WINPO DEVELOPMENT LTD v. WONG KAR FU AND OTHERS

WINPO DEVELOPMENT LTD v. WONG KAR FU AND OTHERS

The court accepted defendants proved continuous, exclusive, open and notorious possession and the requisite animus from at least 1968 based on credible witness evidence corroborated by joint expert findings, electricity account records, physical features (structures, cultivation, grave) and consistent survey boundaries; accordingly the registered owners' titles to the respective disputed areas were extinguished before issue of the writs under s17 Limitation Ordinance and plaintiffs' claims were dismissed with declarations of possessory title in favour of the defendants.

Citation
WINPO DEVELOPMENT LTD v. WONG KAR FU AND OTHERS
Parties
Plaintiff (hca 3541/1993): Winpo Development Limited; Plaintiff (hca 2228/2011): Realray Investments Limited; Defendant (representative of the Estate of Ho Sze Pui and Yu Po Chi): Ho Kim Chuen; Defendant (original Defendant, Deceased): Ho Sze Pui; Defendant/administratrix (deceased): Yu Po Chi
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 May 2017
Case Number
HCA3541/1993
Procedural Posture
Two Consolidated Civil Actions for Adverse Possession and Declarations of Possessory Title / Judgment After Full Trial and Site Visit
Outcome
Plaintiffs' claims dismissed in both actions; declarations granted that defendants have possessory title to the disputed Yellow Area (HCA 3541/1993) and Pink Area (HCA 2228/2011); plaintiffs barred from bringing actions to recover those areas and titles extinguished before issue of writs pursuant to s17 Limitation...
Legal Topics
Adverse Possession, Possessory Title, Animus Possidendi, Limitation Ordinance S17, Burden and Sufficiency of Evidence
Source Language
EN
Property Law Adverse Possession Limitation Law Evidence Law Possessory Title Animus Possidendi Limitation Ordinance S17 Burden and Sufficiency of Evidence

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Parties

Winpo Development Limited

Plaintiff (hca 3541/1993)

Realray Investments Limited

Plaintiff (hca 2228/2011)

Ho Kim Chuen

Defendant (representative of the Estate of Ho Sze Pui and Yu Po Chi)

Ho Sze Pui

Defendant (original Defendant, Deceased)

Yu Po Chi

Defendant/administratrix (deceased)

Procedural Posture

Two Consolidated Civil Actions for Adverse Possession and Declarations of Possessory Title / Judgment After Full Trial and Site Visit

Legal Issues

  1. 1 Whether defendants proved factual possession of the disputed lots for the requisite limitation periods
  2. 2 Whether defendants possessed the requisite animus possidendi to exclude the registered owners
  3. 3 Whether registered owners' paper title was extinguished before issue of writs pursuant to section 17 Limitation Ordinance (Cap 347)

Ratio Decidendi

The court accepted defendants proved continuous, exclusive, open and notorious possession and the requisite animus from at least 1968 based on credible witness evidence corroborated by joint expert findings, electricity account records, physical features (structures, cultivation, grave) and consistent survey boundaries; accordingly the registered owners' titles to the respective disputed areas were extinguished before issue of the writs under s17 Limitation Ordinance and plaintiffs' claims were dismissed with declarations of possessory title in favour of the defendants.

Court Disposition

Plaintiffs' claims dismissed in both actions; declarations granted that defendants have possessory title to the disputed Yellow Area (HCA 3541/1993) and Pink Area (HCA 2228/2011); plaintiffs barred from bringing actions to recover those areas and titles extinguished before issue of writs pursuant to s17 Limitation...

Orders

  • HCA 3541/1993: declaration that 3rd defendant has established possessory title to the Yellow Area (part of Lot No 1829) as shown on the Amended Defence plan
  • HCA 3541/1993: declaration that plaintiff is barred from bringing any action at law to recover the Yellow Area