Chin Ling Investment Ltd v. The General of the Salvation Army

HCA 1/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1 OF 2012

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J U D G M E N T

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BACKGROUND

1.The Plaintiff and the Defendant are owners of two pieces of adjoining land.  The two pieces of land were originated from a single piece of land known as Lot No 181 in DD 390 (“Lot 181”), before its partition in 1958. 

2.Lot 181 was situated between Sham Tseng and Tsuen Wan in an enclosed hilltop area at some distance from Castle Peak Road.  It was granted by the government to the then owners[1] in 1954 (“Grant 1954”).  Pursuant to the Grant 1954, the then owners and their successors were granted a right-of-way to pass over a strip of government land (“the Blue Strip”) for gaining access to and egress from Lot 181 to and from Castle Peak Road (“the 1^st ROW”).

3.By virtue of a Deed of Partition in 1958 (“DOP”), Lot 181 was partitioned to Section A of Lot No 181 in DD 390 (“Lot 181 SA”) and Remaining Portion of Lot No 181 in DD 390 (“Lot 181 RP”). 

4.After the partition, Lot 181 SA became completely land-locked by Lot 181 RP.  Pursuant to the DOP[2], the then owner[3] of Lot 181 RP granted to the owner[4] and successors of Lot 181 SA “a free and uninterrupted right” (“the 2^nd ROW”) to go pass and repass on along by and over a strip of land marked on a sketch attached thereto (“the Green Strip”). 

5.The Defendant acquired Lot 181 RP in 1967 and the Plaintiff acquired Lot 181 SA in 1992.

6.Therefore, at the material times, the Plaintiff enjoyed both the 1^st ROW and the 2^nd ROW as the owner of Lot 181 SA.  The 1^st ROW entitled the Plaintiff to go pass the Blue Strip from Castle Peak Road to Lot 181 RP and the 2^nd ROW entitled the Plaintiff to go pass the Green Strip, which is part of Lot 181 RP, to Lot 181 SA.

7.By a Letter of Extension dated 16 June 2005 (“the Letter of Extension”), the Government granted to the Plaintiff a parcel of land adjacent to Lot 181 SA on payment of a premium (“the Extended Area”).  The relevance of the Extended Area will be explained later in this judgment.

8.In or about mid-2011, the Defendant installed a metal gate (“the 2^nd Gate”) on the Blue Strip at a position immediately outside the boundary of Lot 181 RP.  The reason why it is described here as “the 2^nd Gate” is that the Defendant had once built[5] a first gate (“the 1^st Gate”) on the Blue Strip at the same position but was demolished by the Defendant in 2006 upon the complaint of the Plaintiff.

9.As the Defendant refused to demolish the 2^ndGate, the Plaintiff commenced the present proceedings[6] seeking injunctive and other reliefs for the removal of the 2^nd Gate.

10.In March 2012, the Plaintiff applied for an interlocutory injunction in these proceedings and the application was heard before Deputy High Court Judge Burrell.  The learned Judge made an order to adjourn the Plaintiff’s summons sine die upon the Defendant’s undertaking to keep open the 2^nd Gate at all times until further order.

11.In August 2012, the District Land Office sent letters to the Plaintiff and the Defendant stating that there were unauthorized structures, including the 2^nd Gate, built on government land and demanded those unauthorized structures to be demolished.

12.In January 2013, the Plaintiff applied again for interlocutory injunctions.  The application was heard before Deputy Judge Ng.  The learned Judge ordered that the Plaintiff’s application be dismissed upon the undertaking by the Defendant to relocate the 2^nd Gate to a position immediately within the boundary of Lot 181 RP and to keep it open all the times.

13.In early 2013, the 2^nd Gate was relocated by moving a few feet to a position within Lot 181 RP on the Green Strip (“the relocated 2^nd Gate”).  The relocated 2^nd Gate remained there at the time of this trial and has been kept open since then. 

THE PLAINTIFF’S CLAIMS AND THE DEFENDANT’S CASE

The 2^ndGate

14.The original complaint of the Plaintiff was based on the alleged interference of its rights by the Defendant’s building of the 2^nd Gate on government land.  The Plaintiff avers that the erection of the 2^nd Gate by the Defendant is an act of nuisance against the Plaintiff by way of interference with, disturbance of or annoyance to the Plaintiff in the exercise or enjoyment of the 1^st ROW, the 2^nd ROW, and the easement over the Green Strip and the Blue Strip.

15.Pursuant to the order of Deputy Judge Ng, the 2^nd Gate has been relocated to a position on the Green Strip, that is to say, the relocated 2^nd Gate is no longer on government land and hence, the original complaint of the Plaintiff has been overtaken by events.  However, it would be relevant for this court to make findings on the Plaintiff’s claims in relation to the 2^nd Gate and 1^st ROW for the purpose of deciding the liability on costs. 

16.The Plaintiff’s case is that the construction of the 2^nd Gate on the Blue Strip by the Defendant constituted substantial interference with the Plaintiff’s enjoyment of the 1^st ROW as a co-grantee.

17.Regarding the 2^nd Gate, Mr Yin[7], counsel for the Defendant, submitted that if a tenant encroaches on any land belonging to his landlord which is not part of the subject matter of the lease, the law presumes the encroachment to be an unilateral extension by the tenant of the locus of his existing tenancy and the additional land becomes subject to the terms of the lease as if it forms part of the land held under the lease[8].  It is Mr Yin’s view that this principle is applicable to the present situation as between the Defendant and the Government.  However, with respect to Mr Yin, I do not see how the principle can be of relevance in relation to the Defendant’s duty towards the Plaintiff as a co-grantee of the 1^st ROW.

18.In my view, the material issue as regards the Plaintiff’s original claim is whether the Defendant’s construction of the 2^nd Gate constituted a substantial interference with the Plaintiff’s enjoyment of the 1^st ROW which gives rise to a cause of action against the Defendant, as was in the situation of the case Jelbert v Davis[9].

The relocated 2^ndGate

19.Although the relocated 2^nd Gate was moved just a few steps away from its original position, the legal basis of the Plaintiff’s claim is now very different.  The relocated 2^nd Gate was built on the Green Strip and the 2^nd ROW enjoyed by the Plaintiff was created by an express grant.  The Plaintiff is now suing the Defendant as the grantor rather than a co-grantee.

20.As submitted by Mr Yin, the Defendant as the owner of the Green Strip can do anything to his land (as oppose to government land) unless it is a derogation from grant.  And to consider whether there is a derogation from grant, what was stipulated in the express grant would be of utmost importance.

21.The Defendant’s primary case is that the construction of a gate on the Green Strip is not in itself a derogation from the express grant. 

22.Besides, the Defendant maintains that the Extended Area does not enjoy the 2^nd ROW and as the Plaintiff is seeking injunctive relief on the basis of an alleged right to use the Green Strip not only for the benefit of Lot 181 SA but the combined site including the Extended Area, the Plaintiff cannot succeed with its claim unless it can show that its rights on the 2^nd ROW somehow extends to include the Extended Area. 

23.In its counterclaim, the Defendant seeks declarations to the effect that the 2^nd ROW cannot be used for the enjoyment of the Extended Area and further that the Plaintiff has no rights to enjoy the 2^nd ROW for any part of Lot 181 SA as it is for the time being occupied together with the Extended Area as an indivisible whole.

The Extended Area

24.It is the Plaintiff’s case that the Extended Area had long been occupied and used by the predecessors-in-title of the Plaintiff in Lot 181 SA as a private garden under a Crown Land Permit since 1^st October 1968 and thereafter under a series of short term tenancies.

25.Pursuant to the Letter of Extension, the Extended Area could only be used as a private garden by the owner of Lot 181 SA.  The Plaintiff maintains that the Extended Area is thus merely ancillary to the enjoyment of Lot 181 SA.

26.In its Amended Defence to Counterclaim, the Plaintiff pleaded that “the user of the Extended Area and/or the Private Garden Area for the purpose of Lot 181 SA is reasonably necessary and falls within the scope and extent of the right of way granted under the Deed of Partition and/or doctrine of lost modern grant and/or by way of prescription and/or by implied grant under the Deed of Partition.” 

27.Further and in the alternative, the Plaintiff says that the Defendant or its predecessor-in-title had never complained of or taken any action against the Plaintiff or its predecessor-in-title that the Extended Area had any impact on the servient tenement of the 2^nd ROW and such inaction constituted an unequivocal representation by the Defendant that the Plaintiff was and is entitled to use the Green Strip to gain access or egress from the Extended Area.  In reliance on the Defendant’s representation, the Plaintiff applied to the Government for grant of the Extended Area and paid HK$1,168,650 as premium.  The Plaintiff avers that the Defendant is thereby estopped from denying the Plaintiff’s rights to use the Green Strip to gain access or egress from the Extended Area.

FACTUAL ISSUES

28.There are not too many factual issues in this trial. 

29.Witnesses of the Defendant gave evidence that an iron gate at the position of the 1^st Gate existed in or before 1972.  It is however the Plaintiff’s case that no similar iron gate was noticed until 2005.

30.There is a dispute as to whether stray dogs and wild boars caused problems to the Defendant’s lot and whether illegal vehicular parking occurred in the vicinity.  The Defendant said this is the reason why they maintained the 1^st Gate and why they reinstated the 2^nd Gate. 

31.Besides, there are some disputes as to how the 1^st and 2^nd Gates had been operated, in particular, whether and when the remote control of the 1^st Gate has been provided to the Plaintiff and whether the gates can be conveniently opened from outside. 

32.There is also a dispute as to whether and when the Extended Area has been used by the Plaintiff or its predecessor-in-title and whether and for how long the Blue and Green Strips have been used to access to and egress from the Extended Area. Parties considered it relevant to the question of whether the Plaintiff can obtain the right of way for access and egress to the Extended Area by prescription.

33.Other evidence has been given by witnesses from both sides which is not much in dispute.

34.Much has been said by the Plaintiff’s witnesses on the previous negotiations of the parties on a joint redevelopment of the subject properties.  Apart from providing a more complete background on the parties’ dealings I do not find such evidence helpful for determination of the present dispute. 

35.There is another legal dispute between the parties regarding an alleged trespass to the Defendant’s land by a wooden hut built by the Plaintiff on the boundary of the two lots. In 2011, The Defendant took out an Order 113 action[10] against the Plaintiff and following which the Plaintiff’s wooden hut was demolished.  Apart from showing that the parties’ relationship was not in an amicable state at that time this is of limited relevance to the present proceedings.

EVIDENCE AND FINDINGS

When was the 1^st Gate built?

36.The Defendant is a charitable body and Lot 181 RP has long been used as the quarters for its senior officials.  The property situated on the lot, which is a two-storey house, is named “Pink Villa”.  In this trial, 3 senior officers of the Defendant who had resided in Pink Villa during different period of time gave evidence for the Defendant. 

37.Commissioner Lim Ah-An, who resided in Pink Villa between 1983 and 1990, said he believed there was a similar metal gate installed at or around the position of the 1^st Gate during the time he resided there.  To his memory, the metal gate was always left open. 

38.Colonel Alice Lau, a former officer of the Defendant, resided at the Pink Villa with her husband between 1993 and 1999, said she remembers clearly that there was such a gate at the entrance throughout the period of her stay. 

39.Major Fona Ling, who resided at Pink Villa between 1999 and 2002, said during her stay there was at all times a gate standing at the entrance of Lot 181 RP and the gate was never locked.  She also said at that time the old house on Lot 181 SA has already been demolished.  Lot 181 SA was covered by tall grass and she did not notice anyone taking care of the land.  There were also stray dogs and monkeys appearing and their excrements were often found in the two lots of land.  She also saw the residents of “Golden Villa”[11] walking their dogs on Lot 181 SA.

40.Mr Chan Chee Ho, who served the Defendant as gardener since 1999, said throughout his work in Pink Villa for more than 10 years there was an iron gate installed at the entrance of Lot 181 RP.

41.On the other hand, Ms Sarena Young, a director of the Plaintiff, said she did not see any gate at the entrance of Lot 181 RP in her three visits to the site before the Plaintiff’s acquisition of Lot 181 SA in 1992.  She said on each and every occasion her car was driven up the hill to Lot 181 SA without stopping to open any gate.  Had there been any metal gate in existence then, as the handling solicitor of the acquisition for the Plaintiff and also the Plaintiff’s director, she would have raised requisition with the previous owner about the gate. 

42.Ms Wong Mun Yee, who was assigned by the Plaintiff to attend to Lot 181 SA soon after its acquisition, said that a goods vehicle was called to the site to remove unused building materials at that time and the goods vehicle could enter into Lot 181 SA without stopping to open any gate.  She did not recall seeing the 1^st Gate at that time.

43.Apart from the above factual witnesses, the parties also relied on the opinions of surveyors with reference to archived aerial photographs and sketches.

44.Having considered the evidence, I find it more probable that the 1^st Gate was in existence at least before 1988, if not as early as in 1972.

45.I have given full weight to the evidence of the senior officials of the Defendant who had resided in Pink Villa.  They are the ones most familiar with the environment of Lot 181 RP and the vicinity during their respective periods of stay.  I can see no personal interest of them in the present proceedings and have no reason to doubt their evidence.

46.On the contrary, the evidence of Ms Young and Ms Wong of not seeing any gate is only derived from their impression formed at their relatively brief visits to the site.  If the gate was kept open during their visits, which I find very probable, they could have formed the same impression as there being no gate at all.  I do not find their evidence reliable in this regard.

47.I find the archived records and aerial photos kept in the Land Registry, as commented by the Defendant’s surveyor, consistent with the fact that the 1^st Gate or a similar gate had been in existence at its location since 1972.

48.However, it is also my finding that the gate was always left open since its construction until 2005 when the Defendant found it necessary to keep the gate closed most of the time.

Stray dogs and illegal parking

49.As mentioned above, it is Major Fona Ling’s evidence that there were stray dogs and monkeys appearing at Lot 181 RP during 1999 to 2002. 

50.The subject properties are located on the hill top in rural area with a few houses situated around. In my view, it would not be unusual that stray dogs and other common wild animals in Hong Kong, including monkeys and wild boars, would appear in the area.

51.Mr Yin submitted that any vehicles found parked at Lot 181 SA or in the vicinity can only be vehicles of the guests or owners of Golden Villa.  I find this a logical deduction as I agree that given the location of the subject properties it would be too inconvenient for anyone else to choose to park their vehicles there.  However, it is still parking without proper authorities and the fact that they are vehicles of the guests or owners of Golden Villa makes no difference.

52.I find as facts that stray dogs, wild animals and illegal vehicular parking did occur at Lot 181 SA.  

53.Having found as such, however, I do not find it of much relevance to the ultimate issues I need to determine in these proceedings. 

Use of the ROWs for the Extended Area

54.The Extended Area granted under the Letter of Extension is about 191square metres.  From the plan attached to the 1954 Grant and also the plan attached to the DOP, a strip of flat land at the same position of the Extended Area can be seen extending from Lot 181 SA towards the edge of the hill.  As such, it is the Plaintiff’s case that the area has long been used by the owners of Lot 181 and 181 SA as their private garden.

55.Under a Crown Land Permit in 1968 (“the Crown Land Permit”) and two subsequent Short Term Tenancies[12] (“the STT”), the area was permitted by the Government to be occupied and used by the owners of Lot 181 SA.  Structures including a pool and a pavilion are expressly permitted to be constructed on the area under the Crown Land Permit and STTs. 

56.There are aerial photos produced showing a swimming pool built on the Extended Area started at least from 1985.  From an aerial photo in 1990, new structures can be seen constructed on the area.  On 26 June 1991, a Building Order was issued to the then owner requesting a swimming pool and associated building works on the Extended Area to be removed or demolished.

57.It is quite apparent from the evidence that the Extended Area had been on and off used as a private garden for a long period of time.

58.However, as highlighted by Mr Yin, the Crown Land Permit is only related to an area of 1440 sq ft. for a period between 1 October 1968 and 31 December 1968.  There is no evidence of any permitted occupation between the end of 1968 and October 1992.  If only the periods of occupation of the Extended Area under the STTs are counted, the total period of occupation will be 8 months short of 20 years[13].

59.Besides, aerial photos between 1993 and 2011 show that the vegetation over the Extended Area was so overgrown that the Extended Area was inaccessible altogether.  This is also consistent with the undisputed evidence that the whole of Lot 181 SA and the Extended Area were vacant throughout this period of time.

60.Having considered the evidence as a whole, particularly the aerial photos produced, I am satisfied on balance that the Extended Area or a substantial part thereof had been occupied and used by the owners of Lot 181 SA as a private garden at least in the period between 1958 and 1991.  I also find that before the petition of Lot 181, as from the grant in 1954, the Extended Area had all along been used as a private garden.

61.As such, the Blue Strip and also the Green Strip could have been used, via Lot 181 SA, to access to and egress from the Extended Area during the abovementioned period of time. Furthermore, as the Extended Area was used by the owner of Lot 181 as his private garden at the time of the DOP and it was completely land-locked by Lot 181 SA and 181 RP, it must be the intention of the parties of the DOP that the owner of Lot 181 SA can enjoy the 2^nd ROW to access to and egress from the Extended Area, through Lot 181 SA.

62.Having heard the evidence, it is also my finding that the Plaintiff and the Defendant were initially in good terms and they had explored twice the possibility of a joint redevelopment of the two lots in 1993 and 1997.  However, the project was aborted for various reasons and Lot 181 SA was then left deserted.  The deserted Lot 181 SA caused hygienic and security concerns to the owners of Pink Villa and Golden Villa, so much so that the Defendant had once the idea of buying out the Plaintiff’s land in 2002.  The relationships between the Plaintiff and the Defendant turned sour in 2005 following the incident of Ms Wong being blocked out by the 1^st Gate.  There were continuous complaints by the Defendant about the conditions of Lot 181 SA and the heat between the parties escalated to the highest when the Defendant instituted the Order 113 proceedings against the Plaintiff in 2011. 

DISCUSSION

The 2^nd Gate

63.The Plaintiff and the Defendant are co-grantees of the 1^st ROW by the government.  The right granted by the government to them is to use the Blue Strip to access to and egress from their respective land.  They have no right to build anything on the Blue Strip without the government’s consent.   

64.In Jelbert v Davis[14], it was held that a co-grantee is not entitled to use the right of way to an extent which exceeded what was contemplated at the time of the grant and so as to interfere unreasonably with the enjoyment of the like right by others entitled to it. 

65.In the present case, the building of a gate on the Blue Strip could not be within the contemplation of the government or any party at the time of the grant in 1954.  The fact that the government demanded in 2012 to demolish the unauthorized structures on government land evidenced the same.

66.In my view, the building of a gate on the Blue Strip constituted a substantial interference to the Plaintiff’s enjoyment of the 1^st ROW. 

67.The Defendant has no right to build the 2^nd Gate on the Blue Strip.  The reason behind the Defendant’s decision to build such gate is simply irrelevant.  

68.Although the 1^st Gate was in existence for a long period of time, it was always left open that caused little inconvenience to the owners of Lot 181 SA.  In 2005, the Defendant evinced an intention to start closing the gate which led to the unpleasant experiences encountered by Ms Wong.

69.In my judgment, a mandatory injunction ought to be granted ordering the Defendant to demolish the 2^nd Gate.

The relocated 2^nd Gate

70.Relied on the English Court of Appeal’s decision in Pettey v Parsons[15], Mr Yin submitted that the servient owner cannot be deprived of the right to erect and maintain a gate at the entrance to his property just because he has granted a right-of-way over his land.

71.Mr Yin referred to an Australian decision Owners Corporation of Strata Plan 42472 v Menala Pty Ltd[16] where it was held that there is a natural presumption that the servient owner should be entitled to fence his land[17].

72.Mr Yin also quoted the observation of Godfrey, JA in Lea Tai Property Development Ltd v I O of Leapoint Industrial Building[18]:

“where the case is one of interference with an easement, the position is somewhat different. There, the owner of the dominant tenement has no absolute right to use each and every portion of the right of way. He is entitled to complain only of substantial interference with that right by the owner of the servient tenement. The owner of the servient tenement is the owner of the land and is accordingly entitled to use it for whatever purposes he likes, so long as he does not substantially interfere with the use of the way by the owner of the dominant tenement.”

73.Mr Yin emphasized that the complaint of the Plaintiff is not directed against any particular mode of operation of the gate but the very presence of the gate.  He submitted that the onus is on the Plaintiff to make out a case of “substantial interference” with its right-of-way and there is no obligation on the Defendant to justify their need to have the gate at the entrance to its property.  Mr Yin said further that, even if any justification is required, it is self-evident that the gate is needed to mark the boundary of Lot 181 RP and warn off trespassers from the Defendant’s private property (which includes not just the areas occupied by the house and the gardens but also the area over which the Plaintiff enjoys a right-of-way).

74.While I entirely agree with the legal principles as set out by the legal authorities cited by Mr Yin, it is my view that the principles should be applied in the light of the express grant under the 2^nd ROW in the present case.

75.In other words, what I should consider is not whether there is any substantial interference to the Plaintiff’s use of the Green Strip in isolation but whether the installation of the relocated 2^nd Gate interfered substantially with the Plaintiff’s “free and uninterrupted right” to go pass and repass on along by and over the Green Strip. 

76.I agree with Mr Yin that on this point whether there is justification for the Defendant to build the gate is of no significance.  On the other hand, I do not agree with Mr Yin that there is an obvious need for the Defendant to build the Relocated 2^nd Gate at its position in order to “mark the boundary and warn off trespassers”. 

77.If the Defendant sees fit to build a gate to mark the boundary or warn off trespassers, there is nothing to stop them from building a gate within the boundary of Lot 181 RP but not on the Green Strip.  This must result in eating into the area of 181 RP but, although the Green Strip is the Defendant’s private property, the use of which by the Defendant is subject to the 2^nd ROW enjoyed by the Plaintiff.  The Defendant cannot insist on its own rights at the expense of the others.

78.As submitted by Mr Alan Leong SC[19], counsel for the Plaintiff, it is trite law that if there is an express grant, the starting point must primarily be the language of the grant and circumstances at the time of execution of the grant[20].

79.It is expressly stipulated under the DOP that the right enjoyed by the Plaintiff is a “free and uninterrupted” right.  In my view, if the right to use the Green Strip as passage is subject to the provision of a key or automatic device by the Defendant to open a gate, it can hardly be described as a “free and uninterrupted” right to pass.  Besides, as submitted by Mr Leong, to require the Plaintiff to stop their vehicles in order to open the gates either by hand or with automated devices is also inconsistent with a “free and uninterrupted” right. 

80.With respect, the argument of Mr Yin that the complaint of the Plaintiff is not directed against any particular mode of operation of the gate but the very presence of the gate is a fine one but unrealistic.  The very purpose of a gate is to fend off others and to achieve such purpose the gate must be closed at least when it is required.  This will result in a derogation of the grant on the part of the Defendant. 

81.In my judgment, the building of a gate on the Green Strip is a derogation of the grant under the DOP.

THE EXTENDED AREA

82.It is the Defendant’s case that the Plaintiff lost the original grant under the DOP as soon as the Plaintiff started to make use of the Green Strip to access the Extended Area.  Mr Yin submitted that the Plaintiff has by the addition of the Extended Area enlarged the dominant tenement without the agreement of the Defendant, which is impermissible in law[21].

83.Mr Yin distinguished between the case where the dominant owner is seeking to make use of a right-of-way to access land which is ancillary to the use of the way and the case where the dominant owner is seeking to make use of the right-of-way to access land which is ancillary to the enjoyment of the dominant tenement.  In his submission, the former is permissible while the latter is not[22].

84.I agree with Mr Yin that in principle, the Plaintiff could not enlarge the dominant tenement of the 2^nd ROW without the consent of the Defendant.  Nonetheless, it is my view that the addition of the Extended Area to Lot 181 SA does not necessarily mean that the dominant tenement of the 2^nd ROW is thereby enlarged.

85.I have found earlier that at the time of the DOP it must be the intention of the parties of the DOP that the owner of Lot 181 SA can enjoy the 2^nd ROW to access to and egress from the Extended Area through Lot 181 SA.  As such, the fact that the Extended Area is now legally owned by the same owner of Lot 181 SA and permitted to be used only as a private garden, does not in any way enlarge the dominant tenement of the 2^nd ROW.

86.The Plaintiff has the right to use the Green Strip to access to Lot 181 SA under the 2^nd ROW and it will then be up to him/her whether to access to any other area beyond Lot 181 SA including the Extended Area thereafter.  I can see no reason why the Plaintiff would lose the original grant under the DOP by legally acquiring the Extended Area or by access to or egress from the Extended Area through Lot 181 SA. 

87.I note Mr Yin’s argument that the Plaintiff is suing in the capacity of the owner of Lot 181 SA and the extension.  With my above findings I do not see any practical difference between the Plaintiff suing as the owner of Lot 181 SA or the owner of Lot 181 SA and the extension.  The Plaintiff can simply assert its rights under the 2^nd ROW as the owner of Lot 181 SA without involving its legal ownership of the Extended Area.  Any problem that may arise is technical and should be disregarded in view of overall justice. 

88.It is unnecessary for the Plaintiff to acquire any separate right-of-way for the Extended Area in order to enforce its rights as the owner of Lot 181 SA.

89.The Extended Area has always been used by the owners of Lot 181 SA as a private garden.  In my view, it would be artificial to suggest that a separate right-of-way can be acquired by way of lost modern grant in favour of the Extended Area only.  It is not necessary to make a finding on the issue of lost modern grant in view of my rulings but if I were to make such finding, I would find that the Plaintiff failed to establish the continuous user of the Green Strip to access to and egress from specifically the Extended Area.

90.Regarding whether the Defendant is estopped from denying the Plaintiff’s rights to use the Green Strip to gain access or egress from the Extended Area, I agree with Mr Yin that there is no evidence that the Defendant had ever made any representation to induce the Plaintiff to apply for the Letter of Extension in 2005 or the Plaintiff had ever relied on such representation.  The Plaintiff’s plea of estoppel must therefore fail.

DISPOSITIONS

91.Accordingly, a mandatory injunction is granted against the Defendant to demolish forthwith the Relocated 2^nd Gate.

92.The Defendant be restrained from, whether by itself or its proxy, agent or servant or howsoever, from erecting any gate at the area on the Blue Strip and/or the Green Strip.

93.The Defendant’s counterclaims be dismissed.

94.I make a costs order nisi that costs of the proceedings be to the Plaintiff to be taxed if not agreed.  This costs order nisi shall become absolute upon the expiry of 14 days from the date of this judgment unless there is any application from any party for variation of the same.

95.I thank counsel for their able assistance.

Mr Alan LEONG, SC and Mr Matthew TSE, instructed by Messrs Christine FL Ip & Young, for the Plaintiff

Mr Michael YIN and Mr Issac CHAN, instructed by Messrs Wilkinson & Grist, for the Defendant