TEAM GLORY DEVELOPMENT LTD v. SO LUEN FAI

TEAM GLORY DEVELOPMENT LTD v. SO LUEN FAI

Although there was an inordinate delay of over ten years, the delay was excusable given a genuine and prudent decision by the plaintiff to await resolution of novel and conflicting appellate authorities on adverse possession; further, on the facts the delay did not cause serious prejudice to the defendant because...

Source-derived case information.

Citation
TEAM GLORY DEVELOPMENT LTD v. SO LUEN FAI
Parties
Plaintiff: Team Glory Development Limited; 1st Named Defendant: So Luen Fai and all other occupiers of Lot No. 2030A in D.D. 95, Ku Tung, N.T.
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 June 2008
Case Number
HCA7943/1995
Procedural Posture
Civil Trespass/possession / Appeal From Master Lung's Order Striking Out for Want of Prosecution
Outcome
Appeal allowed; Master Lung's order of 25 January 2008 set aside.
Legal Topics
Strike Out for Want of Prosecution, Inordinate and Inexcusable Delay, Adverse Possession, Laches, Proprietary Estoppel, Inherent Jurisdiction, Prejudice Assessment
Source Language
en
Civil Procedure Property Law Land Law Administrative/constitutional Aspects Strike Out for Want of Prosecution Inordinate and Inexcusable Delay Adverse Possession Laches +3 more

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Summary, issues, holding and outcome

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Parties

Team Glory Development Limited

Plaintiff

So Luen Fai and all other occupiers of Lot No. 2030A in D.D. 95, Ku Tung, N.T.

1st Named Defendant

Procedural Posture

Civil Trespass/possession / Appeal From Master Lung's Order Striking Out for Want of Prosecution

Legal Issues

  1. 1 Whether the plaintiff's delay was inordinate and inexcusable
  2. 2 Whether the delay caused serious prejudice to the defendant
  3. 3 Whether the court may consider the continued possibility of a fair trial when assessing serious prejudice under the second limb of Birkett and James

Ratio Decidendi

Although there was an inordinate delay of over ten years, the delay was excusable given a genuine and prudent decision by the plaintiff to await resolution of novel and conflicting appellate authorities on adverse possession; further, on the facts the delay did not cause serious prejudice to the defendant because competent witnesses and contemporaneous documentary and aerial photographic evidence remained available; accordingly the order striking out the action was set aside and the defendant's striking out summons dismissed. The court also held it is permissible when assessing serious prejudice under the second limb to consider whether a fair trial remains possible.

Court Disposition

Appeal allowed; Master Lung's order of 25 January 2008 set aside.

Orders

  • Order made by Master Lung on 25 January 2008 set aside
  • The 1st named Defendant's Summons dated 21 May 2007 dismissed