KAN YAU SHAN AND ANOTHER v. MO YIU MUT AND ANOTHER

KAN YAU SHAN AND ANOTHER v. MO YIU MUT AND ANOTHER

On the evidence the 1st Defendant demonstrated sufficient factual possession and intention to possess from 1983 onward; the Plaintiffs' 2000 acts (survey, notices, iron angles and wires) were transient, ineffective and did not confer effective physical control to re-take possession; therefore the Limitation Ordinance extinguished the Plaintiffs' title and the 1st Defendant succeeded on her counterclaim.

Citation
KAN YAU SHAN AND ANOTHER v. MO YIU MUT AND ANOTHER
Parties
1st Plaintiff: KAN YAY SHAN; 2nd Plaintiff: TSOI KIN WING; 1st Defendant: MO YIU MUT; 2nd Defendant: All occupiers of Lot Nos 1506 and 1517 in Demarcation District No 106, Yuen Long, New Territories
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
9 September 2016
Case Number
DCMP1886/2011
Procedural Posture
Possession Dispute / Adverse Possession (order 113; Proceeded Under Order 28 Rule 8) / Judgment
Outcome
Plaintiffs' claim dismissed; 1st Defendant's counterclaim for adverse possession allowed; declaration that plaintiffs' title extinguished by Limitation Ordinance Cap.347; costs order nisi in favour of 1st Defendant
Legal Topics
Adverse Possession, Possession and Re Entry, Limitation Period, Evidence and Proof of Possession, Costs
Source Language
EN
Property Law Civil Procedure Limitation Law Adverse Possession Possession and Re Entry Limitation Period Evidence and Proof of Possession Costs

Case Brief

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Parties

KAN YAY SHAN

1st Plaintiff

TSOI KIN WING

2nd Plaintiff

MO YIU MUT

1st Defendant

All occupiers of Lot Nos 1506 and 1517 in Demarcation District No 106, Yuen Long, New Territories

2nd Defendant

Procedural Posture

Possession Dispute / Adverse Possession (order 113; Proceeded Under Order 28 Rule 8) / Judgment

Legal Issues

  1. 1 Whether the 1st Defendant acquired title by adverse possession
  2. 2 Whether the Plaintiffs' acts in 2000 constituted physical re-entry sufficient to interrupt adverse possession
  3. 3 Whether the 1st Defendant had requisite factual possession and intention to possess

Ratio Decidendi

On the evidence the 1st Defendant demonstrated sufficient factual possession and intention to possess from 1983 onward; the Plaintiffs' 2000 acts (survey, notices, iron angles and wires) were transient, ineffective and did not confer effective physical control to re-take possession; therefore the Limitation Ordinance extinguished the Plaintiffs' title and the 1st Defendant succeeded on her counterclaim.

Court Disposition

Plaintiffs' claim dismissed; 1st Defendant's counterclaim for adverse possession allowed; declaration that plaintiffs' title extinguished by Limitation Ordinance Cap.347; costs order nisi in favour of 1st Defendant

Orders

  • Dismissal of the Plaintiffs' claim for possession of Lot Nos 1506 and 1517
  • Counterclaim of the 1st Defendant granted and declaration that the Plaintiffs' title to the lots was extinguished by virtue of the Limitation Ordinance Cap.347 prior to commencement of the action