Huen Cheuk Kuen v. The Estate of Lam Oi Lin Deceased

HCA 1885/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 1885 OF 2012

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J U D G M E N T

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1.The plaintiff commenced this action on 10 October 2012. This is an application for default judgment pursuant to O.19, r.7 of the Rules of the High Court, Cap 4. The summons was taken out on 16 April 2013.

THE CLAIM

2.These are what the plaintiff has pleaded in the statement of claim.

3.Madam Lam Oi died intestate on 20 December 1982.  Her estate, the defendant, was and still is the registered owner of 1/27^th share of and in the Remaining Portion of Subsection 1 of Section A of Shaukiwan Inland Lot No.395, which is otherwise known as Flat C, 11^th Floor, Dollar Mansion, 152/154 Shaukeiwan Road, Hong Kong (“the Property”).

4.Madam Lam was then survived by 2 children, Huen Shu Kwai and Huen Lin Tai.

5.On 12 April 2006, Huen Shu Kwai died intestate and was survived by his wife and 6 children.  The plaintiff is one of the children.

6.Pursuant to section 4 of the Intestate Estate Ordinance, Cap 73 as well as rules 21 and 25 of the Non-Contentious Probate Rules, Cap 10A, Huen Lin Tai was entitled to apply for the administration of the estate of Madam Lam.  Nothing of that sort had happened.

7.The plaintiff came to have the key to the Property from Huen Lin Tai in early 1982, ie before the passing of Madam Lo. The plaintiff moved into the Property.  The plaintiff then changed the lock to the front door of the Property but only the members of the plaintiff’s family had the keys to the new lock.

8.In 1986, the plaintiff and Huen Lin Tai had heated argument over the administration of Madam Lo’s estate.  Their relationship fell apart.  By her solicitors’ letter dated 16 December 1986, Huen Lin Tai requested the plaintiff to supply the certified copy of the death certificate of Madam Lo; but the plaintiff did not respond to that.

9.Nothing has since happened between Huen Lin Tai and the plaintiff regarding the estate of Madam Lam.

10.The plaintiff, by himself and through his family members and/or tenants, has since continued to be in possession of the Property to the exclusion of the others.  During this period, there was no visit or demand to visit the Property by Huen Lin Tai.

11.The plaintiff and his family members continued to keep the key to the Property; and none had been provided to Huen Lin Tai or anyone else.  The plaintiff settled the Government rates, management rates, water, electricity, gas and sewage charges in respect of the Property.  In 2000, the plaintiff contributed more than HK$10,000 towards the major renovation of the external walls and common parts of the building.  He expended labour and money in the maintenance of the Property including renovation of the Property then in dilapidated condition in August 2010.  Since 2010, the plaintiff has let out the Property.

12.It is pleaded that the plaintiff continuously and exclusively possess the Property with the intention to do so to the exclusion of the whole world including Huen Lin Tai and any other person who may claim any right or interest in the Property.  The plaintiff pleads reliance on sections 7 and 17 of the Limitation Ordinance Cap 347 (“the LO”).

SERVICE

13.Without knowledge about the whereabout of Huen Lin Tai or any other person who may claim any right in the Property, the plaintiff has since the commencement of this action (and on 12 November 2012) caused advertisements to be placed with 2 local newspapers, one in English and one in Chinese, giving notice of this action.  No one had responded or come forward.

14.The plaintiff then obtained the consent of the Official Solicitor to represent the defendant for the limited purpose of accepting service of the writ of summons. That was done and the affirmation of service proves that.

15.On 5 April 2013, the master further ordered that all proceedings herein should proceed notwithstanding the absence of a person representing the defendant from the date of that order.

16.No one appear in today’s hearing.

CONSIDERATION

17.The plaintiff’s claim is based on adverse possession.  The law requires the plaintiff to establish both factual possession coupled with the requisite intention to do so over the period as prescribed by the LO both continuously and to the exclusion of the whole world including Huen Lin Tai and any person who might claim any right or interest in the Property: see Wong Tak Yue v Kung Kwok Wai & Anor (No 2) (1997-98) 1 HKCFAR 55.

18.Section 7 of the LO sets out the limitation period for actions to recover land.  The plaintiff relies on the period of 20 years instead of 12 years as the current section provides.  Section 17 provides that upon the expiry of the limitation period, the title of the person to bring action to recover land shall be extinguished.

19.According to the statement of claim, the plaintiff moved into the Property in early 1982 when Madam Lam was still alive; and when it was Huen Lin Tai who gave him consent to do so.  Adverse possession could not possibly arise then.  The plaintiff indeed marks the commencement of possession adverse to the whole world, specifically Huen Lin Tai, at the time when their relationship broke down as a result of the heated argument in respect of administration of the estate of Madam Lam as mentioned above.  In terms of date, the plaintiff relies on the date of the written demand by Huen Lin Tai’s solicitors dated 16 December 1986, which he paid no heed to.  He has since been in possession of the Property, by himself or others, and maintained the same as his own property.

20.Due to the nature of this application, I have to consider whether the matters pleaded in the statement of claim as mentioned above afford the plaintiff the right to the relief sought.  The practice that declaration of right is not normally made without trial is not strict.  Consideration of whether full justice would be done to the plaintiff overrides.  Considering all the above circumstances, I am satisfied that full justice will be done by giving the following order which sets out the footing for the grant of relief.

ORDER

21.I make the following order:

(1) On the basis of the matters pleaded in the statement of claim, and in default of defence, the plaintiff is entitled to and is granted the declaration that the title of the defendant of and in the Property has been extinguished pursuant to sections 7 and 17 of the Limitation Ordinance Cap 347 and that the plaintiff has acquired a possessory title of and in the same by 16 December 2006 or at the latest by the date of commencement of this action;

(2) There is no order as to costs of this action.

Miss TAM May of Messrs Solomon C Chong & Co for the plaintiff

Defendant, absent