Read the full judgment text of HCA 003424/2003 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.
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