Read the full judgment text of CACV 329/2018 on BabelCite. This Court of Appeal judgment was delivered on 14 August 2019 before 關淑馨 (副庭長), 朱芬齡 (法官), 黃國瑛 (原訟法庭法官).
Land law – adverse possession – 20-year limitation period – necessary intention – actual possession – airspace – cabinet area – costs – Court of Appeal – appeal from Deputy High Court Judge Yip Ching Si – plaintiff Ms Tang Sau Lin operated garment stall near Jardine's Crescent in Causeway Bay since 1963 – from 1984 installed iron cabinets within rear staircase of tong lau at 50 Java Road, adjoining Yien Ping Centre – plaintiff obtained business registration in 1984 with address 'Staircase, 9 Jardine's Crescent' – sole keyholder of iron gates and cabinets enclosing storage room, wall cabinet, and two hanging cabinets – used area as stall by day, locked goods there at night – Yien Ping Centre built 1994, sealed off rear staircase – plaintiff claimed adverse possession of Disputed Area (rear staircase passage) with alternative claim for Cabinet Area (four iron cabinets) – trial judge dismissed Disputed Area claim for lack of necessary intention but allowed Cabinet Area claim – 7th defendant Jodwell Properties Limited appealed on four grounds – whether trial judge erred in finding necessary intention for adverse possession of Cabinet Area – held: no, plaintiff's objective acts of enclosing with iron, installing locks, exclusive use for over 20 years, denying keys to paper owners, objectively demonstrated intention to exclude owners with no ambiguity – whether trial judge erred in finding actual possession of two hanging cabinets – held: no, evidence supported actual possession of defined enclosed spaces with no evidence of other occupants – whether hanging cabinets in airspace can be adversely possessed at law – held: yes, adverse possession may extend to clearly identified and defined three-dimensional airspace per Ramroop v Ishmael and Fordtime Industrial Ltd, distinguished from Leung Kwok-kau and Sunbroad Holdings which dealt with two-dimensional surfaces – whether costs order was wrong – held: trial judge's costs order not wrong in principle but Court of Appeal varied to a more practical global assessment, with plaintiff as overall winner entitled to 75% of her costs from 2nd and 7th defendants per Re Elgindata Ltd (No 2) third principle – appeal dismissed with variation of costs order.
Legal issues: Necessary intention for adverse possession of cabinet area · Actual possession of the two hanging cabinets · Whether hanging cabinets in airspace can be adversely possessed at law · Costs order of the trial court
Outcome: Appeal dismissed except for variation of the costs order; the plaintiff remained the overall winner, entitled to 75% of her costs from the 2nd and 7th defendants.
Cited by 18 cases · Cites 3 cases