YU KIT CHIU AND ANOTHER v. CHAN SHEK WOO t/a 陳潮昌士多

YU KIT CHIU AND ANOTHER v. CHAN SHEK WOO t/a 陳潮昌士多

Given the binding Court of Appeal authority that Cap.150 created a new estate restarting limitation, the defendant's plea of title by adverse possession failed to disclose a reasonable defence; accordingly the amended defence and counterclaim were struck out and judgment was entered for the plaintiffs for possession and for damages for trespass to be assessed.

Citation
YU KIT CHIU AND ANOTHER v. CHAN SHEK WOO t/a 陳潮昌士多
Parties
Plaintiffs: Plaintiffs; Defendant: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
9 August 2005
Case Number
DCCJ5488/2003
Procedural Posture
District Court Civil Property Action (possession/trespass) / Application Under Order 14, Order 14 a and Strike Out Application Under Order 18 Rule 19
Outcome
Amended defence and counterclaim struck out; judgment entered for plaintiffs for possession of the land and for damages for trespass to be assessed; costs awarded to plaintiffs.
Legal Topics
Adverse Possession, New Territories Leases (extension) Ordinance (cap.150), Limitation of Actions (cap.347), Strike Out of Defence (order 18 Rule 19), Possession Order, Trespass Damages
Source Language
EN
Property Civil Procedure Limitation Law Adverse Possession New Territories Leases (extension) Ordinance (cap.150) Limitation of Actions (cap.347) Strike Out of Defence (order 18 Rule 19) Possession Order +1 more

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Parties

Plaintiffs

Plaintiffs

Defendant

Defendant

Procedural Posture

District Court Civil Property Action (possession/trespass) / Application Under Order 14, Order 14 a and Strike Out Application Under Order 18 Rule 19

Legal Issues

  1. 1 Whether the plaintiffs were re‑granted a new lease / new estate under the New Territories Leases (Extension) Ordinance (Cap.150) effective 1 July 1997
  2. 2 Whether plaintiffs' title was extinguished by sections 7 and 17 of the Limitation Ordinance (Cap.347) so defendant acquired possessory title by adverse possession
  3. 3 Whether the amended defence and counterclaim disclose a reasonable defence or are an abuse of process and should be struck out

Ratio Decidendi

Given the binding Court of Appeal authority that Cap.150 created a new estate restarting limitation, the defendant's plea of title by adverse possession failed to disclose a reasonable defence; accordingly the amended defence and counterclaim were struck out and judgment was entered for the plaintiffs for possession and for damages for trespass to be assessed.

Court Disposition

Amended defence and counterclaim struck out; judgment entered for plaintiffs for possession of the land and for damages for trespass to be assessed; costs awarded to plaintiffs.

Orders

  • Amended defence and counterclaim struck out pursuant to Order 18 Rule 19
  • Order for possession in favour of the plaintiffs of the land in the statement of claim