Lai Wai Kuen v. Wong Shau Kwong

HCA 3424/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3424 OF 2003

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BETWEEN

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Before: Hon Lam J in Court

Dates of Hearing: 15 September and 27 October 2004

Date of Judgment: 12 November 2004

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J U D G M E N T

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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, 4^th 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,

(a)    instead of “the Plaintiff has been in adverse possession”, it shall be read as “the Plaintiff together with her predecessor in title has been in adverse possession”;

(b)    the words “an indefeasible possessory” should be added to qualify the nature of title acquired.

Paragraph 3 shall therefore become,

“a declaration that the Plaintiff together with her predecessor in title has been in adverse possession of the Property for a period exceeding 20 years prior to the commencement of this action and has thereby acquired an indefeasible possessory title to the Property”.

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)