LAM MAN LAU AND ANOTHER v. SECRETARY FOR JUSTICE

LAM MAN LAU AND ANOTHER v. SECRETARY FOR JUSTICE

On the facts the plaintiffs failed to prove, on the balance of probabilities, continuous exclusive factual possession and the requisite animus possidendi for at least 60 years prior to November 2011; government notices and limited clearance actions did not conclusively interrupt possession but plaintiffs' evidence was not cogent and compelling; the HKSAR sovereignty argument does not restart the limitation period. Result: plaintiffs' claim dismissed; defendant's counterclaim for vacant possession and mesne profits granted.

Citation
LAM MAN LAU AND ANOTHER v. SECRETARY FOR JUSTICE
Parties
1st Plaintiff: Lam Man Lau; 2nd Plaintiff (manager): Lam Chim Lau; 2nd Plaintiff (manager): Lam Chun Kwong; 2nd Plaintiff (manager): Lam Chau Sing; Defendant: Secretary for Justice
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
25 July 2016
Case Number
DCCJ1682/2012
Procedural Posture
Adverse Possession / Recovery of Land / Trial Judgment (judgment Handed Down)
Outcome
Plaintiffs' claim dismissed. Defendant's counterclaim for vacant possession and mesne profits granted in part.
Legal Topics
Adverse Possession, Possessory Title, Mesne Profits, Jurisdiction of District Court, Effect of 1997 Sovereignty Change
Source Language
EN
Land Law Property Limitation Law Civil Procedure Adverse Possession Possessory Title Mesne Profits Jurisdiction of District Court +1 more

Case Brief

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Parties

Lam Man Lau

1st Plaintiff

Lam Chim Lau

2nd Plaintiff (manager)

Lam Chun Kwong

2nd Plaintiff (manager)

Lam Chau Sing

2nd Plaintiff (manager)

Secretary for Justice

Defendant

Procedural Posture

Adverse Possession / Recovery of Land / Trial Judgment (judgment Handed Down)

Legal Issues

  1. 1 Whether the plaintiffs and their predecessors had factual possession and animus possidendi of the disputed government land for a continuous period of 60 years so as to extinguish the government's paper title under ss 7(1) and 17 of the Limitation Ordinance
  2. 2 Whether the District Court had jurisdiction to hear the adverse possession declaratory claim under sections 35 and/or 36 of the District Court Ordinance
  3. 3 Whether acts by the government (investigation, notices, clearance in 2003–2006) interrupted the plaintiffs' possession such that the 60‑year period did not run continuously

Ratio Decidendi

On the facts the plaintiffs failed to prove, on the balance of probabilities, continuous exclusive factual possession and the requisite animus possidendi for at least 60 years prior to November 2011; government notices and limited clearance actions did not conclusively interrupt possession but plaintiffs' evidence was not cogent and compelling; the HKSAR sovereignty argument does not restart the limitation period. Result: plaintiffs' claim dismissed; defendant's counterclaim for vacant possession and mesne profits granted.

Court Disposition

Plaintiffs' claim dismissed. Defendant's counterclaim for vacant possession and mesne profits granted in part.

Orders

  • 1st and 2nd plaintiffs to deliver up vacant possession of the Land
  • 1st and 2nd plaintiffs to pay mesne profits of HKD 377487.57 up to 16 July 2016 and thereafter HKD 3904.17 per month until delivery up of vacant possession