TRADE ADVISERS CO LTD v. WONG FAN FUNG

TRADE ADVISERS CO LTD v. WONG FAN FUNG

Defendant failed to prove exclusive possession and the requisite intention to possess Lot 28 for the 20 year limitation period; evidence of fencing, cultivation and exclusion was insufficient and inconsistent, so adverse possession not established; defendant is a trespasser, injunction granted, counterclaim dismissed and damages for wasted works awarded in specified sum.

Citation
TRADE ADVISERS CO LTD v. WONG FAN FUNG
Parties
Claimant/registered Owner of Lot 28 in D.d.100: Plaintiff; Occupier/respondent: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
29 April 2016
Case Number
DCCJ3951/2013
Procedural Posture
Land Dispute Trespass and Counterclaim for Adverse Possession / Judgment Following Trial
Outcome
Plaintiff's claim for injunction and certain damages allowed; defendant's counterclaim for adverse possession dismissed.
Legal Topics
Adverse Possession, Trespass, Injunction, Damages, Limitation
Source Language
EN
Property Land Law Tort Equity Adverse Possession Trespass Injunction Damages +1 more

Case Brief

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Parties

Plaintiff

Claimant/registered Owner of Lot 28 in D.d.100

Defendant

Occupier/respondent

Procedural Posture

Land Dispute Trespass and Counterclaim for Adverse Possession / Judgment Following Trial

Legal Issues

  1. 1 Whether the defendant acquired title to the plaintiff's land by adverse possession
  2. 2 Whether the defendant had exclusive physical possession and animus possidendi for the 20 year limitation period
  3. 3 Whether the defendant committed trespass and is liable for damages for removal/damage of materials

Ratio Decidendi

Defendant failed to prove exclusive possession and the requisite intention to possess Lot 28 for the 20 year limitation period; evidence of fencing, cultivation and exclusion was insufficient and inconsistent, so adverse possession not established; defendant is a trespasser, injunction granted, counterclaim dismissed and damages for wasted works awarded in specified sum.

Court Disposition

Plaintiff's claim for injunction and certain damages allowed; defendant's counterclaim for adverse possession dismissed.

Orders

  • Defendant is permanently restrained from entering the plaintiff's Lot 28 in D.D.100 and from doing any acts causing damage to property therein
  • Penal notice and personal service of the order dispensed with