HUI CHUNG YAU v. HUI HUNG KIM Alias LU HAI

HUI CHUNG YAU v. HUI HUNG KIM Alias LU HAI

On the pleadings alone the court was prepared to presume ouster from the very long and uninterrupted possession pleaded and thus that plaintiff and predecessor were in adverse possession exceeding the relevant period so that defendant's title would be extinguished under s.17 Limitation Ordinance; however, in exercise of the court's discretion under O.19 r.7 and having regard to the practice against granting declaratory relief without trial together with material inconsistencies in plaintiff's sworn affirmations and credibility concerns, the court declined to grant the declarations and dismissed the summons.

Citation
HUI CHUNG YAU v. HUI HUNG KIM Alias LU HAI
Parties
Plaintiff: Plaintiff; Defendant: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
18 October 2016
Case Number
DCCJ3075/2014
Procedural Posture
Adverse Possession / Declaration of Possessory Title / Hearing on Plaintiff's Summons in Default of Defence (o.19 R.7 Rdc)
Outcome
Plaintiff's summons dismissed with no order as to costs
Legal Topics
Adverse Possession, Declaration of Title, Substituted Service, Ouster, Limitation Ordinance S.17
Source Language
EN
Property Limitation Civil Procedure Adverse Possession Declaration of Title Substituted Service Ouster Limitation Ordinance S.17

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 12 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Adverse Possession / Declaration of Possessory Title / Hearing on Plaintiff's Summons in Default of Defence (o.19 R.7 Rdc)

Legal Issues

  1. 1 Whether plaintiff and predecessor established adverse possession sufficient to extinguish co-owner's title under s.17 Limitation Ordinance
  2. 2 Whether ouster between co‑owners was established or can be presumed from long possession
  3. 3 Whether the court should exercise its discretion under O.19 r.7 RDC to grant declaratory relief in default of defence

Ratio Decidendi

On the pleadings alone the court was prepared to presume ouster from the very long and uninterrupted possession pleaded and thus that plaintiff and predecessor were in adverse possession exceeding the relevant period so that defendant's title would be extinguished under s.17 Limitation Ordinance; however, in exercise of the court's discretion under O.19 r.7 and having regard to the practice against granting declaratory relief without trial together with material inconsistencies in plaintiff's sworn affirmations and credibility concerns, the court declined to grant the declarations and dismissed the summons.

Court Disposition

Plaintiff's summons dismissed with no order as to costs

Orders

  • Plaintiff's summons dismissed with no order as to costs