NG HUNG NGAN v. YEUNG FOOK MUI

HCA 2296/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2296 OF 2013

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BETWEEN
	NG HUNG NGAN (吳洪銀)	Plaintiff
	and
	YEUNG FOOK MUI (楊福妹)and TANG YING IP (or YIP)(鄧英業) the personal representatives of the estate of TANG PUI KING (鄧佩琼) alias TANG YUM (or YAM) WAN (鄧壬穩) alias TANG KIN CHEUNG (鄧建章),deceased	Defendants

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Before: Hon Mimmie Chan J in Chambers

Date of Written Submissions: 25 September 2014

Date of Decision: 24 February 2015

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D E C I S I O N

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1.  On 12 August 2014, I dismissed the plaintiff’s application for summary judgment, with costs to the defendants (“Decision”). The parties now apply to vary such costs order. The defendants seek an order for the costs to be paid by the plaintiff to the defendants forthwith, whereas the plaintiff seeks an order that the costs should be in the cause, or to the defendants “in any event”.

2.  The defendants have referred to Order 14 rule 7 as their basis for seeking their costs to be paid forthwith.  Under this rule, the court may dismiss a plaintiff’s application for summary judgment and may require the costs to be paid by the plaintiff forthwith, if the plaintiff makes an application where the case is not within Order 14, or if it appears to the court “that the plaintiff knew that the defendant relied on the contention which would entitle him to unconditional leave to defend”.

3.  The plaintiff’s claim against the defendants in this action is for a declaration that the defendants’ title to the Land (as defined in the Statement of Claim) is extinguished, and that the plaintiff has acquired a possessory title by his alleged adverse possession of the Land.  The plaintiff maintains that its claim is not one which has been excluded under Order 14 rule 1(2), and that there is accordingly no basis to make a costs order under rule 7 (1).

4.  It has to be borne in mind that summary judgment is reserved for cases in which it can be shown that the defendant has no defence to the claim included in the writ.  The plaintiff emphasized the fact that the defendants in this case only filed a Defence containing bare denials and non-admissions, with no detailed pleading of facts which establish a genuine defence to the claims made.  It was argued that the plaintiff was not made aware of the defence or issues on which the defendants rely at the time when the application for summary judgment was made, such that an order for costs against the plaintiff is not appropriate.

5.  I have already explained in the Decision the parts of the Statement of Claim which give rise to triable issues, and that it is not necessary for the defendants to plead to law, such as the effect of the plaintiff’s possession as “allowed” by Tang Yau Fok, and as a licensee of the Land.  It is also for the plaintiff to establish, on the disputed facts, the necessary animus possedendi, to possess the Land with the intention to exclude the entire world including the registered owner of the Land.  On the pleadings, the case is not one which is appropriate for summary judgment, and particularly since the Civil Justice Reform, plaintiffs should be discouraged from indiscriminate use of the Order 14 procedure, as it will only lead to unnecessary delay and costs in the conduct of the action. 

6.  It is also to be borne in mind that the court’s power to make an order as to costs under Order 14 rule 7 (1) is without prejudice to its general discretion as to costs under Order 62 rule 3.

7.  Even if the Defence in this case does not clearly or adequately set out the issues for trial, by the time of the filing of the defendants’ affirmation on 1 March 2014 after the issue of the Order 14 Summons, the plaintiff should have been made aware of the triable issues and the necessity for trial.  Proceeding with the application for summary judgment justifies an order for costs.

8.  In my view, the order that the plaintiff should bear the costs of the application for summary judgment should not be varied. 

9.  As to whether such costs should be paid by the plaintiff forthwith, I agree with the observations made by Sakhrani J in Hui Yin Sang v Tsoi Ping Kwan HCA 392/2008, 14 July 2009, that post Civil Justice Reform, parties should be discouraged from unnecessarily maintaining or resisting interlocutory applications by making immediate orders for the payment of costs.  The application for summary judgment in this case is self-contained, the action is at an early stage, and it will obviously take some time for the trial of the action to take place.  To make an order for payment of costs to the defendants in any event is to deprive them of the benefit of the costs order for a substantial period of time. 

10.  I will accordingly vary my costs order to provide for the costs of the Order 14 Summons to be paid by the plaintiff to the defendants forthwith and to be taxed forthwith, as sought.  The order includes the costs of the defendants’ application for variation of the costs order, their costs in resisting the plaintiff’s own application for variation, and the costs of the consent summons filed on 3 September 2014.

	(Mimmie Chan)
	Judge of the Court of First Instance
	High Court

Mr Valentine Yim and Ms Vivian Lam, instructed by Tang, Wong & Cheung, for the plaintiff

Mr Adrian Leung, instructed by Wong, Hui & Co, for the defendants

HCA 2296/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2296 OF 2013

____________

BETWEEN
	NG HUNG NGAN(吳洪銀)	Plaintiff
and
	YEUNG FOOK MUI(楊福妹)and TANG YING IP (or YIP)(鄧英業) the personal representatives of the estate of TANG PUI KING (鄧佩琼) alias TANG YUM (or YAM) WAN(鄧壬穩) alias TANG KIN CHEUNG (鄧建章),deceased	Defendants

____________

Before: Hon Mimmie Chan J in Chambers (Open to Public)

Date of Hearing: 12 August 2014

Date of Decision: 12 August 2014

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D E C I S I O N

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1.  This is the plaintiff’s application for summary judgment.

2.  The plaintiff himself pleads, in para 3(a)(ii) of the Statement of Claim, that from 1981 or thereabouts, one Tang Yau Fok allowed him to grow vegetables on the Land, and that thereafter, he had continued to grow vegetables and to occupy the Land.  It is on the basis of such occupation that the plaintiff claims that he has adversely possessed the Land, and seeks summary judgment for a declaration that the title of the registered owner of the Land has been extinguished and that the plaintiff has acquired a possessory title.

3.  I am satisfied that the defendants have established by their affirmation that there are triable issues which raise an arguable defence, and a reason for trial of the plaintiff’s claim, by virtue of the defendants’ non admission in the defence filed of the pleaded facts of the plaintiff’s claim of adverse possession.  It is trite that a claimant of adverse possession must prove the fact of possession and the requisite animus possidendi to exclude the entire world including the rightful owner.  It is only where possession is clear and unequivocal that animus possidendi can be presumed.

4.  The plaintiff made the point that the defendants have failed to condescend to particulars with regard to various matters.  It is trite that a defendant does not have to plead to law, not raise legal issues in the evidence filed in opposition to an application for summary judgment.  In any event, the distinguishing feature in this case is that the plaintiff’s own pleaded case raises issues which require a trial to determine his entitlement to the relief sought.

5.  On the face of the pleadings, the plaintiff claims to have been “allowed” by Yau Fok to grow vegetables on the land in 1981.  The meaning of this is clear, and the plaintiff’s attempts to put a constrained and distorted meaning to the word “allowed” are forced and disingenuous.  His having been allowed by Yau Fok raises questions of fact and law as to the relationship, if any, between Yau Fok and the deceased Tang Pui King, whether such permission or licence to occupy the Land was given by Yau Fok on behalf of Pui King, whether the plaintiff’s possession and occupation was on behalf of Yau Fok and not in the plaintiff’s own purported right, both before and after Yau Fok’s alleged death in the 1990s -  all of which are relevant to the issue of whether the plaintiff had indeed possessed the Land adversely to the registered owner from 1981, and significantly, whether he possessed the Land with the necessary intention to exclude the entire world including the registered owner, the deceased.

6.  Whilst it is true that the defendants have not given particulars of any licence or of the fact that Yau Fok was acting on behalf of Pui King, whether the plaintiff’s own pleading of his having been allowed to use the Land indeed meant as the plaintiff later asserted in his affirmation; and whether the plaintiff indeed had the intention to dispossess the Land he occupied with permission from Yau Fok, are still disputed matters for cross-examination and trial. 

7.  I also accept that the act of possession and occupation relied upon by the plaintiff, and as pleaded in the Statement of Claim, is for a period of time at least the act of growing and harvesting vegetables on the Land.  It is arguable that such may not, without more, such as the fencing off of the Land and the exclusion of others (which are neither pleaded nor referred to in the affirmations in support), constitute open, single and effective exclusive control of the Land, as required by law (Powell v McFarlane (1979) 38 P&CR 452).

8.  Although it was argued on behalf of the plaintiff that he had also built 3 houses on the Land, it is important that on his case, this was alleged to be on part of the Lot only.  On the plaintiff’s evidence, a farming house cannot exceed 100 square feet.  The Land claimed to be in adverse possession is in the total area of 19,799 sq ft.

9.  There are accordingly further questions for trial, such as the production and examination of the evidence of the extent of the plaintiff’s alleged occupation and control of the entire Land, as a result of his building of the farm houses on the part of the Land. It is settled that acts of possession done on parts of the land to which a possessory title is sought must be evidence of possession of the whole.

10.  In all, this is not an appropriate case for summary judgment to be entered.  It is arguable that the plaintiff has not raised a prima facie sustainable case, and his claim should proceed to trial for cross-examination of the plaintiff and his witnesses, as to the nature and extent of his alleged occupation since 1981, and for the court to be satisfied on the evidence of the alleged possession of the entire Land.

11.  The application for summary judgment is dismissed, with costs to the defendants.

(Mimmie Chan) Judge of the Court of First Instance High Court

Mr Valentine Yim and Ms Vivian Lam, instructed by Tang, Wong & Cheung, for the plaintiff

Mr Adrian Leung, instructed by Wong, Hui & Co, for the defendants