LAU TIN SHEK v. TSANG KOON SAU

LAU TIN SHEK v. TSANG KOON SAU

The claimant failed to prove the alleged Agreement or any payment to the developer and was found to be an unreliable witness; his equitable claims (promissory estoppel, resulting trust, constructive trust) therefore fail; occupation began with the owner’s consent (a licence) so was not adverse for the statutory period and adverse possession fails; the Tenancy Agreement is a sham and does not constitute an acknowledgement resetting limitation; accordingly South-China’s registered legal charge is enforceable and judgment is entered for South-China with an order for vacant possession.

Citation
[2022] HKDC 258
Parties
Plaintiff (dccj 2784/2013); 2nd Defendant (dccj 1630/2019): Lau Tin Shek; Defendant (dccj 2784/2013); 1st Defendant (dccj 1630/2019): Tsang Koon Sau; Plaintiff (dccj 1630/2019): South-China Universal Finance Limited
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
22 March 2022
Case Number
DCCJ2784/2013
Procedural Posture
Civil Actions Concerning Beneficial Ownership of Land and Enforcement of a Legal Charge / Trial and Judgment
Outcome
Ownership Action dismissed in its entirety; South-China entitled to judgment in the Legal Charge Action against Mr Lau; orders for delivery of vacant possession and costs as set out.
Legal Topics
Adverse Possession, Constructive Trust, Resulting Trust, Promissory Estoppel, Priority of Registered Charges, Acknowledgement Under Limitation Statutes, Illegality of Ding Rights Transactions, Order 14 a Application
Source Language
EN
Property Law Trusts Land Registration Limitation Law Enforcement of Security (legal Charge) Civil Procedure Adverse Possession Constructive Trust +6 more

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Parties

Lau Tin Shek

Plaintiff (dccj 2784/2013); 2nd Defendant (dccj 1630/2019)

Tsang Koon Sau

Defendant (dccj 2784/2013); 1st Defendant (dccj 1630/2019)

South-China Universal Finance Limited

Plaintiff (dccj 1630/2019)

Procedural Posture

Civil Actions Concerning Beneficial Ownership of Land and Enforcement of a Legal Charge / Trial and Judgment

Legal Issues

  1. 1 Whether the alleged oral agreement existed and was performed (payment of HK$600,000)
  2. 2 Whether there was a common intention or promise giving rise to an express or constructive trust
  3. 3 Whether the occupier acquired title by adverse possession (section 17 Limitation Ordinance)

Ratio Decidendi

The claimant failed to prove the alleged Agreement or any payment to the developer and was found to be an unreliable witness; his equitable claims (promissory estoppel, resulting trust, constructive trust) therefore fail; occupation began with the owner’s consent (a licence) so was not adverse for the statutory period and adverse possession fails; the Tenancy Agreement is a sham and does not constitute an acknowledgement resetting limitation; accordingly South-China’s registered legal charge is enforceable and judgment is entered for South-China with an order for vacant possession.

Court Disposition

Ownership Action dismissed in its entirety; South-China entitled to judgment in the Legal Charge Action against Mr Lau; orders for delivery of vacant possession and costs as set out.

Orders

  • Dismissal of the Ownership Action (DCCJ 2784/2013) with each party to bear its own costs
  • Judgment entered for South-China in the Legal Charge Action (DCCJ 1630/2019) against Mr Lau