KWAN MAN SHING AND ANOTHER v. 張偉雄 AND ANOTHER

KWAN MAN SHING AND ANOTHER v. 張偉雄 AND ANOTHER

The court exercised its discretion to affirm the Master's order joining the applicant because the applicant's failure to intervene earlier was not wilful default on the facts and he demonstrated a defence with a real prospect of success based on adverse possession given unresolved issues (including timing and effect...

Source-derived case information.

Citation
KWAN MAN SHING AND ANOTHER v. 張偉雄 AND ANOTHER
Parties
1st Plaintiff: Kwan Man Shing; 2nd Plaintiff: Kwan Man Han Mary; 1st Defendant: 張偉雄; 2nd Defendant / Applicant: Cheung Tim Sau (張添壽)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
13 December 2017
Case Number
DCCJ1708/2015
Procedural Posture
Civil Action for Possession of Land / Appeal Against Master's Joinder Order (chambers Decision)
Outcome
Appeal dismissed; Order of the Master dated 9 August 2017 affirmed
Legal Topics
Joinder of Parties, Order 15 R 6(2)(b) RDC, Order 15 R 10(1) RDC, Wilful Default, Setting Aside Default Judgment Principles, Elements of Adverse Possession
Source Language
en
Property Law Land Law Civil Procedure Adverse Possession Joinder of Parties Order 15 R 6(2)(b) RDC Order 15 R 10(1) RDC Wilful Default +2 more

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Summary, issues, holding and outcome

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Parties

Kwan Man Shing

1st Plaintiff

Kwan Man Han Mary

2nd Plaintiff

張偉雄

1st Defendant

Cheung Tim Sau (張添壽)

2nd Defendant / Applicant

Procedural Posture

Civil Action for Possession of Land / Appeal Against Master's Joinder Order (chambers Decision)

Legal Issues

  1. 1 Whether the applicant should be joined as defendant
  2. 2 Whether the applicant wilfully defaulted in not intervening earlier
  3. 3 Whether the applicant has a defence with a real prospect of success based on adverse possession (factual possession and animus possidendi)

Ratio Decidendi

The court exercised its discretion to affirm the Master's order joining the applicant because the applicant's failure to intervene earlier was not wilful default on the facts and he demonstrated a defence with a real prospect of success based on adverse possession given unresolved issues (including timing and effect of the survey) that require trial, therefore the joinder was justified and the plaintiffs' appeal was dismissed.

Court Disposition

Appeal dismissed; Order of the Master dated 9 August 2017 affirmed

Orders

  • Order of the Master dated 9 August 2017 affirmed
  • Joinder of Cheung Tim Sau (2nd Defendant / Applicant) as defendant affirmed