Lee Wai Ying also known as Li Wai Ying v. Sau Fat Sze and Another

HCMP 1919/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1919 OF 2013

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J U D G M E N T

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1.These proceedings concern a property situated at Tai Hang, Lot No 40, known as No 16 Sun Chun Street, Hong Kong. 

2.The plaintiff is the registered owner of one-third share in the property and she acquired that share as a result of a purchase on 11 July 1955, which is almost 60 years ago.  The other registered owners, each of one-third share, are the two defendants.

3.The plaintiff claims a declaration that the two defendants have lost any right to bring an action to recover their respective one-third shares of the property by virtue of section 7(2) of the Limitation Ordinance, Cap 347, which provides that:  “No action shall be brought by any other person to recover any land after the expiration of 12 years”  (in fact, as amended, the original Limitation Ordinance was 20 years now amended to 12 years) from the date on which the right of action accrued to them, or, if it first accrued to some other person through whom he claims, to that person.

4.Section 17 of the Limitation Ordinance is also relevant, which says that:  “Subject to the provisions of section 10, at the expiration of the period prescribed by this ordinance for any person to bring an action to recover land, the title of that person to the land shall be extinguished”.

5.Now, a number of orders have been made by the masters in relation to efforts to locate the 1st and 2nd defendants.  None of those efforts has succeeded.  The last known address was used.  That was in the Assignment Memorial referred to as “Victoria” and concerned the 1st defendant. 

6.The 2nd defendant’s address was described on an Assignment and Memorial as the Po Kwun Yuen Nunnery, Tsuen Wan, New Territories.  So the efforts to trace the last known address of the 2nd defendant included web searching, telephone inquiring and a site visit to a location in the vicinity of Tsuen Wan, but nothing helpful resulted from that. It was impossible, therefore, to locate and effect personal service of the proceedings on the 1st defendant due to the lack of detail concerning the address given or recorded and the long lapse of time.

7.Respective death searches were conducted; both were negative.  Probate searches were conducted; both of those were negative. 

8.The order of Master Wong in January of this year provided for substituted service by way of advertisement of the proceedings in the Tsing Pao Post on 18 February 2015.  The originating summons and other documents were posted on the property on 13 March 2015 and the order of Master Au-Yeung required - and this was indeed carried out - the advertisement of the notice of appointment to hear the originating summons in the Tsing Pao Post on 14 April 2015.

9.I am satisfied the time-bar applies and it seems beyond any question that the plaintiff lady has been in occupation of these premises, there being numerous documents supporting her title to it and the payments made in respect of it.  It appears that she has never been able to meet either of the two defendants and they have certainly made no contact with her.  That lengthy period of continuous and exclusive possession of the property entitles her to succeed.

10.So I am satisfied that she is entitled to relief and I give judgment to the plaintiff as sought by Mr Sam Yeung on her behalf, incorporating the decision that the defendants have lost their right to bring any action to recover the respective third shares of the property or any part thereof and that such title as they once had has been extinguished.

11.Let me just look at the draft order to complete the picture.  It seems to me that the draft order accurately reflects what is required.  On the second page, there’s a mixture of old-fashioned English and current English, so I’m just going to make an alteration there. 

12.This court declares that the 1st and 2nd defendants have lost the right to bring any action to recover the property referred to in the schedule and each and every part thereof under and by virtue of section 7 of the Limitation Ordinance, and by virtue of section 17 of that ordinance, the defendants’ legal beneficial interest and title to the property referred to in the schedule have been extinguished.  The plaintiff has acquired all the possessory right, title and interest, including the right to exclusive physical occupation of and in the property referred to in the schedule below.

13.And that schedule repeats the identity of the property registered in the Land Registry as Tai Hang Lot No 40, together with all the messuage, erections and buildings thereon now known as No 16 Sun Chun Street, Hong Kong, formerly known as No 16 Sun Chun Tai Hang.

14.And I make the order that there be no order as to costs of the application.

15.My compliments to the lady and I hope it hasn’t been too much of an effort to come here, but it is nice to see her and I wish her longevity, long life, much joy and much pleasure in property which is hers and hers alone.

Mr Sam Yeung of Lennon & Lawyers, for the plaintiff

The 1st and 2nd defendants were not represented and did not appear