Lee Yum Sang v. Yeung Fook Hong and Another

HCA 638/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 638 OF 2009

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D E C I S I O N

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1.This is an application in relation to a right of way over Section C of Lot No. 397 in DD 94 (“Lot 397C”) in favour of the owner of Section D of Lot No. 397 in DD 94 (“Lot 397D”). The defendants are the owners of Lot 397C with House 83E erected thereon. The plaintiff is the owner of Lot 397D with House 83A erected thereon. The right of way was granted by the defendants as owners of Lot 397C to the plaintiff as owner of Lot 397D in a consent order made in this action on 1 June 2011. The consent order was for settling this action and it was made on the first day of the trial of the action.

The consent order, right of way and related constructions

2.There was a “Partition Wall” standing between Lots 307C and 307D.  It was not standing correctly on the correct boundary line dividing the two lots.  The consent order allowed the defendants to pull down this wall and rebuild a new wall on the boundary line between the lots.

3.At the western end of the old Partition Wall was the entrance from the western portion of Lot 307C into Lot 307D.  The entrance was guarded by a metal twin gate.  Each wing of the gate was anchored on a concrete column.  One column stood at the western end of the old Partition Wall (“Column C”).  The other column stood on the other side of the entrance and against the western boundary wall of Lot 397D (“Column D”).

4.Since the old Partition Wall had to be rebuilt, the two columns and the plaintiff’s metal twin gate had to be relocated.  The consent order provided that this relocation work was to be done by a contractor to be engaged by the plaintiff but at the defendants’ costs.

5.The consent order further gave the right of way to the plaintiff to go over the western portion of Lot 397C for access to and from Lot 397D.  This portion is called the “Protruded Area” in the consent order and so marked in the annexed plan.

6.The right of way is for the plaintiff’s access on foot or by car from Lot 397D over the Protruded Area to a “Public Way” and vice versa.  The Public Way is marked as “Road” in the annexed plan and is on the other side of the Protruded Area.  It is also part of and situates at the north-west portion of Lot 397C.  There is a kerb separating the Public Way from the rest of Lot 397C as shown in the annexed plan.

7.If the plaintiff would like to drive from Lot 397D to the public roads, he has to drive through his entrance onto the Protruded Area, make a right turn and drive onto the Public Way.  He can then drive along the Public Way to the public roads.  If he wants to go home from the public roads, he should drive in the vice versa manner.

8.The parts of the consent order relevant to this application are as follows:

“1. In respect of the Partitioning Wall between Lot 397C and Lot 397D ...

...

(b) The 1^st and 2^nd Defendants shall on or before 8 August 2011 give written notice to the Plaintiff informing the Plaintiff the date of commencement of the relevant work (mentioned in paragraph (c) below). The Plaintiff shall permit the 1^st and 2^nd Defendants and/or their agents to erect protective hoarding wooden boards 2 feet alongside the boundary between Lot 397C and Lot 397D at the 1^st and 2^nd Defendants’ own costs and expenses without damaging the floor tiles of the Plaintiff. The Plaintiff shall permit the1^st and 2^nd Defendants and/or their agents to enter the area in Lot 397D enclosed by the said hoarding boards for the purpose of demolishing and rebuilding the Partitioning Wall as mentioned in paragraph (c) below.

(c) The 1^st and 2^nd Defendants shall within 30 days from the completion of the erection of the said hoarding wooden boards, at their own costs and expenses, remove the existing Partitioning Wall between Lot 397D and Lot 397C and rebuild a new Partitioning Wall (of similar height f the existing Partitioning Wall) in accordance with Annex IV to the Defence and Counterclaim.

(d) Upon due completion of para (c) above, for the relocation by the Plaintiff of Plaintiff’s metal gate and the 2 concrete columns for the anchoring of the metal gate, the 1^st and 2^nd Defendants shall obtain a quotation from a contractor and recommend that said contractor to the Plaintiff, who shall engage the same contractor on the said quotation and the 1^st and 2^nd Defendants shall be responsible for the costs and expenses of the contractor for the said relocation.

2. Further,

(a) The 1^st and 2^nd Defendants shall grant (free of consideration) a right of way to the Plaintiff, his successor and assigns as owner of Section D of Lot No. 397 in D.D. 94 (Lot 397D) to use the Protruded Area within Section C of Lot No. 397 in D.D. 94 (Lot 397C) (as defined in the Amended Defence and Counterclaim) for access (on foot and by car) to and from the Public Way within Lot 397C and the Remaining Portion of Lot No. 397 in D.D. 94 (Lot 397RP) (as defined in the Amended Defence and Counterclaim).

...

4.   Liberty to [apply]”

The defendants’ construction works

9.After the action was settled by the consent order, the defendants rebuilt part of the Partition Wall.  It is marked “Rebuilt Wall” in the annexed plan.  There was a dispute on whether the defendants should also demolish and rebuild the remaining part of the Partition Wall (marked “Original Wall” in the annexed plan).  But the plaintiff does not insist on it now. 

10.The Rebuilt Wall is now on the boundary between the two lots, but the defendants in rebuilding it have extended it to the west.  It is now longer than the original Partition Wall by 1.7 metres.  The defendants have also built a new column at the edge of the Rebuilt Wall (“Concrete Column E” on the annexed plan) (“New Column E”).  New Column E is within Lot 397C.  The Rebuilt Wall and New Column E have reduced the width of the plaintiff’s entrance by about 1.7 metres (§5(iii) on p 183). 

11.The kerb which separated the Public Way or Road from the rest of Lot 397C have likewise been extended to the west by 1.7 metres with a new column erected at its western end (“Concrete Column F” on the annexed plan) (“New Column F”). 

12.The two New Concrete Columns E and F guarded the entrance from the Protruded Area to the defendants’ Lot 397C and House 83E.  The extensions of the Rebuilt Wall and kerb each at 1.7 metres reduced the Protruded Area by 1.7 metres by 5 metres as shown in the annexed plan.

The plaintiff’s summonses

13.The plaintiff was unhappy about the defendants’ constructions.  He issued a summons on 19 September 2013 seeking an order that the defendants should remove New Columns E & F and the 1.7 metre extensions to the Rebuilt Wall and kerb.  He also wanted the defendants to perform paragraph 1(d) of the consent order and rebuild the remaining part of the Original Wall on the boundary of the lots (“the first summons”).

14.However, the plaintiff issued a fresh summons on 25 April 2014 (“the second summons”) to replace the first summons.  The second summons seeks the following order:

“1. [T]he Defendants do relocate and retreat the Defendants’ New Concrete Column (towards the house in Lot 397C) [New Column F] and the extended kerb newly erected on the Protruded Area within Section C of Lot No. 397 in D.D. 94 (“Lot 397C”) and referred to in the plan marked as “Appendix 3” annexed hereto (“the said Plan”) by 20 inches from the driveway (“Relocation Work”) at the Defendants’ own costs;

2. [A] survey plan to be prepared by the Plaintiff’s surveyor at the Plaintiff’s own costs be annexed to the order to be made herein showing the measurements that the actual width of the driveway after the Relocation Work is not less than 12 feet;

3. [T]he Plaintiff’s surveyor be at liberty to mark the above measurements at the scene with coloured nails in the presence of the parties; surveyors (if necessary). Once the locations and measurements are marked upon the agreements of the parties, no further changes can be made and the parties must be abided by it;

4. [T]he Defendants do complete the Relocation Work within 21 days from the date of the order to be made herein and provide the quotation referred to in clause 1(d) of the order of the Deputy High Court Judge L. Chan (as he then was) made on 1^st June 2011 to the Plaintiff (“the said Order”) within 7 days thereafter;

5. [U]pon compliance of paragraph 4 above, the relocation of the Plaintiff’s gate column at the far side (point C marked on the plan annexed hereto) [Column D] be dispensed with and the Defendants shall bear reasonable costs of converting the existing twin gates (or a new set of gates with matching design and quality) occasioned by the reduction of the width of the gate column at the entrance of Lot No. 397D in D.D. 94;”

15.The first relief sought in the second summons seeks the relocation of New Column F for 20 inches from the driveway (to the east). It was in fact first suggested by the defendants in a without prejudice letter dated 11 November 2013.  (All the without prejudice correspondence have now been disclosed by the parties.)

16.The plaintiff filed his 5th affirmation on 2 May 2015 to confirm that he would rely on his second summons in place of his first summons. But as I will explain below, that is not what he wants.  He also produced a report by a surveyor Mr Poon to say that the concrete on the driveway was strong enough for motor cars to go over it.

17.He further filed his 6th affirmation on 10 July 2015 to produce two expert reports.  One report was by a land surveyor Mr Leung who opined that the Rebuilt Wall and kerb had both been extended by 1.7 metres into the Protruded Area.  The plaintiff had relied on this report earlier when he sought relief in the 1st summons.  The plaintiff further said that the extended kerb and New Column F blocked part of the right of way and rendered the way extremely difficult for his son to drive his vehicle through.  The way with the reduced width was also dangerous for a vehicle to pass through.

18.He also complained that the extended Rebuilt Wall had reduced the width of the entrance to Lot 397D by 1.7 metres.  It was difficult and unsafe for his original twin gate to be reinstalled on new columns to be positioned on the sides of the narrow entrance.  He thus asserted that the defendants had breached §2(a) of the consent order which provided for him the right of way over the Protruded Area.

The traffic engineer’s report

19.The plaintiff further produced an expert report by a traffic engineer Mr Lai.  The report contained a swept path analysis by computer simulation.  Mr Lai conducted computer simulations of the ingress and egress paths of two vehicle types.  One is a Honda Stream 1.8 RSZ 7-Seats Sporty Sedan and the other is a Toyota Hiace. They are vehicles driven by the plaintiff’s son.  The travel speed used for the simulations was 3-5 km/hr and the minimum clearance on each side of the vehicles was 300 mm (or 11.8 inches).

20.The simulations based on these criteria showed that there was little problem in driving the cars from the Public Way over the Protruded Area into Lot 397D.

21.However, the simulations of egress showed that the two cars could not just drive through the way but had to make a 7-point or even 9-point turn so as to get round New Column F.  Mr Lai said in the conclusion of his report that the driver should not be required to make more than a 3-point turn.

22.Mr Lai suggested that New Column F should be moved eastward by 1.3 metres (or 51 inches) and the kerb should be realigned correspondingly. He also suggested that New Column E should be moved eastward for 0.4 metre (or 16 inches) with the removal of the same length of the Rebuilt Wall.  These suggestions can provide a smooth driveway for egress of the vehicles with minimum clearance of 300 mm on each side.

23.I, however, notice that from the computer simulations that both the Flower Bed and Column D inside Lot 397D have made the ingress of the two vehicles inconvenient and contributed to the need to make the seven-point and nine-point turns in their egress.

24.Mr Lai also commented on on-site trial test in his conclusion as follows:

“On-site trial test on the ingress and egress paths may be a way to demonstrate the practical difficulties of the maneuvering movements in the real life situation. However, the acceptability on the results of ingress and egress paths in the trial test will be largely dependent on the skill of the driver in controlling the vehicle to negotiate the passage and the judgment of the driver on his own minimum horizontal clearance to the surrounding obstacles.”

25.Mr Lai’s suggestions were adopted by the plaintiff through counsel Ms Lam who contested throughout that the suggestions of Mr Lai should be implemented (§13 of the plaintiff’s closing submissions) instead of the relief sought in the plaintiff’s second summons, namely to move New Column F to the east for 20 inches only.

The defendants’ stance

26.The defendants opposed the plaintiff’s second summons and the suggestions of Mr Lai.

27.The 1st defendant set out their position in his 5th affirmation.  They disagreed that computer simulations were a proper way to determine the proper width of the right of way for the plaintiff’s use.  Their solicitors had instead suggested simple on-site trial tests to find out the width of a proper way, but the plaintiff declined the suggestion.

28.He further said that the corner of the driveway at New Column F was wide enough for light goods vehicles to go straight into the plaintiff’s Lot 397D.

29.He also said that the driveway in question was in a village area.  For about 150 metres of the road beyond the driveway; it was highly likely that a driver had to stop and reverse to make way for on-coming traffic.

30.He also pointed out that the plaintiff’s Column D at the entrance to Lot 397D was too big.  There were also kerb tiles extending from Column D into the driveway.  If the plaintiff should trim or do away with Column D and trim the kerb, driving through the driveway would be facilitated.

31.The 1st defendant also complained that the plaintiff had used the right of way for business purpose when it was only for domestic purpose. The reason being that the plaintiff’s son was driving his van over the driveway and the van was used to transport construction materials.

32.I do not think this complaint is fair.  The van used by the plaintiff’s son is just as like an ordinary saloon car.  It can be parked inside an ordinary parking space for a private car.  Driving this van through the right of way is just like the driving of a private car through it.  What is carried inside the car is not really important on the facts of this case.

33.The 1st defendant further said that his solicitors had already advised the plaintiff by letter of 14 November 2014 that the defendants would proceed with the remaining works in Lot 397C unless the plaintiff should respond within 21 days.  Since the plaintiff did not respond, the 1st defendant claimed that the plaintiff had acquiesced in these works and cannot pursue the relief in the second summons now.

34.I do not agree with this assertion.  The plaintiff has already issued the second summons on 25 April 2014 requiring the defendant to move New Column F for 20 inches eastward.  That summons was heard on 30 April 2014 and was adjourned to a date to be fixed.  If the plaintiff did not fix the date for the resumed hearing, the defendants could fix it.  I do not think the defendants can argue that the second summons has been defeated by the plaintiff’s acquiescence.

35.The 1st defendant further filed his 6th affirmation on 30 November 2015 to produce a VCD showing an on-site trial test of a light goods vehicle over the driveway.

The on-site trial tests

36.At the hearing on 7 June 2016, the defendant’s solicitor, Mr Chu did not cross-examine Mr Lai on his report but instead pursued his request for on-site trial tests.  I agreed that an on-site trial tests should be conducted so that the reality can be contrasted with the virtual reality.

37.The on-site trial tests were conducted in the afternoon of 7 June 2016.  That was a rainy day, but there was only a drizzle when the tests were conducted.  The same or similar vehicles as used in the computer simulations were used for the tests.

38.The first test was conducted with a Toyota Hiace. It was driven by a driver engaged by the defendants.  The driver drove slowly round New Column F and over the Protruded Area into Lot 397D without any problem although the near side (left) front wheel was quite close to the kerb that enclosed the bottom of New Column F.

39.For the egress, the vehicle’s initial position was parallel to the Rebuilt Wall.  The driver made a right turn to go through the entrance of Lot 397D.  He then made a three-point turn slowly and carefully to realign the car to point to the Public Way before getting round New Column F and driving away.

40.The 2nd trial was with a Honda Stream saloon owned by the plaintiff’s son.  The vehicle was driven by a taxi driver who was a stranger to both sides and just happened to be around.  He agreed to assist in the conduct of the tests for a small consideration and after the insurer of the car had given the clearance.  He was obviously new to both the vehicle and the driving path.

41.For the ingress, the driver conducted it very slowly but without any problem.

42.For the egress, the vehicle’s initial position was also parallel to the Rebuilt Wall.  After coming out of Lot 397D, the driver also had to make a three-point turn to realign the car to point to the Public Way.  He then attempted to get round New Column F but the rear wheel rim of the car got stuck with the kerb covering the bottom of New Column F.  He had to reverse to make another three-point turn before driving away.  Fortunately, the rear wheel rim suffered no damage.

43.The need to make the first three-point turn for both cars was obviously because of the location of Column D at the western end of the entrance to Lot 397D.  If this column were not there, the vehicles could have moved further to the west before turning right into the Protruded Area and the first three-point turn could have been avoided.

44.Regarding the scratching of the rear wheel rim, it was partly contributed to by the presence of people standing at the corner of the wall opposite New Column F watching intensely at the conduct of the trials.  After the rear wheel rim got stuck, these people stood further back to the corner and the vehicle then made a three-point turn slowly but comfortably and drove away without problem.

Danger to pedestrians

45.Ms Lam submitted that the driving of a car through the Protruded Area has made it dangerous for pedestrians to walk pass that area and they had to stay close to the corner of the walls opposite New Column F to make way for the vehicle.  The scenario described by Ms Lam had indeed happened in the egress test with the 2nd vehicle Honda Stream.  But I do not think that it is really a problem. 

46.The way over the Protruded Area only leads to Lots 397C and 397D.  The open area in Lot 397D can only accommodate one car.  The open area in Lot 397C can accommodate at most two vehicles.  Hence, the number of vehicles that will go pass this area is very limited.  Furthermore, only people who live in Houses 83A and 83E will walk through this area.  Hence, the number of people walking through this area is also limited.  The occasions when a vehicle and a pedestrian are passing this short way together should be few and far between.

47.Furthermore, a driver can only drive slowly over the Protruded Area.  He can certainly stop for a short while for the pedestrian to walk pass first or the pedestrian can wait outside the area for the car to go pass first.  If neither the driver nor pedestrian would behave sensibly, the danger anticipated by Ms Lam will still be present even if the right of way is widened as suggested by Mr Lai.  Assessing the situation realistically, I think the anticipated danger is a very remote one and does not justify any remedial measure to deal with it.

Consideration

48.Having referred to the on-site trial tests and the computer simulations, I note that the right of way round New Column F and over the Protruded Area is just wide enough for private cars to be driven through to the open area in Lot 397D and also for private cars to turn further to the left into the open area in Lot 397C.

49.However, I would point out that the on-site tests were conducted in relatively fine weather conditions.  There was only a drizzle when the tests were conducted.  I also note that the two drivers had conducted the trials runs with extreme care and drove very slowly.

50.There is no doubt that drivers must drive with care, but if the conditions of a road should demand the utmost care and attention from the drivers, then this road may not be regarded as reasonably safe for the purpose of driving.  This is particularly so when there is heavy rain and the driver cannot stick his neck out of the window to watch his way or at night when the lighting is poor as there is no street light around.  In such situations, there is a real risk that the vehicle may be damaged in one way or another in the course of being driven through this right of way and in particular when navigating round New column F.  That means the way is not reasonably safe for use as a right of way.

51.The defendants’ solicitor, Mr Chu has in his closing submissions advised the court that the defendants had since the on-site tests carried out two improvement works; namely:

“(a) installation of mirrors to cover all blind spots to enable the driver to keep track of the distance/space between the vehicle and the walls throughout the ingress and egress manoeuvring (road kerb and the Green Column could be monitored through side mirrors of the vehicle); [and]

(b) trimming of the section of the road kerb that adjoins the Green Column to increase the clearance with the wheels.

52.However, I do not consider these measures as sufficient to make the right of way safe.  The mirrors are of little use in heavy rain or darkness. The trimming of a few inches of the kerb wrapping round the base of New Column F is insufficient.

Construction work to be carried out

53.I am fully aware of the dilemma that if I should require the widening of the way, it will be at the expense of the defendants who will lose their exclusive possession of the widened part.  However, if they have agreed to give a right of way to the plaintiff, it must be a safe way.

54.Though I consider that the way should be widened to make it safe, I do not think it has to be widened by pushing New Column F to the east by 1.3 m (or 51 inches) as suggested by Mr Lai (pp 378 and 429).  That will allow ordinary private cars to go round New Column F at one go and with a clearance of 300 mm (or 11.80 inches) on each side.  That is too generous bearing in mind that this is a short way and in a village area where the roads are narrow and winding and drivers should drive slowly.  Drivers often have to stop or reverse to make way for on-coming traffic too.

55.Balancing the conflicting interests, I think it is fair and just to require the relocation of New Column F eastward by 20 inches. That will make the right of way including the turning round of New Column F safe for the use of any ordinary private car though, depending on their driving skill, drivers at times may still have to make a three-point turn to get round the column.

56.I am also not concerned about the suitability of the way for any particular model of vehicle as currently used by the plaintiff or his son.  The right of way is for the driving of a private car.  Hence, it should be suitable for any ordinary private car.

57.Regarding New Column E and the Rebuilt Wall, Mr Lai’s conclusion is that they should both be moved to the east for 0.4 metre (or 16 inches).

58.The entrance to Lot 397D is guarded by the Rebuilt Wall on one side and Column D on the other.  It is wide enough for vehicles to go into and out of Lot 397D.  However, the presence of Column D on the western side necessitates the drivers to swerve more to the right in coming out of Lot 397D. This swerving in turn creates the need to do a three-point turn on the Protruded Area to align the vehicle towards the Public Way.  The problem is thus created by the presence of Column D. 

59.From the simulation sketches produced by Mr Lai show that the removal of the plaintiff’s Flower Bed from the open area of Lot 397D will further enhance the ease of driving through its entrance onto the Protruded Area and over to the Public Way. 

60.Subject to the moving of New Column F eastward for 20 inches, the right of way is wide enough for any ordinary private car to go in and out of Lot 397D.  The need to do a three-point turn (or a seven-point or nine-point turn in the computer simulations) in the egress is partly caused by the presence of the plaintiff’s Column D and Flower Bed.  I do not think it fair to require the defendants to sacrifice more by relocating Column E and the Rebuilt Wall when the problem can be solved by removing Column D with further enhancement by removing the Flower Bed.  If the plaintiff would like to keep Column D and the Flower Bed at where they are, then he has to make the turns when driving out from his lot.  It is a choice open to him.

Order of relocation of Column F and kerb

61.Having come to the above conclusions, I order that the defendants do relocate New Column F by 20 inches straight to the east and realign the kerb accordingly at their own costs within 48 days from the date hereof.

62.After the defendants have complied with the above order, the plaintiff will be at liberty to engage a surveyor to prepare a survey plan recording the positions of the kerb, New Column F after the relocation, New Column E and the Rebuilt Wall.  The plaintiff may also register this plan with the consent order above-mentioned at the Land Registry as an order giving him the right of way.

63.I do not intend to make any order permitting the plaintiff or requiring the defendants to mark any measurement or location of anything by colour nails on Lot 397C.  I do not think it is necessary to have such colour nails to be nailed on the defendant’s lot.  The survey plan that the plaintiff may prepare and register at the Land Registry will be enough to protect his interest in the right of way.

The new gate

64.The matters remaining in the consent order are for the defendants to provide the plaintiff with a quotation of the costs from a contractor for relocating the plaintiff’s metal gate and Columns C and D (or if Column C has been destroyed by the defendant in the removal, remake it in the same dimension and position it wholly within Lot 397D) and for the plaintiff to engage the contractor to carry out these works.

65.The plaintiff has been asked whether he would still require the defendants to perform this obligation if the court would not order the relocation of New Column E or the cutting short of the Rebuilt Wall.  The plaintiff has advised the court that if New Column E and the Rebuilt Wall are not to be moved, he would not require the defendants to discharge the above obligation, but he would like to acquire and install at the entrance to Lot 397D a sliding gate of his design and/or choice at the defendants’ costs including the costs for digging a grove for the gate subject to a maximum of HK$31,800.

66.The defendants have also advised the court that if New Column E and the Rebuilt Wall are not to be moved, they would agree to bear the costs for the plaintiff to acquire and install a sliding gate at the entrance to Lot 397D including the costs for digging a grove for the gate at HK$31,800 with adjustment for inflation for three years.  They proposed an adjustment rate of 8% per annum.  I think that is in excess of actual inflation.  I consider that the sum adjusted for inflation should be in the region of HK$36,000.

67.Though the defendants have agreed to pay for the sliding gate, they through their solicitor Mr Chu have raised in further submissions the issue of safety for installing such a gate behind and running parallel to the Rebuilt Wall.  They suggested that the plaintiff could consider installing a cantilever sliding gate.  However, there is no expert evidence saying that such gate cannot be installed safely there.  In any event, it is a gate to be installed by the plaintiff. Hence, the plaintiff, or his contractor has the duty not to install it negligently. The plaintiff may of course take up the defendants’ suggestion and install a cantilever sliding gate also at the defendants’ costs subject to a maximum of HK$36,000.

68.The defendants in addition also proposed that the plaintiff may build a top mounted vertical roller shutter gate instead of sliding gate.  They also agree to bear the costs for acquiring and installing such a gate including the costs for building a New Column C to support the gate up to a maximum of HK$60,000.

Order for the new gate

69.In the light of the offers by the defendants and the fact that the plaintiff does not want the defendants to perform §1(d) of the consent order, I make the following orders in place and in discharge of §1(d) of the consent order.

70.I order that the plaintiff may, within three months after the completion by the defendants of the relocation of New Column F and the kerb ordered above, acquire and install a sliding gate or cantilever sliding gate of his own design and/or choice and in such event, the defendants shall reimburse the plaintiff the costs for acquiring and installing such gate and for digging the necessary grove up to a maximum of HK$36,000 and to pay the said sum or instalment of the same within two weeks upon being advised by the plaintiff of the plaintiff’s receipt of the relevant invoice(s) from the plaintiff’s contractor.

71.I further order that the plaintiff may, in the alternative to installing a sliding or cantilever sliding gate, choose to install a top mounted vertical roller shutter gate with the construction of a new supporting column as suggested by the defendants in §§4 to 6 of their further submissions dated 31 August 2016 and that the terms of the above order for the sliding or cantilever sliding gate shall apply to this order subject to substituting HK$60,000 for HK$36,000.

Costs order nisi

72.On the question of costs, I have to consider the conduct of the parties.

73.After the plaintiff had issued the first summons on 19 September 2013 seeking relocation of New Column E and F each for 1.7 metres to the east, rebuilding the Original Wall and performance of §1(d) of the consent order, the defendants’ solicitors made on 11 November 2013 a sanctioned offer (which has now been disclosed to the court) offering a partial concession to relocate New Column F eastward for 20 inches. 

74.However, the offer requires a warranty from the plaintiff that the additional surface area made available by the relocation would be structurally strong enough for vehicles to go over it.  I do not see why the plaintiff should provide such warranty.  The consent order only requires the defendants to give the plaintiff the right of way, it does not require any such warranty from the plaintiff.

75.Furthermore, the defendants, in making this offer of partial concession, were not offering any costs incurred by the first summons. They instead proposed no order as to costs.

76.My order for relocation today is more or less in the same terms as offered by the defendants in the sanction offer.  If the defendants should have offered the relocation concession without demanding the warranty and have also offered at least half of the costs of the first summons, then their position on costs today would be much better.  The fact that they had to offer relocation of New Column F for 20 inches showed that the first summons was not groundless though it had asked for too much.  It was the defendants’ conduct in making the area for the right of way too narrow that had necessitated the summons.  My relocation order today also vindicates the issuance of the first summons.

77.Regarding the conduct of the plaintiff, he was asking for too much in his first summons.  But it was right for him to have issued the second summons.  Nevertheless, he, after having obtained the report of the traffic engineer Mr Lai, was not contented with what he had asked for in the second summons. He instead relied on Mr Lai’s report and insisted on a relocation of New Column F for 1.3 m (or 51 inches) and relocation of New Column E and cutting short of the Rebuilt Wall by 0.4 metre (or 16 inches).  He also refused the defendants’ suggestion of conducting on-site trial tests to find out on the ground how much the right of way has to be widened.  Such attitude was unreasonable and not conducive to a reasonable dialogue between the parties.  In the end, a full hearing was required and the resolution of the dispute much delayed adding to the agony of the parties.

78.Since neither party has behaved reasonably, I consider that the proper course to take is to make no order as to costs.  I therefore make a costs order nisi that there be no order as to costs.

Miss Yanky S Y Lam, instructed by George Y C Mok & Co, for the plaintiff

Mr Raymond Chu, of Raymond Chu & Co, for the 1st and 2nd defendants