LIU KAM HOI AND OTHERS v. LIU PING KUEN

LIU KAM HOI AND OTHERS v. LIU PING KUEN

The court struck out claims to Portions 1C and 1D because the pleaded dates of adverse possession meant the 20-year period had not run at the time of earlier proceedings making those claims plainly unsustainable; the court struck out the claim to Portion Z because LPK's conduct and amended pleadings amounted to a clear and unequivocal election to abandon that claim, and its revival in the 2011 Action constituted an abuse of process.

Citation
LIU KAM HOI AND OTHERS v. LIU PING KUEN
Parties
Applicants; Plaintiffs in Hca6728/1998; Defendants in Hca73/2011: 1st to 9th Plaintiffs (registered co-owners of Lot No.285, Fu Tei Au, Sheung Shui, NT); Defendant in Hca6728/1998; Plaintiff in Hca73/2011: Liu Ping Kuen; Deceased; Former Defendant in 1998 Action; Occupant of Parts of the Lot: Liu Fun Kee (deceased)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 December 2011
Case Number
HCA6728/1998
Procedural Posture
Civil: Possession / Adverse Possession / Declaratory Relief / Striking Out Applications / Hearing of Two Striking Out Summonses (applications to Strike Out and for Partial Judgment)
Outcome
Applications allowed
Legal Topics
Adverse Possession, Possessory Title, Striking Out, Abuse of Process, Election, Acknowledgement of Title
Source Language
EN
Property Civil Procedure Limitation Land Law Adverse Possession Possessory Title Striking Out Abuse of Process +2 more

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Parties

1st to 9th Plaintiffs (registered co-owners of Lot No.285, Fu Tei Au, Sheung Shui, NT)

Applicants; Plaintiffs in Hca6728/1998; Defendants in Hca73/2011

Liu Ping Kuen

Defendant in Hca6728/1998; Plaintiff in Hca73/2011

Liu Fun Kee (deceased)

Deceased; Former Defendant in 1998 Action; Occupant of Parts of the Lot

Procedural Posture

Civil: Possession / Adverse Possession / Declaratory Relief / Striking Out Applications / Hearing of Two Striking Out Summonses (applications to Strike Out and for Partial Judgment)

Legal Issues

  1. 1 Whether adverse possession claims to Portions 1C and 1D are unsustainable/time-barred because the 20-year period had not run at the relevant time
  2. 2 Whether LPK elected to abandon any claim to Portion Z such that reviving the claim in the 2011 Action would be an abuse of process
  3. 3 Whether alleged acknowledgements of title tolled the limitation period (raised but not decided)

Ratio Decidendi

The court struck out claims to Portions 1C and 1D because the pleaded dates of adverse possession meant the 20-year period had not run at the time of earlier proceedings making those claims plainly unsustainable; the court struck out the claim to Portion Z because LPK's conduct and amended pleadings amounted to a clear and unequivocal election to abandon that claim, and its revival in the 2011 Action constituted an abuse of process.

Court Disposition

Applications allowed

Orders

  • Strike out references to Portions 1C and 1D in the Re-Re-Amended Defence and Counterclaim (RRAD&CC) in HCA6728/1998.
  • Enter partial judgment for the Applicants for delivery of vacant possession of Portions 1C and 1D as referred to in the RRAD&CC.