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Sunbroad Holdings Ltd v All Occupiers (Whose Names Are Unknown) And Others

Judgment Cited authorities 2 Cited in 7 Precedent Map Related
Vincent
Judgment Date13 March 2012
Year2012
Citation[2012] 2 HKLRD 599
Judgement NumberCACV120/2011
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV120/2011 SUNBROAD HOLDINGS LTD v. ALL OCCUPIERS (whose names are unknown) AND OTHERS

CACV 120/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 120 OF 2011

(ON APPEAL FROM HCMP NO. 1852 OF 2008)

____________

IN THE MATTER of Structures and/or Articles erected, placed in on over under above, attached to, and/or extended over portions of Ground Floor (including Back Yard and External Wall) of the Building known as No. 15 Pak Sha Road, Causeway Bay, Hong Kong erected on Sub-section 1 of Section Q of Inland Lot No. 29
and
IN THE MATTER of Order 113 of the Rules of the High Court, Cap. 4

____________

BETWEEN

SUNBROAD HOLDINGS LIMITED Plaintiff
and
ALL OCCUPIERS
(whose names are unknown)		 1st Defendant
LEUNG MAN SHING (梁文勝) 2nd Defendant
KWONG KAI 3rd Defendant

Before: Hon Tang VP, Kwan JA and Fok JA in Court

Date of Hearing: 2 March 2012

Date of Judgment: 2 March 2012

Date of Reasons for Judgment: 13 March 2012

________________________

REASONS FOR JUDGMENT

________________________

Hon Tang VP (giving the reasons for judgment of the Court):

1. The subject matter of this appeal concerns an external wall which separated the building at No. 15 Pak Sha Road, Causeway Bay, Hong Kong from a scavenging lane at the junction with Yun Ping Road. This appeal concerns that part of the external wall which has been coloured blue on the Plan which is annexed to this judgment ("the Blue Wall"). The Plaintiff is the registered owner of the ground floor of the building of which the external wall forms part.

2. The 3rd Defendant is a cobbler who operates a stall which is located opposite to the External Wall. He has constructed certain structures at the Blue Wall.

3. The Statement of Claim was issued on 19 August 2009. On 16 September 2009, the 3rd Defendant filed a Defence & Counterclaim. Essentially, the 3rd Defendant claimed that by virtue of section 17 of the Limitation Ordinance (Cap 347), the Plaintiff's title to the Blue Wall or any part thereof:

"16 … has been extinguished and the 3rd Defendant has acquired all the possessory right, title and interests, including the right to exclusive physical occupation of the Blue Wall."

4. There is a counterclaim by the 3rd Defendant for declarations to similar effect.

5. On 24 June 2011, Mr Recorder A Chow, SC gave summary judgment to the Plaintiff against the 3rd Defendant. He also struck out the 3rd Defendant's counterclaim against the Plaintiff.

6. This is how the learned recorder described the structures that were erected by the 3rd Defendant:

"5. The Structures were erected by the 3rd Defendant. According to the 3rd Defendant:-

(1) In around 1972, he constructed a small metal box (the 'Small Metal Box') on the External Wall for storage of shoes pending customers’ collection and as a show case for leather belts and other goods.

(2) In around 1984, he constructed a large metal box (the 'Large Metal Box') on the External Wall above the Small Metal Box for the same purpose.

(3) In around 1986, he constructed a canopy (the 'Canopy') above the aforesaid 2 metal boxes to protect them from sunlight and rain.

(4) The Small Metal Box, the Large Metal Box and the Canopy make up the Structures complained of by the Plaintiff in this action.

6. It is not in dispute that the 3rd Defendant erected the Structures, which are physically attached or affixed to the External Wall, without the consent, licence or permission of the Plaintiff, or its predecessors in title. It is the 3rd Defendant's contention that from around 1972, he has been in exclusive possession of and has been using the External Wall without the consent or licence or permission in whatever form of the owner of the External Wall, such that he has acquired a good title to the External Wall by adverse possession."

7. The learned recorder identified the main issue between the parties as:

"20. … whether, as a matter of law, the concept of 'adverse possession' can apply to a vertical plane or surface such as the surface of the External Wall in the present case."

8. He held that that it was not possible. He accepted that as a matter of principle. He referred to Midland Railway Company v Wright [1901] 1 Ch 738 where Byrne J at 744 said:

"… it is necessary that whatever is acquired by means of this exclusive possession should be measurable by precise metes and bounds and in some way cubically. …"

9. But as the learned recorder correctly pointed out in para 22 of his judgment, "Byrne J was there merely summarising counsel’s argument without expressing his concurrence with (it)".

10. Mr Horace Wong, SC, who together with Ms Jane T C Ho, appeared for the Plaintiff on appeal, has referred us to Leung Kwok Kau v Tam So Wa [1968] HKLR 673. There the question was whether a...

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7 cases
  • 鄧秀蓮 對 Youngfield Ltd 及另十九人
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 14 August 2019
    ...31. 其後上訴法庭在一宗逆權管有的訴訟 (Sunbroad Holdings Ltd v Unknown Occupiers [2012] 2 HKLRD 599)，處理的同樣是建築物外牆的垂直表面，採納了Leung Kwok-kau 案的判決理由，基於外牆表面不能產生租契，外牆的表面同樣也不能產生逆權管有(第10至11段)。 32....
  • Chan Siu Cheung Henry And Others v Cheung Wing Keung Peter
    • Hong Kong
    • District Court (Hong Kong)
    • 24 August 2017
    ...of the Wall, which is only a vertical surface without any horizontal dimension. In Sunbroad Holdings Ltd. v Unknown Occupiers [2012] 2 HKLRD 599, the Court of Appeal held that it would not be possible to have a lease of a vertical surface, and there could be no adverse possession of that su......
  • Kayway Investment Ltd v Focus Winner Ltd And Another
    • Hong Kong
    • High Court (Hong Kong)
    • 28 September 2016
    ...the Plaintiff Mr Benjamin Chain, instructed by Messrs Kitty So & Tong, for the 2nd Defendant [1] CACV 36 of 2004, 29 October 2004 [2] [2012] 2 HKLRD 599 [3] [1968] HKLR [4] [1968] HKLR 673 at 680 [5] [1968] HKLR 673 at 675 [6]...
  • 華都大廈(高士威道)業主立案法團 v 譚建華所經營裕華皮鞋
    • Hong Kong
    • District Court (Hong Kong)
    • 25 November 2021
    ...then appealed to the Court of Appeal. In his Judgment(Sunbroad Holdings Limited v All Occupiers (whose names are unknown) and Others [2012] 2 HKLRD 599), Tang VP (as he then was) stated: 10. Mr Horace Wong, SC, who together with Ms Jane T C Ho, appeared for the Plaintiff on appeal, has refe......
    • Request a trial to view additional results

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