CHEUNG WAI HUNG v. TAM KWOK WAI AND ANOTHER

CHEUNG WAI HUNG v. TAM KWOK WAI AND ANOTHER

The 2nd Defendant failed to prove uninterrupted exclusive possession with the requisite intention to exclude others for 20 years prior to the writ; inconsistencies in his evidence about commencement dates and interruptions by fencing/surveying and acts of the plaintiff meant the counterclaim for adverse possession...

Source-derived case information.

Citation
CHEUNG WAI HUNG v. TAM KWOK WAI AND ANOTHER
Parties
Plaintiff: Cheung Wai Hung; 1st Defendant: Tam Kwok Wai; 2nd Defendant: Tang Chun Lam
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
3 June 2009
Case Number
DCCJ919/2007
Procedural Posture
Possession (land) Adverse Possession Dispute / Final Judgment (district Court)
Outcome
Judgment for Plaintiff; counterclaim for adverse possession dismissed; possession and trespass reliefs in favour of Plaintiff; damages claim dismissed.
Legal Topics
Adverse Possession, Limitation Period, Possession Vs Trespass, Boundary/fencing, Costs
Source Language
en
Property Real Property Civil Procedure Adverse Possession Limitation Period Possession Vs Trespass Boundary/fencing Costs

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Parties

Cheung Wai Hung

Plaintiff

Tam Kwok Wai

1st Defendant

Tang Chun Lam

2nd Defendant

Procedural Posture

Possession (land) Adverse Possession Dispute / Final Judgment (district Court)

Legal Issues

  1. 1 Whether the 2nd Defendant established adverse possession of the Eastern Portion for the requisite 20 years
  2. 2 When adverse possession (if any) commenced and whether possession was continuous
  3. 3 Whether acts of fencing and surveying interrupted adverse possession

Ratio Decidendi

The 2nd Defendant failed to prove uninterrupted exclusive possession with the requisite intention to exclude others for 20 years prior to the writ; inconsistencies in his evidence about commencement dates and interruptions by fencing/surveying and acts of the plaintiff meant the counterclaim for adverse possession failed and judgment for possession and trespass reliefs (items 1–3) was entered for the Plaintiff.

Court Disposition

Judgment for Plaintiff; counterclaim for adverse possession dismissed; possession and trespass reliefs in favour of Plaintiff; damages claim dismissed.

Orders

  • Enter judgment for the Plaintiff for relief items 1, 2 and 3 as prayed.
  • Dismiss item 4 of the prayer for relief (no award of damages for trespass).