LAW YUK FONG v. MAN CHUNG WAI AND ANOTHER

LAW YUK FONG v. MAN CHUNG WAI AND ANOTHER

On the uncontested evidence (affidavit, survey report and historical aerial/photographic records) the court was satisfied that plaintiff and her family had exclusive factual possession and the requisite animus possidendi of Lot597-Area4 and Lot738-Area9 for not less than 20 years before suit; accordingly under the Limitation Ordinance the registered titles of D1 and D2 were extinguished and plaintiff acquired possessory title, warranting declarations in her favour despite default.

Citation
LAW YUK FONG v. MAN CHUNG WAI AND ANOTHER
Parties
Plaintiff: P; 1st Defendant: 1st Defendant (D1); 2nd Defendant: 2nd Defendant (D2)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 January 2017
Case Number
HCA2195/2015
Procedural Posture
Declaratory Relief (adverse Possession) / Judgment Following Default Hearing (order 19 R.7 Rhc)
Outcome
Declarations granted for plaintiff; no order as to costs; plaintiff's own costs to be taxed under Legal Aid Regulations.
Legal Topics
Declaratory Relief, Possessory Title, Service Out of Jurisdiction, Default Judgment
Source Language
EN
Property Adverse Possession Limitation Law Civil Procedure Declaratory Relief Possessory Title Service Out of Jurisdiction Default Judgment

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Parties

P

Plaintiff

1st Defendant (D1)

1st Defendant

2nd Defendant (D2)

2nd Defendant

Procedural Posture

Declaratory Relief (adverse Possession) / Judgment Following Default Hearing (order 19 R.7 Rhc)

Legal Issues

  1. 1 Whether plaintiff acquired possessory title by adverse possession of Lot 597 and Lot 738
  2. 2 Whether defendants' registered title was extinguished by operation of Limitation Ordinance s.17
  3. 3 Whether declaratory relief could be granted on default judgment without trial

Ratio Decidendi

On the uncontested evidence (affidavit, survey report and historical aerial/photographic records) the court was satisfied that plaintiff and her family had exclusive factual possession and the requisite animus possidendi of Lot597-Area4 and Lot738-Area9 for not less than 20 years before suit; accordingly under the Limitation Ordinance the registered titles of D1 and D2 were extinguished and plaintiff acquired possessory title, warranting declarations in her favour despite default.

Court Disposition

Declarations granted for plaintiff; no order as to costs; plaintiff's own costs to be taxed under Legal Aid Regulations.

Orders

  • Declaration that D1's title, interest and rights in Lot 597 within the brown-coloured boundary of Area 4 (Lot597-Area4) have been absolutely extinguished by virtue of section 17 of the Limitation Ordinance (Cap.347).
  • Declaration that plaintiff has been in adverse possession of Lot597-Area4 for not less than 20 years prior to commencement of the action and has acquired possessory title, interest and rights in Lot597-Area4.