China East International Investments Ltd v. Occupier(S) of Premises and Another

HCMP 3438/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3438 OF 2015

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DECISION

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Introduction

1.By an Amended Originating Summons the plaintiff applied under Order 113 of the Rules of the High Court for an order that it recover possession of the Remaining Portion (“RP”) of Lot No 2855 and the Remaining Portion of Lot No 2857 in Demarcation District (“DD”) No 51, North, New Territories, Hong Kong (“the plaintiff’s land”) on the grounds that it is entitled to possession and that persons in occupation are in occupation without licence or consent.

2.Order 113, rule 1 states:

“Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.”

The parties’ respective cases

3.The plaintiff has been the registered owner of the plaintiff’s land since 9 October 2006.

4.The 2^nd defendant has been the registered owner of land adjacent to the plaintiff’s land, namely, 2835 RP, 2848 RP, 2859 RP and 2858 of and in DD No 51, North, New Territories (“the 2^nd defendant’s land”) since 11 October 1989.

5.The plaintiff alleges that, after 2006, without the licence or consent of the plaintiff, the 2^nd defendant has trespassed on the plaintiff’s land by erecting panel fences enclosing that land.

6.The plaintiff, through its solicitors, requested the 2^nd defendant to remove the fences and deliver vacant possession of the plaintiff’s land but the 2^nd defendant has failed to do so.

7.The 2^nd defendant’s shareholder is Mr Lui.  ‌The 2^nd defendant’s case is that, when it acquired the 2^nd defendant’s land, some of it was fenced off.  ‌In late 1989 or early 1990, Mr Lui instructed an employee, a Mr Kan, to instruct a contractor to erect metal fences and a metal gate around the land.  Because no survey plan was ever commissioned indicating the exact boundary of the 2^nd defendant’s land, Mr Lui could only indicate to Mr Kan the boundary of the 2^nd defendant’s land according to the best of his recollection, based on what he had been told by the previous owner of the 2^nd defendant’s land.

8.In an affirmation, Mr Kan stated that Mr Lui asked him to instruct a contractor to erect a stronger metal wire fence along the boundaries of the 2^nd defendant’s land.  ‌Mr Kan stated that he then instructed a contractorto erect fences and indicated the boundary of the 2^nd defendant’s land to the contractor as it had been indicated to him by Mr Lui, as best as he could recall.  In an affirmation, the contractor states that Mr Kan asked him in late 1989 or early 1990 to erect an iron fence and that he did so along the boundary indicated by Mr Kan, as best as he could recall it.

9.Mr Lui stated in an affirmation that, in addition to the wire fence erected by the 2^nd defendant, along part of the boundary of the 2^nd defendant’s land a panel fence has been erected by the 2^nd defendant’s tenants, although he is not certain when that happened.

10.The 2^nd defendant denies any encroachment but alleges that, if there is encroachment, then it has enjoyed the sole and exclusive possession of the plaintiff’s land to the exclusion of others since late 1989 or early 1990 and claims title by adverse possession.

11.The plaintiff submits that this is an appropriate case for an order under Order 113, rule 1 for two reasons.  ‌First, it has engaged a surveyor, King Fung Surveying Company, to prepare a plan, dated 29 February 2016, which shows that the plaintiff’s land has been fenced off and the defendants have not produced contrary evidence.  ‌Second, the 2^nd defendant’s claim of adverse possession is untenable for the following reasons:

(1)   the 2^nd defendant’s evidence contains contradictions;

(2)   the 2^nd defendant’s case is contradicted by its own tenancy agreements between itself and its former tenants;

(3)   there exist fences between Lots 2857 RP and 2848 RP which have not been explained;

(4)   lack of animus possidendi; and

(5)   the plaintiff’s claim is not time‑barred.

Disposition

12.Like the default and summary procedures under Rules of the High Court Order 13 and Order 14, Order 113, rule 1 normally applies only in virtually uncontested cases or in clear cases where there is no issue or question to try, ie, where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation of the land without licence or consent.  ‌To invoke Order 113 successfully, the plaintiff must show first that the disputed land is solely occupied by the defendant and that there is no issue to be tried.  ‌See: Direk ‌MahadumrongkulvLauChunKeung&ors (unreported) CACV 133/1998, 4 November 1998.

13.This is not an appropriate case to grant relief under Order 113 for the following reasons.

14.Regarding the survey plan prepared by King Fung Surveying Company, it is not supported by a report establishing matters such as methodology and assumptions and it is exhibited to the affirmation of one of the plaintiff’s directors.  A separate report, prepared by Rocky Fung Surveying Company, dated 27 February 2016, and exhibited to the director’s affirmation notes: “no boundary redefinition of the subject Lots found in [District Survey Office]” and “we could not find out any more official recordof boundary survey in respect of the subject lots from District Survey Office, North.”

15.In the absence of a report supporting the survey plan and in the absence of the production of the survey plan and the separate report through the experts themselves, I am not prepared to make a finding as to the location of the land boundaries or the fences in this application.

16.In any event, the issue of adverse possession is one which should go to trial for the following reasons.

17.Regarding the inconsistencies in the defendants’ evidence, there are apparent inconsistencies regarding when and where fences were erected but they should be resolved at trial because they are not such that there can be no plausible explanation for the inconsistencies.  ‌For example, the deponents use different terminology (“metal fence”, “iron fence”, “metal wire fence”) and I am not prepared to find on this application that their evidence is inconsistent rather than simply a matter of terminology.  ‌In any event, the inconsistencies are not such as to render the defence case implausible.  ‌Also, the contractor’s evidence corroborates the defendants’ case to the extent that a fence of some form was erected allegedly along the boundaries of the 2^nd defendant’s land.

18.Regarding the tenancy agreements, the plaintiff’s point is that the plans attached to those agreements do not show the plaintiff’s land, which supports the plaintiff’s case that there was no encroachment onto the plaintiff’s land before 2006 and the plaintiff’s land was not enclosed by fences in 1989.  ‌The plaintiff is correct to the extent that the plans do not show its land but, by itself, that is not determinative.  One should not draw from the tenancy agreements the inference that the 2^nd defendant did not encroach onto the plaintiff’s land until consideration has been given to the other evidence and issues, which consideration requires a trial.

19.As for the alleged unexplained fences, the plaintiff’s counsel submitted that there are fences inside the boundaries and submitted that it is bizarre that the 2^nd defendant would erect another fence inside the subject fences.  ‌The submission compares the plans attached to the tenancy agreements with the survey plan.  ‌However, it appears that the submission may be incorrect because certain dotted lines on the survey plan referred to by counsel do not appear to indicate a fence but a lot boundary.

20.The plaintiff’s animuspossidendi point is that, given the 2^nd defendant’s repeated denial of trespass and its case regarding the extent of its land as evidenced by the plans attached to the tenancy agreements the necessary ingredients of animus possidendi are absent because 2^nd defendant or Mr Lui was not aware that it was occupying the plaintiff’s land.  ‌Authority does not support the proposition that it is a necessary ingredient of animuspossidendi that a person must be aware that he is occupying another’s land.  A person needs to show only that, as a matter of fact, the possession was adverse to the interests of the paper or registered owner.  ‌See: ShineEmpireLtdvIncorporatedOwnersofSanPoKongMansion&ors [2006] 4 HKLRD 1 at §28 and J A Pye(Oxford)Ltd&anorvGraham&anor [2003] 1 AC 419 at §§36, 69.

21.Regarding time bar, the plaintiff submits that there was no encroachment when it bought its land in 2006 and vacant possession was delivered by its predecessor‑in‑title.  ‌Hence, the plaintiff’s claim, which was brought in 2015, is not time barred.  ‌For the reasons given above, whether there was encroachment is a matter of dispute which should be resolved after trial.

22.In conclusion, there are issues to be tried and it is not appropriate to grant relief on the present application under Order 113.

23.As an alternative, the plaintiff submitted that the court ought to order that this case proceeds by way of the originating summons, with cross‑examination of the deponents on their affirmations.  ‌I do not consider this to be a satisfactory approach.  The plaintiff has submitted that thedefendants’ evidence is inconsistent.  There are substantial disputes of fact.  The evidence and the issues joined are to be found in 10 affirmations,together with their respective exhibits.  As that is the position, then pleadings ought to be required in order to establish the parties’ respective cases.  In Re Estate of Chan Chung Han (unreported) CACV 216/2015, 29 April 2016 at §21, the Court of Appeal observed in respect of problems in that case:

“There were clearly substantial disputes of fact between the parties. That being the case, the originating summons procedure was unsuitable .... the use of that procedure and the absence of pleadings, with the consequence that the trial judge had had to ascertain the parties’ cases from the numerous affirmations and from submissions, might have caused some of the problems mentioned below.”

24.For these reasons I make the following orders:

(1)   the plaintiff’s application for a summary order for possession under Order 113 is dismissed;

(2)   orders in terms of orders 1 to 4 of the 2^nd defendant’s summons, dated 17 March 2016; and

(3)   a costs order nisi that the costs of the Order 113 proceedings, including all costs reserved, be paid by the plaintiff to the 2^nd defendant, to be taxed or agreed, forthwith.

Mr Anthony Cheung, instructed by Rene Hout & Co, for the plaintiff

The 1^st defendant was not represented and did not appear

Mr Martin Ho, instructed by Dundons, for the 2^nd defendant