Yu Kit Chiu and Another v. Chan Shek Woo t/a 陳潮昌士多

DCCJ5488/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5488 OF 2003

BETWEEN

Coram: H H Judge C B Chan in Chambers

Date of Hearing: 9 August 2005

Date of Delivery of Decision: 9 August 2005

D E C I S I O N

1.In this application, the plaintiffs apply under Order 14, Rule 1 of the Rules of the District Court that there be final judgment for an order for possession in favour of the plaintiffs against the defendant of the land set out in paragraph 1 of the statement of claim; and (2), there be judgment in favour of the plaintiffs against the defendant for damages for trespass to be assessed by the Master in chambers; and under 14A, Rule 1 of the Rules of the District Court that the issues of law set out in the schedule to the summons be determined by this court, and consequential upon determination of the said issues of law that judgment be entered against the defendant; (3) that pursuant to Order 18, Rule 19(1) of the Rules of the District Court, the amended defence and counterclaim of the defendant be struck out on the ground that the same (i) does not disclose a reasonable defence and/or cause of action; or (ii) may prejudice, embarrass or delay the fair trial of the action; and/or (iii) is otherwise an abuse of the process of the court, and that judgment in terms of the statement of claim be entered.  The plaintiff also applies for costs.

2.The two questions of law to be determined under Order 14A,  Rule 1 of the Rules of the District Court are:

(1)      whether the plaintiffs have been re-granted a new lease in respect of the remaining portion of lot No. 994 in DD115 (hereinafter referred to as “the said landlord”) by the government on 1 July 1997 by virtue of the New Territories Leases (Extension) Ordinance (Cap. 150) whereby a new estate and interest of or in the said land lot is created and granted to the plaintiffs;

(2)      whether as at the date of issue of the writ herein, the plaintiffs’ title to the said land lot referred to in paragraph 1 above has been extinguished by virtue of sections 7 and 17 of the Limitation Ordinance (Cap. 347) and the defendant is entitled to a possessory title to the said land lot deriving from the adverse possession of the said land lot as pleaded in paragraph 2 of the amended defence and counterclaim.

3.In relation to the two questions posed in the Order 14A, Rule 1 application, the plaintiffs’ counsel relies on the authority Chan Tin Shi v Li Tin Sung & Others CACV71 of 2003 handed down on 19 November 2004 and also Chan Suk Yin v Wong Yam Tai v Harvest Good Development Limited CACV101 of 2004. 

4.The defendant’s counsel concedes that based on the authorities aforesaid, the answer to the first question posed should be “yes” and the answer to the second question posed should be “no.”  As stated in the judgment Chan Suk Yin & Wong Yam Tai v Harvest Good Development Limited, paragraph 13 thereof referred to by the plaintiffs’ counsel, the learned Vice President of Appeal, the Honourable Rogers VP, stated that:

“The judgment in the case of Chan Tin Shi v Li Tin Sung & Others CACV71 of 2003 held that the effect of the New Territories Leases (Extension) Ordinance Cap. 150 was that a new estate was created in respect of land in the New Territories, and that for the purposes of limitation of actions, time should begin to run again from the date of the creation of the new estate.”

5.The defendant’s counsel stated that she conceded that point, but as the Court of Appeal decision in Chan Tin Shi would be heard on appeal in the Court of Final Appeal, she wished to reserve the right to argue should the Chan Tin Shi decision be reversed in the Court of Final Appeal.  Otherwise, the defendant’s counsel conceded that on the basis of law, the defence and counterclaim be struck out and that the plaintiffs be granted judgment as claimed. 

6.I therefore strike out the amended defence and counterclaim and grant judgment for an order for possession of the land set out in paragraph 1 of the statement of claim by the defendant to the plaintiff.  And I also grant that the defendant do pay the plaintiffs costs of the action including costs of the application, to be taxed if not agreed, with certificate for counsel. 

7.And I also grant judgment in favour of the plaintiffs against the defendant for damages for trespass to be assessed.

Representation:

Mr K M Chong, instructed by Messrs Liu, Choi & Chan, for both Plaintiffs

Miss Vivian Yeung, instructed by Messrs Wong, Kwan & Co., for the Defendant