Li Kang Hung v. The Personal Representative of the Estate of Yu Choi Ying, Deceased
Read the full judgment text of DCCJ 1090/2019 on BabelCite. This District Court judgment was delivered on 15 November 2019.
1. This is the plaintiff’s application under Order 19 rule 7 of the Rules of the District Court for judgment in default of defence.
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DCCJ 1090/2019 [2019] HKDC 1536 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 1090 OF 2019 ------------------------- BETWEEN
------------------------- Before: Her Honour Judge Phoebe Man in Chambers (Open to public) Date of Hearing: 8 November 2019 Date of Judgment: 15 November 2019 --------------------- JUDGMENT -------------------- APPLICATION 1.This is the plaintiff’s application under Order 19 rule 7 of the Rules of the District Court for judgment in default of defence. HISTORY 2.Madam Yu Choi Ying (the “Deceased”) is the registered owner of 1/F, No 280 Tai Nan Street, Kowloon, Hong Kong (the “Property”). The Property was bought by the Deceased on 1 September 1970 for HK$35,000. After the purchase, the Deceased cohabited with the plaintiff’s father, Mr Lee Sum (“Mr Lee”), together with her son from a previous relationship, Mr Wong Shui Ling (“Mr Wong”). The Deceased and Mr Lee were never married. The Deceased passed away intestate less than a year later on 24 July 1971. No grant of probate nor letters of administration had been obtained. The Property remains in the Deceased’s sole name and has not been administered or vested in the name of the beneficiary to the Deceased’s estate (the “Estate”). After the Deceased passed away, Mr Lee continued to live in the Property with Mr Wong until Mr Wong emigrated to the USA. Mr Lee then occupied the Property on his own until he moved to a retirement home around 2-3 years before he passed away on 26 June 2001. After Mr Lee passed away, the plaintiff had enquired with Mr Wong to see if he wished to take back the Property as it was registered in the Deceased’s name. Mr Wong was apparently not interested. 3.Since Mr Lee moved away from the Property, the plaintiff says he has since 26 June 2001 taken up and remained in sole and exclusive possession of the Property and that the Property was all along managed by the plaintiff:
4.The plaintiff says he had enjoyed exclusive and continuous and uninterrupted use of the Property that is adverse to the defendant as a paper owner for over 12 years. The plaintiff thus contacted Mr Wong again to inform him of his intention to commence adverse possession proceedings to claim title to the Property. Mr Wong did not object to the Property being vested in the plaintiff and had written a confirmation to that effect. 5.The plaintiff claims that Mr Wong is the only child of the Deceased and there is written confirmation from Mr Wong to that effect. At the hearing, I enquired with Mr Hu, counsel for the plaintiff as to whether any official search had been carried out at the Birth and Death Registry to ascertain whether the Deceased had any children other than Mr Wong. Mr Hu’s instructing solicitors then made enquiries with the Birth and Death Registry and the Immigration Department and reported that no such search could be carried out. They have subsequently filed an affirmation setting out such enquiries and response on 8th November 2019. 6.The plaintiff has issued the present Notice of Motion and claims:
PROCEDURAL HISTORY 7.Pursuant to an Order of Master Peony Wong dated 3 April 2019, it was ordered that the proceedings be carried on against the personal representative of the estate of the Deceased, and that the Official Solicitor be appointed to represent the estate of the Deceased for the purpose of accepting service of the Writ. After acceptance of service, the Official Solicitor became functus officio. 8.Pursuant to an Order of Master Eleanor Yeung dated 4 September 2019, it was ordered that the proceedings be proceeded with in the absence of a person representing the Estate. 9.The present Notice of Motion was taken out on 16 October 2019, beyond the 14-day deadline to acknowledge service (23 May 2019) and the 28-day deadline to file a defence (21 June 2019). 10.Although there was no acknowledgment of service, the plaintiff could not proceed under Order 13 of the Rules of the District Court to obtain judgment for the defendant’s failure to file a notice of intention to defend. This is because this is a claim for declarations relating to land and the plaintiff could only proceed under Order 13 rule 6 to proceed with the action as if the defendant had given a notice of intention to defend. The defendant in the present case failed to file a defence. Thus the plaintiff says that he is entitled to proceed under Order 19 rule 7 of the Rules of the District Court to obtain default judgment. 11.In Lau Siu Kwong David & Ors v The Personal Representatives of Lee On Yuen, Deceased[1], Recorder Edward Chan S.C. took the same approach in similar circumstances. I agree that it was the proper procedural course to take. This was also endorsed in the recent Court of First Instance case of Seto Yim King v Soo Hooyet Dew[2] MERITS OF THE APPLICATION 12.The principles of adverse possession have been set out in the case of Wong Tak Yue v Kung Kwok Wai David & Anor[3].
13.Based on the matters set out in paragraphs 2-3 hereinabove, I am satisfied that since the death of Mr Lee (the plaintiff’s father) in June 2001, the plaintiff had been occupying the whole of the Property as if it was his own and that he was in adverse possession of the Property for over 12 years. 14.However, I am not satisfied that the wording used in the Notice of Motion is the usual orders that will be granted. Accordingly, I make the following declarations:
15.I thank Mr. Hu for his assistance.
Mr Derek Hu, instructed by Ho & Wong, for the plaintiff The defendant was not represented and did not appear | |||||||||||||
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