LU XIAOHUA, the administratrix of the estate of WONG YIU CHUNG, deceased v. HAU SHUN CHI NELSON

LU XIAOHUA, the administratrix of the estate of WONG YIU CHUNG, deceased v. HAU SHUN CHI NELSON

The application for leave to appeal is dismissed because none of the five proposed grounds establishes a reasonable prospect of success; the trial judge’s factual findings that the Wong family had exclusive adverse possession, that the presumption of encroachment was rebutted on the special facts, and that oral/licence claims were unreliable were entitled to deference and were dispositive of the appeal prospects.

Citation
[2020] HKDC 606
Parties
Plaintiff (by Original Action); Defendant (by Counterclaim): LU XIAOHUA (administratrix of the estate of WONG YIU CHUNG, deceased); Defendant (by Original Action); Plaintiff (by Counterclaim): HAU SHUN CHI NELSON
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
3 August 2020
Case Number
DCCJ287/2016
Procedural Posture
Civil Action — Adverse Possession / Declaration Under Limitation Ordinance / Application for Leave to Appeal Against Judgment (summons Dated 24 April 2020)
Outcome
Application for leave to appeal dismissed
Legal Topics
Adverse Possession, Leave to Appeal, Presumption of Encroachment, Joint Tenancy and Possession, Evaluation of Oral Evidence, Fencing and Exclusive Possession
Source Language
EN
Property Law Adverse Possession Limitation Law Civil Procedure Evidence Law Leave to Appeal Presumption of Encroachment Joint Tenancy and Possession +2 more

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Parties

LU XIAOHUA (administratrix of the estate of WONG YIU CHUNG, deceased)

Plaintiff (by Original Action); Defendant (by Counterclaim)

HAU SHUN CHI NELSON

Defendant (by Original Action); Plaintiff (by Counterclaim)

Procedural Posture

Civil Action — Adverse Possession / Declaration Under Limitation Ordinance / Application for Leave to Appeal Against Judgment (summons Dated 24 April 2020)

Legal Issues

  1. 1 Whether the applicant shows a reasonable prospect of success on appeal
  2. 2 Whether viva voce evidence of third party negates adverse possession findings (Wong Tak Yue principle)
  3. 3 Whether family possession vests as joint tenancy preventing sole vesting in one member

Ratio Decidendi

The application for leave to appeal is dismissed because none of the five proposed grounds establishes a reasonable prospect of success; the trial judge’s factual findings that the Wong family had exclusive adverse possession, that the presumption of encroachment was rebutted on the special facts, and that oral/licence claims were unreliable were entitled to deference and were dispositive of the appeal prospects.

Court Disposition

Application for leave to appeal dismissed

Orders

  • Leave to appeal refused
  • Applicant ordered to pay costs to Lu of the application with certificate for counsel, to be taxed if not agreed