CHANG SHUN TAK AND ANOTHER v. LEUNG SUN FAT AND OTHERS

CHANG SHUN TAK AND ANOTHER v. LEUNG SUN FAT AND OTHERS

On the balance of probabilities the 2nd defendant proved continuous factual possession and the requisite intention to possess the Green, Yellow and Blue lands from at least 1973 (Yellow and Blue) and 1974 (Green); the pleadings allowed reliance on such periods within the longer pleaded period starting 1967, and accordingly the plaintiffs' remedies to recover those lands were extinguished under Limitation Ordinance s7(2) and s17, so the action for possession was dismissed and declarations granted in favour of the 2nd defendant.

Citation
CHANG SHUN TAK AND ANOTHER v. LEUNG SUN FAT AND OTHERS
Parties
1st Plaintiff: CHANG SHUN TAK otherwise known as CHEUNG SHUN TAK; 2nd Plaintiff: THE ESTATE OF KISAKU MORI, deceased; Administrator/1st & 2nd Plaintiff (order to Carry On): CHANG KIN SUNG (administrator of the estate of CHANG SHUN TAK; for and on behalf of the estate of KISAKU MORI); 1st Defendant: LEUNG SUN FAT; 2nd Defendant: YUEN CHIU SHING; 3rd Defendant: TSOI KIN MAN trading as KIN SUN MARBLE INDUSTRIAL CO; 4th Defendant: KAM WANG TUNG trading as PORSCHE AUTOMOBILE SERVICES; 5th Defendant: LEE YAU KIN trading as SHEUNG CHUN MOTORS SERVICES CO; 6th Defendant: HING SHING TIMBER FACTORY LIMITED trading as HING SHING TIMBER COMPANY
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 August 2010
Case Number
HCA13809/1997
Procedural Posture
Action for Possession / Adverse Possession / Judgment After Trial (court of First Instance)
Outcome
Action dismissed; judgment for the 2nd defendant on his counterclaim. Declarations that plaintiffs have lost the right to recover the Green, Yellow and Blue lands by virtue of Limitation Ordinance s7(2) and that plaintiffs' title and rights in those lands are extinguished in favour of the 2nd defendant by s17.
Legal Topics
Adverse Possession, Possessory Title, Limitation Ordinance S7(2), Limitation Ordinance S17, Declaration, Costs
Source Language
EN
Property Land Law Civil Procedure Adverse Possession Possessory Title Limitation Ordinance S7(2) Limitation Ordinance S17 Declaration +1 more

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Parties

CHANG SHUN TAK otherwise known as CHEUNG SHUN TAK

1st Plaintiff

THE ESTATE OF KISAKU MORI, deceased

2nd Plaintiff

CHANG KIN SUNG (administrator of the estate of CHANG SHUN TAK; for and on behalf of the estate of KISAKU MORI)

Administrator/1st & 2nd Plaintiff (order to Carry On)

LEUNG SUN FAT

1st Defendant

YUEN CHIU SHING

2nd Defendant

TSOI KIN MAN trading as KIN SUN MARBLE INDUSTRIAL CO

3rd Defendant

KAM WANG TUNG trading as PORSCHE AUTOMOBILE SERVICES

4th Defendant

LEE YAU KIN trading as SHEUNG CHUN MOTORS SERVICES CO

5th Defendant

HING SHING TIMBER FACTORY LIMITED trading as HING SHING TIMBER COMPANY

6th Defendant

Procedural Posture

Action for Possession / Adverse Possession / Judgment After Trial (court of First Instance)

Legal Issues

  1. 1 Whether the 2nd defendant established factual possession and animus possidendi in respect of the Green, Yellow and Blue lands
  2. 2 Whether the pleaded case permitted reliance on a 20-year period starting in 1973 rather than 1967
  3. 3 Effect of government resumption and alleged 1982 fencing on adverse possession claim

Ratio Decidendi

On the balance of probabilities the 2nd defendant proved continuous factual possession and the requisite intention to possess the Green, Yellow and Blue lands from at least 1973 (Yellow and Blue) and 1974 (Green); the pleadings allowed reliance on such periods within the longer pleaded period starting 1967, and accordingly the plaintiffs' remedies to recover those lands were extinguished under Limitation Ordinance s7(2) and s17, so the action for possession was dismissed and declarations granted in favour of the 2nd defendant.

Court Disposition

Action dismissed; judgment for the 2nd defendant on his counterclaim. Declarations that plaintiffs have lost the right to recover the Green, Yellow and Blue lands by virtue of Limitation Ordinance s7(2) and that plaintiffs' title and rights in those lands are extinguished in favour of the 2nd defendant by s17.

Orders

  • Dismissal of the plaintiffs' action for possession
  • Declaration that the plaintiffs have lost the right to bring any action to recover each of the Green, Yellow and Blue lands by virtue of section 7(2) of the Limitation Ordinance (Cap.347)