Chan Yu Shan v. The Personal Representatives of the Estate of Cheung Ying Ha (Deceased) and Another

HCMP 2722/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2722 OF 2016

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D E C I S I O N

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1.This is a claim by the plaintiff for a declaration that he is entitled to the legal title to all of the property at 2^nd floor, 120A Fuk Wing Street, Kowloon.

2.He is already the legal owner by assignment of ²⁄₃^rd of the property on 30 October 1992.  The remaining ¹⁄₃^rd is in the names of two ladies who died in May and December 1987 respectively.  No grant of Probate or Letters of Administration has been taken out for their estates.

3.The plaintiff has been in de facto possession of that remaining one‑third of the property since the date of his own acquisition of title, nec vi, nec clam, nec precario.  He claims title by adverse occupation.  No one has challenged his occupation of that one‑third.  He has expended money on restoring the whole of the property which was damaged by fire before completion of the sale to him of his ²⁄₃^rd share in 1992.  He has renovated the whole and managed the whole for over 24 years now and has met the criteria for adverse possession.  He alone has paid for all the outgoings of the whole unit and complied with statutory requirements of the Building Authority.  I am satisfied that the plaintiff has evinced an intention to possess the property in its entirety, effectively the one‑third which he does not yet legally own, to the exclusion of all‑comers.

4.Every effort has been made to trace relatives and descendants of the two deceased title-holders and those who have responded have indicated that they are not interested in making any claim on behalf of the estate of either of them.  To cover every possible avenue, advertisements were placed in the Sing Tao newspaper by the solicitors for the plaintiff in October 2015.

5.The names appearing on the death certificates of the two deceased were also followed up with no concrete result save to confirm that the surviving relatives of Madam Leung were not willing to be involved or to apply for Letters of Administration to her estate.

6.Finally the Official Solicitor’s assistance was invoked to ascertain whether it was prepared to accept service of the Originating Summons.  The court made an order on 13 April 2017 to that limited effect.  Having complied with that order the Official Solicitor declared itself functus officio, very properly, and made it clear that it would not be entering an appearance for the two estates.  In so doing it stated that any judgment entered by the plaintiff would be a nullity and referred to In re Amirteymour, decd[1979] 1 WLR 63 (CA).  That case is however readily distinguishable and since the plaintiff is seeking a declaratory remedy is not pertinent.

7.The circumstances call for and justify finality.  The uncertainty of title and problems likely to be consequent upon further procedures in relation to the property must not be allowed to continue.

8.The plaintiff has proved his title and there is no challenge to it. On the basis of the facts and circumstances deposed to in the affirmation and supporting documents, he is entitled to the relief sought and I make the orders sought in order to give him title to the whole of the property.

9.There will be no order as to costs.

Mr Victor K H Chiu, instructed by Johnny K K Leung & Co, for the plaintiff

The defendants were not represented and did not appear