Ip Wing Fung Davis v. Jung Keum Soon

DCMP 2119/2022

[2023] HKDC 1359

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2119 OF 2022

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DECISION

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INTRODUCTION

1.The plaintiff and the defendant each are ½ tenants-in-common of the property known as Flat F, 9/F, Jing Hui Garden, No 8 Aberdeen Main Road, Aberdeen, Hong Kong (the “Property”).  This is the plaintiff’s application by Originating Summons for a declaration that he has been in adverse possession of the defendant’s ½ share of the Property.  Alternatively, the plaintiff seeks an order of sale of the Property under section 6 of the Partition Ordinance (Cap 352).

2.The defendant is out of jurisdiction, and substituted service has been properly effected.  The defendant has not filed any evidence, and did not show up at the hearing today.

BACKGROUND

3.The defendant was the co-habitant of the plaintiff’s former business partner.  The plaintiff came to know the defendant through the business partner in 1988.   Subsequently, they all three became close friends.

4.In 1992, the plaintiff and the defendant explored an idea of co-purchasing a property for investment purpose.  Eventually, they purchased the Property as tenants-in-common each holding ½ share. 

5.The purchase price was HK$1,420,000.  The plaintiff and the defendant each contributed half of the down payment, that is, each contributing HK$213,000.  Further, the plaintiff on his own paid the legal costs and other expenses related to the purchase of the Property totaling HK$28,400. 

6.The plaintiff and the defendant secured a mortgage from HSBC in the amount of HK$994,000 to be repaid over a period of 20 years.  The repayments were automatically deducted by HSBC from a joint account in the name of the plaintiff and the defendant maintained with HSBC.  Although the account was in the joint name of the plaintiff and the defendant, the plaintiff’s evidence, which is not challenged, is that the defendant never contributed any funds into the joint account or directly to the mortgage repayment since the purchase. The mortgage was fully repaid and discharged on 18 April 2012.

7.Although as mentioned above, the Property was purchased for investment purpose, the plaintiff and his family lived in the Property from the purchase until 2018 when the plaintiff moved to another property.  Since 2018, the plaintiff has been using the Property for storage purpose.  Further, the plaintiff arranged for renovation works on the Property in 2001 and 2021 without any consultation with the defendant. 

8.According to the plaintiff’s recollection, his last contact with the defendant was in or around 1993 when they bumped into each other at the Hong Kong Full Gospel Church.  However, there is no evidence that the defendant disturbed or even questioned the plaintiff about the use of the Property.  There is also no evidence that the defendant has ever demanded for the key to the Property, even though she has never got one according to the plaintiff’s evidence.  Further, the plaintiff has paid all the expenses and outgoings related to the Property, though he has not paid any rent or attempted to pay any rent to the defendant.

9.It is fair to say on the evidence that throughout these 30 years, the plaintiff’s use and possession of the Property has been undisturbed and quiet without any demand from the defendant for rents, profits or even the key to the Property.

LEGAL PRINCIPLES

10.It is trite that to establish adverse possession, the squatter has to establish that he has had both factual possession and the requite intention to possess for 12 years (in the event that the adverse possession started on or after 1 July 1992).  In the context of co-ownership, a co-owner of a land can establish adverse possession against the other co-owner provided that there has been ouster of the latter by the former for 12 years: see Wong Chow Yun v Qwok Leung Mah, DCMP 1752/2015, 1 March 2017 per DDJ Elaine Liu (as she then was) at §54; see also Art Link Development Ltd v Tang Shiu Ki, the Executrix of the Estate of Tang For Kui, deceased [2020] HKDC 1085 at §47 per HH Judge KC Chan.

11.Ouster may be inferred or presumed, for example, where there has been a long period of undisturbed and quiet possession without any demand from the co-owner for rents or account of profits: see Lai Wai Kuen v Wong Shau Kwong [2004] 4 HKC 528 at §11 per Johnson Lam J (as he then was); Wong Chow Yun v Qwok Leung Mah, supra at §§63-65; Art Link Development Ltd v Tang Shiu Ki, the Executrix of the Estate of Tang For Kui, deceased, supra at §47.

ANALYSIS

12.In the present case, as I mentioned above, the plaintiff has enjoyed a 30-year of undisturbed and quiet possession of the Property without any demand from the defendant for rents or account of profits or even the key to the Property.  From this ouster is inferred or presumed for at least 12 years when the present application was commenced.

13.In the circumstances, I am satisfied that the plaintiff has established adverse possession in respect of the defendant’s ½ share of the Property.

14.As such, it is not necessary for me to deal with the plaintiff’s alternative application for a sale order under the Partition Ordinance.

ORDER

15.Therefore, I make the following order:-

(1)  A declaration that the defendant’s title to the ½ share of the Property (to be properly described in the formal order) has been extinguished and any claim by the defendant has been barred by virtue of sections 7 and 17 of the Limitation Ordinance (Cap 347);

(2)  A declaration that the plaintiff has acquired possessory title in respect of the defendant’s title to the ½ share of the Property;

(3)  There should be no order as to costs.

Mr Derek Hu, instructed by So, Lung and Associates, for the plaintiff

The defendant is unrepresented and absent