LAM YU SHING AND ANOTHER v. THE OCCUPIER(S) AND ANOTHER

LAM YU SHING AND ANOTHER v. THE OCCUPIER(S) AND ANOTHER

D2 failed to establish adverse possession: his pleaded case of joint possession (1992–2009) was not proved and his belated unpleaded tacking case was not permitted; alternatively, even if considered, D2 could not show continuous tacking or sufficient factual possession and animus possidendi post-2009, so Plaintiffs’ title was not extinguished as against D2; accordingly Plaintiffs succeed and mesne profits and costs are awarded.

Citation
[2024] HKDC 1057
Parties
Plaintiff: Lam Yu Shing; Plaintiff: Lam Yu Cheong Alfred; 1st Defendant: The Occupier(s); 2nd Defendant: 劉彩軍
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
8 July 2024
Case Number
DCCJ4161/2016
Procedural Posture
Recovery of Possession and Mesne Profits (adverse Possession Counterclaim) / Judgment After Trial
Outcome
Judgment for Plaintiffs; 2nd Defendant's counterclaim dismissed
Legal Topics
Adverse Possession, Tacking, Possession in Law, Mesne Profits, Limitation Ordinance S17, Pleadings and Amendment of Case
Source Language
EN
Property Land Law Civil Procedure Limitation Law Adverse Possession Tacking Possession in Law Mesne Profits +2 more

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Parties

Lam Yu Shing

Plaintiff

Lam Yu Cheong Alfred

Plaintiff

The Occupier(s)

1st Defendant

劉彩軍

2nd Defendant

Procedural Posture

Recovery of Possession and Mesne Profits (adverse Possession Counterclaim) / Judgment After Trial

Legal Issues

  1. 1 Whether D2 proved adverse possession of the Disputed Lots
  2. 2 Whether D2 could tack onto predecessor Choi Wai’s possession despite an intervening gap
  3. 3 Whether section 17 Limitation Ordinance extinguishes a paper owner’s title as against the whole world or only as against the squatter and those claiming under him

Ratio Decidendi

D2 failed to establish adverse possession: his pleaded case of joint possession (1992–2009) was not proved and his belated unpleaded tacking case was not permitted; alternatively, even if considered, D2 could not show continuous tacking or sufficient factual possession and animus possidendi post-2009, so Plaintiffs’ title was not extinguished as against D2; accordingly Plaintiffs succeed and mesne profits and costs are awarded.

Court Disposition

Judgment for Plaintiffs; 2nd Defendant's counterclaim dismissed

Orders

  • D1 and D2 to deliver up vacant possession of Unit 306 Pai Tau Village, the porch/canopy and the Disputed Lots to Plaintiffs
  • Mesne profits payable by D2 to Plaintiffs of HKD 312,660 for the period 24 August 2010 to 23 November 2021 and thereafter HKD 2,900 per month from 24 November 2021 until vacant possession is delivered