NG BING LIN v. CHEUNG SAU CHU AND ANOTHER

NG BING LIN v. CHEUNG SAU CHU AND ANOTHER

Although the 1st defendant had factual, continuous occupation of various parts of the Estate for decades, the court found she lacked the requisite intention to exclude the true owner and held she occupied under a continuing licence derived from Exhibit P1 (permission to Tse Chiu Fook and succession thereof); thus adverse possession was not established and the plaintiff was entitled to judgment, possession, injunction and mesne profits.

Citation
NG BING LIN v. CHEUNG SAU CHU AND ANOTHER
Parties
Plaintiff; Executor and Beneficiary; Paper Owner of the Estate: Ng Ping Lin; 1st Defendant: Cheung Sau Chu
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
24 June 2015
Case Number
DCCJ4397/2012
Procedural Posture
Trespass and Account of Mesne Profits; Adverse Possession Counterclaim in Context of Estate/probate / Trial Judgment (deputy District Judge L C Cheng)
Outcome
Judgment for plaintiff; 1st defendant's counterclaim for adverse possession dismissed; order for possession and injunction granted; mesne profits awarded.
Legal Topics
Adverse Possession, Licence V Adverse Possession, Mesne Profits, Executor Capacity to Sue, Limitation Ordinance S10(2)
Source Language
EN
Property Law Succession Law Civil Procedure Limitation Law Equity Adverse Possession Licence V Adverse Possession Mesne Profits +2 more

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Parties

Ng Ping Lin

Plaintiff; Executor and Beneficiary; Paper Owner of the Estate

Cheung Sau Chu

1st Defendant

Procedural Posture

Trespass and Account of Mesne Profits; Adverse Possession Counterclaim in Context of Estate/probate / Trial Judgment (deputy District Judge L C Cheng)

Legal Issues

  1. 1 Whether the 1st defendant had factual possession of Properties 1–11 for the requisite limitation period
  2. 2 Whether the 1st defendant had animus possidendi (intention to possess) sufficient for adverse possession
  3. 3 Whether occupation was by licence derived from Exhibit P1 and continued succession of that licence

Ratio Decidendi

Although the 1st defendant had factual, continuous occupation of various parts of the Estate for decades, the court found she lacked the requisite intention to exclude the true owner and held she occupied under a continuing licence derived from Exhibit P1 (permission to Tse Chiu Fook and succession thereof); thus adverse possession was not established and the plaintiff was entitled to judgment, possession, injunction and mesne profits.

Court Disposition

Judgment for plaintiff; 1st defendant's counterclaim for adverse possession dismissed; order for possession and injunction granted; mesne profits awarded.

Orders

  • 1st and 2nd defendants to stop occupying and to deliver vacant possession of Properties 1 to 11
  • Injunction restraining the 1st and 2nd defendants and/or their agents from trespassing on Properties 1 to 11