Read the full judgment text of CAMP 74/2019 on BabelCite. This Court of Appeal judgment was delivered on 5 August 2019 before Lam VP and Yuen JA.
Civil law – land dispute – adverse possession – Limitation Ordinance – appeal – leave to appeal – fresh evidence – Ladd v Marshall criteria – Court of Appeal's reluctance to disturb findings of fact – indemnity costs – CAMP 73/2019 and CAMP 74/2019 heard together. Land in D.D. 102, Yuen Long, New Territories, consisting of Lot No. 881 and Lot Nos. 1007 and 1008, registered to two Plaintiffs. 1st Defendant claimed adverse possession by virtue of a fence allegedly surrounding the disputed land since 1986. Trial judge (K W Wong) in DCMP 1213/2014 and DCMP 1214/2014 rejected the defence, finding the 1st Defendant to be an untruthful witness whose evidence must be rejected in its entirety, and ordered possession, mesne profits, mandatory orders, and injunctions in favour of the Plaintiffs. Judge refused leave to appeal and the application for fresh evidence in Decision of 18 April 2019. Whether the 2018 Lot Index Plan could satisfy the Ladd v Marshall criteria for admission of fresh evidence on the application for leave – held no, as the trial judge relied on survey sheets rather than Lot Index Plans, and the 1st Defendant had not sought leave to adduce further expert evidence; the evidence was of a type he could with reasonable diligence have adduced at trial. Whether the intended appeal disclosed any arguable ground showing the trial judge was plainly wrong – held no, as the three grounds (reliance on survey sheets without expert evidence, treatment of two versions of lot boundaries, and doubt about a photo dated 15.07.2012) had no merit. The judge's credibility finding alone would sustain the result regardless of the survey sheets. Whether indemnity costs should be ordered – held yes, the application being totally devoid of merits and brought in disregard of the Decision of 18 April 2019. All summonses dismissed; no oral reconsideration permitted under O.59 r.2A(8) RHC; 1st Defendant to pay Plaintiffs' costs on an indemnity basis, fixed at $80,000 for each Plaintiff.
Legal issues: Admissibility of new evidence (2018 Lot Index Plan) on application for leave to appeal · Whether leave to appeal should be granted against the trial judge's findings · Costs of the applications
Outcome: All summonses dismissed; leave to appeal refused; application for new evidence refused; no oral reconsideration permitted; costs ordered against the 1st Defendant.
Cited by 55 cases · Cites 9 cases