitled to the declarations sought and I make an order in terms of the summons dated 19 May 2016 with no order as to costs.

Mr C Y Li SC, leading Mr Lawrence Hui, instructed by Zhong Lun Law Firm, for the plaintiff

Both the 1^st and 2^nd defendants were not represented and did not appear