SAM SHUI NATIVES ASSOCIATION v. KWOK WAI CHIU AND OTHERS

SAM SHUI NATIVES ASSOCIATION v. KWOK WAI CHIU AND OTHERS

The declarations of trust did not establish the plaintiff as the intended beneficial owner because the plaintiff did not exist at the material time and the instruments and background did not show intent to benefit it; independently, the plaintiff's occupation was with the consent of those with potential title (a licence viewed from the paper owner's standpoint) so possession was not adverse under Cap.347 s.13(1) and limitation did not run; accordingly the plaintiff's claims failed and the action was dismissed.

Citation
SAM SHUI NATIVES ASSOCIATION v. KWOK WAI CHIU AND OTHERS
Parties
Plaintiff: Sam Shui Natives Association; 1st Defendant: Kwok Wai Chiu and Kwok Wai Kai Kenneth (Surviving Executors of the estate of Kwok Chan, Deceased); 2nd Defendant: Personal Representative of Law Wai Kwun, Deceased; 3rd Defendant: Personal Representative of Luk Yam Fong, Deceased; 4th Defendant: Personal Representative of Sum Cheuk Tong, Deceased; 5th Defendant: Personal Representative of Chin Yee Tin, Deceased; 6th Defendant: Personal Representative of Tang Man Hing, Deceased; 7th Defendant: Personal Representative of Tsang Sum Tsun, Deceased; 8th Defendant: Personal Representative of Ho Ping Nam, Deceased; 9th Defendant: Personal Representative of Leung Chi Nam, Deceased; 10th Defendant: Personal Representative of Chan Yik Tong, Deceased; 11th Defendant: Personal Representative of Tang Kam Chi, Deceased; 12th Defendant: Personal Representative of Chin Suk Cho, Deceased; 13th Defendant: Personal Representative of Li Ching Kiu, Deceased; 14th Defendant: Personal Representative of Tang Cheuk Wan, Deceased; 15th Defendant: So Chi Cheong (Personal Representative of So Tse Hang, Deceased); 16th Defendant: Personal Representative of Chan Hiu Chuen, Deceased
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 August 2007
Case Number
HCMP4224/1996
Procedural Posture
Consolidated Miscellaneous Proceedings Concerning Trusts and Adverse Possession / Final Judgment of the Court of First Instance (decision Handed Down)
Outcome
Claim dismissed
Legal Topics
Declaration of Trust, Adverse Possession, Limitation Ordinance S.13(1), Conveyancing and Property Ordinance S.5(1)(a)
Source Language
EN
Trusts Property Law Adverse Possession Limitation Conveyancing Declaration of Trust Limitation Ordinance S.13(1) Conveyancing and Property Ordinance S.5(1)(a)

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Parties

Sam Shui Natives Association

Plaintiff

Kwok Wai Chiu and Kwok Wai Kai Kenneth (Surviving Executors of the estate of Kwok Chan, Deceased)

1st Defendant

Personal Representative of Law Wai Kwun, Deceased

2nd Defendant

Personal Representative of Luk Yam Fong, Deceased

3rd Defendant

Personal Representative of Sum Cheuk Tong, Deceased

4th Defendant

Personal Representative of Chin Yee Tin, Deceased

5th Defendant

Personal Representative of Tang Man Hing, Deceased

6th Defendant

Personal Representative of Tsang Sum Tsun, Deceased

7th Defendant

Personal Representative of Ho Ping Nam, Deceased

8th Defendant

Personal Representative of Leung Chi Nam, Deceased

9th Defendant

Personal Representative of Chan Yik Tong, Deceased

10th Defendant

Personal Representative of Tang Kam Chi, Deceased

11th Defendant

Personal Representative of Chin Suk Cho, Deceased

12th Defendant

Personal Representative of Li Ching Kiu, Deceased

13th Defendant

Personal Representative of Tang Cheuk Wan, Deceased

14th Defendant

So Chi Cheong (Personal Representative of So Tse Hang, Deceased)

15th Defendant

Personal Representative of Chan Hiu Chuen, Deceased

16th Defendant

Procedural Posture

Consolidated Miscellaneous Proceedings Concerning Trusts and Adverse Possession / Final Judgment of the Court of First Instance (decision Handed Down)

Legal Issues

  1. 1 Whether declarations of trust vested legal and beneficial title in the plaintiff
  2. 2 Whether plaintiff acquired title by adverse possession from September 1960
  3. 3 Whether possession was adverse or held by licence preventing limitation running

Ratio Decidendi

The declarations of trust did not establish the plaintiff as the intended beneficial owner because the plaintiff did not exist at the material time and the instruments and background did not show intent to benefit it; independently, the plaintiff's occupation was with the consent of those with potential title (a licence viewed from the paper owner's standpoint) so possession was not adverse under Cap.347 s.13(1) and limitation did not run; accordingly the plaintiff's claims failed and the action was dismissed.

Court Disposition

Claim dismissed

Orders

  • Claim dismissed
  • No order as to costs