Ng Fuk Shing v. Ng Fuk Nam and Another
Read the full judgment text of HCA 611/2015 on BabelCite. This High Court CFI judgment was delivered on 16 November 2018.
1. The plaintiff (“ P ”) was the daughter-in-law of the late Ng Wai Fat (吳維發) also known as Ng Fat (吳發) (“ Ng Fat ”). Ng Fat had 2 sons, P’s husband Ng Chi Keung (吳志强) (“ Ng Chi Keung ”) who passed away on 19 October 1978 and Ng To Bo (吳土保) (“ Ng To Bo ”) who passed away on 21 June 2010. The 1 st defendant (“ D1 ”) is one of the sons of Ng To Bo, and the 2 nd defendant (“ D2 ”) is D1’s wife.
Cited by 3 cases · Cites 7 cases
|
HCA 611/2015 [2018] HKCFI 2528 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 611 OF 2015 ________________________
____________ Before: Deputy High Court Judge Marlene Ng in Chambers Date of Hearing: 13 February 2018 Date of Handing Down Decision: 16 November 2018 _______________ DECISION _______________ I. INTRODUCTION 1.The plaintiff (“P”) was the daughter-in-law of the late Ng Wai Fat (吳維發) also known as Ng Fat (吳發) (“Ng Fat”). Ng Fat had 2 sons, P’s husband Ng Chi Keung (吳志强) (“Ng Chi Keung”) who passed away on 19 October 1978 and Ng To Bo (吳土保) (“Ng To Bo”) who passed away on 21 June 2010. The 1st defendant (“D1”) is one of the sons of Ng To Bo, and the 2nd defendant (“D2”) is D1’s wife. 2.P’s 4th son Ng Fuk Shing (吳福勝) (“Ng Fuk Shing”) had been assisting P in dealing with the present action and liaising with P’s solicitors on her behalf. P passed away on 7 May 2017. On 10 May 2017, I granted an order appointing Ng Fuk Shing as personal representative to represent the estate of P for the purpose of the present action, and directing that the proceedings be carried on against D1 and D2 (collectively, “Ds”) by Ng Fuk Shing as personal representative of the estate of P. 3.For the purpose of the Application before me (see paragraph 27(a) below), there was no dispute as to the following matters:
4.P claimed that in/about 1938 Ng Fat erected 2 temporary straw sheds (“Straw Sheds”) on the Green/Yellow Lands. On/about 20 May 1947, with a view to acquire the Green/Yellow Lands from the Government, Ng Fat leased Lot642 from the Government under New Grant No 2683 (“Lot642 Lease”). In 1948, Ng Fat on his own initiative/ effort demolished the Straw Sheds and built a single-storey building structure with half being a pitched roof house (金字頂屋) made of stones/ tiles for his own and his family’s (collectively, “NF Family’s”) accommodation (“Pitched Roof House”), and other half being a hut made of stones, mud and/or wood for use as pigsty/kitchen (“Hut”). From 1976 to 1979, Ng Liu Yung Kiu (NF Family’s then most senior member) initiated, decided and caused the Hut and later the Pitched Roof House to be rebuilt into House7 on the same site (ie Green/Yellow Lands) as explained in paragraph 3(c) above. 5.P claimed (a) House7 that encroached upon the Government Land was presumed to be an addition to Lot642 under the Lot642 Lease, so (b) House7 was built notionally on Lot642 and (c) was wholly subjected to the Lot642 Lease with its title/interest derived from or formed part of that of Lot642. After Ng Fat passed away, Ng Chi Keung and Ng To Bo respectively succeeded to half-share interest in Lot642. After Ng Chi Keung passed away, P succeeded to half-share interest in Lot642. P claimed Ng Chi Keung (and later P herself) and Ng To Bo (and later his estate by Ds) became co-owners of Lot642 and also House7 in equal shares. 6.But Ds disagreed Ng Chi Keung and/or P had any interest in House7, and averred House7 initially consisted of a single-storey mud house (“Mud House”) and single-storey wood house (“Wood House”) erected on the Government Land by Ng To Bo at his own cost, but in/about early 1970s Ng To Bo at his own cost demolished the Mud House and rebuilt a 2-storey Chinese-style tiled-roof house that was named after him as “保園” (“Tiled House”) meaning “吳土保家園”, and before/in 1976 Ng To Bo demolished the Wood House and rebuilt a concrete 2-storey building (“Concrete House”) which had since been extended to include the Yellow Land on Lot642. Ds further averred that in the 1980s Ng To Bo demolished the Tiled House to rebuild a new structure to merge and join with the Concrete House into a single 2-storey house that was the present House7. 7.Ds claimed that since about 1947 Ng To Bo and his family members (collectively, “NTB Family”)[1] had been in sole and continuous occupation of House7 situated on the Green/Yellow Lands to the exclusion of P and her family members. 8.But P disagreed the NTB Family ever had possession of House7 to the exclusion of P or her family members. P claimed that since building the Straw Sheds in/about 1938 and the Pitched Roof House and Hut in 1948 which were eventually rebuilt to became House7, the NF Family[2] resided at House7. After Ng Fat died in/about 1954, the NF Family[3] continued to reside at House7. P further claimed that in/about 1972, Ng Chi Keung, P and their children (collectively, “NCK Family”) moved away from House7 to live at House No 6 erected on Lot660 but they never discontinued possession of House7:
9.P claimed that by a Chinese written agreement dated 22 March 2009 (“1st Agreement”) signed/executed by Ng To Bo (as owner of half-share interest in Lot642 and House7) and P (as administrator of the estate of Ng Chi Keung that held the other half-share interest in Lot642 and House7), both sides agreed to jointly redevelop and rebuild the existing House7 (2-storey village house) into a new 3-storey village house. P further claimed the 1st Agreement expressly provided inter alia that (a) House7 was or was equivalent to Lot642, and (b) both parties shall jointly pay the premium for rebuilding House7 into a new 3-storey village house. 10.Ds disagreed, and averred that Ng To Bo entered into the 1st Agreement with P by mistake because (a) House7 was not and was not equivalent to Lot642, and (b) co-development could not be carried out on the Green Land being Government land. Ds further alleged P was barred from bringing any action in relation to the 1st Agreement by virtue of section 4 of the Limitation Ordinance Cap 347 (“LO”). 11.But P denied the 1st Agreement was entered into by mistake:
12.P also denied she was time-barred from bringing legal action relating to the 1st Agreement, and averred her cause of action herein in relation thereto did not accrue until about 15 December 2014 when Ds as executor, executrix and/or trustee of the estate of Ng To Bo evinced an intention not to perform the 1st Agreement. 13.P claimed that after the Assent dated 28 August 2009 (see paragraph 3(h)) she in her personal capacity owned half-share interest/right in Lot642 and House7, and was therefore entitled to possession of House7 as co-owner thereof. 14.Ds disagreed and averred that all along P and her family members lived at Lot660, and even if P had any interest in House7 (which Ds denied), they had dispossessed her and her predecessor-in-title of such interest within the meaning of section 8 of the LO on the basis that they had been in adverse possession of House7 for over 12 years, so by virtue of section 17 of the LO P’s title to House7 (if any) and to the Yellow Land had been extinguished and any right to claim for possession thereof was time-barred. 15.P disagreed, and further denied Ng To Bo or Ds ever had animus possidendi over the Green/Yellow Lands being land on which House7 was situated. Instead, by reason of P’s case outlined above and/or mutual understanding at all material times that House7 was, was equivalent to and/or formed part of Lot642, Ng Chi Keung (and after his death P) succeeded to half-share interest in Lot642 as well as in House7. 16.P claimed that by a Chinese written Declaration of Agreement dated 26 December 2011 (“2nd Agreement”) signed/executed by (i) Ds (as executor, executrix and/or trustee of the estate of Ng To Bo consisting of half-share interest in Lot642 and House7) and (ii) P with her son Ng Fook Hing (吳福興) (as and/or acting on behalf of the owner of the other half-share interest in Lot642 and House7), it was agreed, acknowledged and/or declared by the parties thereto inter alia as follows:
17.Ds claimed they entered into and signed the 2nd Agreement (which did not mention Lot642) by mistake since (a) House7 could not be rebuilt into a new 3-storey building (with a roof) having a floor area of 500 sq ft on each level at its original site on the Green Land being Government land, and (b) all clauses of the 2nd Agreement including clause 5 thereof (“Clause 5”)[4] could not be carried out by reason of (a) above. Ds claimed that Clause 5 (which could not be carried out) was a pre-condition for the alleged redevelopment, so even if the 2nd Agreement was valid (which Ds denied), they were not obliged to perform such agreement, or alternatively such agreement was liable to be terminated by reason of the fact the development fee for one party exceeded $2,000,000. 18.P disagreed (a) the 2nd Agreement was entered into by mistake, (b) Clause 5 constituted/imposed a pre-condition for the redevelopment of House7 and/or (c) the building costs payable by one party ever exceeded $2,000,000. P further averred the 1st/2nd Agreements were binding on him, the estate of Ng To Bo and Ds (as executor, executrix and/or trustee of the estate of Ng To Bo), and claimed Ds in such capacity were in breach of the 1st/2nd Agreements in failing/refusing to take any step to proceed with joint redevelopment of House7 or to make joint application for payment of premium for such purpose. 19.Ds denied P’s aforesaid claims, and averred the 1st/2nd Agreements were void, liable to be terminated, not enforceable or binding against them. Without prejudice to Ds’ defences outlined above, Ds’ solicitors Hau, Lau, Li & Yeung (“HLLY”) wrote to P’s solicitors Simon C W Yung & Co (“SCWY”) to give notice of termination of the 2nd Agreement on the ground that the development fee for one party exceeded $2,000,000. 20.P disagreed the 1st/2nd Agreements were void, liable to be terminated or unenforceable against Ds, and averred the building costs of House7 payable by one party would not exceed $2,000,000, so no party, including inter alia Ds, was entitled to terminate the 2nd Agreement on such alleged ground or at all. By a letter dated 10 June 2016 from SCWY to HLLY, P rejected Ds’ purported termination of the 2nd Agreement or the building plan. 21.By a letter dated 15 December 2014 by HLLY to P’s then solicitors Messrs KC Ho & Fong (“KCHF”), Ds (as executor, executrix and/or trustee of the estate of Ng To Bo and/or in their personal capacity) alleged (a) Ds and their family members had resided at House7 for more than 60 years and had acquired a possessory title to the same, and (b) P had no interest in House7. 22.But in a further letter dated 2 February 2015 by SCWY to HLLY, P complained Ds failed/refused to acknowledge the 1st/2nd Agreements, to cooperate with P to proceed with redevelopment of House7 and/or to vacate any one of the 2 storeys at House7 (“Storeys”) and deliver the same for P’s use, occupation or enjoyment. Ds claimed that HLLY’s letter to KCHF dated 15 December 2014 already evidenced their denial of such allegations. II. PROCEEDINGS 23.On 24 March 2015, P commenced the present action against Ds as executor and executrix of the estate of Ng Bo To and in their personal capacities. P claimed (but Ds denied) that unless restrained by court order Ds evinced an intention (a) not to perform the 1st/2nd Agreement(s) or to proceed with redevelopment of House7, and (b) to continue to reside at both of the 2 Storeys of House7 and to refuse to vacate either of the 2 Storeys (ie about half part of House7) for P’s use, occupation or enjoyment, and that (as Ds in their personal capacities wrongfully failed/refused to vacate either of the 2 Storeys and wrongfully deprived P of her enjoyment of such Storey or half part of House7) they were liable to P for loss/damages being mesne profits at such rate to be assessed from 30 January 2015 to date of delivery of possession of one of the 2 Storeys or half part of House7 for P’s use, occupation or enjoyment. P therefore asked for the following reliefs:
24.On 28 July 2016, Ds filed their AD&C without prejudice to their right to strike out all/part of any of P’s pleaded claims. Ds counterclaimed on the basis that if P had any interest in House7 (which they denied), they had dispossessed her of such interest and also her interest in the Yellow Land (being part of Lot642) as they had been in adverse possession thereof for over 12 years. Ds asked for (a) a declaration that they had acquired possessory title to House7 and the Yellow Land such that P’s right to bring action in relation thereto had become statutorily barred and P’s title in relation thereto (if any) had been extinguished, and (b) possession of House7 and the Yellow Land. 25.On 15 August 2016, P filed her Amended Reply and Defence to Counterclaim to deny (a) Ds’ counterclaim and/or (b) Ds had been in adverse possession of the Yellow Land for a period of no less than 12 years before the commencement of the present action. III. SUMMONS 26.On 20 December 2016, Ds filed a summons (“Summons”) to seek the following reliefs:
27.The questions of law set out in the Schedule were as follows:
In a nutshell, the proposed questions of law to be tried as preliminary points of law before trial could be summarised as follows: (a) whether House7 was part and parcel of the Green Land on which it was situated and/or which was owned by the Government, and (b) if so, whether House7 could be made subject to the interests that P claimed against Ds in the present action. Mr Khaw SC (and Mr Koo and Mr Chan with him), senior counsel for P, confirmed that subject to disagreement over the precise demarcation of the boundary of Lot642 P had no quarrel with the 3 facts posed in the 1st Question (“3 Facts”). It was also accepted that House7 was situated mostly on the Green Land, and only a small part of House7 was situated on the Yellow Land. 28.On 20 December 2016, Ds filed D1’s 3rd affirmation (“D1 3rd Aff”) in support of the Application. On 28 December 2016, P filed Ng Fuk Shing’s 2nd affirmation (“NFS 2nd Aff”) in opposition. 29.By the order of Master J Wong dated 4 January 2017, the Application was adjourned for argument with costs reserved. On 10 May 2017, I further adjourned the Application for further directions hearing and made ancillary case management directions. Such directions hearing was scheduled to be heard on 19 July 2017. On 21 June 2017, I made an order by consent to vacate such directions hearing, and adjourned the Application for argument before this court with ancillary case management directions. Such hearing for argument came before me on 13 February 2018 (“Hearing”). IV. AFFIRMATION EVIDENCE 30.Ds The D1 3rd Aff claimed P’s estimation of the length of trial in P’s Timetabling Questionnaire dated 14 April 2016 was about 5-6 days involving 8 witnesses (ie 6 from P and 2 from Ds). But D1 claimed the proposed trial of preliminary issues based on uncontroverted evidence and involving only legal arguments would at most require a half-day hearing and would effectively dispose of the present action thus obviating a full trial. 31.D1 reiterated/verified Ds’ case as outlined above, and added there were no title deeds for House7, including any Building Licence, Letter of Compliance, Consent to Occupy or Occupation Permit, that permitted House7 to be built on the Green/Yellow Lands (“Title Deeds”). D1 believed there was need to determine the 1st/2nd Questions, but since the 3 Facts were proved by uncontroversial documents, the questions of law in the Schedule were suitable for determination without full trial, so if the 1st/2nd Questions were determined in Ds’ favour, it would follow the 1st/ 2nd Agreements that P relied on could not be carried out. 32.So by a letter dated 31 October 2016, HLLY proposed to SCWY to dispose of the present action by trial of preliminary issue of law under Order 33 of the Rules of the High Court (“RHC”), but by their reply letter dated 4 November 2016 SCWY declined such proposal saying that notwithstanding House7 was mostly built on the Green Land, there were questions inter alia as to whether or not (a) House7 indeed formed part of Lot642 and/or its title/interest was derived from Lot642, (b) the Government would agree to (a) above and to rectify the situation by way of “surrender and re-grant”, and (c) at all material times the parties mutually accepted House7 as Lot642. 33.P The NFS 2nd Aff reiterated and verified P’s case as outlined above. It also exhibited (a) copy letter dated 6 December 2013 from the District Lands Office, Islands (“DLO”) to P whereby it was said the Government acknowledged House7 was covered (涵蓋) by Lot642, and (b) 2 letters dated 6 July 1984 by the DLO and dated 28 May 2008 by the District Survey Office (“DSO”) whereby it said the Government was prepared and agreed to rectify the situation by way of “surrender and re-grant” since 1979. 34.Ng Fuk Shing claimed he was advised that the Application had no merit, and he believed the Summons was filed shortly before the hearing of the summons on expert evidence to further delay the present action. Ng Fuk Shing added that the 1st/2nd Questions were not true questions of law, but were fact-sensitive questions that would involve finding of facts and complicated legal arguments (see paragraph 32(a)-(c) above). V. LEGAL PRINCIPLES 35.Preliminary issue Order 33 of the RHC provides that:
36.The general rule is that all disputes should be tried together, and generally speaking an order for separate trial for separate issues should only be made in exceptional circumstances or on special grounds.[5] The Court of Appeal in Lee Yiu Kwan v Ting Yin Wah[6] set out a convenient summary of some of the principles relevant to the exercise of the court’s discretion to deal with preliminary issues of law as referred to in Hong Kong Civil Procedure 2004:
37.Land For the purpose of the Application, Mr Khaw SC had no quarrel with the legal principles set out in paragraph 19-25 of the written submissions dated 4 May 2017 by senior counsel for Ds Mr Cooney SC (and Ms Shek with him), and accepted that House7 was affixed to the land (ie Green/Yellow Lands) and became part and parcel of such land itself. Given Mr Khaw SC’s confirmation, I do not propose to set out the legal principles helpfully summarised in Mr Cooney SC’s written submissions. But in light of the development of Mr Cooney SC’s oral submissions at the Hearing, it is useful to highlight the point that “[the] subjective intention of the parties cannot affect the question whether the chattel has, in law, become part of the freehold”,[10] and “…… the object or purpose of annexation …… is not assessed by the subjective intent of the person who brought or built the structure there ……”.[11] 38.Encroachment There is a rebuttable presumption that a tenant acquires possessory title for his landlord provided that the relevant land is close to and occupied with the land demised under the tenancy, which presumption applies during the term of the tenancy and not just following its determination.[12] The applicable legal principles have been definitively stated by the Court of Final Appeal in Secretary for Justice v Chau Ka Chik Tso.[13] Lord Scott of Foscote NPJ explained the encroachment presumption as follows:
At pages 930-931, he further explained that where the encroachment presumption cannot be or has not been rebutted, the consequences will depend upon what, if any, action is taken by the owner of the encroached-upon land in response to the encroachment:
VI. DISCUSSION 39.Mr Cooney SC submitted since House7 was a fixture and part and parcel of the land on which it was situated, then under common law whoever owned such land should also own House 7. It was said that since (a) House7 was situated mostly on the Green Land and only a small part of House7 was situated on the Yellow Land, and (b) the Green Land was unleased and unallocated Government land with no Title Deeds, Government lease and/or “surrender and re-grant” by the Government to transfer ownership of such land with House7 to any party, the Government as the owner of the Green Land was also the owner of House7 situated on and being part and parcel of such land. On such basis, Mr Cooney SC argued it was unnecessary to resolve the factual dispute as to who actually built or rebuilt House7 as such determination would not change the fact House7 became part and parcel of inter alia the Green Land once it was built or rebuilt, which matter had to be viewed objectively and would not turn on the subjective intention of the builder. 40.For the first part of the 1st Question, ie whether House7 was part and parcel of the Government Land, Mr Khaw SC had little quarrel with the legal analysis in the above paragraph (see also paragraph 27 above). Thus, insofar as House7 was situated on the Green Land, it was annexed to and became part and parcel of such land. But as conceded by Mr Conney SC in his written submissions dated 29 January 2018, part of House7 (albeit a small part) stood on the Yellow Land which was co-owned by P and Ds as tenants-in-common under the Lot642 Lease, and the Government’s reversionary interests would only fall in upon expiry or termination of such lease. Thus, adopting the logic of Mr Cooney SC’s arguments in the above paragraph, it was at the very least arguable that part of House7 (albeit a small part) situated on the Yellow Land was annexed to and became part and parcel of such land that belonged to P and Ds as tenants-in-common and not to the Government such that even for the 1st part of the 1st Question House7 would not necessarily be entirely part and parcel of the Green Land. 41.Based on analysis in the above paragraph, it was also not easy to see how the 2nd part of the 1st Question, ie whether House7 was owned by the Government, could be crisply answered in the affirmative. It was common ground that House7 was a single building structure with no suggestion by either party that it could or should be physically severed/partitioned into separate portions on the Green Land and Yellow Land. Subject to Ds’ averment of adverse possession by them against P in their counterclaim, Ds also did not suggest that as between P and Ds part of House7 that stood on the Yellow Land was in any way objectionable. Ds had no or no adequate answer to such observations save to say that resolution of the 1st/2nd Questions in relation to the Green Land would resolve a substantial part of the present action. I am not persuaded this was any sufficient answer since the court would have to resolve the proprietary and/or possessory status of the Yellow Land and part of House7 that stood thereon. Bearing in mind the indivisibility of House7 and the disputed history in relation to the erection/occupation of House7 and the previous structures, I am unconvinced a full trial on such broad range of matters would be obviated by trial of preliminary issues premised on the 1st/2nd Questions. 42.Subject to the discussion in paragraphs 40-41 above, I now turn to deal with the Green Land which was the focus of Mr Cooney SC’s submissions in relation to the 2nd part of the 1st Question. The essential thrust of Ds’ arguments was that since House7 was situated mostly on the Green Land and was thereby annexed to and became part and parcel of such land, House7 (or at least the bulk of it) was therefore also owned by the Government, and P fell into error in pursuing her claims in the present action against Ds when she did not assert squatter rights over such land by way of adverse possession and/or encroachment presumption. It was said the court could only decide whether P had a right in respect of the Green Land if she raised a proper claim against the Government (and not against Ds), and as neither P nor Ds (a) were the owner of the Green Land or (b) made any claim for adverse possession against the Government in relation to such land, P’s claims against Ds were misconceived. 43.In light of such arguments, it would be necessary to revisit P’s pleaded claims. As Mr Cooney SC in his oral submissions recognised, there were 2 strands to P’s case, ie the contractual strand and proprietary strand. For the former contractual strand, P’s claims against Ds were essentially based on Ng To Bo’s alleged breach of the 1st/2nd Agreements in relation to the intended redevelopment of House7, and P sought inter alia specific performance of such agreements. I will return to this in paragraphs 74-80 below as it is more useful to address the proprietary strand first. Having carefully considered P’s pleadings, I find it incorrect to say P did not rely on adverse possession and/or encroachment presumption. In my view, P’s pleas summarised in paragraphs 5(a)-(c), 11(a) and 15 above (see also paragraph 32 above) squarely raised the encroachment presumption, ie whether P/Ds and their predecessors by their continuous and exclusive possession, use and occupation of House7 (that partly stood on the Yellow Land and partly encroached upon the Green Land that was adjacent to Lot642) for more than 60 years would cause the encroached-upon Green Land on which the bulk of House7 stood to become an addition to Lot642 coterminous with the Lot642 Lease (that would expire only in 2047) such that House7 in its entirety (situated on the Green/Yellow Lands) was subjected to such lease for the benefit of the Government qua landlord.[14] 44.Mr Cooney SC thought P’s pleas summarised in paragraphs 5(a)-(c), 11(a) and 15 above merely asserted the subjective intention of the person (Ng To Bo according to Ds or Ng Fat and/or Ng Liu Yung Kiu according to Ps) who built the house (House7) on another’s land (Green Land owned by the Government) and who made unilateral claim that he built such house notionally on his own land (Yellow Land), which was said to be irrelevant to the issue of ownership of House7 and contrary to established principle (see paragraph 37 above), so P’s claims against Ds were bound to fail. 45.Mr Cooney SC further submitted that likewise P’s allegation that she and Ds mutually understood House7 was equivalent to and/or formed part of Lot642 could not bring the matter further because (a) House7 was clearly not Lot642, and (b) even though Ng Fat and Ds entered into the 1st/ 2nd Agreements one of which explicitly stated P and Ng Fat agreed that House7 was Lot642, such mutual understanding would not provide any legal basis for claiming (and/or were irrelevant for determining) ownership of House7 on the Green Land. On such basis, Mr Cooney SC argued it would be unnecessary for the court to make findings as to whether the parties had such mutual understanding. Mr Cooney SC went on to say for the same reasons explained above, P’s pleas summarised in paragraphs 5(a)-(c), 11(a) and 15 above did not give rise to any presumption that the Green Land was an addition to Lot642 under the Lot642 Lease or that House7 in its entirety was “subjected to the [Lot642 Lease] and/or its title and interest derive from, or form part of, that of [Lot642]”, which was merely P’s subjective/unilateral belief when (i) there were no Title Deeds for House7 and (ii) the Government never made such presumption. 46.Whilst I agree P’s reliance on the adverse possession which underlined the encroachment presumption summarised in paragraphs 5(a)-(c), 11(a) and 15 above could have been pleaded with more elegance, there was nothing unclear in P’s pleadings about her reliance on such matters as explained in paragraph 43 above. Unfortunately, Ds by their monocular focus on the principles for excluding subjective intent/understanding of the propose of annexation of the chattel / fixture to the land (see paragraph 37 above) misunderstood P was not relying on squatter rights when in fact P essentially asserted she and Ds together had squatter rights over House7 on the Green Land that were good against all save and except that such encroachment was coterminous with the Lot642 Lease for the benefit of the Government qua landlord in respect of Lot642. 47.This immediately raised query as to whether the 2nd part of the 1st Question, ie whether House7 was owned by the Government, could be easily answered in the affirmative when (a) part of House7 was on the Yellow Land that belonged to P/Ds and not to the Government who only had reversionary interests in such land (see paragraphs 40-41 above), and (b) part of House7 was on the Green Land that was unleased and unallocated Government land but that (on P’s case) might arguably be subject to potential claim of possessory interests by P and Ds at the same time as a result of the encroachment presumption (see paragraphs 43 and 46 above). 48.In my view, the fact House7 (which had no Title Deeds) was situated mostly on the Green Land and became part and parcel of such land would not offer any absolute answer for such fact of itself would not prevent squatter rights from accruing over the Green Land and House7 on which it stood. Lee Bing Cheung v Secretary for Justice also concerned a piece of unleased and allocated Government land that adjoined a leased lot. It was held that the squatter owned the house units that straddled the leased lot and Government land as (a) he and his family moved into and occupied/used the house that stood over the Government land more than 60 years ago, and (b) they had continuous/exclusive possession of the leased lot and Government land which was encroached upon for over 60 years for the benefit of the Government qua landlord.[15] 49.I further find there was nothing in Ds’ complaint that the Government never asserted the encroachment presumption. Here, on P’s case (as in Lee Bing Cheung), the Government was the owner of the unleased and unallocated Government land, but it was said P and Ds as co-squatters and their predecessors (but the plaintiff in Lee Bing Cheung was a sole squatter) by encroaching upon the Government land adjacent to the leased lot dispossessed the Government as owner of the adjacent Government land.[16] In my view, such encroachment claim is necessarily made by the squatter rather than by the dispossessed owner. Indeed, Lord Scott of Foscote NPJ at pages 930-931 in Chau Ka Chik Tso explained it was for the squatter to raise the encroachment presumption and the consequences would depend upon what, if any, action was taken by the owner of the encroached-upon land in response to the encroachment. If the owner did nothing even up to the expiry of the limitation period, the owner would simply be unable to recover possession of that land until termination of the demise whereupon the squatter/tenant would be bound by the unrebutted presumption to deliver both the leased lot and encroached-upon land to the owner (see paragraph 38 above). 50.In coming to the above views, I have carefully considered 2 further matters, one of which was raised by Mr Cooney SC and the other was not (which I will deal with briefly for completeness). 51.In relation to the latter matter, P claimed she and Ds were co-owners of House7 and as such co-squattors (in contra-distinction to the plaintiff in Lee Bing Cheung being a sole squatter) they had squatter/possessory rights over the Green Land on which the bulk of House7 stood pursuant to the encroachment presumption. P’s such case was premised on her factual contentions that (a) Ng Fat built the Straw Sheds and later replaced them with the Pitched Rood House and Hut, (b) Ng Liu Yung Kiu caused such structures to be rebuilt into House7, and (c) Ng Chi Keung / Ng To Bo and later she / Ds were all successive squatters of House7 (or the bulk thereof) on the Green Land. 52.As explained in Jourdan QC and Radley-Gardner, Adverse Possession, “[possession] of land – the effective control of the land – can be exercised jointly by two or more persons” but it cannot be exercised severally,[17] and where more than one squatter has possession at the same time, the possessory title they acquired is held as joint tenants in the absence of evidence of a contrary intention.[18] On P’s case that P and Ds together and their predecessors encroached upon the Green Land and had continuous/exclusive occupation, use and enjoyment of the bulk of House7 that stood on such land pursuant to the encroachment presumption for the benefit of the Government qua landlord of Lot642 as explained in the above paragraph, there appeared to be basis on P’s case to say the prima facie view that P and Ds did so as joint tenants was subject to “contrary intention” that they did so as tenants-in-common sharing unity of possession (since the encroachment was subject to the Lot642 Lease). It is unnecessary for me to come to any definitive view, but this demonstrated there was arguable basis on P’s case (subject to eventual findings of fact for establishing the encroachment presumption) to say P and Ds were co-owner squatters over the Green Land and the bulk of House7 that stood thereon. 53.For the other matter raised by Mr Cooney SC, he argued that P could/should direct her complaints/contentions in relation to squatter rights and encroachment presumption towards the Government and not Ds. Ds claimed it was sufficient for them to show House7 was part and parcel of Green Land which meant it belonged to the Government. I reiterate paragraphs 40-41 above in relation to the Yellow Land. But even if I were to focus on the Green Land, I am not persuaded by Ds’ contentions. 54.To put P’s case/contentions in context, it is necessary to return to the fundamental concept of “title” or estate ownership (ie an estate in land of some particular duration) in land law. I have set out the basic principles in Nam Ching Wun a mentally incapacitated person by her next friend and daughter Lo Suet Yung Conny v Tsun Un Pawn Shop also known as Tsun Un Pawn Shop with Tang Yam Wan as trustee by Yeung Fook Mui and Tang Ying Ip (or Yip) as administrators of the estate of Tang Pui King alias Tang Yum (or Yam) Wan alias Tang Kin Cheung, deceased as follows:[19]
55.In my view, if (as P alleged on her case) P/Ds were in continuous and exclusive possession of House7 and also the Yellow Land (in their capacity as registered/beneficial co-owners) and Green Land (in their capacity as co-squatters by way of encroachment) on which House7 was situated for over 60 years, P and Ds would have possessory title to House7 and the Yellow/Green Lands coterminous with the Lot642 Lease that would be good against all except those who could show a better title, and they would be able to evict any trespasser/stranger into House7 and/or even exclude the Government qua landlord who only had reversionary interests upon expiry/termination of the Lot642 Lease (see the explanation by Lord Scott of Foscote NPJ in paragraph 121(1)-(2) at pages 930-931 of Chau Ka Chik Tso – see paragraph 38 above). Whilst this was something that could be raised with Government if P wish to assert possessory title against the Government and to exclude the Government qua landlord, on P’s case, each of P and Ds as a co-owner having unity of possession was entitled to evict trespassers/strangers without the necessary concurrence of each other.[20] In my view, since “title” is relative between competing claimants and is good against all except one with a better title or, to put in another way, a better right to possession, P was not confined to directing her contentions against the Government and no other. 56.This is echoed and explained in Megarry & Wade, The Law of Real Property as follows:[21]
57.On the basis of P’s case, if she failed to prove the necessary factual elements for the encroachment presumption to bite in respect of the Green Land and part of House7 situated thereon,[22] the Government (if she wished) might be entitled to take action (if not time-barred) to recover possession of the Green Land against P and Ds, but on the principle of relativity of title between rival claimants as explained above, P and Ds as co-owners in actual possession of House7 situated on the Green Land could rely on the fact they were in possession (which was equivalent to ownership as against all persons who had no better right – see paragraph 56 above) to either jointly or singly evict trespassers/strangers[23] without need to involve the Government. 58.But if P was able to prove all necessary requirements for the presumption of encroachment in favour of P and Ds to bite, then until the Government’s reversionary interests fall in upon expiry/termination of the Lot642 Lease, there would be good arguable basis for P to contend the Government did not own House7. The nature of a squatter’s “possessory title” has been explained in Nam Ching Wun as follows:
But irrespective of the encroachment presumption, if P’s and Ds’ possession were disturbed by a stranger (eg another occupier), they could sue on the strength of their possession. It was only when such stranger laid claim to the Green Land and the bulk of the House that stood thereon by a title of his own or by title in a third party through whom he claimed that he could put P’s and Ds’ possession in issue.[25] 59.Mr Cooney SC sought to distinguish Nam Ching Wun as a claim by third party squatter over land owned by co-owners, which issue did not arise in the present action. But I referred both parties to such authority for the legal principles discussed therein (see paragraphs 54 and 57 and footnote 20 above) and not for its case-specific factual matrix, and Mr Cooney SC did not say whether and/or how the legal principles outlined in the Nam Ching Wun fell into error. 60.In light of the aforesaid analysis, the crux of the matter turned not so much as who was the paper-title owner of the Green Land and the owner of the bulk of House7 thereon, but who was in actual possession thereof. P’s case was that both P and Ds were co-squatters in actual possession of such land/structure, and such possession would give them rights to evict third party trespassers/strangers, and also to exclude the Government until expiry/termination of the Lot642 Lease if (as P alleged) the encroachment presumption was established and not rebutted. There would not be a simple answer to the issue of P’s and Ds’ adverse possession as alleged under P’s case, and such issue raised a whole bevy of factual questions that could not be resolved by answering the 1st Question, eg the precise boundary of Lot642, the precise location of House7 within and outside Lot642, factual possession of House7 and relevant lands by P and Ds and their predecessors, intention to possess by P and Ds and their predecessors, etc (see also paragraph 65 below for discussion on burden and standard of proof). Such factual issues were compounded by Ds’ denial that P had possession of the Green Land and House7, and it is appropriate that I now turn to the relationship between P and Ds inter se which is linked to the 2nd Question. 61.Turning first to the Yellow Land and part of House7 thereon, Mr Cooney SC submitted that co-ownership of the Yellow Land pursuant to the Lot642 Lease was irrelevant to encroachment upon the Green Land by erection/occupation of House7,[26] so there was no need to go into any factual issues, eg who built House7, who lived at House7 for how long, what was the nature of such occupation etc. But in my view P’s and Ds’ co-ownership of the Yellow Land and part of House7 that stood thereon could not be irrelevant for it raised disputed issues in relation to such land/structure themselves (see paragraphs 40-41 above), and it was not simply a matter of impact on the Green Land. Indeed, Mr Cooney SC in his oral submissions conceded that answers to the 1st/2nd Questions would not resolve the situation with the Yellow Land, and there would still be outstanding issues to be resolved in the present action. 62.Turning to the Green Land, as explained above, the legal analysis was much more nuanced than the attractive simplicity of Mr Cooney SC’s contention that House7 was necessarily owned by the Government because a significant part of such structure was a fixture that became part and parcel of the Green Land. I have viewed the matter from the prism of P’s case, and have come to the view that I cannot be confident that the 2nd part of the 1st Question could be answered with such clarity that it would obviate the need for a full trial. As alluded to above, it would be useful to also consider the matter from the prism of Ds’ case, which would tie in with the 2nd Question, ie whether House7 could be subjected to the interests claimed by P against Ds in this action. 63.I should point out at the outset that given the way the 2nd Question was framed, it would be unnecessary to address such question unless the answer to the 1st Question was in the affirmative in Ds’ favour. In light of my conclusions over the 1st Question, consideration of the 2nd Question should fall away, but for completeness I still proceed to consider Ds’ contentions as follows:
64.In respect of Ds’ allegations in paragraph 63(a) above, I note Ds’ alleged dispossession was not against a stranger but against P as co-owner / tenant-in-common. Unity of possession is an essential feature of co-ownership that governs the rights inter se between the co-tenants that distinguished them from joint or separate ownership.[27] The relevant issue here was whether one tenant-in-common could dispossess another tenant-in-common over land in which they co-own and share unity of possession. According to The Law of Real Property,[28]
This was applied in Hong Kong in Tang Tak Sum v Tang Kai Fong[29] in which DHCJ Linda Chan SC accepted as a matter of law that a co-owner can establish adverse possession against his co-owner by proving ouster. For the purpose of establishing adverse possession, “[both] the fact of possession[30] and the intention to possess[31] are questions of fact, and in determining these matters the court has to assess all the circumstances. Further, the burden of proof is on the party claiming adverse possession, and the evidence he has to adduce must be compelling”.[32] But a co-owner (Ds) would have to go on to prove as a matter of fact some further act such as ouster to support his claim that he had dispossessed the other co-owner (P) of the co-owned land (Yellow Land) on which part of House7 stood. At this stage, material facts as to such act of ouster were not evident in the AD&C, but in any event these considerations would not be mere questions of law, and they would not lend happily to any straightforward answer to the 2nd Question that would obviate the need for a full trial. 65.Mr Cooney SC tried to downplay the impact of unity of possession by saying P did not assert any squatter rights in the present action, so whether P and Ds had unity of possession to maintain an adverse possession claim against the Government was neither here nor there. I reiterate the above discussions that showed P did assert squatter rights and encroachment presumption over the Green Land and the bulk of House7 that stood thereon. But it was Ds rather than P who claimed they had dispossessed P from the Yellow Land, and the unity of possession between P and Ds was relevant not just to the Green Land but also to the Yellow Land (held by P and Ds as tenants-in-common) and part of House7 that stood thereon to which, I am afraid, Ds had no or no adequate answer. 66.Turning to the debate on the Green Land and the bulk of House7 that stood thereon, Ds’ counterclaim when critically analysed boiled down to this:
67.I have considered Ds’ contentions in paragraph 66(a)-(b) above, and I have found they did not offer crisp answers to the 1st/2nd Questions. In my view, under Ds’ counterclaim on the basis that P had interest in House7 (presumably squatter’s rights since neither P nor Ds were the paper-title owner of the Green Land) which Ds denied in their primary case, Ds’ contentions in paragraph 66(c) above was essentially a plea of jus tertii, ie Ds (stranger with no title to the Green Land or the bulk of House7 thereon) alleged to have taken possession of the Green Land and the bulk of House7 thereon from P (party alleging squatter rights over such land/structure) by asserting the Green Land and House7 thereon were not P’s but the Government’s. I doubt whether a plea of jus tertii could be raised in such manner. At the Hearing, I drew senior counsel’s attention to the following succinct explanation in Megarry and Wade, The Law of Real Property:[33]
From the above, it appeared that the fact the squatter S (ie P) having no claim against the owner O (ie the Government) was neither here nor there because a stranger X (ie Ds) had to rely on some title of his own over the land (ie the Green Land)[34] or title through the owner (ie the Government),[35] and could not simply plead the land (ie the Green Land and the bulk of House7 thereon) was not S’s (P’s) but O’s (Government’s) for S’s (P’s) squatter rights were good against all other trespassers/strangers regardless of the position of O (Government). 68.If Ds on their alternative case wished to make good their plea of jus tertii, it was for Ds to join the Government (O) (whom Ds claimed to have better title than P) in the present action to feed such plea, failing which Ds might have difficulty as outlined above in making such plea. In such circumstances, I do not even need to consider Mr Khaw SC’s more general submissions that the Government should be joined as a party in the present action on the basis she “clearly has an interest in the determination of this issue and [her] presence in this action will ensure that the issue will be effectually and completely adjudicated upon”.[36] But I will return to this point in paragraph 82 below. 69.Under Ds’ counterclaim premised on P having interest in House7 (presumably squatter’s rights) which D denied in their primary case, there would be factual dispute as to whether (a) Ds had dispossessed P of such interest by having been in occupation of the Green Land and bulk of House7 thereon for over 12 years (see paragraph 24 above) or (b) P had never discontinued possession of such land/structure (see paragraph 8 above), and such factual dispute would require resolution by findings of fact at a full trial. 70.Further, even under Ds’ counterclaim premised on P having interest in House7 (presumably squatter’s rights) which D denied in their primary case, the declaratory relief and order for possession sought under such counterclaim in relation to the Green Land and bulk of House7 thereon (see paragraph 24(a)-(b) above) by barring P’s “title” in relation thereto was not easy to understand. 71.Neither P nor Ds were paper-title owners of the Green Land. It was P’s case that P and Ds together (not P to the exclusion of Ds) had squatter rights over the Green Land for over 60 years that barred the Government’s rights until reversion of the Lot642 Lease pursuant to the encroachment presumption, but as between P and Ds as co-squatters (see paragraphs 51-52 above), Ds in claiming to have dispossessed P would have to demonstrate act of ouster and not just mere dispossession (which also applied to the Yellow Land and part of House7 thereon). 72.On Ds’ pleaded counterclaim as aforesaid on the basis of dispossession of P’s interest (presumably squatter’s rights since P was not the paper-title owner) by their adverse possession of the Green Land and the bulk of House7 thereon for over 12 years without express plea/averment of adverse possession of 60 years against the Government being the paper-title owner of the Green Land, it is not easy to see the basis for granting declaration that Ds had acquired possessory title over the Green Land and the bulk of House7 thereon. At the Hearing, Mr Cooney SC argued that Ds could raise different arguments against different parties, ie it was open to Ds (a) to raise against P the contention that the Green Land and House7 thereon belonged to the Government, and (b) to raise adverse possession against the Government. Whilst I could see Ds under their counterclaim might argue that they as successive squatter dispossessed P’s squatter rights after being in possession for 12 years[37] (subject to relevant findings of fact), the uneasy segregation and contradiction between (a) and (b) above was not understood given that Ds’ counterclaim was against P and not against the Government for declaration of possessory title over inter alia the Green Land and House 7 thereon.[38] In my view, it is of fundamental importance for the claimant to establish the requisite animius possidendi to establish a claim for possessory title by adverse possession. The Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai & anor (No 2)[39] cited the useful guidance in Powell v McFarlane as follows:[40]
Unless Ds had the intention or animus possidendi to exclude the world at large (including the Government) and not just P (with squatter rights under Ds’ counterclaim on their alternative case), the basis for seeking declaration of possessory title over the Green Land (in contra-distinction to an order for possession against P) left much room for argument and, in my view, could only be resolved upon relevant findings of fact. But at the very least, the mere fact Ds were counterclaiming for declaration of possessory title over the Green Land appeared to contradict their claim that the Green Land belonged to the Government (see Mr Cooney SC’s written submissions dated 4 May 2017 which suggested that Ds themselves acknowledged the Government was the owner of House7, so “neither [P] nor [Ds] have any claim of possession or to a declaration of a half share interest in [House7]”). It was stranger still since it appeared Ds were still in occupation of House7. 73.In all the circumstances, I do not agree the disputes or cause/matter in the present action (including the counterclaim) could be disposed of by saying P could not claim against Ds who were not the owner of the Green Land and House7 thereon, or by answering the simple question of whether House7 (and the Green Land) could be subject to the interests claimed by P and Ds against each other in the present action without going into factual matters. 74.In relation to the contractual strand of P’s claim, Ds raised the primary defence of mistake in relation to the 1st/2nd Agreements for the reason that the Green Land belonged to the Government. Given the above analysis which showed there was no clear answer to the 1st/2nd Questions before full trial, it is not necessary to consider this aspect of P’s claim, but I will deal with the same briefly for completeness. Mr Khaw SC complained that Ds’ pleadings were silent on the nature of the mistake, ie whether it was common/mutual mistake or unilateral mistake. As Mr Khaw SC reminded, the Court of Final Appeal in Kowloon Development Finance Ltd v Pendex Industries Ltd explained as follows:[41]
75.Mr Cooney SC submitted that as far as Ds were concerned this was a case of mutual mistake. Still, the doctrine of mistake required an account of the factual circumstances in which the contract was made and a determination as to whether the parties had positive belief that the mistaken matter was the case when it was not.[42] Thus, the court would have to consider the position not just as between P and Ds but also the situation between Ng Chi Keung / P and Ng To Bo (whose estate is now represented by Ds), which could not be resolved by answering the 1st and 2nd Questions. 76.But even assuming the Green Land belonged to the Government, Mr Khaw SC submitted still there would be debate as to whether the intended redevelopment under the 1st/2nd Agreements could or could not be carried out on the Green Land. Ds’ stance was that it could not since such land was unleased and unallocated Government land. P’s position was that the Green Land and House7 thereon were encroachment subject to the Lot642 Lease for the benefit of the Government qua landlord of Lot642, and that the Government by the DLO’s letter dated 6 July 1984 had indicated she would be prepared to surrender and re-grant the relevant lot on which House7 was located. 77.Mr Cooney SC submitted it was clear that P/Ds could not rebuild House7 at the original site on the Green Land which was Government land, so P’s claims for specific performance of or mandatory injunction to carry out the 1st/2nd Agreements must be dismissed. He argued that although the DLO by its letter dated 6 July 1984 recommended proposed exchange of Lot642 and the Green Land by way of “surrender and re-grant”, the Government did not commit on such proposal which could be withdrawn, and even if such proposal was approved it would be subject to such terms and conditions to be laid down in the Conditions of Exchange. Further, it was said that the subsequent letter dated 28 May 2009 by the DSO suggested the occupational boundary of House7 was different from the boundary of Lot642 shown in the Demarcation District control sheet. But such letter went on to say as follows:
78.The letter dated 24 October 2013 by the DLO made clear that if the owners of Lot642 wished to rebuild House7 into a 3-storey village house that conformed to the boundary of Lot642 upon Government approval and payment of premium, House7 outside such boundary must be demolished. On 2 November 2013, P replied to the DLO reminding that in the 1980s Ng To Bo had raised the matter of non-alignment of House7 with the boundary of Lot642 and at that time the DLO made the aforesaid offer of “surrender and re-grant”, so P thought Ng To Bo had resolved the matter and asked the DLO to clarify whether House7 was an illegal structure. On 6 December 2013, DLO replied merely to state that according to their records House7 was located outside the proposed reconstruction site but was covered (涵蓋) by Lot642. 79.Whilst it was true the correspondence with the DLO/DSO showed the Government made no firm commitment on the proposed “surrender and re-grant”, it was evident such proposal was offered in 1984 and re-affirmed in 2008, and as recent as in late 2013 the DLO accepted House7 was covered (涵蓋) by Lot642. It must be matter of debate (a) whether the Government’s proposal for “surrender and re-grant” was still an open and viable offer, (b) if so, whether specific enforcement of the 1st/2nd Agreement could be made subject to the vitality or otherwise of the Government’s proposal, and (c) what was the true meaning of the DLO’s acknowledgment that House7 was covered (涵蓋) by Lot642. These were factual issues and could not be answered by saying there was no allegation of adverse possession or encroachment presumption made by P in the present action. Further, I agree with Mr Khaw SC that Ds’ allegation that the 2nd Agreement was liable to terminated by the alleged fact that the development fee for 1 party would exceed $2,000,000 was a purely contractual and not proprietary matter, ie it had nothing to do with ownership of the Green Land and P’s interest in the same being the subject matter of the 1st/2nd Questions. 80.The above analysis clearly showed there would not be any crisp answer to the 2nd Question that would obviate the need for a full trial, and there would still be significant disputes that would have to be disposed of at trial even after answering the 1st/2nd Questions, which questions I am afraid were not pure legal matters. I am not persuaded that a trial of preliminary issues as proposed by Ds would be necessary or appropriate. VII. CONCLUSION 81.For all of the above reasons, the Summons is dismissed. There is no reason why costs should not follow event. I therefore grant a costs order nisi that Ds should pay P costs of and occasioned by the Summons (with all costs reserved, if any) to be taxed if not agreed with certificate for two counsel. 82.I take this opportunity to urge the parties to carefully consider whether the Government should be joined in the present action, so that (a) any cause of action or defence that required their presence could be perfected, (b) any order made would also be binding on the Government, (c) there could be finality in resolving all relevant disputed issues, and (d) the Government’s stance as to the proposal on “surrender and re-grant”, encroachment presumption and/or adverse possession could be properly elicited, and the parties’ respective case properly determined in light of the same. It is pertinent at this stage to take note of Mr Khaw SC’s submissions in paragraph 68 and footnote 37 above. Given the interlocutory nature of the Summons, it was sufficient for this court to highlight certain aspects of perceived concerns if the Government was not involved such that there would not be procedural benefit/savings in proceeding with a trial of preliminary issues, and it was unnecessary for this court to come to any definitive view at this stage as to whether or not the Government ought to be brought into the present action. But this consideration should exercise not just the parties but also the court case manager as the present action moves inexorably on towards trial.
Mr Richard Khaw SC, Mr Ernest Koo and Mr Stony Chan, instructed by Simon C W Yung & Co, for the plaintiff Mr Nicholas Cooney SC and Ms Carol Shek, instructed by Hau, Lau, Li & Yeung, for the 1st and 2nd defendants [1] NTB’s Family included Ng To Bo until his death, D1 after his birth, D2 since her marriage, and Ds’ children after their birth [2] including inter alia Ng Fat’s wife Ng Liu Yung Kiu and their sons Ng Chi Keung and Ng To Bo [3] including inter alia Ng Chi Keung, P and Ng To Bo [4] P claimed Clause 5 provided that if in the event the building costs payable by one party exceeded $2,000,000 within a reasonable time after entering into the 2nd Agreement, the building plan would be terminated [5] see Mai Gou v Mak Chik Lun [2001] 3 HKLRD 248, 251-252 and Hong Kong Civil Procedure 2019 Vol 1 para 33/4/9A at p 832 [6] CACV311-312/2002, 28/2003 and 31/2003 (unreported, 21 April 2004) paras 39-40 (see also Hong Kong Civil Procedure 2019 Vol 1 para 33/4/91 at p 832) [7] see Allen v Gulf Oil Refining Ltd [1981] AC 1001, 1021-1022 [8] see Mai Gou at pp 251-252 and Allen at pp 1021-1022 [9] see Tilling v Whiteman [1980] AC 1, 17-18 and 25 [10] see Elitestone Ltd v Morris [1997] 1 WLR 687, 693 and 698 [11] see Goldful Way Development Ltd v Wellstable Development Ltd [1999] 1 HKLRD 563 [12] see Incorporated Owners of Western Court v Conrad Salat Czakat Rumjahn appointed by the court to represent the estate of Usuf Rumjahn HCMP2244/2012 (unreported, 2 March 2017) paras 116-117 [13] (2011) 14 HKCFAR 889, 926 (see also Lee Bing Cheung v Secretary for Justice [2013] 3 HKC 511, 525) [14] P suggested this was probably why the Government by the DLO’s letter dated 6 December 2013 acknowledged House7 was “covered” by Lot642 and was willing to rectify the situation by “surrender and re-grant” [15] [2013] 3 HKC 511, 511-512 [16] but such encroachment was for the benefit of the Government qua landlord of the adjacent leased lot [17] 2nd ed para 7-43 at p 127 [18] 2nd ed paras 20-68 – 20-71 at pp 413-414 [19] HCA2151/2008 (unreported, 22 November 2016) [20] the right to evict trespassers/strangers that had not been time-barred are in respect of the whole land by virtue of the unity of possession inherent in the co-ownership estate, but the absence of unity of interest means each co-tenant (whose interest is separate and distinct) is entitled to evict trespassers/strangers without necessary concurrence of the other (see Nam Ching Wun at para 160) [21] 8th ed para 4-008 at pp 90-91 [22] eg if P/Ds and their predecessors were in possession for less than 60 years or they were not in continuous possession for such requisite period [23] if such causes of action were not time-barred [24] see Taylor v Twinberrow [1930] 2 KB 16, 22, Fairweather at p 535, Hawdon v Khan (1920) 20 SRNSW 703, 707 and Adverse Possession para 20-17 at p 396 [25] see The Law of Real Property paras 4-003 – 4-004 at pp 86-87 [26] Ds argued P had to establish encroachment rights against the Government rather than against Ds, but I disagree for reasons explained in paragraphs 42-60 above [27] see Nam Ching Wun at para 163 [28] 8th ed para 35-042 at p 1480 (see also Adverse Possession para 29-05 at p 609) [29] [2013] 4 HKLRD 16, 44-46 (not cited by Mr Khaw SC or Mr Cooney SC) [30] ie continuous and exclusive possession that required sufficient degree of control of the Yellow Land on which part of House7 stood [31] ie intention to possess the Yellow Land on which part of House7 stood to the exclusion of all other persons including P [32] see Lee Bing Cheung at p 524 [33] 8th ed para 4-010 at pp 91-92 [34] which Ds did not assert in the AD&C save to admit HLLY wrote to KCHF on 15 December 2014 to allege that Ds and their family had resided at House7 for more than 60 years and had acquired a possessory title to the same (see paragraph 21 above) [35] in principle it was open to Ds to demonstrate (if they could) their claim to the Green Land and House7 thereon rested on the strength of some title of their own, eg some title derived from the Government as the paper owner Government (but Ds did not asset such title here) [36] see TSB Private Bank International SA v Chabra & anor [1992] 1 WLR 231, 238 and Wong Chun Loong Tony v Ada Ltd [1991] 1 HKC 86, 97-98 [37] Adverse Possession at para 6-53 at p 105 states that “[if] C takes and holds adverse possession of A’s land, and before the expiry of the limitation period D dispossesses C (with C not being let into possession by D) and D then remains in possession, C may bring an action for the recovery of the land from D within the limitation period, which runs from the date of D’s possession, ……”, but such action will be debarred after expiry of the limitation period [38] Mr Cooney SC submitted there was no need to involve the Government in the present action because both P and Ds only made claims against each other and not against the Government by way of adverse possession or encroachment presumption, and it would be the Government’s eventual executive decision to decide what action should be taken in relation to the Green Land, but in my view this conscious segregation reflected a misunderstanding of the requirement of animus possidendi for establishing possessory title as explained below [39] (1997-1998) 1 HKCFAR 55, 68 [40] (1979) 38 P & CR 452, 471-472 [41] (2013) 16 HKCFAR 337, 345-346 [42] see Chitty on Contracts 32nd ed Vol 1 paras 6-002 and 6-004 at pp 606-607 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case