CHEUNG CHURK HUNG AND ANOTHER v. MOK CHI CHEONG AND OTHERS

CHEUNG CHURK HUNG AND ANOTHER v. MOK CHI CHEONG AND OTHERS

The counterclaim for adverse possession was struck out as an abuse of process because the defendants could and should have raised their possession claim in the earlier High Court action which resulted in recovery of possession; summary judgment was granted for the plaintiffs on the nuisance claim against the named defendants (except the 2nd, 8th and 9th defendants) because the defendants unlawfully prevented the plaintiffs' contractors from carrying out works, constituting private nuisance, and there was insufficient admissible affidavit evidence to establish trespass or damage at this interlocutory stage.

Citation
CHEUNG CHURK HUNG AND ANOTHER v. MOK CHI CHEONG AND OTHERS
Parties
Plaintiff: Plaintiffs; Defendant: 1st to 22nd Defendants
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
29 April 2013
Case Number
DCCJ2642/2012
Procedural Posture
Civil Property and Torts (possession, Trespass, Nuisance) / Interlocutory Applications Determined: Summary Judgment (order 14) and Striking Out (order 18)
Outcome
Counterclaim for adverse possession struck out; summary judgment granted for plaintiffs on nuisance claim against specified defendants; no summary judgment against 2nd, 8th and 9th defendants.
Legal Topics
Adverse Possession, Trespass, Private Nuisance, Summary Judgment, Strike Out, Abuse of Process (henderson V Henderson)
Source Language
EN
Property Tort Civil Procedure Adverse Possession Trespass Private Nuisance Summary Judgment Strike Out +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

Plaintiffs

Plaintiff

1st to 22nd Defendants

Defendant

Procedural Posture

Civil Property and Torts (possession, Trespass, Nuisance) / Interlocutory Applications Determined: Summary Judgment (order 14) and Striking Out (order 18)

Legal Issues

  1. 1 Whether the defendants' counterclaim for adverse possession should be struck out as an abuse of process/res judicata
  2. 2 Whether the defendants have a reasonable defence to the plaintiffs' summary judgment application on trespass and nuisance
  3. 3 Whether the defendants committed trespass, nuisance or assault during the July 2012 incident

Ratio Decidendi

The counterclaim for adverse possession was struck out as an abuse of process because the defendants could and should have raised their possession claim in the earlier High Court action which resulted in recovery of possession; summary judgment was granted for the plaintiffs on the nuisance claim against the named defendants (except the 2nd, 8th and 9th defendants) because the defendants unlawfully prevented the plaintiffs' contractors from carrying out works, constituting private nuisance, and there was insufficient admissible affidavit evidence to establish trespass or damage at this interlocutory stage.

Court Disposition

Counterclaim for adverse possession struck out; summary judgment granted for plaintiffs on nuisance claim against specified defendants; no summary judgment against 2nd, 8th and 9th defendants.

Orders

  • Defendants' counterclaim for adverse possession of Lot 2460 struck out
  • Summary judgment granted to the plaintiffs in respect of their private nuisance claim against the 1st, 3rd to 7th and 10th to 22nd defendants