LAM KWOK KIN AND ANOTHER v. THE ESTATE OF JAM LUN CHIN also known as JIMMY CHIN, DECEASED AND OTHERS

LAM KWOK KIN AND ANOTHER v. THE ESTATE OF JAM LUN CHIN also known as JIMMY CHIN, DECEASED AND OTHERS

The application for default declaratory judgment was dismissed because plaintiffs failed to establish that Tsing Law applied to the intestate deceased (no evidence of domicile in Hong Kong), the pleaded legal basis did not support adverse possession under English law and raised joinder and evidential issues, and therefore it was inappropriate to grant the declarations without a trial.

Citation
[2020] HKDC 857
Parties
1st Plaintiff: Lam Kwok Kin; 2nd Plaintiff: Lam Kwok Fung; 1st Defendant: The Estate of Jam Lun Chin also known as Jimmy Chin, deceased; 2nd Defendant: Melvin Raymond Chin; Myron David Chin; Zeljan Alexander Unkovich as administrators of the Estate of Rita Chin, deceased and executors/representatives of the estate of Chin Ray, deceased; 3rd Defendant: Mai Chin as executrix of the Estate of Chan Shun Tae also known as Roy Chin, deceased
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
12 November 2020
Case Number
DCCJ3273/2016
Procedural Posture
Civil Action for Declarations and Proprietary Title (adverse Possession) / Chamber Application for Default Judgment Under O13 R6 and O19 R7 (application Heard and Dismissed)
Outcome
Summons dismissed with costs to the defendants
Legal Topics
Adverse Possession, Limitation Ordinance Sections 7, 17, 38 a, Declaratory Relief Under O19 R7, Application of Tsing (chinese Customary) Law, Domicile
Source Language
EN
Property Law Limitation Law Succession and Intestacy Civil Procedure Adverse Possession Limitation Ordinance Sections 7, 17, 38 a Declaratory Relief Under O19 R7 Application of Tsing (chinese Customary) Law +1 more

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Parties

Lam Kwok Kin

1st Plaintiff

Lam Kwok Fung

2nd Plaintiff

The Estate of Jam Lun Chin also known as Jimmy Chin, deceased

1st Defendant

Melvin Raymond Chin; Myron David Chin; Zeljan Alexander Unkovich as administrators of the Estate of Rita Chin, deceased and executors/representatives of the estate of Chin Ray, deceased

2nd Defendant

Mai Chin as executrix of the Estate of Chan Shun Tae also known as Roy Chin, deceased

3rd Defendant

Procedural Posture

Civil Action for Declarations and Proprietary Title (adverse Possession) / Chamber Application for Default Judgment Under O13 R6 and O19 R7 (application Heard and Dismissed)

Legal Issues

  1. 1 Whether Tsing Law (Chinese customary succession) applied to the deceased who lived in New Zealand
  2. 2 Whether the plaintiffs had factual possession and requisite intention to possess such that adverse possession ran in their favour
  3. 3 Whether declaratory possessory relief could be granted on a default judgment application under O19 r7

Ratio Decidendi

The application for default declaratory judgment was dismissed because plaintiffs failed to establish that Tsing Law applied to the intestate deceased (no evidence of domicile in Hong Kong), the pleaded legal basis did not support adverse possession under English law and raised joinder and evidential issues, and therefore it was inappropriate to grant the declarations without a trial.

Court Disposition

Summons dismissed with costs to the defendants

Orders

  • Summons dismissed
  • No declarations granted