Ip Wan Fat and Others v. King Union International Investments Ltd and Another

HCA 240/2016

[2018] HKCFI 906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 240 OF 2016

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REASONS FOR DECISION

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Introduction

1.The defendants took out a summons dated 19 September 2018 pursuant to Order 14A of the Rules of the High Court (“the Summons”).

2.At the hearing of the Summons on 19 April 2018, I acceded to an application for amendment of the Summons, and gave directions for further conduct of the matter.  I now set out my reasons for doing so.

The background

3.The plaintiffs’ claim is for trespass.  The defendants have counterclaimed for trespass, nuisance and negligence.  The plaintiffs and defendants own neighbouring plots of land and the parties’ claims arise out of a dispute as to the location of the boundary between the two plots.  The plaintiffs’ plot has been described in shorthand as “section X” and the defendants’ plot as “section W”.

4.The defendants took out the Summons seeking a summary determination of (inter alia) the correctness of the boundary location they contend for.

The hearing

5.At the hearing on 19 April 2018, counsel for the defendants, Mr Raymond Lau, indicated that he was not pursuing paragraphs 3 to 6 of the Summons.

6.In relation to paragraph 1 of the Summons, Mr Lau accepted that the part of the assignment quoted in paragraph 1 was not, in fact, a “covenant” as contended for in paragraph 1 of the Summons.

7.In relation to paragraph 2 of the Summons, Mr Lau accepted that even if the plan prepared in 1992 had “priority” as contended for, this was not relevant to the question of what parcel of land was conveyed to Sum Yuk Ming, the defendants’ predecessors in title.

8.In fact, the skeleton argument for the defendants filed in advance of the hearing had largely focussed on the issue of what parcel of land had been conveyed to Sum Yuk Ming, and the proper construction of the assignment to Sum Yuk Ming of 10 March 1992 (see paragraphs 47 – 49).   

9.At the hearing, I asked Mr Lau whether the question which arose for determination, and which paragraph 1 of the Summons seemed to be suggesting, was in effect whether, on the true construction of the assignment of 10 March 1992 to Sum Yuk Ming, the boundary of the land in section X, at the location where section X was adjacent to section W, was that as marked boundary “J-A” in the plan attached to the sale and purchase agreement dated 14 March 1992 to Yuen Chak Construction Company Limited, the predecessors in title of the defendants (“the Question”).  Mr Lau accepted that this was the case and made submissions in relation to the Question.

10.Mr Vincent Lam, counsel for the plaintiffs, also initially agreedthat the Question arose for determination and made a number of submissions in relation thereto.  However, in the course of those submissions he raised the point that the Question had not been so framed in the Summons and that had this been done earlier, the plaintiffs would have filed evidence to address the circumstances in which section X was conveyed to Sum Yuk Ming in 1992.

11.In the light of that submission I was concerned that the plaintiffs might not have had sufficient opportunity to file evidence which might be relevant to the proper construction of the 1992 assignment to Sum Yuk Ming.

12.Mr Lau formally applied to amend paragraph 1 of the Summons in terms of the Question, noting the terms of Order 14A, rule 1(1) and Order 14A, rule 2, and Mr Lam opposed the application on the grounds that the plaintiffs had not had the opportunity to file evidence in relation to the Question.

13.I allowed the application to amend paragraph 1 and further directed as follows:

(1)  within 28 days, the defendants are to file any further affidavit evidence in relation to the Question;

(2)  within 28 days thereafter, the plaintiffs are to file any further affidavit evidence in relation to the Question;

(3)  within 28 days thereafter, the defendants are to file their affidavit evidence in reply, if any;

(4)  no further evidence is to be filed without leave of the Court;

(5)  the matter is to be refixed for half a day, in consultation with counsel’s diary; and

(6)  the costs of today be reserved.

Mr Vincent Lam, instructed by Tsang, Chan & Woo, for the 1^st to 5^th plaintiffs

Mr Raymond Lau, instructed by Raymond Cheung & Chan, for the 1^st and 2^nd defendants