Clover Garment Manufactory Ltd v. Djiauw Pok Kie

HCA 812/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 812 OF 2014

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D E C I S I O N

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Introduction

1.This is the plaintiff’s application (taken out in May 2016) for judgment in default of the defendant giving a notice to defend.  This action was itself commenced in May 2014.

Background

2.The relief sought in this application (as that sought in the amended statement of claim) is essentially that the plaintiff has acquired “possessory title” (by adverse possession) of the rooftop of a multi-storey factory building in Lai Chi Kok (built in about 1970) (“the subject building”).

3.The plaintiff is the registered owner of several units on the top floor of the subject building.  The defendant is the registered owner of the rooftop (among other parts) of the subject building.

4.As can be seen from the subject building’s deed of mutual covenant:

(a)   the defendant was the first owner of the subject building;

(b)   (as is usual for the sale of multi-storey buildings in Hong Kong) for the purpose of sale, the subject building has been allocated 95 equal undivided shares (there were 94 self-contained units);

(c)   individual “owners” of one such unit would be assigned one of the said shares.

From the above (and in the light of past experience of the courts regarding similar multi-storey buildings’ deeds of mutual covenant):

(1)   it can be inferred the defendant was probably the developer of the subject building;

(2)   as stated in the DMC, the defendant’s one share which was retained was for the “the flat roof on the Seventh Floor and the roof and other spaces” not assigned to any unit owners (recital (2), DMC).

This application (hearing on 7 June 2016)

5.A few words should be spent on the physical state of the subject building’s rooftop (“the subject rooftop”).  The description given below is gathered from photographs exhibited to the plaintiff’s supporting affirmation (“the plaintiff’s rooftop photos”).

6.As expected, it is essentially a piece of flat concrete slab (save for a few structures which will be described below).  There is no proper fencing, or other means of protection, to prevent people or objects from falling off the edges of the subject rooftop.  There is no proper basis for suggesting that the subject rooftop is reasonable safe for ordinary daily activities usually associated with properly fenced rooftops, such as holding social parties, or as a place for exercises, leisure or gatherings and the like.

7.The structures which can be seen on the subject rooftop are:

(a)   two “sheds” with a similar appearance: each “shed” is made of 4 vertical posts to which a rectangular shade (or roof) is attached;

(b)   a raised concrete platform occupying part of the rooftop.  It is unknown if the said platform is used for housing any equipment or other object(s).

8.Also found on the surface of the subject rooftop are some pipes.  The plaintiff does not dispute that these are pipes for the common use of the subject building.

9.The conduct which the plaintiff relies on as conduct of excluding others from (and hence an assertion of the plaintiff’s exclusive possession of) the subject rooftop was:

(1)   hanging and placing a plastic chain along the edges of the subject rooftop with the use of vertical posts.  Notices stating “危險請勿靠近” were also hung on the said posts;

(2)   placing air-conditioner units on the subject rooftop (these are mostly along the subject rooftop’s edges);

(3)   spending a substantial sum in 2000 to replace the water-proofing layer on the surface of the subject rooftop;

(4)   locking the only entrance to the subject rooftop.

The plaintiff has not asserted that there were other activities on the subject rooftop.  Because of the relatively unsafe state of the subject rooftop (described in para 6 above), it is highly doubtful if it is sensible for it to be so used.

10.In view of the matters mentioned above, the court drew the plaintiff’s attention to the Court of Final Appeal’s observations in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd (2007) 10 HKCFAR 588.

11.Those legally representing the plaintiff sought, and was granted, an adjournment to:

(a)   further consider this application;

(b)   if necessary, to take instructions from the plaintiff and to advise the plaintiff accordingly.

This application (hearing on 28 February 2017)

12.Before proceeding further, a few words should also be spent on the status of the defendant.

13.The defendant’s name, as appears on some of the documents exhibited by the plaintiff, is “DJIAUW POK KIE” in English, and “饒博基” in Chinese.

14.Shortly before the resumed hearing, a search was made on the internet of such a relatively uncommon name.  The search results showed a gentleman, probably an ethnic Chinese of Indonesia origin, with the same name in English and Chinese (“the dec’d individual”).  Some of the web links show that the dec’d individual (born in 1910) passed away in 1973 (about two to three years after the subject building was erected).

15.The plaintiff was shown the said search results obtained from the internet.  Nonetheless, it chose not to seek an adjournment to find out more about the new information; rather, it sought to rely on its earlier enquiry with the Hong Kong Births and Deaths Registry (which replied that there was no earlier record of the defendant’s death).  If the defendant was in fact the dec’d individual (who reportedly passed away in Indonesia), then the lack of a record of death is readily understandable.

16.It is of course for a litigant to decide whether to proceed with an application on the materials available at the time of its hearing, while some information which remains unresolved may have an adverse effect on the outcome of the application.  The litigant who decides to proceed ultimately bears the risks of any unfavourable result.

17.When the plaintiff was asked about the practical meaning of obtaining relief in this application, the plaintiff suggested that it would “regularize” the plaintiff’s title to the subject rooftop, and would add value to the plaintiff’s property.  However, no particulars have been given as regards the last-mentioned matter (let alone evidence in support thereof).

18.The facts of San Po Kong Mansion can be summarized as follows.

19.The building in question was erected in 1968. The respondent (of the final appeal) was its developer.  It was the party entitled to the exclusive possession of the roof (the defendant herein would be in a similar position if he was in fact also the developer).  Since 1995, the appellant (of the final appeal) began to grant licences to telecommunications companies for installing mobile phone transmission equipment on the roof.

20.The respondent commenced legal action against the appellant in 2001.  The action sought the possession of the roof, and for damages including the licence fees paid for the period from 1998 to 2001.  The claim was met by the appellant’s counterclaim that the respondent has been “dispossessed” by virtue of the Limitation Ordinance (Cap 347).

21.The appellant was unsuccessful in both the first instance court and the appeal court.  The Court of Final Appeal also dismissed the appellant’s appeal.  The principal reason for the court’s conclusion appears in para 27.  It reads:

“What clearly show that the appeal must fail are the alleged acts of possession relied upon. It can be seen from the judgment of [the court of appeal] that these plainly do not constitute or demonstrate the necessary factual possession or requisite intention to possess. The result is fatal however creative or inspired associated legal submissions may be”.

22.The alleged acts of possession have also been summarized by the Court of Final Appeal:

“(a) ‘allowing’ residents to use the roof for drying clothes, blankets and quilts and installing television aerials … ;

(b) holding gatherings for residents … ;

…

(d) maintaining sewage pipes and gutters and carrying out water proofing work … ;

(e)   building the management office on part of the roof …”

It can be inferred from para 12(a), (b), (d) and (e) of San Po Kong Mansion that the roof must have been reasonably safe for such uses. The judgment in fact mentioned “parapet walls” (para 18 thereof).  The erection of a central antenna by the appellant in 1995 was regarded by the court as “no more than individual acts of minor trespass to the parapet walls” which did not amount to an act of dispossession (para 18 thereof).

23.Compared to San Po Kong Mansion, the acts of the plaintiff were even more obscure.  The context in which this observation is made is the physical condition of the subject rooftop: as stated in para 6 above, it was not designed or built in a way which lends itself to be reasonably useful to anyone, except perhaps the incorporated owners of the subject building (“the manager”) (who may have to go up there from time to time to maintain and/or repair common facilities (such as the pipes)). 

24.The plaintiff frankly admits that it was obliged by the DMC to permit the manager to enter for the above-said purpose (clauses 12(a) and 12(c), DMC; para 24 to 27, plaintiff’s skeleton submissions). Although here I notice that one of the plaintiff’s affirmations also boldly asserts that it has earlier “permitted” the manager access to the subject rooftop to repair the common facilities (para 7, affirmation dated 24 May 2016).  (Because the manager has the right to enter to repair common facilities) at least this part of the plaintiff’s affirmation evidence is an over-statement of what has factually happened.

25.Finally, there is apparently a water-proofing layer on the subject rooftop.  The plaintiff’s affirmation mentioned both:

(1)   the manager was “permitted” to access the subject rooftop to repair it (para 8, affirmation dated 24 May 2016) (the date(s) of the access and the repair was/were undisclosed); and

(2)   the plaintiff itself spending a substantial sum in 2000 to repair it (para 2, affirmation dated 21 February 2017).

26.It is unclear if the two incidents concerned the same part(s) of the subject rooftop.  If so, it was doubtful if the legal obligation to repair the water-proofing layer was that of the manager or the plaintiff.  Here it has to be noted that the legal obligation of the manager to repair is usually limited to the common parts of the subject building.  Hence, this doubt therefore becomes an ambiguity as to whether the water-proofing layer was a common part, or a part of the subject building which is owned by an individual co-owner (such as the defendant, or even the plaintiff (who would benefit directly from the water-proofing layer)).

27.If the two incidents concerned different parts of the subject rooftop, (and adopting the same reasoning regarding “ownership” mentioned in para 26 above) it would render unclear the extent of the relief to which the plaintiff may be entitled.  In other words, the plaintiff’s alleged adverse possession, even if successfully established, does not extend beyond the part not owned by the defendant.

28.In The Port of London Authority v Tower Bridge Yacht and Boat Co Ltd [2013] EWHC 3084 (Ch), para 273-4, a failure by a claimant to properly identify the property allegedly adversely possessed is itself held to be a ground for refusing relief.

Conclusion

29.By reason of the matters set out above, this application is refused.

Other matters

30.The plaintiff’s written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Mr Erik Shum and Ms Queenie W S Ng, instructed by Sit, Fung, Kwong & Shum, for the plaintiff

The defendant was not represented and did not appear