Cheung Wing Fan v. Wong Wai Ping

HCA 1371/2020

[2021] HKCFI 516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1371 OF 2020

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BETWEEN

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J U D G M E N T

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1.The Plaintiff and the Defendant are co-owners of a property at Flat A, 4^th floor, Yan Shing Mansion, 29 Morrison Hill Road, Hong Kong (“the Property”). The Plaintiff seeks declaratory relief that the Defendant’s title to the Property had been extinguished and that the Plaintiff has acquired an indefeasible possessory title to the Property.

2.The writ was issued on 14 August 2020 and was served by way of substituted service by advertisement in a newspaper pursuant to the order of Master Kot dated 30 September 2020.

3.Notice of today’s hearing was also served by advertisement in a newspaper pursuant to my order dated 8 February 2021.

4.The Defendant has never appeared.  As I am satisfied as to service of the writ and the notice of this restored hearing, I order that service of the amended statement of claim on the Defendant be dispensed with.  I shall proceed to consider the Plaintiff’s application for default judgment in the absence of the Defendant.

Legal principles

5.This application is made under Order 19, rule 7 of the Rules of the High Court.  It is trite that such an application is decided by reference to the statement of claim alone without reference to evidence.

6.For adverse possession, it is for the plaintiff to prove that she had factual possession and intention to possess the subject property to the exclusion of the owner and the world at large: Wong Tak Yue v Kung Kwok Wai (No.2) (1997-8) 1 HKCFAR 55.

7.At common law, because of unity of possession, co-owners are entitled to occupy the whole of the land or take the entire sum of the rents or profits. It would not bar the other tenant in common, because such possession is not adverse to the other’s rights, but in support of their common title.  The refusal of one to pay the other his share was not by itself sufficient, without denying title.  An actual ouster is required to establish adverse possession. See Lo Kau Kun v Cheung Yuk Yun, HCA 152/2013, 24 February 2015, §84, DHCJ Sakhrani. 

8.An ouster is presumed where there is a long exclusive enjoyment by one co-owner.  In Lai Wai Kuen v Wong Shau Kwong [2004] 4 HKC 528, §11, Lam J (as he then was) held that the plaintiff’s exclusive possession of the property for over 50 years and use of the property for rental for his own benefit, absence of request for account and payment of rent or profits to the defendant were found to be sufficient to presume ouster.

Analyses

9.The subject Property was acquired by an assignment dated 24 April 1989 in the name of the parties as joint tenants at a consideration of HK$825,000.

10.The Defendant left the Property in mid-1991.  The Plaintiff changed the locks to the Property and the locks to the rooms therein without providing any of the new keys to the Defendant.  Since then, the Plaintiff has been occupying the Property to the exclusion of all others including the Defendant for 30 years.

11.The Plaintiff had paid for the purchase price, all mortgage payments and interest of the Property; and had never requested the Defendant for reimbursement.

12.From 1991 to 1992, the Plaintiff had rented out the Property but had kept the rental income for her own use without accounting to the Defendant and the Defendant has made no demand for account.

13.Since 1992, the Plaintiff has been occupying the Property as her primary residence.  No part of it has been reserved for the benefit of the Defendant.

14.The Plaintiff has been paying for all the outgoings of the Property and has never sought reimbursement from the Defendant. 

15.The Plaintiff believes the Defendant to be alive as there is no death record of him, no grant of probate or administration in respect of his estate.

16.Applying Lai Wai Kuen v Wong Shau Kwong, there is a case of the Plaintiff’s continuous possession for about 20 years and ouster of the Defendant disclosed on the amended statement of claim to found adverse possession.

Relief

17.If relief is to be granted without trial or evidence, the right course for the court is not to make a declaration but to state on what footing the relief is to be granted.  On the other hand, the rule of the court that a declaration will not be granted when giving judgment by consent is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to a party to which he is entitled.  If the plaintiff has a genuine need for such relief and the court could properly grant it based on the merits of the case, declarations can be made.  See Hong Kong Civil Procedure 2021, Vol 1, §15/16/2.

18.The applicant must satisfy three requirements before a declaration will be made: (i) that he has a real (as opposed to an abstract or hypothetical) interest in the subject matter of the declaration; (ii) that he has a real interest in obtaining a declaration against the adverse party; and (iii) that the adverse party is a proper contradictor: see Koo Ming Kown v Rev Mr Mok Kong Ting & ors [2018] HKCFI 967, 4 May 2018, DHCJ To.

19.In the present case, the 3 requirements are met.  The Plaintiff has a real interest in the Property as an owner in possession.  She has a real interest in obtaining a declaration against the Defendant so as to extinguish his title and to facilitate selling the Property.  The Defendant is a proper contradictor to whom notice of these proceedings has been given and has disappeared without trace.

20.In the circumstances, I grant an order in terms of the default judgment summons, with no order as to costs.

21.I thank Mr Kwan for his assistance.

Mr Ray Kwan, instructed by C.T. Chan & Co, for the Plaintiff

Attendance of C.T. Chan & Co for the Plaintiff was excused on 26 February 2021

The Defendant was not represented and did not appear