Read the full judgment text of HCA 2369/2015 on BabelCite. This Court of First Instance judgment was delivered on 27 December 2019 before Deputy High Court Judge Paul Lam SC.
Civil law – land – adverse possession – New Territories rural ancestral home – whether express or implied licence granted by registered owner – whether bare acquiescence suffices – Limitation Ordinance (Cap 347) s.7(2), s.17, s.38A(1) – section A of Lot No 1517 in Demarcation District 281 at Chap Wai Kon Village, Shatin registered in name of late Chim Kwok Fan ('CKF') since 1948 – CKF died 27 March 1981 leaving Land to second wife Ruby by will of 30 March 1978 – Ruby became registered owner by assent of 20 January 1993 and died 20 January 1997 – plaintiff Sarah Sally Chan-Kent is executrix of Ruby's estate – 1st defendant Ching is granddaughter of CKF's first son and has lived on Land since 1988 – CKF returned to Hong Kong in 1977, paid for substantial renovation of houses (HK$111,500), and on 4 October 1977 executed power of attorney in favour of CKT (1st defendant's grandmother) to assign Land to his two sons CYL and Ben – CKT did not exercise the power before its expiry in October 1980 – whether 1st defendant proved adverse possession of Land for the 20-year limitation period (time running from CKF's death on 27 March 1981) – whether CKT and Ching held Land under express or implied licences from registered owners – whether licence terminated automatically on death of licensor – whether mere acquiescence by paper owner suffices to establish implied licence – whether 1st defendant had requisite factual possession and intention to possess – whether vicarious and successive adverse possession possible – whether proprietary estoppel established by reliance on 1977 POA – whether equitable principle in Pennington v Waine applies to perfect incomplete gift to CYL and Ben – Limitation (Amendment) Ordinance 1991 reducing limitation period to 12 years not applicable as cause of action accrued before 1 July 1991 – court holds no express or implied licence was granted by Ruby or plaintiff – only mere acquiescence insufficient to establish implied licence – licence granted by CKF to CKT terminated automatically on his death on 27 March 1981 – factual possession of both House 6 and House 6A made out through living in House 6, using House 6A for storage and occasional renting, paying utility charges, and from 2013 substantial renovation of House 6A – intention to possess inferred from belief Land belonged to CYL and Ben and their successors – possession held successively/vicariously by CKT and Ching (and, for House 6A, initially CKT vicariously for Ben and later his descendants) – 20-year limitation period expired 26 March 2001 extinguishing registered owner's title under s.17 of LO – 1st defendant acquired possessory title – alternative claims under proprietary estoppel and Pennington v Waine would have been dismissed for lack of detrimental reliance by Ching and absence of unconscionability – plaintiff's claim dismissed with declarations that registered title extinguished and 1st defendant acquired possessory title – order nisi for costs against plaintiff.
Legal issues: Adverse possession of rural New Territories land and effect of express/implied licences · Proprietary estoppel based on 1977 power of attorney and CKF's gift intention · Equitable principle in Pennington v Waine for incomplete gifts
Outcome: Plaintiff's claim dismissed. The plaintiff's title to the Land has been extinguished by virtue of section 17 of the Limitation Ordinance, and the 1st defendant has acquired a possessory title to the Land. An order nisi was made for the plaintiff to pay the 1st defendant's costs of the action.
Cited by 19 cases · Cites 9 cases