Wong Hung Ho v. The Personal Representative of Li Wing Seung, Deceased

DCCJ 3065/2021

[2024] HKDC 967

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3065 OF 2021

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DECISION

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Background and procedural steps taken

1.This is the plaintiff’s application by summons filed on 9 February 2024 (the “Summons”) for default judgment pursuant to Order 19, rule 7 of the Rules of District Court (the “RDC”). The plaintiff essentially claimed that he had acquired possessory title to the property known as Flat F on 30/F and its main roof of Tower Block 2, Nan Fung Sun Chuen, Tsuen Wan, New Territories, Hong Kong (the “Property”) by adverse possession.

2.The plaintiff claims the following reliefs in the draft Judgment attached to the Summons:-

(1)  A declaration that the plaintiff has acquired possessory title to the Property by adverse possession pursuant to sections 7, 8, 13 and 17 of the Limitation Ordinance (The “Ordinance”) [1] (paragraph 1(1)).

(2)  A declaration that the defendant's title to the Property has been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance (Cap 347) (the “Ordinance”) (paragraph 1(2)).

(3)  An injunction to restrain the defendant, whether by himself, his successor in title, agents, employees or advisors from interrupting in or otherwise howsoever dealing with and/or from acting in a manner inconsistent with the plaintiff's possessory title of the Property (paragraph 1(3)).

3.The Writ with the Indorsement of Claim indorsed thereon was issued on 30 June 2021. In the Writ, the plaintiff sued the defendant Li Wing Seung (李詠嫦) in her capacity as a living individual.

4.By an order dated 2 August 2022, Master Isabella Chu ordered that the validity of the writ be extended for 12 months from the date of its expiry.

5.The plaintiff later found out that the defendant had passed away. By an order dated 4 August 2023, Maser B. Mak granted leave to the plaintiff to amend the title of the defendant to “The Personal Representative of Li Wing Seung (李詠嫦), deceased” (the “Deceased”), which the plaintiff did on 9 August 2023.

6.By the same order, Master B Mak further ordered that the validity of the writ be further extended for 6 months from the date of its expiry.

7.By an order dated 1 November 2023, Master Maurice Lam ordered that the Official Solicitor (the “OS”) be appointed to represent the estate of the Deceased for the limited purpose of accepting service of the Amended Writ of Summons.

8.On 9 November 2023, the plaintiff served the Amended Writ of Summons on the OS.

9.On 10 January 2024, the plaintiff served a Statement of Claim (the “SOC”) and a Notice of Intention to Enter Judgement on the OS.

10.I am satisfied that the OS has accepted service of the Amended Writ of Summons. Since the defendant fails to serve a defence on the plaintiff, the plaintiff is entitled to apply to the Court for judgment against the defendant pursuant to O19, r7 RDC.

Grant of declaration without a trial: applicable principles

11.It is trite that in default judgment applications under Order 19, rule 7 of the RDC, the court cannot receive any evidence but must give judgment according to the pleadings alone: Hong Kong Civil Procedure 2024, Vol 1, §19/7/11.

12.Regarding the grant of declaration without a trial, the normal practice of the court is stated in §19/7/20 of the Hong Kong Procedure 2024, Vol 1. The relevant principles may be summarized as follow:-

(1)  It is not the normal practice of the court to make a declaration without a trial.

(2)  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.

(3)  Where declaratory relief is sought, the court expects maximum assistance to be provided in order for the relief to be granted. However straightforward this kind of applications may seem, the court cannot be expected to deal with the matter on a do-it-yourself basis and rubber-stamp the uncontested application without further ado.

(4)  The declaratory reliefs to be granted should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them.

13.It is with these principles in mind that I now turn to deal with the application for default judgment.

Discussion

14.In my judgment, upon reviewing the SOC alone, the plaintiff has successfully established possessory title to the Property by adverse possession, thereby extinguishing the defendant’s title to the Property before the commencement of this action. It is the plaintiff’s pleaded case that:-

(1)  Since some time before 2007, the Property has been abandoned. The door to the Property was unlocked.

(2)  In July 2007: -

(a)  The plaintiff was engaged to carry out renovation works on a nearby unit on the 30^th Floor of Tower Block No. 2 of Nan Fung Sun Chuen;

(b)  The plaintiff noticed that the Property’s door was unlocked and that the interior of the Property was messy. The Property appeared to be unoccupied.

(c)  The plaintiff then observed the Property for several days and came to the conclusion that the Property was in fact abandoned, as the door was always unlocked, and no one entered the Property.

(d)  Seeing that the Property was abandoned, the plaintiff entered the Property and took exclusive possession of the Property by changing the lock to the same in August 2007.

(e)  Since then, the plaintiff improved the Property by packing and wrapping the goods inside and storing his own properties and used the Property as if it was the plaintiff’s own property.

(f)  Since 2021, the plaintiff started to use electricity and water supply of the Property and the registered prayer for electricity and water bills was changed to the plaintiff in May 2021.

15.By reason of the above, the plaintiff has established both factual possession and the requisite intention to possess the Property (Wong Tak Yue v Kung Kwok Wai & another (1997-98) HKCFAR 55 at 68E-F per Li CJ) for the required period of 12 years (see sections 7 and 17 of the Ordinance).

16.In my view, the plaintiff has a genuine need for the declaratory reliefs and justice would not be done if such reliefs were denied. Without them, individuals dealing with the Property might mistakenly assume that the defendant is still the owner of the Property, when in reality she is not. The declarations would allow the plaintiff to asset to all parties, including those dealing with the Property, that he has acquired possessory title to the Property.

17.However, I decline to grant to the plaintiff the injunction as prayed for in the draft Judgment because:-

(1)  The claim for an injunction has not been pleaded in the SOC; and

(2)  To grant an injunction would be wider than what the plaintiff is entitled to.

At the hearing, Mr Chan readily acknowledged that the plaintiff did not require an injunction.

Order

18.By reason of the matters aforesaid, I make an order in terms of paragraphs 1 and 2 of the draft judgment attached to the Summons, i.e. a declaration that the plaintiff has acquired possessory title to the Property by adverse possession and a declaration that the defendant’s title to the Property has been extinguished by virtue of sections 7 and 17 of the Ordinance.

19.There is no reason why costs should not follow the event. Subject to paragraph 20 below, I make a costs order nisi that the plaintiff’s costs of this action, including costs of this application, be paid by the defendant to the plaintiff, to be taxed it not agreed, with certificate for counsel.

20.However, I will disallow the costs for the preparation of the 3^rd Affirmation of the plaintiff filed on 9 February 2024. It is well established that in default judgment applications under Order 19, rule 7 of the RDC, the costs of any affidavits in support will be disallowed: Jones v Harris (1887) 55 L T 884; §19/7/11, Hong Kong Civil Procedure 2024, Vol 1.

21.I thank Mr Chan for his assistance.

Mr Sunny Chan, instructed by Benny Kong & Tsai LLP, for the plaintiff

The defendant was not represented and did not appear