Rich Trend Ltd v. The Estate of Wong Sau, Deceased

HCA 2035/2020

[2023] HKCFI 1406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2035 OF 2020

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REASONS FOR JUDGMENT

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1.By summons dated 23 March 2023 (the “Summons”), the plaintiff applied for judgment against the defendant seeking, inter alia, declarations that:

(1)  as between the plaintiff and the defendant, the plaintiff has acquired by way of adverse possession, ownership over the property know as Lot 769 in DD 216, New Territories together with the building and structure messuages erected thereon (the “Property”); and

(2)  any and all of the defendant’s right and interest of and in the Property have been extinguished pursuant to section 17 of the Limitation Ordinance (Cap 347).

2.The plaintiff’s application was made under Order 19, rule 7 of the Rules of the High Court (Cap 4A) (“RHC”), on the basis that the defendant is in default of defence.

3.At the hearing, I gave judgment for the plaintiff for declaratory relief in the terms sought, subject to minor adjustments. I now set out my brief reasons for so doing.

A.  APPLICABLE PRINCIPLES

4.The principles applicable to applications for default judgment under Order 19 rule 7 were recently summarised by Cheng J in Lee Wat Put (李華弼) and another v Li Ip Shing (李業成) [2022] HKCFI 529 as follows:

“5. On an application for default judgment under O.19 r.7, the court gives such judgment as the plaintiff appears entitled on the statement of claim: O.19 r.7(1). Accordingly, the court will not consider any evidence.

6. It is not the normal practice of the court to make a declaration without a trial. However, this is only a rule of practice which should not be followed when the plaintiff has a genuine need for the declaratory relief and justice would not be done if such relief were denied. The court will scrutinise the application carefully and will not hastily grant the relief sought. The declaratory relief should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them. See Hong Kong Civil Procedure 2022, note 19/7/20”.

5.As to adverse possession, her Ladyship said:

“7. Pursuant to s.38A of the Limitation Ordinance … actions for recovery of land are statute-barred after twenty years from the date on which the right of action accrued, where the right of action accrued prior to 1 July 1991.

8. No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run: s.13 LO.

9. At the expiration of the prescribed period for any person to bring an action to recover land, the title of that person to the land shall be extinguished: s.17 LO. However, the effect of expiration of the period is only that it extinguishes the title of the dispossessed against the squatter; it does not convey the owner’s title to the squatter…

10. A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess … ”.

6.If the registered owner’s cause of action against the squatter accrues after 1 July 1991, the applicable limitation period is 12 years: Tang Moon Lam v Tang Ying Yeung [2019] 5 HKLRD 556 per Godfrey Lam J (as he then was) at §§26 to 50.

B.  SERVICE

7.On 26 October 2022 Master Kot ordered, inter alia, that the Official Solicitor be appointed to represent the Estate of Wong Sau (王秀), Deceased, for the limited purpose of accepting service of the writ of summons in these proceedings.

8.The said order was made pursuant to the procedure in Order 15 rule 6A RHC, and following evidence filed by the plaintiff’s solicitors detailing extensive steps taken and difficulties encountered in locating any suitable person to act as representative of the Deceased’s estate for the purposes of the proceedings. The steps taken included, in summary:

(1)  ascertaining that the Deceased passed away in January 1985;

(2)  visits to and attempts to effect service at the Deceased’s last known addresses;

(3)  attempts to contact the Deceased’s known relative to ascertain whether the Deceased had been married or had any issue;

(4)  conducting a search at the Probate Registry to ascertain that no person had applied for the grant of probate or letters of administration of the Deceased’s estate;

(5)  conducting an enquiry of will relating to the Deceased through the Law Society of Hong Kong;

(6)  placing an advertisement in a local newspaper notifying any persons who have interest in the Deceased’s estate of the proceedings and requesting them to contact the plaintiff’s solicitors; and

(7)  obtaining a statutory declaration from the village representative of the village where the Deceased had resided to the effect that the Deceased was never married and had no issue or siblings.

9.Pursuant to the order of Master Kot, the writ was served on the Official Solicitor on 1 November 2022. Subsequently, the Amended Statement of Claim was served by insertion through the letterbox at the Deceased’s two last known addressed, and the Notice of Intention to Enter Judgment and the Summons seeking default judgment were served by postal service to the two said addresses.

10.In short, extensive efforts have been made to trace relatives and descendants of the Deceased and ascertain whether any person would come forward to represent the estate or make any claim in the proceedings or in respect of the land, but none has done so: compare Chan Yu Shan v The Personal Representative of the Estate of Cheung Ying Ha (deceased) HCMP 2722/2016, DHCJ Seagroatt, 21 June 2017.

11.In the premises and by virtue of the above, I accept that the proceedings, the Amended Statement of Claim, the Notice of Intention to Enter Judgment and the Summons have been served on the defendant.

C.  ADVERSE POSSESSION

12.I am satisfied that the plaintiff has sufficiently pleaded a case that it was continuous and uninterrupted possession and occupation of the Property for at least twelve years prior to the commencement of this action, with the requisite intention possess the land to the exclusion of the whole world.

13.In this regard, the Amended Statement of Claim includes:

(1)  a plea that the plaintiff entered into possession of the Property from 1995 or 1996 and has been in continuous possession to date;

(2)  matters showing the requisite animus possidendi : the plaintiff completed housing development(s) on the Property; paid government rent and rates; and leased the Property to third parties; and

(3)  a period of adverse possession exceeding 12 years.

14.Furthermore, I have considered the principles on the grant of declaratory relief summarised above. I conclude that there is, in the circumstances of this case, a genuine need for the declaratory relief sought, and that it is appropriate to grant such relief.

Mr Andrew Mak instructed by Adrian Yeung & Cheng, for the Plaintiff

The Defendant was not represented and absent