Lam Sai Wan v. Minloy Ltd

HCA 31/2014

[2018] HKCFI 2150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 31 OF 2014

_____________

_____________

Before: Deputy High Court Judge Saunders in Chambers

Dates of Written Submissions: 6 and 17 August 2018

Date of Decision on Costs: 21 September 2018

___________________________

DECISION ON COSTS

___________________________

1.On 23 July 2018, I handed down a judgment in this matter in which I found entirely for the plaintiff (“Mr Lam”), and made an order nisi that the defendant (“Minloy”) should pay Mr Lam’s costs in the usual way.

2.On 6 August 2018, Minloy made application by way of summons to vary the costs order.  Specifically, the application sought that costs incurred in proceedings prior to an amendment introduced by way of a Re-Amended Statement of Claim dated 18 October 2016 (“RASOC”), and a Re-Amended Reply and Defence to Counterclaim (“RARDC”), be to Minloy.

3.I have considered the written submissions made by each party in respect of the application.

4.The essence of the argument for Minloy is that the RASOC and the RARDC significantly changed the litigation goalpost to such an extent that there was a virtual restart of the proceedings at that time, and that all steps taken prior to 18 October 2016, were wasted or thrown away.

5.I reject that submission. 

6.The submission demonstrates a complete misunderstanding of the concept of adverse possession.  In an adverse possession claim the plaintiff fixes a date at which he says his adverse possession is complete, and then must prove that over the appropriate period prior to that date, he has been an adverse possession.  It will be sufficient if the plaintiff establishes any continuous period of 12 or 20 years (whichever is the relevant period having regard to the terms of the Limitation Ordinance, Cap 347), prior to that date.  If the adverse possession is proved to be complete prior to that date the claim will be established.

7.The steps taken on 18 October 2016 did not vary the date at which Mr Lam asserted his adverse possession was complete, neither, in reality, did it extend the period prior to that date.

8.That that is so is amply demonstrated by the decision of the Master on 18 October 2016 in which he said, at §22:

“ I do not accept that the proposed amendment will expand the temporal aspect of P’s claim. The original pleaded case is that P has been in possession of the land for a continuous period of 20 years immediately prior to the commencement of these proceedings. The amended version is that Plaintiff has been in possession of the land for a continuous period of over 20 years prior to the commencement of these proceedings. Both versions start from the time in about 1959. For the original version starting from 1959 to the commencement of the proceedings in 2014, a period of 55 years, P claims for a continuous period of 20 years without specifying which period of continuous time. Therefore, on the original version, the examination of the whole period of 55 years is still required. D’s interpretation of the period without regard to the ‘continuous period’ is too narrow. Now the proposed amendments will clarify the positions.”

9.It is plain that the argument that is now made in support of the application to vary costs is precisely the same argument that was made againstthe amendment.  Just as the argument failed before the Master so should now fail before me.  The arguments are in reality arguments in opposition to the proposed amendments, arguments which failed before the Master and will not be the subject of any further challenge.  It is simply not open to Minloy to now relitigate this issue.

10.As it transpired, Mr Lam was able to establish that his adverse possession was complete well prior to the commencement of the proceedings.  That has no impact on issues of costs.

11.The Master made an award of costs on the application for amendments and the costs occasioned by the amendments to Minloy.  Minloydid not appeal against that decision.  In effect, the present application seeks to review the costs award made by the Master. There is no proper basis upon which there should be any adjustment to that cost award.

12.In §23 of his decision, the Master made it quite plain that in fact no costs were being wasted as a result of the amendments. He said:

“ In fact, I learned from the parties that their respective experts had compiled their expert reports on the basis that the whole period from 1963 to 2014 should be covered. Since they agreed to the terms on which their experts should compile their reports, I do not accept that the proposed amendment will take D by surprise. Nor do I accept that further expert evidence will be required for the amended version.”

13.In his submission in support of the summons, counsel for Minloy did not specify any costs said to have been wasted.  It is plain from the foregoing statement by the Master, and indeed plain from his decision, that although the trial might have been delayed, there was no proper suggestion that any costs had been wasted.

14.For the foregoing reasons the application to vary the order nisi is refused.  Costs on the application be to Mr Lam, to be taxed if not agreed.

Written submission by Mr Wilfred Tsui, instructed by Stephen Lo & P Y Tse, for the plaintiff

Written submission by Mr Richard Leung, instructed by Henry Fok & Co, for the defendant