YEUNG, ABRAHAM v. SUN KING KAI

YEUNG, ABRAHAM v. SUN KING KAI

The court refused security for costs because Sun's counterclaim is substantially intertwined with and forms part of her defence — the alleged charitable trust and related factual contentions are central to disputing adverse possession — so ordering security would be unjust; delay and absence of overwhelming merit in Yeung's favour reinforced the exercise of discretion against granting security.

Citation
[2019] HKCFI 424
Parties
Plaintiff (original Action); 1st Defendant (by Counterclaim): YEUNG, ABRAHAM; Defendant (original Action); Plaintiff (by Counterclaim); Executrix of the Estate of Kong Tuen (deceased): SUN KING KAI (DEBORAH KING KAI SUN); Deceased Registered Owner: KONG TUEN (deceased); 2nd Defendants (by Counterclaim): All occupiers of the Flats; 3rd Defendant (by Counterclaim): The Secretary for Justice
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 February 2019
Case Number
HCA413/2015
Procedural Posture
Adverse Possession Claim and Counterclaim for Possession Based on Alleged Charitable Trust; Security for Costs Application / Pre Trial — Application for Security for Costs; Case Directed to Be Set Down for Trial
Outcome
Application for security for costs dismissed.
Legal Topics
Adverse Possession, Charitable Trust, Security for Costs, Limitation Ordinance, Counterclaim as Defence Vs Cross Action
Source Language
EN
Property Law Trusts and Charities Civil Procedure (security for Costs) Limitation Law Adverse Possession Charitable Trust Security for Costs Limitation Ordinance +1 more

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Parties

YEUNG, ABRAHAM

Plaintiff (original Action); 1st Defendant (by Counterclaim)

SUN KING KAI (DEBORAH KING KAI SUN)

Defendant (original Action); Plaintiff (by Counterclaim); Executrix of the Estate of Kong Tuen (deceased)

KONG TUEN (deceased)

Deceased Registered Owner

All occupiers of the Flats

2nd Defendants (by Counterclaim)

The Secretary for Justice

3rd Defendant (by Counterclaim)

Procedural Posture

Adverse Possession Claim and Counterclaim for Possession Based on Alleged Charitable Trust; Security for Costs Application / Pre Trial — Application for Security for Costs; Case Directed to Be Set Down for Trial

Legal Issues

  1. 1 Whether claimant established exclusive adverse possession and animus possidendi against registered owner
  2. 2 Whether properties are held on a charitable trust and effect of that on adverse possession and limitation
  3. 3 Whether Sun's counterclaim is a separate cross-action or is in substance part of her defence

Ratio Decidendi

The court refused security for costs because Sun's counterclaim is substantially intertwined with and forms part of her defence — the alleged charitable trust and related factual contentions are central to disputing adverse possession — so ordering security would be unjust; delay and absence of overwhelming merit in Yeung's favour reinforced the exercise of discretion against granting security.

Court Disposition

Application for security for costs dismissed.

Orders

  • Application dismissed with costs to Sun to be taxed if not agreed.
  • Certificate for counsel granted.