Keep Plus Co Ltd v. Lau Kau and Another
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DCCJ 4487/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4487 OF 2007 ____________ BETWEEN
____________ Coram: His Hon Judge Leung in chambers (open to public) Date of hearing: 19 June 2009 Date of decision: 22 June 2009 DECISION 1.Keep Plus, the Plaintiff, claims possession of the plot of land in question against Lau, the 1st Defendant, and all other occupiers, collectively the 2nd Defendant, who are allegedly trespassers. Lau claims adverse possession of the land since 1958. 2.After pleadings have been filed, Keep Plus requested for further and better particulars of Lau’s Defence and Counterclaim. By virtue of a consent order made on 16 February 2009, Lau consented to filing and serving answers to the request. Lau did so but Keep Plus took the view that some requests have not been answered adequately or at all. 3.By summons, Keep Plus applied for an order that unless Lau provides the outstanding answers as requested, Lau’s pleading should be dismissed with costs and Keep Plus should be at liberty to enter final judgment for possession and mesne profits to be assessed. 4.The summons was heard but dismissed by the Master on 15 May 2009 with no order as to costs. Keep Plus now appeals. Effectively I am rehearing Keep Plus’s summons. 5.At the end of hearing, I gave my decision and order. I now give my reasons. The requests and answers in question 6.The requests were contained in the letter from Keep Plus’ solicitors dated 16 January 2009. They concern paragraph 2 of Lau’s Defence and Counterclaim, in particular:
7.Of the answers filed, Keep Plus took issue as to the following ones:
Discussion Para.1.1 8.The answer given was effectively that both the identification of the location of the Property on a plan and the confirmation as to whether the Property was known as Lot No. 491 in Demarcation District No. 106 at the time when Lau allegedly entered the Property (in 1958) were pending the surveyor’s report. 9.Further actual answer to the request was therefore expected. Keep Plus’s complaint is that one month had elapsed since the answers were filed but the further answer to both parts of this request was not forthcoming. 10.Miss Tam for Lau submitted that the obtaining of the surveyor’s report took time. This might be true but it was really Lau’s concern. I note that while it was represented in the answers filed on 28 March that Lau was in the course of obtaining the surveyor’s report, the report dated 29 May records that the on-site inspection and survey was not conducted until 9 May. Para.1.3 11.Lau has answered the first part of the request. In view of his answer, he has to proceed to answer the second part by describing and showing in a proper plan the location of No. 91E Ng Ka Tsuen within Lot No.491. As to this, Keep Plus made the same complaint mentioned above. Para.1.4 12.Keep Plus made the same complaint mentioned above. 13.As to subpara.1.4.7, Lau’s answer was that there has been alteration of the use of the shorter structure from keeping livestock to become living quarters in early 1990’s. But Lau did not say whether the alteration entailed enlargement or rebuilding of the structure. Para.2.2 14.Miss Tam suggested that Lau himself could not be included in this request as a matter of plain construction of the request. I do not agree. The request concerns paragraph 2(a) of Lau’s pleading and Lau indeed included himself as a member of the family. He just left himself out in his answer to this request regarding the age of the respective members of his family. After the hearing before the Master 15.Keep Plus took out this appeal. Meanwhile, its solicitors proposed that Lau consented to file and serve further answers in respect of the above outstanding requests together with the surveyor’s report in order to dispose of the appeal. It does not seem Lau has agreed to this proposal. 16.On 3 June 2009, the solicitors for Lau by letter informed Keep Plus’ solicitors of the age of Lau, i.e., 91, apparently to answer para.2.2 of the request. Keep Plus accepts the answer in substance but not in form. In my view, Keep Plus is entitled to adopt such view: see O.18, r.12(7) of the Rules of the District Court; Hong Kong Civil Procedure 2009, Vol.1 at 18/12/66. 17.On 3 June 2009, Lau’s solicitors also supplied to Keep Plus a surveyor’s report. The report tells the following:
18.Miss Tam submitted that the production of this report has rendered the appeal meaningless. I do not agree. This is a request for further and better particulars of pleading rather than discovery of document. If Miss Tam were right, that would mean a party might answer a request by producing a document and expecting the party making the request to find the answer from the document produced. What Lau is supposed to do is to answer the request in accordance with the information obtained from the report or with actual reference to the report. The production of the report is not per se the answer and is not what Keep Plus requested in the first place. 19.Yet even with the report now, it seems that this would not enable Lau to answer the outstanding requests. As mentioned above, the report only defines the Lot and the area within the Lot that is being occupied by Lau and his family as at the date of the on-site inspection, i.e., 9 May 2009. It cast no light on “the Property” that Lau defines in paragraph 2(a) of his pleading, namely, the piece of land that he entered in 1958, and whether the Property was known as Lot No.491 in DD.106 in 1958 as asked in para.1.1 of the request. The plan annexed to the report made no reference to “91E Ng Ka Tsuen” and thus failing to differentiate it from Lot No.491 as asked in para.1.3 of the request. It also does not serve to identify the location and footprint of the house and structure on the Property (in 1958) as asked in para.1.4 of the request. 20.I agree that compliance with the consent order was still partly outstanding as at the date of the hearing of the Keep Plus’ summons before Master. While this might not take the form of an unless order, an order for the outstanding answers to be filed and served ought to have been made. In court, Mr Tang for Keep Plus confirmed that he no longer insist on a formal answer to para.2.2 as to Lau’s age to be filed. 21.I therefore allowed the appeal. I saw no reason why costs should not follow the event in the circumstances of this case. Name of Lau 22.I pointed out and Mr Tang agreed that the name of Lau appearing on the court documents should be amended for clarity. Order 23.The above explained my following order made at the end of the hearing:
Mr Alric TANG of Messrs Wong Hui & Co for the Plaintiff Ms May Tam of Messrs Solomon C Chong & Co for the 1st Defendant on assignment by the Director of Legal Aid |