LIN JIAN CHUN v. LIN XIU MEI AND ANOTHER

LIN JIAN CHUN v. LIN XIU MEI AND ANOTHER

Leave to appeal refused because the judge correctly found on the facts that the Defendants' possession was with the landlord's consent and an indication to pay rent defeated any claim of adverse possession; s.3 CPO was not pleaded and on the factual matrix was inapplicable to the oral yearly tenancy; permitting late amendment would be unfair and there was no reasonable prospect of success.

Citation
LIN JIAN CHUN v. LIN XIU MEI AND ANOTHER
Parties
Plaintiff: Plaintiff; Defendant: 1st Defendant; Defendant: 2nd Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
28 November 2011
Case Number
DCCJ2491/2008
Procedural Posture
Landlord and Tenant / Possession / Application for Leave to Appeal
Outcome
Application for leave to appeal refused
Legal Topics
Adverse Possession, Possession, Tenant V Landlord, Statute of Frauds (conveyancing and Property Ordinance), Leave to Appeal, Pleading Rules
Source Language
EN
Land Law Property Tenancy Civil Procedure Costs Adverse Possession Possession Tenant V Landlord +3 more

Case Brief

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Parties

Plaintiff

Plaintiff

1st Defendant

Defendant

2nd Defendant

Defendant

Procedural Posture

Landlord and Tenant / Possession / Application for Leave to Appeal

Legal Issues

  1. 1 Whether the Defendants established adverse possession (possession and intention)
  2. 2 Whether findings of tenancy/possession with consent defeat adverse possession
  3. 3 Whether s.3 of the Conveyancing and Property Ordinance applies and whether it was properly pleaded

Ratio Decidendi

Leave to appeal refused because the judge correctly found on the facts that the Defendants' possession was with the landlord's consent and an indication to pay rent defeated any claim of adverse possession; s.3 CPO was not pleaded and on the factual matrix was inapplicable to the oral yearly tenancy; permitting late amendment would be unfair and there was no reasonable prospect of success.

Court Disposition

Application for leave to appeal refused

Orders

  • Summons dated 20 September 2011 dismissed
  • Costs of the application to the Plaintiff with certificate for counsel to be made absolute 14 days after handing down of decision