YIP KWOK SUN v. POLY-STYLE LTD

YIP KWOK SUN v. POLY-STYLE LTD

On the balance of probabilities the Yip family acquired factual and exclusive possession of the disputed portion for the requisite continuous period (at least 12 years prior to commencement) and the deceased developed the requisite intention to possess; the Tong defence failed for lack of evidence of living members; accordingly defendant's title to that portion was extinguished under s.17 Limitation Ordinance and the plaintiff acquired a possessory title; defendant's trespass counterclaim dismissed.

Citation
[2018] HKDC 437
Parties
Plaintiff (administratrix / Wife): Mdm Seekao Luan; Original Plaintiff (deceased): Mr Yip Kwok Sun (deceased); Defendant (registered Owner): Defendant company (registered owner of remaining portion of Lot 1275 in DD 79)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
26 April 2018
Case Number
DCMP2891/2011
Procedural Posture
Adverse Possession and Trespass (limitation Ordinance) / Judgment (trial Concluded)
Outcome
Plaintiff's claim allowed: declarations granted that plaintiff had been in adverse possession of a portion of Remaining Portion of Lot No.1275 in D.D.79 (pink in Plan 2) for a continuous period of no less than 12 years prior to commencement; defendant's title extinguished under s.17 Limitation Ordinance; plaintiff...
Legal Topics
Adverse Possession, Limitation Ordinance S.17 and S.38 a, Intention to Possess, Factual Possession, Continuity/abandonment, Burden of Proof Re: Tong Owners, Weight of Hearsay/statutory Declaration
Source Language
EN
Property Law Land Law Limitation Trespass Evidence Adverse Possession Limitation Ordinance S.17 and S.38 a Intention to Possess +4 more

Case Brief

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Parties

Mdm Seekao Luan

Plaintiff (administratrix / Wife)

Mr Yip Kwok Sun (deceased)

Original Plaintiff (deceased)

Defendant company (registered owner of remaining portion of Lot 1275 in DD 79)

Defendant (registered Owner)

Procedural Posture

Adverse Possession and Trespass (limitation Ordinance) / Judgment (trial Concluded)

Legal Issues

  1. 1 Whether the plaintiff (Yip family) had factual possession of the disputed land for the requisite period
  2. 2 Whether the deceased had the requisite intention to possess to the exclusion of the world
  3. 3 Whether possession was continuous or discontinued during 1999-2001

Ratio Decidendi

On the balance of probabilities the Yip family acquired factual and exclusive possession of the disputed portion for the requisite continuous period (at least 12 years prior to commencement) and the deceased developed the requisite intention to possess; the Tong defence failed for lack of evidence of living members; accordingly defendant's title to that portion was extinguished under s.17 Limitation Ordinance and the plaintiff acquired a possessory title; defendant's trespass counterclaim dismissed.

Court Disposition

Plaintiff's claim allowed: declarations granted that plaintiff had been in adverse possession of a portion of Remaining Portion of Lot No.1275 in D.D.79 (pink in Plan 2) for a continuous period of no less than 12 years prior to commencement; defendant's title extinguished under s.17 Limitation Ordinance; plaintiff...

Orders

  • Declarations recorded in favour of the plaintiff as stated in the judgment
  • Order nisi that the defendant pay the plaintiff's costs of the claim and of the counterclaim, including trial costs with certificate of counsel and all reserved costs, to be taxed if not agreed