MAN LIN HEUNG The Administratrix of the Estate of Man Kwai Yin also Known as Man Kwai Yin v. 梁根林 AND ANOTHER

MAN LIN HEUNG The Administratrix of the Estate of Man Kwai Yin also Known as Man Kwai Yin v. 梁根林 AND ANOTHER

Defendant's evidence was unreliable, internally inconsistent and contradicted by independent aerial, survey and contemporaneous visitation evidence; no convincing proof of continuous exclusive possession or clear animus possidendi for the statutory periods; therefore limitation did not extinguish plaintiffs' titles and defendant's counterclaim for possessory title was dismissed; plaintiffs entitled to vacant possession and nominal mesne profits.

Citation
[2018] HKDC 1437
Parties
Plaintiff (1st Action): Man Lin Heung; Plaintiff (2nd Action): Man Tin Fook (estate represented by Madam Man May Yung); 1st Defendant: Leung Kan Lam; 2nd Defendant(s): Second Defendants (unrepresented)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
21 November 2018
Case Number
DCMP1213/2014
Procedural Posture
Civil Land Dispute – Claim for Vacant Possession and Counterclaim for Adverse Possession / Full Trial and Judgment on Counterclaim (district Court)
Outcome
Counterclaim dismissed; plaintiffs awarded vacant possession of the three lots; mandatory orders for nominal mesne profits and injunctive relief; costs nisi ordered
Legal Topics
Adverse Possession, Animus Possidendi, Vacant Possession, Mesne Profits, Limitation Ordinance S7/s8/s13/s17
Source Language
EN
Property Law Limitation Law Civil Procedure Adverse Possession Animus Possidendi Vacant Possession Mesne Profits Limitation Ordinance S7/s8/s13/s17

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Parties

Man Lin Heung

Plaintiff (1st Action)

Man Tin Fook (estate represented by Madam Man May Yung)

Plaintiff (2nd Action)

Leung Kan Lam

1st Defendant

Second Defendants (unrepresented)

2nd Defendant(s)

Procedural Posture

Civil Land Dispute – Claim for Vacant Possession and Counterclaim for Adverse Possession / Full Trial and Judgment on Counterclaim (district Court)

Legal Issues

  1. 1 Whether defendant or predecessors were in exclusive factual possession of the three lots for requisite limitation periods
  2. 2 Whether defendant had requisite animus possidendi to exclude paper owners
  3. 3 Whether plaintiffs' titles were extinguished by limitation

Ratio Decidendi

Defendant's evidence was unreliable, internally inconsistent and contradicted by independent aerial, survey and contemporaneous visitation evidence; no convincing proof of continuous exclusive possession or clear animus possidendi for the statutory periods; therefore limitation did not extinguish plaintiffs' titles and defendant's counterclaim for possessory title was dismissed; plaintiffs entitled to vacant possession and nominal mesne profits.

Court Disposition

Counterclaim dismissed; plaintiffs awarded vacant possession of the three lots; mandatory orders for nominal mesne profits and injunctive relief; costs nisi ordered

Orders

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