THE INCORPORATED OWNERS OF KIN YUEN MANSION v. CHAN TIN KWONG AND OTHERS

THE INCORPORATED OWNERS OF KIN YUEN MANSION v. CHAN TIN KWONG AND OTHERS

The summons was dismissed because the proposed expert evidence was irrelevant and unnecessary: the plaintiff's cause of action under the DMC and s34I Cap 344 establishes a breach regardless of whether the structures are 'illegal'; the Building Order is unchallenged and presumed valid; the proposed expert would be asked to opine on matters of law; and the evidence would not affect the adverse possession counterclaim absent allegations of criminal/public‑interest offences.

Citation
[2023] HKDC 937
Parties
1st Plaintiff: THE INCORPORATED OWNERS OF KIN YUEN MANSION; 1st Defendant: CHAN TIN KWONG; 2nd Defendant: CHAN HO YUEN HOUSTON; 3rd Defendant: CHAN HO LEUNG STEPHEN; 4th Defendant (discontinued): WONG CHING YEE
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
11 July 2023
Case Number
DCCJ5673/2021
Procedural Posture
Civil Action (building Management/property) / Application for Leave to Adduce Expert Evidence Disposed of on Paper; Summons Dismissed
Outcome
Summons dismissed; costs awarded to defendants
Legal Topics
Expert Evidence, Adverse Possession, Building Orders, Incorporated Owners' Duties, Illegal Structures, Costs
Source Language
EN
Building Law Property Law Civil Procedure Evidence Limitation Law Expert Evidence Adverse Possession Building Orders +3 more

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Parties

THE INCORPORATED OWNERS OF KIN YUEN MANSION

1st Plaintiff

CHAN TIN KWONG

1st Defendant

CHAN HO YUEN HOUSTON

2nd Defendant

CHAN HO LEUNG STEPHEN

3rd Defendant

WONG CHING YEE

4th Defendant (discontinued)

Procedural Posture

Civil Action (building Management/property) / Application for Leave to Adduce Expert Evidence Disposed of on Paper; Summons Dismissed

Legal Issues

  1. 1 Whether leave to adduce expert evidence should be granted
  2. 2 Relevance of legality of the Floor Slab and Door Opening to the plaintiff's cause of action
  3. 3 Effect of s34I of Cap 344 and the deed of mutual covenant on limitation and adverse possession defenses

Ratio Decidendi

The summons was dismissed because the proposed expert evidence was irrelevant and unnecessary: the plaintiff's cause of action under the DMC and s34I Cap 344 establishes a breach regardless of whether the structures are 'illegal'; the Building Order is unchallenged and presumed valid; the proposed expert would be asked to opine on matters of law; and the evidence would not affect the adverse possession counterclaim absent allegations of criminal/public‑interest offences.

Court Disposition

Summons dismissed; costs awarded to defendants

Orders

  • The Summons dated 22 July 2022 be dismissed
  • Costs of and occasioned by the Summons, including all costs reserved, be paid by the plaintiff to the 1st, 2nd and 3rd defendants forthwith, to be taxed with certificate for counsel if not agreed