Powerful Best Ltd v. Lam Yuk Kui and Another

HCMP 2077/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2077OF 2014

(ON AN INTENDED APPEAL FROM DCCJ NO. 4678 of 2013)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This is an application for leave to appeal against the decision of Deputy Judge P Loh of the District Court of 19 June 2014. By that decision, the judge affirmed the decision of the master granting summary judgment to the plaintiff (as registered owner) for possession of a portion of shops A & B on the Ground Floor of Kapok Mansion at Castle Peak Road. The judge rejected the defence of adverse possession. The judge refused to grant leave to the defendants on 20 August 2014.

2.Even on the defence case, the defendants only obtained the use of part of the disputed area through a former chairman of the Incorporated Owners.  The Incorporated Owners had an easement over that part of the disputed area for access to the transformer room.  It is clear that the Incorporated Owners had the key for the iron door as its caretaker was able to allow the Plaintiff and its solicitor to gain access to the area through that door on 25 November 2013. The Incorporated Owners also produced clear documentary evidence for the costs relating to that door.  The defendants were only permitted by the former chairman to have non-exclusive use of the space for storage.  No case of adverse possession can be established in such circumstances.

3.We also do not accept Ms Chan’s argument on easement. The defendants did not have any interest in any land which is capable of giving rise to any easement, whether by prescription or otherwise.

4.As regard the defence’s case of the plaintiff’s lack of access to the toilets at the disputed area, it is contrary to the position taken by counsel for the defendants at the hearing before the judge. It was only first raised in a letter attached to the summons of 2 July 2014, after the judge had made the decision on 19 July 2014.  No explanation is given as to why the point was not taken earlier and why there was a change in position.  The statements in the letter were not made on oath.  We do not think the rule of Ladd v Marshall can be satisfied and we shall not take those assertions into account.

5.For these reasons, the intended appeal has no reasonable prospect of success and we do not see any other reason for leave to be granted.  The application for leave is dismissed with costs.

Mr Earnest W H Cheung, instructed by Ho & Tam, for the plaintiff

Ms Winnie Chan and Mr Alan Ho, instructed by Hom & Associates, for the defendants