Sze to Chun Keung v Kung Kwok Wai David
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1997 |
| Date | 1997 |
| Court | Privy Council |
Hong Kong - Land - Limitation of action - Land held under Crown lease - Squatter in adverse possession - Mistaken grant by Crown of permit to occupy - Subsequent revocation of permit by Crown on discovery of true lessee - Whether squatter in adverse possession throughout limitation period - Whether lessees' title extinguished -
The plaintiffs were the registered owners of land held under a Crown lease. The defendant went into occupation of the land in about 1955. In 1961 he was granted a Crown land permit which expressly stated that it was not to be construed as a tenancy, entitling him, on payment of a fee, to occupy the land and to erect buildings. The plaintiffs were unaware of the permit, which was cancelled in 1988, when the Crown discovered that the land was in private ownership. No communication took place between the Crown and the plaintiffs. The defendant continued to occupy the land, and in 1990 the plaintiffs brought an action to recover possession from him. In his original defence he pleaded that he was entitled to retain possession by virtue of the Crown permit which he had held. The plaintiffs applied to strike out the defence on the ground that it disclosed no reasonable defence. The master dismissed the application and the plaintiffs appealed. The defendant applied for leave to amend the defence to substitute a defence under the Limitation Ordinance.F1 The judge considered that the proposed defence was bound to fail, and so she dismissed the application for leave to amend, struck out the defence and entered judgment for the plaintiffs. The Court of Appeal of Hong Kong upheld that decision.
On the defendant's appeal to the Judicial Committee:—
Held, allowing the appeal, that, on the facts as pleaded in the proposed defence, the plaintiffs had been dispossessed by the defendant going into occupation in 1955 when, by section 8(1) of the Limitation Ordinance, their right of action was deemed to have accrued and the defendant's possession became adverse for the purposes of section 13(1); that after being granted the permit in 1961 the defendant had possessed the land on behalf of the Crown as its licensee and, since the Crown had also been in possession adversely to the plaintiffs, section 13(2) did not prevent the limitation period from running; that in cancelling the permit the Crown had merely renounced, as between itself and the defendant, its right to grant a licence, and the cancellation did not amount to a conveyance to the plaintiffs or an acknowledgement of their title; that since the land had been continuously in adverse possession since 1955, section 7(2) precluded the plaintiffs from bringing an action to recover possession after 20 years and their title had been extinguished in about 1975; and that, accordingly, the proposed defence disclosed an arguable ground and the defendant should have been granted leave to amend (post, pp. 1235C, 1236A–B).
The following cases are referred to in the judgment of their Lordships:
Buckinghamshire County Council v. Moran [
Ho Hang-wan v. Ma Ting-cheung [
The following additional cases were cited in argument:
Fitzhardinge (Lord) v. Purcell [
Hughes v. Griffin [
Mulcahy v. Curramore Pty. Ltd. [
Nicholls v. Ely Beet Sugar Factory [
Powell v. McFarlane (
Willis v. Earl Howe...
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