Markland Global Investment Ltd v. All Occupier(S) of the Property Known As a Portion Remaining Portion of Lot No. 792 in Demarcation District No. 453, Tsuen Wan, New Territories, Hong Kong and Another

DCMP 3828/2019

[2021] HKDC 1395

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3828 OF 2019

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BETWEEN

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Before:  Deputy District Judge Calvin Cheuk in Chambers

Date of Hearing:  8 November 2021

Date of Decision:  8 November 2021

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DECISION

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Introduction

1.By her summons dated 1 September 2021 (the “Summons”), the 2^nd defendant applies against the plaintiff for a default judgment pursuant to Order 19 rule 7 of the Rules of the District Court (Cap 336H)  on the ground of her adverse possession over a portion of the Remaining Portion of Lot No 892 in Demarcation District No 453, Tsuen Wan, New Territories, Hong Kong (the “Claimed Occupied Area”)

2.The procedural history is slightly convoluted.  For the present purpose, however, it suffices to note that the plaintiff has withdrawn its Statement of Claim and Reply and Defence to Counterclaim.  By its letter dated 20 October 2021, the plaintiff also indicated that it would no longer participate in these proceedings.

Legal principles

3.The 2^nd defendant accepts that it is not the normal practice of the court to make a declaration without trial.  However, this is only a rule of practice which should not be followed when the plaintiff had a genuine need for the declaratory relief and justice would not be done if such relief were denied.  See: Hong Kong Civil Procedure 2022, at §19/7/20.

4.Where declaratory relief is sought, the court will scrutinise the application for default judgment carefully and does not hastily grant the relief sought. See: Hong Kong Civil Procedure 2022, at §19/7/20.

Applying the legal principles to the present case

5.There are two difficulties in the 2^nd defendant’s application.

6.First, according to the Defence and Counterclaim, the 2^nd defendant is claiming adverse possession to the “Property” as defined in paragraph 2 of the Statement of Claim.  However, the definition of the “Property” is different and larger than the definition of the “Claimed Occupied Area” referred to in the 2^nd defendant’s Summons.

7.Second, the 2^nd defendant relies upon an expert report dated 9 July 2021.  However, it is unclear how the expert can come to the conclusions about the timing and location of the fence surrounding the Claimed Occupied Area from the aerial photographs.

8.I have put some examples to Mr Ng, who appears for the 2^nd defendant. Mr Ng fairly concedes that he does not know the answer.

9.In these circumstances, I do not consider it is appropriate to grant the present application, despite the plaintiff’s apparent lack of interest in these proceedings.  The court will need proper evidence and explanation before it can grant the declarations sought.

10.For these reasons, I dismiss the application.  As the plaintiff did not participate in this application, I make no order as to costs today.  For clarification purpose, to the extent that the expert report can be re-used at the trial, those costs should not fall within the costs today and shall be reserved to the decision of the trial judge.

11.The 2^nd defendant’s own costs shall be taxed according to the Legal Aid Regulations.

The plaintiff was not represented and did not appear

Mr Ng Man Kin, of Kwok, Ng & Chan, assigned by the Director of Legal Aid, for the defendant