Ip Ying Kung v. Louie Hong Sue Gay and Another

DCCJ 4719/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4719 OF 2015

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JUDGMENT

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Introduction

1.This is an adverse possession case, the plaintiff applies for a declaratory judgment by way of summons against the 1^st and 2^nd defendants.

2.The 1^st and 2^nd defendants are the registered owners of 3^rd Floor, No 53 Tai Kok Tsui Road, Kowloon (“the Property”).

The proceedings

3.The plaintiff commenced the action by way of a writ of summons filed on 16 October 2015 for declarations pursuant to section 7 of the Limitation Ordinance, Cap 347 (“the Ordinance”).

4.In the affirmation of Wan Lai Yee Mandy filed on 26 October 2015, Ms Wan attempted to contact the 1^st and 2^nd defendants via mail to their address in United States of America, the letter was returned because of inaccurate and incorrect address.  Ms Wan also conducted a probate search without positive results.

5.In the affirmation of Ip Ying Kung (the plaintiff) filed on 4 December 2015, the plaintiff deposed she did not know the whereabouts of the 1^st and 2^nd defendants and had no means to locate them.

6.An order of substituted service was given on 17 March 2016, the plaintiff was directed to serve the writ of summons on the 1^st and 2^nd defendants by way of advertising once in a Chinese newspaper circulating in Hong Kong.  The plaintiff has duly placed an advertisement on 29 March 2016.

7.Another order for substituted service was given on 18 May 2016, the plaintiff was directed to serve the notice of proceedings and the summons on the 1^st and 2^nd defendants by way of advertising once in a Chinese newspaper circulating in Hong Kong.  The plaintiff has duly placed an advertisement on 15 June 2016.

8.Neither did the 1^st and 2^nd defendants file an acknowledgement of service nor defence.  The plaintiff’s application was made pursuant to Order 13 rule 6 of the Rules of District Court, Cap 336H as if the 1^st and 2^nd defendants had given notice of intention to defend.

9.The present application is premised on Order 19 rule 7(1) of the Rules of District Court, Cap 336H.

“Default of defence: other claims (O. 19, r. 7)

(1)        Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 5, then, if the defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.” [emphasis added]

10.In this regard, the court cannot receive evidence but give judgment according to the pleadings alone. (See Hong Kong Civil Procedure 2016 commentaries in paragraph 19/7/11, citing Smith v Buchan (1888) 58 LT 710; Young v Thomas [1892] 2 Ch 135, CA). 

Amendment of the statement of claim

11.A minor typo mistake appeared in the statement of claim.  I grant leave to the plaintiff to file with court and serve on the 1^st and 2^nd defendants an amended statement of claim by way of substituted service.  The plaintiff has duly complied with the direction on 27 July 2016.  

Analysis

12.The relevant provision for adverse possession was amended in 1991. For any cases where dispossession of the land (or when the landowner has discontinued to use his land), the duration of adverse possession was abridged from 20 years to 12 years.  Section 7(2) of the Ordinance reads,

“No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

13.The plaintiff pleaded the following in the amended statement of claim, inter alia,

(i) The 1^st and 2^nd defendants and the plaintiff’s father entered into a written tenancy agreement with the agent/authorized person of the plaintiff, Lui Hon (or Lui Sum Hon) in or about September 1964 for a period of 5 years.

(ii) The plaintiff, her parents and siblings moved into the Property.  The plaintiff’s parents began to sublet part of the Property to sub tenants.

(iii) The tenancy agreement was renewed after its expiry and the plaintiff’s parents continued to pay rent.

(iv) The plaintiff was married in 1979 and had continued to live in the Property.

(v) The plaintiff’s father emigrated to Canada in 1983, the plaintiff continued to rent the Property from the 1^st and 2^nd defendants.

(vi) Since 2002, the 1^st and 2^nd defendants had failed to collect rent from the plaintiff.  The plaintiff paid rent to the agent of the 1^st and 2^nd defendants by mail but no rental receipts were received.  The plaintiff ceased paying rent from November 2002. She did not renew the tenancy agreement thereafter.

(vii) The plaintiff has been paying all management fees, repair and maintenance costs, electricity and water charges of the Property.

(viii) The plaintiff claimed she has been in uninterrupted and exclusive use, occupation and possession of the Property for a period of 12 years.

(ix) By reason of this, the defendants are barred from claiming or recovering the Property against the plaintiff pursuant to section 7 of the Ordinance.

14.The established principles in adverse possession are stated in Wong Tak Yue v Kung Kwok Wai David (1997-8) 1 HKCFAR 55.  The person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess.

15.The following was also pleaded in the amended statement of claim:-

(i) The plaintiff ceased to pay rent to the 1^st and 2^nd defendants from November 2002.

(ii) The plaintiff, her husband and her two children occupied the Property exclusively.

(iii) The plaintiff controlled the means of access to the Property by possessing the keys to the Property and keeping the doors locked.

16.I accept the pleaded facts in the amended statement of claim are sufficient to substantiate the plaintiff’s application.  Most importantly, the plaintiff was in possession of the keys, the only tool to gain access to the Property.  I am satisfied the plaintiff has both factual possession and requisite intention to possess the Property since 2002, ie for more than 12 years before the commencement of this action.  Albeit it is not the usual practice where declaration be granted without trial, it is nevertheless, an appropriate case to give declaratory judgment to the plaintiff in attaining fullest justice.

Conclusion

17.With regard to the foregoing, I make the following orders:-

(i) A declaration that the 1^st and 2^nd defendants’ title in respect of the Property has been extinguished and the 1^st and 2^nd defendants are barred from taking action against the plaintiff to recover the Property pursuant to section 7 of the Limitation Ordinance, Cap 347.

(ii) A declaration that the plaintiff is entitled to enter, retain the use and possess the Property by reason of adverse possession.

(iii) A declaration that the plaintiff has acquired a possessory title to the Property and is entitled to be the registered owner of the Property by virtue of the fact that the 1^st and 2^nd defendants’ title to the Property have been extinguished.

(iv) There be no order as to costs of this action, including the plaintiff’s summons filed on 15April 2016.

Mr Tim Wong, instructed by Mandy Wan & Co, for the plaintiff

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