LEE TAK KIU v. ALL UNKNOWN PERSONS IN OCCUPATION OF THE REMAINING PORTIONS OF LOT NO. 136 AND THE REMAINING PORTION OF LOT NO. 138 BOTH IN DEMARCATION DISTRICT NO. 5 TOGETHER WITH THE MESSUAGES ERECTIONS AND BUILDING THEREON, TAI PO, NEW TERRITORIES, HONG KONG AND ANOTHER

LEE TAK KIU v. ALL UNKNOWN PERSONS IN OCCUPATION OF THE REMAINING PORTIONS OF LOT NO. 136 AND THE REMAINING PORTION OF LOT NO. 138 BOTH IN DEMARCATION DISTRICT NO. 5 TOGETHER WITH THE MESSUAGES ERECTIONS AND BUILDING THEREON, TAI PO, NEW TERRITORIES, HONG KONG AND ANOTHER

The court set aside the order for possession and the writ because there were substantial, triable disputes of fact and law (including the authenticity and legal effect of the Chinese Document, possible constructive notice via registration, and questions of illegality of use) such that summary determination was inappropriate; accordingly the matter must proceed by writ and pleadings so the issues can be tried.

Citation
LEE TAK KIU v. ALL UNKNOWN PERSONS IN OCCUPATION OF THE REMAINING PORTIONS OF LOT NO. 136 AND THE REMAINING PORTION OF LOT NO. 138 BOTH IN DEMARCATION DISTRICT NO. 5 TOGETHER WITH THE MESSUAGES ERECTIONS AND BUILDING THEREON, TAI PO, NEW TERRITORIES, HONG KONG AND ANOTHER
Parties
Plaintiff (registered Owner): Madam Lee; 1st Defendant (occupiers): Unknown persons (1st Defendant); 2nd Defendant (occupier/applicant to Set Aside): SMC
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
4 October 2010
Case Number
DCMP3097/2009
Procedural Posture
Miscellaneous Proceedings (possession) / Application to Set Aside Order for Possession and Writ; Proceedings Reverted to Writ and Ordered to Continue to Trial
Outcome
Order for possession dated 14 December 2009 and writ of possession dated 25 February 2010 set aside; proceedings to continue as if commenced by writ; pleadings ordered and case management directions given; costs nisi order for plaintiff
Legal Topics
Possession Orders, Service of Process, Setting Aside Default Judgment, Authenticity of Testamentary Document, Declaration of Trust, Constructive Notice Via Land Registration, Registration Requirements for Temples, Illegality of Use (columbarium)
Source Language
EN
Land/property Civil Procedure Trusts and Estates Wills and Probate Charity Law Land Registration Possession Orders Service of Process +6 more

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Parties

Madam Lee

Plaintiff (registered Owner)

Unknown persons (1st Defendant)

1st Defendant (occupiers)

SMC

2nd Defendant (occupier/applicant to Set Aside)

Procedural Posture

Miscellaneous Proceedings (possession) / Application to Set Aside Order for Possession and Writ; Proceedings Reverted to Writ and Ordered to Continue to Trial

Legal Issues

  1. 1 Whether service was irregular and whether default judgment should be set aside
  2. 2 Whether SMC has a real prospect of success on a defence asserting an interest in the Premises (authenticity/effect of the Chinese Document)
  3. 3 Whether the Chinese Document is a valid will, a declaration of trust or confers a life interest

Ratio Decidendi

The court set aside the order for possession and the writ because there were substantial, triable disputes of fact and law (including the authenticity and legal effect of the Chinese Document, possible constructive notice via registration, and questions of illegality of use) such that summary determination was inappropriate; accordingly the matter must proceed by writ and pleadings so the issues can be tried.

Court Disposition

Order for possession dated 14 December 2009 and writ of possession dated 25 February 2010 set aside; proceedings to continue as if commenced by writ; pleadings ordered and case management directions given; costs nisi order for plaintiff

Orders

  • The order for possession dated 14 December 2009 is set aside
  • The writ of possession dated 25 February 2010 is set aside