SUNBROAD HOLDINGS LTD v. ALL OCCUPIERS AND OTHERS

SUNBROAD HOLDINGS LTD v. ALL OCCUPIERS AND OTHERS

The acts of affixing the Small Metal Box, Large Metal Box and Canopy to the External Wall, and their long use, did not establish as a matter of law exclusive possession of the External Wall or half its thickness; the owner retained use of the wall; therefore the 3rd Defendant had no arguable or triable defence of adverse possession and the Plaintiff was entitled to judgment under Order 14 Rule 1 for trespass and mandatory removal of the structures and to strike out the 3rd Defendant's counterclaim.

Citation
SUNBROAD HOLDINGS LTD v. ALL OCCUPIERS AND OTHERS
Parties
Plaintiff (registered Owner of Ground Floor, No.15 Pak Sha Road): Plaintiff; 3rd Defendant (cobbler, Operator of Stall Opposite External Wall): 3rd Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 June 2011
Case Number
HCMP1852/2008
Procedural Posture
HCMP 1852/2008 Miscellaneous Proceedings (trespass/adverse Possession) / Interlocutory Applications Under Order 14, Order 14 A, Order 18 and Inherent Jurisdiction (application for Summary Judgment/strike Out and Determination of Law)
Outcome
Judgment for Plaintiff against the 3rd Defendant under Order 14 Rule 1 in respect of the External Wall; 3rd Defendant's counterclaim struck out; Order 14A application dismissed; costs nisi to Plaintiff; right of appeal preserved.
Legal Topics
Adverse Possession of External Wall, Exclusive Possession, Injunction and Mandatory Order, Strike Out/counterclaim, Order 14/order 14 a Summary Determination, Costs and Right of Appeal
Source Language
EN
Property Adverse Possession Trespass Civil Procedure Adverse Possession of External Wall Exclusive Possession Injunction and Mandatory Order Strike Out/counterclaim +2 more

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Parties

Plaintiff

Plaintiff (registered Owner of Ground Floor, No.15 Pak Sha Road)

3rd Defendant

3rd Defendant (cobbler, Operator of Stall Opposite External Wall)

Procedural Posture

HCMP 1852/2008 Miscellaneous Proceedings (trespass/adverse Possession) / Interlocutory Applications Under Order 14, Order 14 A, Order 18 and Inherent Jurisdiction (application for Summary Judgment/strike Out and Determination of Law)

Legal Issues

  1. 1 Whether acts of affixing structures to an external wall can constitute adverse possession of that wall or part of its thickness
  2. 2 Whether adverse possession can apply to a vertical plane/surface such as an external wall
  3. 3 Whether the pleaded facts can as a matter of law amount to exclusive possession

Ratio Decidendi

The acts of affixing the Small Metal Box, Large Metal Box and Canopy to the External Wall, and their long use, did not establish as a matter of law exclusive possession of the External Wall or half its thickness; the owner retained use of the wall; therefore the 3rd Defendant had no arguable or triable defence of adverse possession and the Plaintiff was entitled to judgment under Order 14 Rule 1 for trespass and mandatory removal of the structures and to strike out the 3rd Defendant's counterclaim.

Court Disposition

Judgment for Plaintiff against the 3rd Defendant under Order 14 Rule 1 in respect of the External Wall; 3rd Defendant's counterclaim struck out; Order 14A application dismissed; costs nisi to Plaintiff; right of appeal preserved.

Orders

  • Judgment entered for the Plaintiff against the 3rd Defendant in respect of the External Wall in terms of paragraph 1b and paragraph 3a of the Statement of Claim
  • The 3rd Defendant's counterclaim against the Plaintiff is struck out