LIU PING KUEN v. LIU KAM HOI AND OTHERS

LIU PING KUEN v. LIU KAM HOI AND OTHERS

The court found as a matter of pleadings and chronology that LPK's adverse possession of Portions 1C and 1D could not have acquired the 20-year possessory title before the Applicants' 1998 action and was therefore plainly unsustainable; additionally LPK's consistent omission of any adverse possession claim to Portion Z in successive drafts, amendments and affirmations amounted to an unequivocal election to abandon that claim, making its revival in the 2011 Action an abuse of process — accordingly the challenged claims were struck out and partial judgment entered for the Applicants.

Citation
LIU PING KUEN v. LIU KAM HOI AND OTHERS
Parties
Plaintiffs in HCA 6728/1998 and Defendants in HCA 73/2011 (applicants): 1st to 9th Plaintiffs (registered co-owners); Defendant in HCA 6728/1998 and Plaintiff in HCA 73/2011 (respondent): Liu Ping Kuen (LPK); Deceased; Former Defendant in HCA 6728/1998: Liu Fun Kee
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 December 2011
Case Number
HCA73/2011
Procedural Posture
Possessory Title / Adverse Possession Dispute (property) / Hearing on Applications to Strike Out Pleaded Claims and for Partial Judgment
Outcome
Applications allowed in part: references to Portions 1C and 1D struck out and claim to Portion Z struck out as abuse of process; partial judgment entered for Applicants.
Legal Topics
Adverse Possession, Possessory Title, Striking Out, Abuse of Process, Election, Acknowledgement of Title
Source Language
EN
Property Limitation Civil Procedure Adverse Possession Possessory Title Striking Out Abuse of Process Election +1 more

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Parties

1st to 9th Plaintiffs (registered co-owners)

Plaintiffs in HCA 6728/1998 and Defendants in HCA 73/2011 (applicants)

Liu Ping Kuen (LPK)

Defendant in HCA 6728/1998 and Plaintiff in HCA 73/2011 (respondent)

Liu Fun Kee

Deceased; Former Defendant in HCA 6728/1998

Procedural Posture

Possessory Title / Adverse Possession Dispute (property) / Hearing on Applications to Strike Out Pleaded Claims and for Partial Judgment

Legal Issues

  1. 1 Whether LPK's pleaded adverse possession to Portions 1C and 1D is statute-barred and thus unsustainable
  2. 2 Whether LPK elected to abandon any claim to Portion Z such that reviving it in the 2011 Action is an abuse of process
  3. 3 Whether alleged acknowledgements of title postponed the running of the limitation period under ss 23 and 24 of the Limitation Ordinance (Cap 347)

Ratio Decidendi

The court found as a matter of pleadings and chronology that LPK's adverse possession of Portions 1C and 1D could not have acquired the 20-year possessory title before the Applicants' 1998 action and was therefore plainly unsustainable; additionally LPK's consistent omission of any adverse possession claim to Portion Z in successive drafts, amendments and affirmations amounted to an unequivocal election to abandon that claim, making its revival in the 2011 Action an abuse of process — accordingly the challenged claims were struck out and partial judgment entered for the Applicants.

Court Disposition

Applications allowed in part: references to Portions 1C and 1D struck out and claim to Portion Z struck out as abuse of process; partial judgment entered for Applicants.

Orders

  • Strike out references to Portions 1C and 1D in the Re-Re-Amended Defence and Counterclaim (RRAD&CC) in HCA 6728/1998
  • Enter partial judgment for the Applicants for delivery of vacant possession of Portions 1C and 1D as sought