LUCKWAY PROPERTIES LTD v. LIU, CHI KONG AND OTHERS

LUCKWAY PROPERTIES LTD v. LIU, CHI KONG AND OTHERS

The claimant for adverse possession failed to discharge the compelling evidential burden: key witnesses were unreliable or gave inconsistent and newly fabricated evidence; objective evidence (Lands Department note and aerial photos showing structures and fishponds) was insufficient to establish continuous exclusive physical control and animus possidendi for the requisite period; accordingly the counterclaims for adverse possession are dismissed and possessory relief is awarded to the registered owners.

Citation
[2023] HKDC 52
Parties
Plaintiff (dcmp 4082 of 2004): Luckway Properties Limited; Plaintiff (dccj 2388 of 2017): Siu Chiu Choi; Original 7th Defendant (deceased): Lam Yau Gun; 7th Defendant (substituted; Executor/probate Holder): Teng Hung Ping; Defendants (named in DCMP 4082 of 2004; Did Not Appear): 1st-6th Defendants
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
2 February 2023
Case Number
DCMP4082/2004
Procedural Posture
Adverse Possession / Land Dispute / Trial Judgment (district Court)
Outcome
7th defendant's counterclaims dismissed; judgment for plaintiffs granting possession and ancillary relief
Legal Topics
Adverse Possession, Possessory Title, Limitation Period (s7(2) & S38 A), Factual Possession, Animus Possidendi, Injunctions, Costs
Source Language
EN
Property Land Law Civil Litigation Evidence Adverse Possession Possessory Title Limitation Period (s7(2) & S38 A) Factual Possession +3 more

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Parties

Luckway Properties Limited

Plaintiff (dcmp 4082 of 2004)

Siu Chiu Choi

Plaintiff (dccj 2388 of 2017)

Lam Yau Gun

Original 7th Defendant (deceased)

Teng Hung Ping

7th Defendant (substituted; Executor/probate Holder)

1st-6th Defendants

Defendants (named in DCMP 4082 of 2004; Did Not Appear)

Procedural Posture

Adverse Possession / Land Dispute / Trial Judgment (district Court)

Legal Issues

  1. 1 Whether the defendant (7th) proved adverse possession of Lot 2942 and Lot 2953
  2. 2 Whether the requisite 20 year limitation period under Limitation Ordinance was satisfied
  3. 3 Whether factual possession (exclusive physical control) was established

Ratio Decidendi

The claimant for adverse possession failed to discharge the compelling evidential burden: key witnesses were unreliable or gave inconsistent and newly fabricated evidence; objective evidence (Lands Department note and aerial photos showing structures and fishponds) was insufficient to establish continuous exclusive physical control and animus possidendi for the requisite period; accordingly the counterclaims for adverse possession are dismissed and possessory relief is awarded to the registered owners.

Court Disposition

7th defendant's counterclaims dismissed; judgment for plaintiffs granting possession and ancillary relief

Orders

  • DCMP 4082 of 2004: The 7th defendant's Re-Amended Counterclaim be dismissed
  • Declaration that the plaintiff is entitled to possession of the Remaining Portion of Section A of Lot No. 2942 in Demarcation District No. 104 and that the 7th defendant's occupation of Lot 2942 is without licence or consent