WORKWISE CORPORATION v. THE OCCUPIER(S) of Lot No 250, Section A of Lot No 251, Sub-Section 2 and Sub-Section 3 of Section B of Lot No 251, The Remaining Portion of Section B of Lot No 251, The Remaining Portion of Lot No 265 and Lot No 266 all in Demarcation District No 111, Yuen Long, New Territories, Hong Kong AND ANOTHER

WORKWISE CORPORATION v. THE OCCUPIER(S) of Lot No 250, Section A of Lot No 251, Sub-Section 2 and Sub-Section 3 of Section B of Lot No 251, The Remaining Portion of Section B of Lot No 251, The Remaining Portion of Lot No 265 and Lot No 266 all in Demarcation District No 111, Yuen Long, New Territories, Hong Kong AND ANOTHER

The court found on the balance of probabilities that the Possessed Area was completely enclosed by fences and a gate from at least 1980 and continuously from 1996; experts corroborated linear features in aerial photographs and the Survey Sheets were unreliable for fence existence. The occupiers (respondent's father and then respondent) demonstrated animus possidendi and sufficient exclusive possession and control since 1996 for the 12‑year limitation period. Therefore title of the plaintiff to the Disputed Land was extinguished under the Limitation Ordinance and respondent acquired an indefeasible possessory title; plaintiff's claim dismissed and respondent's counterclaim allowed.

Citation
[2023] HKDC 447
Parties
Plaintiff: Workwise Corporation; 1st Defendant: The Occupier(s) of Lot No 250, Section A of Lot No 251, Sub-Section 2 and Sub-Section 3 of Section B of Lot No 251, The Remaining Portion of Section B of Lot No 251, The Remaining Portion of Lot No 265 and Lot No 266 all in Demarcation District No 111, Yuen Long, New Territories, Hong Kong; 2nd Defendant: Ngai Ling Miu Emily
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
4 April 2023
Case Number
DCMP1067/2018
Procedural Posture
Miscellaneous Proceedings (order 113 Rule 1) Adverse Possession / Possessory Title / Judgment
Outcome
Plaintiff's claim dismissed. Judgment given for 2nd defendant (Ngai). Declarations ordered that plaintiff's title to the Disputed Land is extinguished under the Limitation Ordinance and Ngai has acquired an indefeasible possessory title to the Disputed Land.
Legal Topics
Possessory Title, Mesne Profits, Boundary and Fencing Evidence, Expert Surveying and Aerial Photo Evidence, Pleading Amendment and Plans, Limitation Ordinance Ss7 and 17
Source Language
EN
Property Law Adverse Possession Limitation Law Land Law Civil Procedure Possessory Title Mesne Profits Boundary and Fencing Evidence +3 more

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Parties

Workwise Corporation

Plaintiff

The Occupier(s) of Lot No 250, Section A of Lot No 251, Sub-Section 2 and Sub-Section 3 of Section B of Lot No 251, The Remaining Portion of Section B of Lot No 251, The Remaining Portion of Lot No 265 and Lot No 266 all in Demarcation District No 111, Yuen Long, New Territories, Hong Kong

1st Defendant

Ngai Ling Miu Emily

2nd Defendant

Procedural Posture

Miscellaneous Proceedings (order 113 Rule 1) Adverse Possession / Possessory Title / Judgment

Legal Issues

  1. 1 Whether respondent proved exclusive physical possession of the Disputed Land for the requisite 12 years since 1996
  2. 2 Whether respondent had the requisite animus possidendi
  3. 3 Whether fences and gate constituted sufficient indicia of exclusive possession

Ratio Decidendi

The court found on the balance of probabilities that the Possessed Area was completely enclosed by fences and a gate from at least 1980 and continuously from 1996; experts corroborated linear features in aerial photographs and the Survey Sheets were unreliable for fence existence. The occupiers (respondent's father and then respondent) demonstrated animus possidendi and sufficient exclusive possession and control since 1996 for the 12‑year limitation period. Therefore title of the plaintiff to the Disputed Land was extinguished under the Limitation Ordinance and respondent acquired an indefeasible possessory title; plaintiff's claim dismissed and respondent's counterclaim allowed.

Court Disposition

Plaintiff's claim dismissed. Judgment given for 2nd defendant (Ngai). Declarations ordered that plaintiff's title to the Disputed Land is extinguished under the Limitation Ordinance and Ngai has acquired an indefeasible possessory title to the Disputed Land.

Orders

  • Declare that title of the plaintiff to the lots or parts thereof comprising the Disputed Land has been extinguished by reason of sections 7 and 17 of the Limitation Ordinance
  • Declare that Ngai Ling Miu Emily has acquired an indefeasible possessory title to the Disputed Land