YU FUNG CO LTD v. OLYMPIC CITY PROPERTIES LTD AND ANOTHER

YU FUNG CO LTD v. OLYMPIC CITY PROPERTIES LTD AND ANOTHER

The court held it was not too late to litigate Madam Cheung's claim, she was entitled to be joined as a party to the existing possession proceedings and the writ of possession should be stayed pending determination of her separate action; the defendant's strike‑out application failed because (i) Cheung was not a party to the earlier proceedings and was not obliged to have intervened earlier, (ii) there is no categorical preliminary arguability threshold preventing her claim from being tried on the merits, and (iii) a stay and joinder were necessary to prevent enforcement rendering any favourable judgment nugatory.

Citation
YU FUNG CO LTD v. OLYMPIC CITY PROPERTIES LTD AND ANOTHER
Parties
Plaintiff (hcmp 1084/2008); 2nd Defendant (hca 3104/2015): YU FUNG COMPANY LIMITED; Defendant (hcmp 1084/2008): OLYMPIC CITY PROPERTIES LIMITED; Defendant (hcmp 1084/2008): LAI MING TAK TOMMY ALEXANDER; Plaintiff (hca 3104/2015); Interested Party (hcmp 1084/2008): CHEUNG CHUI KWAN EVENT; Defendant (hca 3104/2015); Registered Owner of the Flat: HEBEI INVESTMENT LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 March 2017
Case Number
HCMP1084/2008
Procedural Posture
Possession / Adverse Possession / Enforcement Proceedings; Joinder and Stay Applications / Interlocutory (hearing of Competing Summonses for Joinder, Stay and Striking Out)
Outcome
Application by Cheung to be joined granted; stay of execution of writ of possession granted; Yu Fung's application to strike out dismissed; costs ordered against Yu Fung in favour of Cheung with specified carve‑out.
Legal Topics
Adverse Possession, Joinder of Parties, Stay of Execution, Abuse of Process, Striking Out, Limitation Defence
Source Language
EN
Property Law Civil Procedure Limitation Law Equity Adverse Possession Joinder of Parties Stay of Execution Abuse of Process +2 more

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Parties

YU FUNG COMPANY LIMITED

Plaintiff (hcmp 1084/2008); 2nd Defendant (hca 3104/2015)

OLYMPIC CITY PROPERTIES LIMITED

Defendant (hcmp 1084/2008)

LAI MING TAK TOMMY ALEXANDER

Defendant (hcmp 1084/2008)

CHEUNG CHUI KWAN EVENT

Plaintiff (hca 3104/2015); Interested Party (hcmp 1084/2008)

HEBEI INVESTMENT LIMITED

Defendant (hca 3104/2015); Registered Owner of the Flat

Procedural Posture

Possession / Adverse Possession / Enforcement Proceedings; Joinder and Stay Applications / Interlocutory (hearing of Competing Summonses for Joinder, Stay and Striking Out)

Legal Issues

  1. 1 Whether Madam Cheung's claim to occupy the Flat is barred as an abuse of process or too late to be litigated
  2. 2 Whether Madam Cheung's adverse possession claim is sufficiently arguable to proceed
  3. 3 Whether her claim should be litigated in the existing possession proceedings or in fresh proceedings

Ratio Decidendi

The court held it was not too late to litigate Madam Cheung's claim, she was entitled to be joined as a party to the existing possession proceedings and the writ of possession should be stayed pending determination of her separate action; the defendant's strike‑out application failed because (i) Cheung was not a party to the earlier proceedings and was not obliged to have intervened earlier, (ii) there is no categorical preliminary arguability threshold preventing her claim from being tried on the merits, and (iii) a stay and joinder were necessary to prevent enforcement rendering any favourable judgment nugatory.

Court Disposition

Application by Cheung to be joined granted; stay of execution of writ of possession granted; Yu Fung's application to strike out dismissed; costs ordered against Yu Fung in favour of Cheung with specified carve‑out.

Orders

  • Cheung to be joined as a party to HCMP 1084/2008
  • Stay the execution of the writ of possession in HCMP 1084/2008 until Cheung's claim in HCA 3104/2015 has been determined or until further order