SAM SHUI NATIVES ASSOCIATION v. KWOK WAI CHIU AND OTHERS

SAM SHUI NATIVES ASSOCIATION v. KWOK WAI CHIU AND OTHERS

The plaintiff failed to prove it was the intended beneficiary under the earlier declarations of trust (it did not exist when the trusts were created) and, alternatively, its possession of the suit properties was with the consent/licence of those entitled and thus not adverse; accordingly limitation did not operate to vest title in the plaintiff and the plaintiff's claims are 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, the Surviving Executors of the estate of KWOK CHAN, Deceased; Defendants (represented): Official Solicitor (representing 2nd to 13th and 16th Defendants in HCMP4224/1996); 2nd Defendant in Hcmp1384/2000; 15th Defendant in Hcmp4224/1996: So Chi Cheong, personal representative of So Tse Hang, Deceased; 14th Defendant: 14th Defendant (Tang Cheuk Wan)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 August 2007
Case Number
HCMP1384/2000
Procedural Posture
Consolidated Miscellaneous Proceedings Concerning Trusts and Land (hcmp 4224/1996 & HCMP 1384/2000) / Judgment Delivered (court of First Instance) 3 August 2007
Outcome
Claim dismissed.
Legal Topics
Declarations of Trust, Adverse Possession Elements (possession, Adversity, Intention), Limitation Ordinance S.13(1), Conveyancing and Property Ordinance S.5(1)(a), Licences and Effect on Possession
Source Language
EN
Trusts Property Law Adverse Possession Limitation Law Succession/personal Representatives Declarations of Trust Adverse Possession Elements (possession, Adversity, Intention) Limitation Ordinance S.13(1) +2 more

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Parties

Sam Shui Natives Association

Plaintiff

KWOK WAI CHIU and KWOK WAI KAI KENNETH, the Surviving Executors of the estate of KWOK CHAN, Deceased

1st Defendant

Official Solicitor (representing 2nd to 13th and 16th Defendants in HCMP4224/1996)

Defendants (represented)

So Chi Cheong, personal representative of So Tse Hang, Deceased

2nd Defendant in Hcmp1384/2000; 15th Defendant in Hcmp4224/1996

14th Defendant (Tang Cheuk Wan)

14th Defendant

Procedural Posture

Consolidated Miscellaneous Proceedings Concerning Trusts and Land (hcmp 4224/1996 & HCMP 1384/2000) / Judgment Delivered (court of First Instance) 3 August 2007

Legal Issues

  1. 1 Whether the declarations of trust made the plaintiff the beneficial owner of the suit properties
  2. 2 Whether the plaintiff acquired title by adverse possession since September 1960
  3. 3 Whether possession by the plaintiff was 'adverse' for limitation purposes or was by licence/consent

Ratio Decidendi

The plaintiff failed to prove it was the intended beneficiary under the earlier declarations of trust (it did not exist when the trusts were created) and, alternatively, its possession of the suit properties was with the consent/licence of those entitled and thus not adverse; accordingly limitation did not operate to vest title in the plaintiff and the plaintiff's claims are dismissed.

Court Disposition

Claim dismissed.

Orders

  • Claim dismissed.
  • No order as to costs.