MAN TIN FOOK also known as Man Tim Fook, Deceased, as represented by Man May Yung under O.15 r.15 RDC v. 梁根林 AND ANOTHER

MAN TIN FOOK also known as Man Tim Fook, Deceased, as represented by Man May Yung under O.15 r.15 RDC v. 梁根林 AND ANOTHER

The defendant failed to prove, on the balance of probabilities, continuous and exclusive factual possession of the three lots for the necessary limitation period and failed to prove the requisite animus possidendi. Credibility findings, inconsistencies between pleadings and prior litigation, and objective contemporaneous evidence (aerial photographs and Lands Department survey sheets showing no extensive fence before 2001 and surveyor access in 2013) required rejection of the adverse possession claim; accordingly the counterclaim was dismissed and plaintiffs granted vacant possession and mesne profits.

Citation
[2018] HKDC 1438
Parties
1st Plaintiff (administratrix): Man Lin Heung; 2nd Plaintiff (deceased; Represented): Man Tin Fook; 1st Defendant: Leung Kan Lam; 2nd Defendant: 2nd Defendant (unrepresented)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
21 November 2001
Case Number
DCMP1214/2014
Procedural Posture
Possession / Adverse Possession (counterclaim) Under Order 113 RDC / Judgment After Trial
Outcome
Defendant's counterclaim for adverse possession dismissed; plaintiffs awarded vacant possession and nominal mesne profits; injunctive relief and costs nisi granted in plaintiffs' favour
Legal Topics
Adverse Possession, Possession, Vacant Possession, Mesne Profits, Injunctions, Evidence and Credibility
Source Language
EN
Property Land Law Limitation Civil Procedure Adverse Possession Possession Vacant Possession Mesne Profits +2 more

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Parties

Man Lin Heung

1st Plaintiff (administratrix)

Man Tin Fook

2nd Plaintiff (deceased; Represented)

Leung Kan Lam

1st Defendant

2nd Defendant (unrepresented)

2nd Defendant

Procedural Posture

Possession / Adverse Possession (counterclaim) Under Order 113 RDC / Judgment After Trial

Legal Issues

  1. 1 Whether the defendant (or predecessor) had continuous and exclusive factual possession of the three lots for the required limitation period
  2. 2 Whether the defendant had the requisite animus possidendi to exclude the registered owners
  3. 3 Whether the defendant's counterclaim for possessory title by adverse possession succeeds

Ratio Decidendi

The defendant failed to prove, on the balance of probabilities, continuous and exclusive factual possession of the three lots for the necessary limitation period and failed to prove the requisite animus possidendi. Credibility findings, inconsistencies between pleadings and prior litigation, and objective contemporaneous evidence (aerial photographs and Lands Department survey sheets showing no extensive fence before 2001 and surveyor access in 2013) required rejection of the adverse possession claim; accordingly the counterclaim was dismissed and plaintiffs granted vacant possession and mesne profits.

Court Disposition

Defendant's counterclaim for adverse possession dismissed; plaintiffs awarded vacant possession and nominal mesne profits; injunctive relief and costs nisi granted in plaintiffs' favour

Orders

  • 1st Plaintiff to recover vacant possession of Lot No.881 (1st Lot) from the defendants
  • Defendant Leung Kan Lam to pay mesne profits at HKD 100 per annum for the 1st Lot from 15 May 2014 until judgment and thereafter at the same rate until vacant possession is delivered