PROSPEROUS WORLD LAND INVESTMENT CO LTD v. LAI FUNG SHAN

PROSPEROUS WORLD LAND INVESTMENT CO LTD v. LAI FUNG SHAN

The court held that the plaintiff was entitled to possession of the Structure and the plot of land it stands on because the plaintiff established a superior possessory title under the doctrine of relativity of titles; the hawker licence did not confer proprietary rights to the defendant; the defendant raised no triable issue of identification or ownership of the Structure; and the Master erred in requiring a perfect or absolute title for relief under O.113.

Citation
[2020] HKDC 1033
Parties
Appellant: Plaintiff; Respondent: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
13 November 2020
Case Number
DCMP3931/2019
Procedural Posture
Possession Claim Under Order 113 (district Court Miscellaneous Proceedings) / Appeal From Master (hearing Ab Initio)
Outcome
Appeal allowed in respect of the Structure and the land it occupies; Order of Master set aside insofar as it related to the Structure; possession awarded to plaintiff; costs awarded to plaintiff with certificate for counsel.
Legal Topics
Summary Possession, Order 113 RDC, Relativity of Titles, Fixed Pitch Hawker Licence, Possession in Rem
Source Language
EN
Property Civil Procedure Landlord and Tenant Summary Possession Order 113 RDC Relativity of Titles Fixed Pitch Hawker Licence Possession in Rem

Case Brief

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Parties

Plaintiff

Appellant

Defendant

Respondent

Procedural Posture

Possession Claim Under Order 113 (district Court Miscellaneous Proceedings) / Appeal From Master (hearing Ab Initio)

Legal Issues

  1. 1 Whether plaintiff entitled to summary order for possession under O.113 in respect of the Structure and the land it occupies
  2. 2 Whether a Fixed Pitch Hawker Licence confers proprietary rights or defeats a possessory claim by the plaintiff
  3. 3 Whether plaintiff must possess a perfect title or only a superior possessory title relative to the defendant

Ratio Decidendi

The court held that the plaintiff was entitled to possession of the Structure and the plot of land it stands on because the plaintiff established a superior possessory title under the doctrine of relativity of titles; the hawker licence did not confer proprietary rights to the defendant; the defendant raised no triable issue of identification or ownership of the Structure; and the Master erred in requiring a perfect or absolute title for relief under O.113.

Court Disposition

Appeal allowed in respect of the Structure and the land it occupies; Order of Master set aside insofar as it related to the Structure; possession awarded to plaintiff; costs awarded to plaintiff with certificate for counsel.

Orders

  • The Plaintiff do recover possession of a structure measuring about 3.37 metres in length, 0.96 metre in width and 3.08 metres in height together with the plot of land on which the Structure is situated
  • The Order of Master Lam dated 26 June 2020 be set aside except for any order or orders made in relation to the Subject Property alone