LIN JIAN CHUN v. LIN XIU MEI AND OTHERS

LIN JIAN CHUN v. LIN XIU MEI AND OTHERS

The judge's factual findings that the late Mr Ho and the defendants failed to establish exclusive and continuous possession and the requisite intention to possess were supported by the evidence; legal arguments raised post-trial (including reliance on pleaded tenancies and s3 Cap 219) did not show a reasonable prospect of success and late amendments were not justified; credibility findings were unassailable on appeal; accordingly the statutory threshold for leave to appeal was not met and leave was refused.

Citation
LIN JIAN CHUN v. LIN XIU MEI AND OTHERS
Parties
Plaintiff (respondent): Lin Jian Chun; 1st Defendant (applicant): Lin Xiu Mei; 2nd Defendant (applicant): Ho Po Pang
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 May 2012
Case Number
HCMP157/2012
Procedural Posture
Application for Leave to Appeal to Court of Appeal From District Court Judgment / Determination of Leave Application on Papers (order 59 Rule 2 A)
Outcome
Application for leave to appeal dismissed
Legal Topics
Adverse Possession, Exclusive Possession, Intention to Possess, Conveyancing and Property Ordinance S3, Leave to Appeal (s63 a District Court Ordinance), Credibility Findings, Mesne Profits
Source Language
EN
Property Law Adverse Possession Landlord and Tenant Civil Procedure Costs Exclusive Possession Intention to Possess Conveyancing and Property Ordinance S3 +3 more

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Parties

Lin Jian Chun

Plaintiff (respondent)

Lin Xiu Mei

1st Defendant (applicant)

Ho Po Pang

2nd Defendant (applicant)

Procedural Posture

Application for Leave to Appeal to Court of Appeal From District Court Judgment / Determination of Leave Application on Papers (order 59 Rule 2 A)

Legal Issues

  1. 1 Whether defendants established adverse possession against registered owner
  2. 2 Whether exclusive possession as pleaded tenancy can establish factual exclusive possession for adverse possession
  3. 3 Application of s3 Conveyancing and Property Ordinance (Cap 219) to oral tenancies and effect of late amendment

Ratio Decidendi

The judge's factual findings that the late Mr Ho and the defendants failed to establish exclusive and continuous possession and the requisite intention to possess were supported by the evidence; legal arguments raised post-trial (including reliance on pleaded tenancies and s3 Cap 219) did not show a reasonable prospect of success and late amendments were not justified; credibility findings were unassailable on appeal; accordingly the statutory threshold for leave to appeal was not met and leave was refused.

Court Disposition

Application for leave to appeal dismissed

Orders

  • Leave to appeal refused
  • No party may request reconsideration of this determination at an oral hearing pursuant to Order 59 rule 2A(8)