TANG WING LOY v. CHAN TAI AND OTHERS

TANG WING LOY v. CHAN TAI AND OTHERS

The Court allowed the appeal and set aside the Master's order and the default judgment because, despite inordinate delay, the 2nd defendant demonstrated a defence with a real prospect of success: evidence supported continuous occupation of the disputed portion since about 1969 and a plausible construction of the tenancy agreements that the disputed portion was not let to the tenant, meaning limitation/adverse possession may have extinguished the plaintiffs' title. The prejudice and delay did not create a substantial risk of an unfair trial sufficient to bar restoration.

Citation
TANG WING LOY v. CHAN TAI AND OTHERS
Parties
Plaintiffs / Managers of Tang Kwong Yu Tong: Tang Wing Loy; Tang Pak Luk; Tang On Kwai; Tang Che Tai; Tang Kam Wan (managers of Tang Kwong Yu Tong); 1st Defendant / Representative of Estate: Chan Tai (appointed by Court to represent estate of Chau Ngau alias Chau Dau Hing); 2nd Defendant / Representative of Estate: Chan Kai Ning (appointed to represent estate of Chan Sing)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 August 2001
Case Number
HCA2208/1991
Procedural Posture
Possession / Land Dispute (tang Property) / Interlocutory Appeal Against Master's Orders to Set Aside Default Judgment
Outcome
Appeal allowed; Master's order set aside; default judgment dated 21 May 1991 set aside; 2nd defendant granted leave to file and serve a defence and counterclaim.
Legal Topics
Possession, Mesne Profits, Limitation Period, Setting Aside Default Judgment, Construction of Tenancy Agreements, Adverse Possession
Source Language
EN
Property Law Landlord and Tenant Adverse Possession Civil Procedure Limitation Law Possession Mesne Profits Limitation Period +2 more

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Parties

Tang Wing Loy; Tang Pak Luk; Tang On Kwai; Tang Che Tai; Tang Kam Wan (managers of Tang Kwong Yu Tong)

Plaintiffs / Managers of Tang Kwong Yu Tong

Chan Tai (appointed by Court to represent estate of Chau Ngau alias Chau Dau Hing)

1st Defendant / Representative of Estate

Chan Kai Ning (appointed to represent estate of Chan Sing)

2nd Defendant / Representative of Estate

Procedural Posture

Possession / Land Dispute (tang Property) / Interlocutory Appeal Against Master's Orders to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the default judgment entered on 21 May 1991 should be set aside
  2. 2 Whether the 2nd defendant has a defence with a real prospect of success
  3. 3 Whether the 2nd defendant acquired title by adverse possession and whether the Limitation Ordinance bars the plaintiffs' claim

Ratio Decidendi

The Court allowed the appeal and set aside the Master's order and the default judgment because, despite inordinate delay, the 2nd defendant demonstrated a defence with a real prospect of success: evidence supported continuous occupation of the disputed portion since about 1969 and a plausible construction of the tenancy agreements that the disputed portion was not let to the tenant, meaning limitation/adverse possession may have extinguished the plaintiffs' title. The prejudice and delay did not create a substantial risk of an unfair trial sufficient to bar restoration.

Court Disposition

Appeal allowed; Master's order set aside; default judgment dated 21 May 1991 set aside; 2nd defendant granted leave to file and serve a defence and counterclaim.

Orders

  • Master's order on 12 June 2001 (dismissing application to set aside judgment and uplifting stay) set aside as to the 2nd defendant
  • Default judgment entered on 21 May 1991 against the 2nd defendant is set aside