LEE AH TIM v. TSE LUNG YIM AND ANOTHER

LEE AH TIM v. TSE LUNG YIM AND ANOTHER

Leave to appeal was refused because the judge's factual findings that the plaintiff established continuous agricultural possession since 1961 were not plainly wrong, the points complained of had been considered at trial and supported by evidence (including aerial photographs), and the defendants could not properly raise laches/acquiescence that were not pleaded or argued at trial; therefore there was no reasonable prospect of success on appeal.

Citation
LEE AH TIM v. TSE LUNG YIM AND ANOTHER
Parties
Plaintiff: LEE AH TIM; 1st Defendant: TSE LUNG YIM; 2nd Defendant: NGAI KAM YUK
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
4 December 2015
Case Number
DCCJ529/2013
Procedural Posture
Adverse Possession (civil Action) / Application for Leave to Appeal Following District Court Judgment
Outcome
Application for leave to appeal dismissed
Legal Topics
Adverse Possession, Trespass, Leave to Appeal, Laches, Acquiescence, Costs
Source Language
EN
Property Law Civil Procedure Equity Adverse Possession Trespass Leave to Appeal Laches Acquiescence +1 more

Case Brief

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Parties

LEE AH TIM

Plaintiff

TSE LUNG YIM

1st Defendant

NGAI KAM YUK

2nd Defendant

Procedural Posture

Adverse Possession (civil Action) / Application for Leave to Appeal Following District Court Judgment

Legal Issues

  1. 1 Whether the plaintiff established continuous and exclusive possession for adverse possession since 1961
  2. 2 Whether factual findings on cultivation and possession of Lots 2244 and 2243RP were plainly wrong
  3. 3 Whether the parties co-existed on Lot 2243RP and its legal effect

Ratio Decidendi

Leave to appeal was refused because the judge's factual findings that the plaintiff established continuous agricultural possession since 1961 were not plainly wrong, the points complained of had been considered at trial and supported by evidence (including aerial photographs), and the defendants could not properly raise laches/acquiescence that were not pleaded or argued at trial; therefore there was no reasonable prospect of success on appeal.

Court Disposition

Application for leave to appeal dismissed

Orders

  • Leave to appeal refused
  • Costs of the application to the plaintiff with counsel's certificate to be taxed if not agreed; plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations