Read the full judgment text of HCMP 003305/1999 on BabelCite. This High Court CFI judgment was delivered on 18 June 2002 before Deputy High Court Judge Lam.
Land law – adverse possession – New Territories – Tso (Chinese hereditary landholding) – Limitation Ordinance (Cap 347) s.17 – whether the title of the registered owner of Tso land can be extinguished by adverse possession where new male descendants are continuously born into the Tso – trust argument – whether members of a Tso claim through the managers for limitation purposes – whether members' beneficial interests are independent of the trustee's legal estate – whether section 10(2) of the Limitation Ordinance preserves the trustee's title so long as any beneficiary's right of action is unbarred – whether newborn members' beneficial interests vest upon birth or only upon registration – whether section 13 of the New Territories Ordinance (Cap 97) makes Chinese customary law mandatory such that limitation statutes do not apply to New Territories land – whether the Real Property Limitation Act 1833 (imported via section 5 of the Supreme Court Ordinance) treats the trustee's and beneficiaries' titles as independent – interpretation of the schedule to the Limitation Ordinance – whether Re Nisbet & Pott's Contract [1906] 1 Ch 386 applies in the absence of an equivalent of section 10(2) and (3) of the Limitation Ordinance – departure from Tsang Wing-lung v Tsang Lun [1993] 2 HKLR 23 – reliance on Wu Koon Tai v Wu Yau Loi [1997] AC 179 – analysis of Tang Kai-chung v Tang Chik-shang [1970] HKLR 277, Kan Fat-tat v Kan Yin-tat [1987] HKLR 516, Tang Yau Yi Tong v Tang Mou Shau Tso [1996] 2 HKLR 212, Chu Tak-hing v Chu Chan Cheung-kiu [1968] HKLR 542, Earnshaw v Hartley [2000] Ch 155, Chap Yick Clansman's Association v Mok Fai [1997] HKLRD 580, General Finance, Mortgage & Discount Co. v Liberator Permanent Benefit Building Society [1878] 10 Ch D 15, Antrim County Land Building & Investment v Stewart [1904] 2 IR 357, Scott v Scott [1854] 4 HLC 1065, Bolling v Hobday [1882] 31 WR 9, Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694, In re Shang Kiang-yuen [1968] HKLR 192, Chung Ping Kwan v Lam Island [1997] AC 38 – finding that at all material times between 1923 and the date of hearing, at least one Tso member was an infant or had an unbarred right of action – preliminary issue determined against the Defendant – equitable interests of Tang King Loi, Tang Ka Hei and Tang Pak Hin not extinguished – matter restored for further directions.
Legal issues: Effect of continuous birth of new Tso members on extinguishment of title by adverse possession (trust argument) · Whether Section 13 of the New Territories Ordinance makes Chinese customary law mandatory, excluding limitation statutes (customary law argument) · Whether Tso members must claim through the managers for limitation purposes · Whether a newborn Tso member's beneficial interest vests only upon registration
Outcome: Preliminary issue determined against the Defendant. The court held that the customary law argument fails, and that on the trust argument the title of the managers could have been extinguished upon lapse of 20 years from 1923, but the equitable interests of Tang King Loi, Tang Ka Hei, and Tang Pak Hin have not been extinguished. The matter was to be restored for further order or direction.
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