Read the full judgment text of HCA 15824/1999 on BabelCite. This High Court CFI judgment was delivered on 11 October 2007 before Hon Lam J.
Property law – adverse possession – Limitation Ordinance – Basic Law – constitutional challenge – whether the Limitation Ordinance is invalid by reason of Articles 6 and 105 of the Basic Law – sub-contract terminated due to dispute over temple access footpath – oral contract in Footpath Agreement – history of the Hong Kong Taoist temple Kam Lan Koon on Lot 1943 in Tong Yan Sun Tsuen, Ping Shan, built on land donated by Dr Cheung Kung Leung – whether Hong Kong's unregistered title system engages Article 105 – meaning of 徵用 – Chinese text of Basic Law prevails – the decision in JA Pye (Oxford) Ltd v United Kingdom [2005] 3 EGLR 1 and the Grand Chamber ruling of 30 August 2007 – factual possession and animus possidendi – Powell v McFarlane and Wong Tak Yue v Kung Kwok Wai (No.2) – whether willingness to pay rent defeats animus possidendi – doctrine of implied licence – Leigh v Jack disapproved – termination of licence on assignment – whether the Footpath Agreement was terminated upon assignment of CTOY to CKW – contractual licence, implied licence and proprietary estoppel – Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd – implied easement of necessity – whether the Koon acquired an indefeasible possessory title against the registered owner – disputed areas: Footpath, Yellow Land, Red Land, Amenity Area, Inner Garden Area, Outer Garden Area – 20-year limitation period – section 7, section 8(1), section 13(1) and section 17 of the Limitation Ordinance – whether the Koon's use of the Red Land, Inner Garden Area and Outer Garden Area was with express or implied permission of CKW – the 1974 licence agreement – the 1985 parking incident and Fong Ying Wo – keys to gates retained by the Cheung family – whether the Koon's claim for adverse possession must fail – Defendant entitled to an order for possession of the Red Land, Inner Garden Area and Outer Garden Area – Koon's right to use the Footpath for ingress and egress preserved under implied easement of necessity and/or proprietary estoppel – Koon ordered to pay 4/5 of the Defendant's costs – appeal to Court of Appeal dismissed in CACV 79/2008 on 18 February 2009.
Legal issues: Constitutionality of the Limitation Ordinance under the Basic Law · Requirements for factual possession in adverse possession claims · Requisite intent for adverse possession and the willingness to pay rent · Termination of the Footpath Agreement upon assignment to CKW · Possession of the Red Land, Inner Garden Area and Outer Garden Area
Outcome: Koon's claims for adverse possession over the Footpath, Red Land, Inner Garden Area and Outer Garden Area dismissed; Defendant granted order for possession of the Red Land, Inner Garden Area and Outer Garden Area; Koon's right to use the Footpath for ingress and egress preserved under an implied easement of necessity and/or proprietary estoppel; Koon ordered to pay 4/5 of Defendant's costs; appeal to Court of Appeal dismissed in CACV 79/2008 on 18 February 2009.
Cited by 26 cases · Cites 2 cases