Read the full judgment text of CACV 000193/1996 on BabelCite. This Court of Appeal judgment was delivered on 8 January 1998 before Chan, CJHC, Liu, J.A. and Findlay, J..
Land law – right of way – construction of New Grant – Additional Special Condition 12 – grant of right of way along Crown land coloured yellow on deposited plan – obligation on grantee to construct, maintain and adjust road or path – whether right of way was a general right of way including vehicular access or only a footpath – Lot 753 in DD 179, Che Kung Miu Road, Shatin granted by New Grant No. 8672 dated 18 September 1957 in exchange for surrender of Lots 483, 484, 485, 486 and 622 – Lots 483 and 484 the only connection from Lot 753 to the outside world – Main Path leading to built-up area of Shatin obliterated in 1981/1982 by Government road construction – vehicular access severed – limitation defence – whether failure to provide right of way was a continuing breach – Cannon v. Villars (1878) 8 ChD 415 applied – St Edmundsbury Board of Finance v. Clark [1973] 3 All ER 902 applied – Halsbury's Laws of England 4th Ed. Vol. 14 para. 149 referred – grant construed most strongly against grantor – surrounding circumstances including Condition 2 requiring residences 'with garage' indicating vehicular use contemplated – right of way held to be a general right of way including vehicular access – first declaration of trial judge set aside as too wide in specifying Che Kung Miu Road – second declaration set aside as misstating the holding – Spoor v. Green (1874) LR 9 Exch 99 and Turner v. Moon [1901] 2 ChD 825 distinguished as relating to once-for-all breaches of covenants for title – Lam Kwok-leung v. AG [1979] HKLR 145 and Brown v. Flower [1911] 1 Ch 219 not persuasive – failure to provide right of way and failure to repair both continuing breaches – limitation defence fails – appeal dismissed – HKSAR held to have derogated from the grant – declaration substituted that HKSAR has failed to provide Lot 753 with any or any effective vehicular access to and egress from a government or public road – liberty to apply for damages granted – order nisi for costs of appeal in favour of plaintiff/respondent.
Legal issues: Construction of Additional Special Condition 12 – nature and extent of the right of way granted · Whether the Government's failure to provide the right of way is a continuing breach for limitation purposes · Form of declarations and consequential orders
Outcome: Appeal dismissed. Declarations and orders made by Sears, J. set aside and substituted with a fresh declaration. Plaintiff granted liberty to apply for damages.