GRACEFUL MARK LTD v. LAM SAU WAH t/a REGENT AQUARIUM

GRACEFUL MARK LTD v. LAM SAU WAH t/a REGENT AQUARIUM

The summons for interim relief was dismissed because there were material disputes of fact and credibility (re: photographs, provenance of documents, alleged licence by the late owner and acts of possession) that could not be resolved on affidavit evidence; those matters must be tested at trial, making interlocutory relief inappropriate.

Citation
GRACEFUL MARK LTD v. LAM SAU WAH t/a REGENT AQUARIUM
Parties
Landowner Plaintiff: Plaintiff (owner of Nos. 23-25 Sai Kung Street); Tenant Defendant: Defendant (monthly tenant of 1st floor, No. 23)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
20 February 2006
Case Number
DCCJ3222/2005
Procedural Posture
Land Possession / Interim Injunction Application / Interlocutory Application Prior to Trial (summons for Interim Relief)
Outcome
application dismissed
Legal Topics
Adverse Possession, Interim Possession, Interlocutory Relief, Evidential Sufficiency of Affidavits, Photographic Evidence, Costs
Source Language
EN
Property Land Law Adverse Possession Civil Procedure Interim Injunctions Interim Possession Interlocutory Relief Evidential Sufficiency of Affidavits +2 more

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Parties

Plaintiff (owner of Nos. 23-25 Sai Kung Street)

Landowner Plaintiff

Defendant (monthly tenant of 1st floor, No. 23)

Tenant Defendant

Procedural Posture

Land Possession / Interim Injunction Application / Interlocutory Application Prior to Trial (summons for Interim Relief)

Legal Issues

  1. 1 Whether the plaintiff was entitled to interlocutory possession and injunctive relief over the Strip pending trial
  2. 2 Whether the defendant had established adverse possession or a prescriptive right to the Strip
  3. 3 Whether the affidavit evidence and photographs were sufficient to determine possession or required testing at trial

Ratio Decidendi

The summons for interim relief was dismissed because there were material disputes of fact and credibility (re: photographs, provenance of documents, alleged licence by the late owner and acts of possession) that could not be resolved on affidavit evidence; those matters must be tested at trial, making interlocutory relief inappropriate.

Court Disposition

application dismissed

Orders

  • Summons dismissed.
  • Order nisi that the Plaintiff is to pay the costs of this application to the Defendant, to be taxed if not agreed, with certificate for Counsel (to be made absolute in 14 days unless otherwise ordered).