LUNG CHEUNG DEVELOPMENT CO LTD v. CHAN YIP SANG AND ANOTHER

LUNG CHEUNG DEVELOPMENT CO LTD v. CHAN YIP SANG AND ANOTHER

The court held the written 2002 and 2004 agreements showed a landlord‑tenant/subletting relationship and a reversionary interest, demonstrating the 2nd defendant lacked the necessary intention to treat the land as his own and exclude the true owner, therefore his adverse possession defence was without merit and summary judgment and strike out were warranted.

Citation
LUNG CHEUNG DEVELOPMENT CO LTD v. CHAN YIP SANG AND ANOTHER
Parties
Plaintiff: Lung Cheung Development Company Limited; 1st Defendant: Chan Yip Sang; 2nd Defendant: Chan Wai Ming
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
17 March 2014
Case Number
DCCJ2576/2013
Procedural Posture
Civil Possession / Summary Judgment and Strike Out Applications (order 14 and Order 18 R.19)
Outcome
Summary judgment entered for the plaintiff; counterclaim struck out; damages to be assessed in respect of plaintiff's claim
Legal Topics
Adverse Possession, Summary Judgment, Strike Out of Counterclaim, Limitation Ordinance, Mesne Profits
Source Language
EN
Property Law Civil Procedure Landlord and Tenant Adverse Possession Summary Judgment Strike Out of Counterclaim Limitation Ordinance Mesne Profits

Case Brief

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Parties

Lung Cheung Development Company Limited

Plaintiff

Chan Yip Sang

1st Defendant

Chan Wai Ming

2nd Defendant

Procedural Posture

Civil Possession / Summary Judgment and Strike Out Applications (order 14 and Order 18 R.19)

Legal Issues

  1. 1 Whether the 2nd defendant had continuous adverse possession with animus possidendi for 12 years
  2. 2 Whether the relationship between the Deceased and the 2nd defendant was co-adverse possessors or landlord and tenant
  3. 3 Whether there is an arguable triable issue to defeat summary judgment under Order 14

Ratio Decidendi

The court held the written 2002 and 2004 agreements showed a landlord‑tenant/subletting relationship and a reversionary interest, demonstrating the 2nd defendant lacked the necessary intention to treat the land as his own and exclude the true owner, therefore his adverse possession defence was without merit and summary judgment and strike out were warranted.

Court Disposition

Summary judgment entered for the plaintiff; counterclaim struck out; damages to be assessed in respect of plaintiff's claim

Orders

  • Summary judgment granted in favour of the plaintiff under Order 14
  • Counterclaim by the 2nd defendant struck out under Order 18 rule 19