Read the full judgment text of CACV 000057/2000 on BabelCite. This Court of Appeal judgment was delivered on 19 January 2001 before Leong CJHC, Wong JA, Woo JA.
Land law – adverse possession – Limitation Ordinance s.17 – house on Lot 7 in Shek Po Tsuen, Yuen Long – registered owner Lam For Yau – plaintiff and her family used house for buffalo shelter and later storage of farming tools from 1977 onwards – house locked with keys held by plaintiff and alleyway boarded up – house collapsed in September 1997 – plaintiff claimed title by adverse possession – whether plaintiff must prove lack of licence to establish adverse possession – court holds plaintiff need not prove lack of licence – the requirements for adverse possession are factual possession and intention to possess (animus possidendi) as set out in Powell v McFarlance and Wong Luen Chung v Secretary for Justice – if defendant alleges a licence, burden is on defendant to prove it – whether plaintiff's period of possession can be tacked to her father-in-law's period – court holds periods of successive squatters can be aggregated – father-in-law in possession from 1977 to his death in 1995, plaintiff thereafter – whether adverse possession extends to land or only house – court holds it extends to both as they are inseparable – whether plaintiff entitled to substitution as registered owner without representing father-in-law's estate – court holds yes, plaintiff can rely on her own possession and add father-in-law's period – whether costs order nisi can be challenged on appeal – court holds no, as the order had become absolute under Order 42, rule 5B(6) of the Rules of the High Court and costs are a matter of trial judge's discretion – trial judge's order that each party bear their own costs was not an improper exercise of discretion – defendants' appeal dismissed with costs to plaintiff – plaintiff's Respondent's Notice dismissed with costs to defendants – both costs orders are orders nisi under Order 42, rule 5B(6).
Legal issues: Whether the plaintiff must prove lack of licence to establish adverse possession · Whether the plaintiff's period of possession can be tacked to her father-in-law's period of possession · Whether adverse possession extends to the land or only to the house · Whether the plaintiff can be substituted as registered owner despite not representing her father-in-law's estate · Whether the costs order nisi can be challenged on appeal
Outcome: Defendants' appeal dismissed with costs to the plaintiff. Plaintiff's Respondent's Notice dismissed with costs to the defendants. The costs orders are orders nisi under Order 42, rule 5B(6) of the Rules of the High Court.
Cited by 2 cases