ON YIP PROPERTY DEVELOPMENT CO LTD v. KWOK TAI KUEN ALAN

ON YIP PROPERTY DEVELOPMENT CO LTD v. KWOK TAI KUEN ALAN

Leave to appeal dismissed because applicants failed to demonstrate any reasonable prospect of success: the trial judge's factual findings on adverse possession, abandonment and insufficiency of possession were properly based on the totality of evidence (including aerial and expert evidence), the legal burden rested on the squatter to prove continuous possession and absence of abandonment, and a new unpleaded 12-year limitation case could not be entertained on appeal.

Citation
ON YIP PROPERTY DEVELOPMENT CO LTD v. KWOK TAI KUEN ALAN
Parties
Plaintiff: Plaintiff; Defendant: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
15 November 2013
Case Number
DCCJ1154/2010
Procedural Posture
Civil Land Dispute (adverse Possession, Limitation) / Application for Leave to Appeal (district Court)
Outcome
Both plaintiff's and defendant's applications for leave to appeal dismissed
Legal Topics
Adverse Possession, Animus Possidendi, Abandonment, Burden of Proof, Limitation Period, Leave to Appeal, Assessment of Evidence
Source Language
EN
Property Law Civil Procedure Limitation Law Adverse Possession Animus Possidendi Abandonment Burden of Proof Limitation Period +2 more

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Parties

Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Civil Land Dispute (adverse Possession, Limitation) / Application for Leave to Appeal (district Court)

Legal Issues

  1. 1 Whether leave to appeal should be granted
  2. 2 Whether there was sufficient evidence to establish adverse possession of the Portion and Sites B and C since the 1950s
  3. 3 Who bears the burden of proof on abandonment/continuity of possession

Ratio Decidendi

Leave to appeal dismissed because applicants failed to demonstrate any reasonable prospect of success: the trial judge's factual findings on adverse possession, abandonment and insufficiency of possession were properly based on the totality of evidence (including aerial and expert evidence), the legal burden rested on the squatter to prove continuous possession and absence of abandonment, and a new unpleaded 12-year limitation case could not be entertained on appeal.

Court Disposition

Both plaintiff's and defendant's applications for leave to appeal dismissed

Orders

  • Plaintiff's application for leave to appeal dismissed
  • Defendant's application for leave to appeal dismissed