Lai Wai Kuen v. Wong Shau Kwong
Read the full judgment text of HCA 3424/2003 on BabelCite. This High Court CFI judgment was delivered on 12 November 2004 before Lam J.
Property law – co-ownership – adverse possession – presumption of ouster – declaratory relief without trial – Order 19 Rule 7 – Limitation Ordinance – costs. Property at No.122 Lo Wai Tsuen, Tsuen Wan (Lot No.77 in DD 451) was registered in 1949 under Lai Shau Yuen and the Defendant as tenants in common. Lai Shau Yuen occupied and managed the property, paying all outgoings, and from 1982 leased it to a tenant. The Defendant never occupied the property, never demanded rent or account, and lost contact with Lai Shau Yuen a few years after 1949. After Lai Shau Yuen died in 2000, the Plaintiff, her niece and executrix, took over management. When the Plaintiff sought to rebuild the dilapidated house, the District Land Office indicated she required the co-owner's consent or a court declaration. The Plaintiff commenced proceedings on 16 September 2003; substituted service was ordered by Master Hui, and the Defendant filed no acknowledgment of service. Whether declaratory relief can be granted without a trial under Order 19 Rule 7 – held: yes, the rule is not inflexible (Hong Kong Civil Procedure 2004 Para.19/7/20), and the Plaintiff had a genuine need. Whether ouster can be established or presumed in a co-ownership adverse possession claim – held: ouster is required (Culley v Doe d Taylorson (1840) 11 Ad & El 1008, applied in Chou Mei Iu v Kung Mui Fong HCMP 2026/2000); Paradise Beach & Transportation Co Ltd v Price-Robinson [1968] AC 1072 distinguished as based on s.12 of the Real Property Limitation Act 1833 with no Hong Kong equivalent; following Doe d Fishar & Taylor v Prosser (1774) 1 Cowp 217, ouster was presumed given decades of non-occupation, no demand for account, no payment of rent or profits, and no acknowledgment of title. Whether a declaration affecting the Land Registry can be granted when the Land Registry is not a party – held: no. Declarations granted in terms of Paragraphs 1 to 3 (with amendments to Paragraph 3 referring to the Plaintiff together with her predecessor in title and an indefeasible possessory title); declaration in Paragraph 4 refused; no order as to costs.
Legal issues: Whether declaratory relief can be granted without a trial under Order 19 Rule 7 · Whether ouster can be presumed in co-ownership adverse possession claim · Whether declaration against the Land Registry can be granted when it is not a party
Outcome: Declaratory relief granted to the Plaintiff in terms of Paragraphs 1 to 3 of the Notice of Motion dated 14 September 2004 (with amendments to Paragraph 3); declaration sought in Paragraph 4 refused; no order as to costs.
Cited by 67 cases · Cites 1 case
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HCA 3424/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 3424 OF 2003 ____________ BETWEEN
____________ Before: Hon Lam J in Court Dates of Hearing: 15 September and 27 October 2004 Date of Judgment: 12 November 2004 _______________ J U D G M E N T ______________ 1.According to the record of the Tsuen Wan Land Registry, the land known as No.122 Lo Wai Tsuen, Tsuen Wan (viz. Lot No.77 in Demarcation District No.451) was registered under the joint name of Lai Shau Yuen and the Defendant Wong Shau Kwong as tenants in common since 25 August 1949. Lai Shau Yuen had passed away on 3 May 2000 at the age of 91. The Plaintiff was her niece and by a Grant of Probate dated 11 April 2001, she together with Wong Kwai Mui were appointed as executrices of the estate of Lai Shau Yuen. By an Assent and Confirmation dated 4 May 2001, Wong Kwai Mui waived her interest in the property and assented the interest of the estate in the property to the Plaintiff. 2.On the land, a house was built and according to the evidence before me, it had all along been occupied by Lai Shau Yuen until 1982. She also paid all the outgoings in respect of the property. Starting from 1982, she leased out the property to one Chow See On. After the death of Lai Shau Yuen, the Plaintiff took over the management of the property and collected rent from the tenant. The Plaintiff paid all the outgoings arising from the property including Government rent and rates. 3.The property is old and dilapidated. In mid 2003, the Plaintiff made enquiries with the District Land Office about rebuilding the house. She was told by an officer that the consent of the other co-owner was required. Alternatively, it was suggested that she could get a declaration from the court as to the extinction of the Defendant’s interest in the property. Hence, the present proceedings were commenced by the Plaintiff on 16 September 2003. 4.Very little is known about the Defendant. According to the evidence, he never occupied the property and had never demanded for any rent or account from Lai Shau Yuen or the Plaintiff. The Plaintiff had no means of contacting him. In fact, Lai Shau Yuen had lost contact with him a few years after 1949. Based on what Lai Shau Yuen told the Plaintiff, the Defendant only contributed to a small part of the purchase price of the property in 1949. 5.Pursuant to directions given by Master Hui, service of the Writ was effected by substituted service. No acknowledgment of service had been filed by the Defendant. The Plaintiff now seeks judgment under Order 19 Rule 7. The relief sought in the Notice of Motion are declaratory relief. 6.Although it is not the normal practice of the court to make a declaration without a trial, it is not an inflexible rule (see Hong Kong Civil Procedure 2004 Para.19/7/20). In the present circumstances, I am satisfied that the Plaintiff has a genuine need for the declaratory relief and the court could properly grant her such relief based on the merits of the case. 7.Given that the Defendant and Madam Lai were co-owners, there has to be ouster before the possession of Madam Lai could be treated as adverse, see Culley v Doe d Taylorson (1840) 11 Ad & El 1008 applied recently in Chou Mei Iu v Kung Mui Fong HCMP 2026 of 2000, 28 February 2003, Paras.20-27. 8.Ms Chan referred this court to the case of Paradise Beach & Transportation Co Ltd v Price-Robinson [1968] AC 1072 on adverse possession in the context of co-owner. However, that decision was based on Section 12 of the Real Property Limitation Act 1833 which has no equivalent in our Limitation Ordinance (see discussion in McGee, Limitation Periods, 4th Edn., Para.13.035). 9.At the end, Ms Chan accepted that the Plaintiff needed to establish ouster. 10.As mentioned, the evidence concerning the circumstances under which the Defendant ceased to have any dealings with the property is very flimsy. The Plaintiff can only relay the limited information she had learnt from Madam Lai. 11.On the other hand, we have a very long period (from 1950’s to today) during which the Defendant did not have any occupation or access to the property. He did not make any demand for account and there had been no payment of rent or profits to him throughout the years. There was also no acknowledgment of title. Madam Lai and her tenant had a long undisturbed and quiet possession. The case is indistinguishable from Doe d Fishar & Taylor v Prosser (1774) 1 Cowp 217. The court can presume ouster in such circumstances and I will so presume. 12.I therefore hold that the Plaintiff is entitled to the declarations in terms of Paragraphs 1 to 3 of the Notice of Motion dated 14 September 2004 with amendments in Paragraph 3 as follows,
13.I refuse to grant a declaration in terms of Paragraph 4 of the Notice of Motion as the Land Registry is not a party to this action. 14.I shall order accordingly. Since the Plaintiff did not seek costs, I make no order as to costs.
Mrs Dora Chan, instructed by Messrs Rene Hout & Co., for the Plaintiff Defendant, in person (absent) |
Cases cited in this judgment