Cheung Chung Yee v. 王慶培 and Others

DCCJ 4225/2015

[2021] HKDC 304

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4225 OF 2015

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DECISION

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Introduction

1.By summons dated 13 November 2017 (“Summons”), the 1^st named of the 5^th defendants (“1^stD5”) applied for a stay of the execution of the writ of possession issued on 10 August 2017 (“Writ of Possession”) in respect of the premises at Unit B, Ground Floor, in Lot 1408RP in DD 106, Yuen Long (“Unit B on G/F”). 

2.By way of background, the plaintiff’s case as pleaded in the amended statement of claim dated 20 January 2016 (“Amended Statement of Claim”) is as follows:-

(1)     By 8 separate licences between one Regent Power Industrial Limited (“Regent”), the plaintiff’s agent, as the licensor, and the 1^st to 8^th defendants as separate licensees, the plaintiff agreed to license and did license the use and enjoyment of certain premises (all situated within the same three-storey building at 18A Tin Sam San Tsuen) to each of the defendants for a fixed term of 20 years.

(2)     The relevant licence agreements were all entered into with the respective defendants on diver dates from November to December 1991 (except for the one with the 8^th defendant, which was entered into in November 1997).  The licences of the 1^st to 8^th defendants to use and enjoy their respective units had all therefore expired by effluxion of time.

(3)     The plaintiff then demanded, by notices, the 1^st to 8^th defendants to deliver up vacant possession of their respective units to the plaintiff by 5 July 2012, but to no avail.

(4)     The plaintiff therefore commenced the action herein on 14 September 2015 to seek an order for vacant possession in respect of each of the licensed premises, and to claim for payment of liquidated damages from each of the defendants.

3.Insofar as the 5^th defendants are concerned, the relevant licence agreement was one dated 5 November 1991, which related to the use and enjoyment of Unit C, 1^st Floor, Lot 1408RP in DD 106 (“Unit C on 1^st Floor”).

4.Insofar as the 2^nd defendant (“D2”) is concerned, the relevant licence agreement was one dated 23 December 1991, which related to the use and enjoyment of Unit B on G/F. 

5.On 30 March 2016, 1^stD5 filed his defence and counterclaim (jointly with the 1^st defendant, the 1^st named of the 3^rd defendants, and the 7^th defendant) (“Defence and Counterclaim”).  The gist of the defence of the 1^stD5 is that:-

(1)     During the negotiations for the licence agreements, Regent represented to the defendants that the premises were intended to be eventually sold to them, and the plaintiff and/or Regent would obtain all necessary approval and permit from the government to enable the sale of the premises to the defendants.

(2)     It was orally agreed that in consideration of the defendants entering into the licence agreements, the plaintiff would transfer the entire beneficial interest in the premises to each of the respective defendants upon obtaining all necessary approval and permit from the government.  The plaintiff would also grant permanent licences in respect of each of the premises to them upon expiry of the initial licence agreements.

(3)     By reason of (inter alia) resulting trust or constructive trust, or by way of proprietary estoppel, 1^stD5 is entitled to the entire beneficial interest in Unit C on 1^st Floor and to remain in possession thereof.

6.In the Defence and Counterclaim, 1^stD5 did not mention that he had been in occupation of Unit B on G/F as well since around March 2002.

7.D2 (and a few of the other defendants) did not file any notice of intention to defend.  Therefore, on 21 February 2017, the plaintiff entered default judgment against, inter alia, D2, and an order for possession of Unit B on G/F was made against D2.  The plaintiff eventually took out the Writ of Possession on 10 August 2017.  On 7 November 2017, a notice to quit undersigned by the bailiff was posted at Unit B on G/F.

8.1^stD5 was informed that an appointment for possession was scheduled on 14 November 2017, during which the bailiff would break into Unit B on G/F and evict any persons in occupation and remove any items placed therein.  To prevent this from happening, 1^stD5 took out the present application for stay of execution of the Writ of Possession on 13 November 2017.

1^stD5’s Grounds for Stay of Execution of the Writ of Possession

9.1^stD5 explained, in his supporting affirmation, that he verily believes that he has the right to remain in occupation of Unit B on G/F by reason of (inter alia) the following:-

(1)     1^stD5 has been living in Unit C on 1/F since 1991.

(2)     During the first several years of 1^stD5’s stay in Unit C on 1/F, Unit B on G/F was occupied by a user believed to be D2.  However, since around January 2002, 1^stD5 had rarely seen D2.  1^stD5 also noticed that the doors and windows of Unit B on G/F were covered with dust, so by that time he thought that D2 had probably moved out of Unit B on G/F. 

(3)     Sometime thereafter, 1^stD5 noticed a strange smell and some noises from Unit B on G/F.  He became concerned about issues of hygiene. Therefore, in or around March 2002, he broke open the door lock and entered into Unit B on G/F.  He found the it was dirty and messy, and clearly left unoccupied. 

(4)     He decided to use Unit B on G/F for himself.  He cleaned up the apartment and started using it as his storage room (for furniture, documents, and other miscellaneous items). 

(5)     He installed a new door lock for Unit B on G/F. 

(6)     In or around 2012, he received a notice from the Lands Department asking for confirmation of identity of user and payment of Government rent.  (1^stD5 did not, in his supporting affirmation, elaborate further upon this point, so it is somewhat unclear as to whether he actually held himself out as the user of, and paid the Government rent for, Unit B on G/F).

(7)     Soon thereafter, he refurbished Unit B on G/F and started using it as part of his living space, in addition to Unit C on 1/F. 

(8)     He also applied and paid for electricity supply to Unit B on G/F.  He exhibited some electricity bills and receipts for Unit B on G/F bearing his name as the registered customer (the earliest electricity bill being one dated 18 April 2013). 

(9)     He therefore believes that the plaintiff’s title in Unit B on G/F has been extinguished, and that he would have acquired an indefeasible possessory title to Unit B on G/F latest by April 2014 (the “Adverse Possession Claim”). 

(10)     It seems that 1^stD5 is, at present, using Unit B on G/F as (mainly) a storage room (see 1^stD5’s affirmation, §20: “I have started living in Unit B on G/F after I converted it from a storage room to part of my living space in the renovation in or around 2012 as stated hereinabove.  The apartment has now been used as storage room…”).

Delay in putting forth the Adverse Possession Claim?

10.At the time of filing the Defence and Counterclaim, 1^stD5 did not advance the Adverse Possession Claim.  To date, the Defence and Counterclaim has never been amended to include the Adverse Possession Claim. The possibility of this claim was raised for the first time in 1^stD5’s supporting affirmation for the present application. 

11.1^stD5’s explanation for the delay in raising this claim (as stated in his supporting affirmation, and elaborated upon by Counsel for 1^stD5) was as follows:-

(1)     The plaintiff has never raised any claim against 1^stD5 insofar as Unit B on G/F is concerned.

(2)     The plaintiff’s claim (and the Default Judgment obtained) over Unit B on G/F was only as against D2.

(3)     Counsel for 1^stD5 relied on the Court of Appeal’s judgment in Yu Fung Co Ltd v Olympic City Properties Ltd [2018] HKCA 323 in highlighting the distinction between an order for possession and a writ of possession.  The former is personal in nature (in personam), binding only those specifically named or joined as defendants.  The latter, however, have consequences in rem (ie “against the land by requiring the sheriff to recover possession for the plaintiff by evicting from the land any persons who were there and to deliver possession of the same to the plaintiff” – Yu Fung at §35, underline original). 

(4)     The plaintiff’s action with regard to Unit B on G/F was binding in personam only as against D2 (but not 1^stD5).

(5)     Counsel for 1^stD5 therefore argued that as at 21 February 2017, when default judgment was entered against D2, the order for possession of Unit B on G/F was only binding upon D2 in personam.  It was not binding upon 1^stD5.  Hence, it was not necessary for 1^stD5 to raise the Adverse Possession Claim at that time. 

(6)     However, when the Writ of Possession was issued on 10 August 2017, which had effects in rem, it then became necessary for 1^stD5 to defend himself (insofar as Unit B on G/F was concerned) and to advance his Adverse Possession Claim.  Therefore, in the supporting affirmation for the present application (dated 13 November 2017), 1^stD5 decided to put forward the factual basis for the Adverse Possession Claim for the first time.

The Summons

12.The Summons for the present application simply asked for an order that “all further proceedings on the writ of possession dated 10^th August 2017 issued herein be stayed and the bailiff be ordered to withdraw on the grounds set out in the Affirmation of Chan Tak Ming [ie 1^stD5]…”; and for 1^stD5’s costs.

1^stD5’s application for amendments to the Summons

13.At the hearing of the present application, I clarified with Counsel for 1^stD5 as to the duration of the stay they were seeking, and whether, in the light of Yu Fung at §66, the application should have been one for the setting aside of the Writ of Possession (instead of simply for a stay).   I asked this question because in counsel for 1^stD5’s written submissions, he actually asked for: (1) an order to stay the execution of the Writ of Possession; and (2) leave to apply to set aside the Writ of Possession. 

14.Counsel for 1^stD5 fairly acknowledged that the wording of the Summons was not entirely satisfactory.  In the light of Yu Fung, he agreed that 1^stD5 ought to have applied to have the Writ of Possession set aside as against 1^stD5.  In the course of the hearing, he further asked for leave to make various amendments to the Summons, to the effect that the Writ of Possession be stayed pending the resolution of the 1^stD5’s three intended interlocutory applications (1) to set aside the Writ of Possession; (2) for leave to amend his Defence and Counterclaim; and (3) to be joined as an interested party in respect of the plaintiff’s claim against D2.  He also undertook that all such intended applications would be taken out within 7 days from the date when leave would be granted to amend the Summons.

15.The plaintiff did not agree to such proposed amendments to the Summons.

16.Without commenting on the merits of the intended interlocutory applications to be taken out by 1^stD5, I do not think that it would be fair or appropriate for me to allow such extensive amendments to the Summons at this stage.  For the purposes of this hearing, both parties prepared their respective affirmations in support of, or in answer to, the Summons, as it is presently worded.  Counsel for the plaintiff also prepared their submissions for this hearing on the basis of the Summons as it is presently worded.  Such an ad hoc application by 1^st D5’s to make such substantive amendments to the Summons would more likely than not cause prejudice to the plaintiff. 

17.I make the further observation that in the last paragraph of 1^stD5’s supporting affirmation dated 13 November 2017, he made mention of his intended applications to amend his Defence and Counterclaim, and to set aside the default judgment as against D2 “within 28 days”.  Again, without commenting on the merits of such intended interlocutory applications, the fact remains that 1^stD5 took out no such interlocutory applications between the date when his affirmation was deposed, and the date of the hearing of the present Summons.  Nor had any draft amended defence and counterclaim been provided to the plaintiff, or the court. 

18.I also take into account the chronology of proceedings leading up to the present hearing, to be elaborated below, which also shows how 1^stD5 had ample opportunity to advance his Adverse Possession Claim at an earlier stage, but did not.   

19.I should make it clear that my decision and reasoning herein should not in any way prejudice any future interlocutory applications to be taken out by 1^stD5. I am in no position to advise them as to what further applications they should, or should not, take out.  Having said that, I do not think it would be right for me to exercise my discretion to allow 1^stD5’s ad hoc request for the various amendments to the Summons. 

20.Accordingly, I will not allow any amendments to the Summons, and I will simply proceed to deal with the Summons as it is presently worded, ie requesting for a stay of the execution of the Writ of Possession simpliciter. 

The plaintiff’s reasons for opposing the Summons

21.In opposing 1^stD5’s Summons, counsel for the plaintiff made submissions as follows:-

(1)     The “licence” granted to D2 in 1991 (as well as the “licence” granted to 1^stD5 in respect of Unit C on 1/F) was a de facto tenancy for a fixed term of 20 years, by reason that exclusive possession was granted to D2. Counsel for the plaintiff relied upon, inter alia, Addiscombe Garden Estates Ltd v Crabbe [1958] 1 QB 513 CA at 522; Street v Mountford [1985] AC 809 at 810.

(2)     When the land is subject to an existing tenancy, time for the purposes of the LO does not start to run until expiry of the tenancy (Chan Tin Shi v Li Tin Sung (2006) 9 HKCFAR 29 at 17-20; Fairweather v St Marylebone Property Co Ltd [1963] AC 510). 

(3)     In the premises, adverse possession, if any, by 1^stD5 to Unit B on G/F would only be against D2, and time for the purposes of the LO as against the plaintiff would not start to run until after D2’s tenancy, ie 1 January 2012.  Given the requirement of ss 7(1) and 17 of the LO, 1^stD5 could not acquire a squatter’s title until 1 January 2024. 

(4)     1^stD5’s claim for adverse possession against the plaintiff is therefore bound to fail.

(5)     In any event, there is insufficient objective evidence in support of 1^stD5’s claim for continuous exclusive possession of Unit B on G/F since 2002.

(6)     Further, 1^stD5’s application is an abuse of the legal process, by reason that:

(a)     Letters before action were served on 11 April 2012, 13 April 2012 and 5 July 2012 (served upon all defendants at their respective units).

(b)     On 18 September 2015, the writs with special endorsement were served upon all the defendants at the respective units by inserting the same at their respective letter boxes.

(c)     On 6 October 2015, 1^stD5 filed an acknowledgment of service (via his solicitors), giving notice to defend his interests and entitlements in Unit C on 1/F, without filing the same for Unit B on G/F.

(d)     On 21 January 2016, the amended writ of summons and amended statement of claim were served upon 1^stD5 and D2 (for 1^stD5, via his solicitors; and for D2, by inserting through his mailbox).

(e)     On 21 and 27 January 2016, a copy of the sealed amended writ of summons with amended statement of claim was posted up at main gate of 18A Tin Sam San Tsuen.

(f)     On 1 February 2016, a letter was issued to, inter alia, D2 (of Unit B on G/F) for making appointment for service of the amended writ of summons and amended statement of claim on 18 February 2016. 

(g)     On 30 March 2016, 1^stD5 filed his Defence and Counterclaim, without assertion of his squatter’s title to Unit B on G/F.

(h)     On 21 February 2017, the plaintiff entered judgment in default against, inter alia, D2. 

(i)     On 27 February 2017, a sealed copy of the default judgment was served on, inter alia, D2, by inserting through his mailbox.  A set of notices of proceedings in both English and Chinese addressed to all persons in actual possession of, inter alia, Unit B on G/F (“Notice of Proceedings”), were posted up at the main gate of 18A Tin Sam San Tsuen. 

(j)     On 28 February 2017 and 1 March 2017, the notice of proceedings was again posted up at the main gate of 18A Tin Sam San Tsuen. 

(k)     On 16 May 2017, leave was granted for the issue of the Writ of Possession.

(l)     On 10 August 2017, a sealed copy of the Writ of Possession was issued.

(m)     On 28 August 2017, the plaintiff served notice to the solicitors acting for 1^stD5, informing them (inter alia) that the Writ of Possession had been obtained against Unit B on G/F, and therefore the plaintiff requested for a duplicate key for access to the main gate to carry out enforcement actions. 

(n)     On 11 September 2017, the bailiff put up the notice to occupier to quit at the entrance of Unit B on G/F. 

(o)     On 7 November 2017, the date for the appointment for review, the bailiff posted up a final notice to quit at the entrance of Unit B on G/F.  The appointment for possession was scheduled for 14 November 2017. 

(p)     On 13 November 2017, the Summons was taken out by 1^stD5 for stay of execution of the Writ of Possession. 

22.It was further highlighted by counsel for the plaintiff that 1^stD5 has all along been legally represented, and has never been short of notice of the plaintiff’s claim against all the defendants herein, including D2.  1^stD5 ought to have had notice of the plaintiff’s claim to, inter alia, Unit B on G/F since around 18 September 2015, when the Writ of Summons was issued and served on all defendants.  1^stD5 should therefore have, from the outset, made a counterclaim against the Plaintiff to advance the Adverse Possession Claim.  The plaintiff takes the view that 1^stD5 has been abusing the legal process by stalling the plaintiff’s entitlement.

23.In the 2^nd Affirmation of Man Ka Bo Elleen (a manager in the employ of Regent) filed on 22 March 2018, she further deposed to certain purported misconduct on the part of (inter alia) 1^stD5 on 14 November 2017, ie by placing various obstacles in the pathway leading to Unit B on G/F to obstruct the bailiff from the performance of his duties.  It would appear that the bailiff was in fact merely attempting to serve the notice to quit to some other units in the first and second floor of that building, but was unable to do so due to the obstacles in the pathway on the ground floor. There was also purportedly a heated conversation between 1^stD5/his acquaintances and the bailiff, and one of these acquaintances purportedly had a minor physical scuffle with the bailiff. 

24.By reason of all the foregoing matters, the plaintiff takes the position that the present application taken out by 1^stD5 is not only without merits, but malicious. 

Discussion

25.Parties agree that it is at the court’s discretion, whether to grant a stay of the execution of the Writ of Possession.  The precedents regarding the grant of a stay of proceedings pending appeal may not be directly relevant here, given that this case has not yet proceeded to trial, and it would not be appropriate for me to express my views regarding the merits of the parties’ respective cases at this juncture.  However, I am aware that I should exercise my discretion to allow the application for stay only if some good reason can be shown by 1^stD5; and at the same time I should weigh and balance the potential harm and prejudice that may be caused to the plaintiff, if the application for stay should be allowed. 

26.The crux of 1^stD5’s argument is that despite some delay on his part, he should not be denied the opportunity to present a substantive response to the Writ of Possession.  Counsel for 1^stD5 relied on the Court of Appeal’s decision in Yu Fung as an illustration of how the court’s discretion should be properly exercised in the present context. 

27.In that case, Yu Fung was a chargee over a certain residential flat. When Olympic, the chargor, defaulted in repayment of a loan, Yu Fung commenced (on 10 June 2008) an action against Olympic pursuant to Order 88 of the Rules of the High Court (Cap 4A) to (inter alia) enforce the security over the flat in question.  A squatter in the flat, one Mr Lai, was later added as a second defendant to this action.  It appears that Yu Fung’s solicitors had sought particulars of and issued notices to all occupants of the flat but no other parties took part in that action.  After trial, court made the finding that Mr Lai was in adverse possession, but Yu Fung’s claim was issued prior to the expiration of the limitation period.  Judgment was therefore entered in favour of Yu Fung and there was no appeal against that judgment.  However, during the course of trial, a Madam Cheung (acting as a witness for Mr Lai) gave evidence revealing for the first time that she had, in fact, moved into the flat with Mr Lai in 1997.

28.When enforcement actions were underway pursuant to the writ of possession obtained by Yu Fung, Madam Cheung started a second action to assert her claim in adverse possession over the flat (admittedly to avoid the operation of the relation-back principle in s 35(1)(b) of the LO, which resulted in the unfavourable ruling against Mr Lai in the 1^st Action).  Madam Cheung also subsequently applied to be joined in the 1^st Action, and the joinder was sought solely for the purpose of seeking a stay of execution of the writ of possession.

29.The Court of Appeal ordered that Madam Cheung’s statement of claim in the 1^st action be struck out, but she was given leave to apply to set aside the writ of possession, which was stayed pending the determination of such an application. 

30.I take on board the distinctions between an order for possession and a writ of possession (the former with effects in personam, and the latter, in rem - Yu Fung, mentioned above).  However, each case turns upon its own facts.  In Yu Fung, Madam Cheung (the interested party therein, asserting her claim in adverse possession over the relevant residential property) was not named as a defendant to the relevant proceedings.  The explanation proffered by Madam Cheung for her belated claim was that she had no knowledge of the relevant action until it was far advanced; and even then she was not legally advised that she ought to apply to join those proceedings.  It was not until after judgment had been handed down that she was advised that she had a right to occupy the relevant property.  Thereafter, she did plead her case for adverse possession, albeit in separate proceedings.  

31.However, in the present case, the relevant facts are distinguishable. 1^stD5 had been named as one of the defendants since the commencement of the action herein.  I agree with the plaintiff’s submissions that 1^stD5 ought to have had knowledge about the plaintiff’s claim over Unit B on G/F from 18 September 2015 onwards (ie when the Writ of Summons was issued and served). Further, as can be gathered from the chronology of proceedings set out above, various notices of proceedings had been posted at the entrance to the gate of 18A Tin Sam San Tsuen in late February and early March 2017.  1^st D5 had at all material times been legally represented, and ought to have had knowledge of the plaintiff’s claim over Unit B on G/F all along.  Nonetheless, 1^stD5 never asserted his Adverse Possession Claim, until the time when this application was taken out on 13 November 2017, ie the day before the execution of the Writ of Possession.  Even then, 1^stD5 only took out an application for a stay of the execution of the Writ of Possession, without any other interlocutory applications which may be necessary to properly launch or facilitate his Adverse Possession Claim. 

32.I have not been provided with much information as to how the plaintiff intends to make use of the relevant premises upon repossession.  However, the plaintiff has successfully entered default judgment against D2, as well as the 2^nd named of the 3^rd defendants, the 4^th defendant, the 2^nd named of the 5^th defendants, the 6^th defendant, and the 8^th defendant.  Presumably, enforcement actions are well under way in relation those other premises (if not already completed). 

33.Further, I agree with the plaintiff’s submissions that the loss or damage that may be suffered by 1^stD5 by reason of the execution of the Writ of Possession over Unit B on G/F (if any) are not irreparable, and may be remedied by way of damages (if 1^st D5 should eventually be successful in his Adverse Possession Claim).  After all, as deposed in the 1^stD5’s supporting affirmation, at present he is only (or mainly) using Unit B on G/F “for storage” (cf Yu Fung where Madam Cheung was actually living in the flat in question). 

34.All in all, I am not persuaded that 1^stD5 has demonstrated any good reason as to why the execution of the Writ of Possession should be stayed.  In any event, any harm or damage caused to 1^stD5 would not be irreparable, and could be compensated for by way of damages. 

35.I should make it clear that despite my refusal for a stay of the execution of the Writ of Possession, 1^stD5 is not precluded from taking out any further interlocutory applications that may be deemed necessary to advance his Adverse Possession Claim. 

36.As to the respective pleaded cases of the parties, I would make the following observations.  It was never the plaintiff’s pleaded case that the licences granted to the respective defendants were de facto tenancies.  This is a new line of argument that has never been articulated or pleaded before, and it appears to have been put forward in response (or as a rebuttal) to the Adverse Possession Claim.  Similarly, for 1^stD5, he has to date never pleaded his Adverse Possession Claim. 

37.I agree with counsel for 1^stD5 that the hearing of this Summons is not an appropriate venue to substantively deal with, or adjudicate on, the substantive merits in the Adverse Possession Claim (nor, if I may add, the “tenancy” argument put forward by the plaintiff).  At present, these claims/arguments have not even been pleaded yet. 

38.I also make some observation as to how the 1^stD5 has not yet put forward any objective or documentary evidence evincing the continuous occupation of Unit B on G/F since March 2002.  So far, he is merely relying upon his own words.  There is a relevant document issued by the electricity company showing that 1^stD5 made his application for electricity supply to Unit B on G/F on or about 20 February 2013; this application was confirmed by the electricity company on or about 21 March 2013; and the earliest electricity bill bearing 1^stD5’s name and relating to Unit B on G/F was one dated on or about 18 April 2013.  Insofar as the available objective documentary goes, there is nothing before the date of 20 February 2013. 

39.However, I am aware of how 1^stD5, at present, has not even pleaded his claim for adverse possession, so I do not expect complete disclosure of all relevant documentary evidence at this stage.  Further, I do not wish for my reasoning herein to affect the eventual factual findings of the trial judge, given that this case may eventually proceed to trial.  Nothing in my reasoning for the decision herein should be taken to imply or indicate any view as to the overall merits.  It would not be appropriate for me to conduct a mini-trial at this stage to adjudicate on the substantive claims, based on simply affidavit evidence and legal submissions.  My foregoing observation is made on the basis of the evidence made available to me thus far. 

40.Similarly, I do not think that it would be appropriate for me to, at this stage, comment too much on the merits of the new “tenancy” line of arguments raised by the plaintiff.  I understand how their argument runs, but I should leave it to them to decide whether their pleadings should be amended in due course to include this argument.

41.Regarding the allegations of misconduct on the part of the 1^stD5 on or about 14 November 2017, causing trouble/inconvenience to the bailiff in the carrying out of his duties - again, I think it would be difficult (and inappropriate) for me to adjudicate on whether incidents actually occurred, merely on the basis of the limited affidavit evidence made available to me.  Counsel for 1^stD5 made a valid point in his submission that it is for the plaintiff to decide whether (if at all) to initiate a separate set of proceedings to determine the legal consequences therein. 

Conclusion

42.Having considered all the evidence and submissions made available to me, it would not be appropriate for me to allow the Summons as it is presently worded, ie requesting for a stay of the execution of the Writ of Possession (simpliciter).  The Summons is dismissed. 

43.The interim stay granted by Mr Registrar Ho on 14 November 2017 is hereby lifted.

44.Counsel for the plaintiff asked for costs on an indemnity basis if this application should be dismissed.  They made submissions to the effect that 1^stD5’s application was taken out maliciously, or unreasonably, without any merits whatsoever.

45.In this regard, I bear in mind the general principles on the award of costs on an indemnity basis, as succinctly summarized in Cheung Wei Man Vivien and Chan Kim Thiam v Centaline Property Agency Ltd & ors, HCA 286/2000 (15 December 2006) at §§4-6 (in particular, how unreasonable conduct to attract costs on an indemnity basis would need to be “unreasonable to a high degree; unreasonable in this context certainly does not mean merely wrong or misguided in hindsight”). 

46.As mentioned above, I make no factual findings as to the alleged misconduct of 1^stD5 on 14 November 2017.  Upon the evidence made available to me, I cannot come to any conclusion on balance as to mala fide on the part of 1^stD5.  Moreover, despite my dismissal of the Summons, I do not think that the circumstances of the present case are so unreasonable, and to such a “high degree”, as to warrant the award of costs on an indemnity basis. 

47.Having said that, if 1^stD5 should intend to proceed with his Adverse Possession Claim, the legal team representing 1^stD5 should give careful thoughts regarding the necessary and practical steps ahead as a matter of legal procedure.  They should also take out any necessary interlocutory applications, as deemed appropriate, as soon as possible. 

48.Again, my decision herein should not be taken to preclude 1^stD5 from taking out any further interlocutory applications as may be deemed necessary for the advancement of his Adverse Possession Claim. 

49.I order that costs of this application (including the costs reserved for the hearing on 14 November 2017) be to the plaintiff (on a party and party basis) with certificate for one counsel, to be taxed if not agreed.  I am grateful for the able assistance rendered by counsel on both sides, ie Mr K M Chong and Mr Alvin Chong, for the plaintiff, and Mr Albert Cheung, for 1^stD5. However, I do not think that the issues involved herein are of such complexity, to such an extent that an experienced counsel like Mr Chong could not have handled on his own. 

50.As to the sum of $20,000 paid by 1^stD5 into court as security for the purposes of this application, I order that it be held in court as security for the plaintiff’s costs in this application, unless parties should agree otherwise.   

Mr K M Chong and Mr Alvin Chong, instructed by Kenneth C C Man & Co, for the plaintiff

Mr Albert Cheung, instructed by Ho & Wong for the 1^st named of the 5^th defendant