Yeung Chi Wang v. Yeung Chi Wing
Read the full judgment text of DCCJ 4798/2017 on BabelCite. This District Court judgment was delivered on 31 August 2018.
1. This is the plaintiff’s application for summary judgment against the defendant for various declaratory and injunctive reliefs concerning an alleged right of way.
Cited by 1 case · Cites 4 cases
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DCCJ 4798/2017 [2018] HKDC 1047 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4798 OF 2017 -------------------------
------------------------- Before: Deputy District Judge Vincent Lung in Chambers (Open to Public) Date of Hearing: 9 May 2018 Date of Decision: 31 August 2018 --------------------- DECISION ---------------------- INTRODUCTION 1.This is the plaintiff’s application for summary judgment against the defendant for various declaratory and injunctive reliefs concerning an alleged right of way. THE BACKGROUND FACTS 2.Most of the relevant facts are not controversial. They may be stated as follows. 3.The plaintiff is the registered owner of Lot No 1286 in DD 123, Yuen Long (“P’s Lot”), while the defendant is the registered owner of an adjacent lot being Lot No 1288 in DD 123, Yuen Long (“D’s Lot”). P’s Lot adjoins D’s Lot along the former’s north-eastern boundary. For ease of illustration, some sketch plans are annexed to this Decision. 4.The parties were previously involved in DCCJ 5331/2015 (the “Former Action”) where their roles were reversed: the plaintiff was the defendant there, and the defendant was the plaintiff. To avoid confusion I will refer to them with reference to their respective capacities in this action. 5.In the Former Action, the defendant (as plaintiff) sought a mandatory injunction requiring the plaintiff to demolish the fence wall and gate erected on D’s Lot enclosing a portion thereof (coloured pink on the plan marked Annex A, the “Pink Area”) and to remove all items placed thereon. In the plaintiff’s defence and counterclaim, he asserted a possessory title over a portion of D’s Lot including the Pink Area (ie the Pink Area plus the area coloured brown in Annex A). 6.The parties settled the Former Action by way of an agreement in Chinese dated 28 January 2016 (the “Settlement Agreement”), which provides inter alia that:-
7.Additionally, before or at the time of the Settlement Agreement, the parties agreed orally (also as part of the Settlement Agreement) that the plaintiff were to erect a new fence wall along the common boundary of P’s Lot and D’s Lot (the “New Fence Wall”) to seal off P’s Lot from D’s Lot on the north-eastern side of P’s Lot (except a suitable opening for access). 8.In about mid-2016, pursuant to the Settlement Agreement, the plaintiff demolished the fence wall and gate enclosing the Pink Area and returned the Pink Area to the defendant. The plaintiff then erected the New Fence Wall. In addition, as P’s Lot is at a higher level than the Designated Route, the plaintiff also built a flight of stairs comprising 6 steps (the “New Staircase”) to connect P’s Lot to the Designated Route. 9.In about December 2016, the defendant built a new brick wall along the north-western side of the Designated Route to seal it / the New Staircase off from the remaining part of D’s Lot (the “New Brick Wall”). The New Brick Wall is marked red on the plan marked Annex C hereto while the opening to the New Staircase is marked with a red “x”. 10.On 6 October 2017, the defendant erected a metal frame and wire netting panel with a swing gate (the “Alleged Offending Structures”) along the Designated Route, leaving only a narrow pathway of around 15 inches in width for access. 11.On 20 October 2017, the plaintiff through his solicitors demanded the defendant to demolish the Alleged Offending Structures within 3 days. Subsequently, the defendant removed part of them being the horizontal bar that held the metal frame. 12.The plaintiff issued the Amended Writ of Summons herein on 27 October 2017. He later filed an Amended Statement of Claim on 20 November 2017. He took out the present application for summary judgment on 12 December 2017. THE PLAINTIFF’S CASE 13.The plaintiff’s pleaded case is that he is entitled to a right of way along the Designated Route out of necessity (he alleges that P’s Lot is otherwise landlocked), or alternatively he seeks specific performance of Clause 3 of the Settlement Agreement. On either of these bases, he seeks a mandatory injunction requiring the defendant to forthwith demolish and remove the Alleged Offending Structures and a prohibitory injunction restraining the defendant (or his agents) from interfering with the right of way. 14.The plaintiff contends that P’s Lot has all along been landlocked: it was bounded on all sides by Lot Nos 1284, 1285, 1287 and D’s Lot on the south-western side, south-eastern side, north-western side and north-eastern side respectively. As a result, at all times since 1985 or earlier, P’s Lot was only accessible from D’s Lot through a gate opening located in the Pink Area (which was subject to the plaintiff’s adverse possession as he counterclaimed in the Former Action). In this respect, the plaintiff relies on the DD Sheet of P’s Lot updated in 1965 (the “1965 DD Sheet”), and extracts of Survey Sheets from various years, the earliest one in 1985. Since P’s Lot has been landlocked, a right of way would arise by necessity. 15.In the alternative, the plaintiff argues that by 28 July 2016, he had performed his part under the Settlement Agreement, for which the defendant had not raised any complaints. The defendant’s building of the New Brick Wall to seal off the New Staircase from the remaining part of D’s Lot reflected the defendant’s acknowledgement of the Designated Route. Hence, the plaintiff seeks specific performance of Clause 3 of the Settlement Agreement. The plaintiff was and is ready able and willing to enter into a tenancy agreement pursuant to Clause 3. 16.The difference between having an easement by necessity and the specific performance of Clause 3 of the Settlement Agreement is this. If the easement arises by necessity, it will become an encumbrance over D’s Lot for an indefinite period, whereas specific performance of Clause 3 would only give the plaintiff a right over D’s Lot for 10 years. 17.It is convenient to mention at this stage that in the plaintiff’s skeleton submissions, he relied on a further argument for “a right of way in exchange for an existing way of necessity or a right of way by prescription under (i) a contract in writing varied by conduct of the parties and/or an oral contract taking effect in part performance, or (ii) the doctrine of proprietary estoppel”. 18.The argument runs as follows:-
19.I am not minded to consider these arguments for the purpose of this summary judgment application, for the simple reason that they have not been pleaded in the Amended Statement of Claim:-
20.In any event, apart from a technical pleading objection, for reasons given below I am not convinced that these 2 unpleaded arguments will make any difference to the result of this summary judgment application. THE DEFENDANT’S CASE 21.The defendant’s case is that there is no easement by necessity. First, P’s Lot is not landlocked. He can get access through a road on an adjacent Government land between P’s Lot and Lot No 1285. Second, the plaintiff fails to prove an easement by necessity at the time when P’s Lot was granted to P’s predecessor in title by the Government. 22.The defendant’s interpretation of Clause 3 of the Settlement Agreement is that he would only grant a right of way to the plaintiff by way of a licence instead of a tenancy. As such, the plaintiff would not obtain any exclusive possession of the Designated Route, and the defendant was and is at liberty to put up the Alleged Offending Structures on D’s Lot. Besides, there is no lock to the swing gate, and even if the defendant was to lock the gate, the defendant was willing to first provide the key to the plaintiff. 23.The defendant further submits that the licence arrangement to be entered into was still subject to negotiations (as evidenced by the need for a further agreement to be concluded). He did not know whether the Lands Department would approve his plan to build a small house on D’s Lot. He might be required to build the small house on the Designated Route, in which case he would have to discuss with the plaintiff over the location of the right of way under the licence. The defendant further relies on Clause 4 of the Settlement Agreement, which provides that a small house may be built within D’s Lot and the plaintiff may not raise any objection; the defendant argues that the right of way was therefore still subject to negotiation or designation, because he might have to build his house that encroaches on the Designated Route. 24.The defendant contends that the plaintiff did not push for the conclusion of the licensing agreement pursuant to Clause 3 of the Settlement Agreement for almost 2 years (from its execution on 28 January 2016 until 17 November 2017). The plaintiff did not pay the HK$10 rent either. 25.The defendant also argues that in any event Clause 3 is not sufficiently certain to be specifically enforced. It does not stipulate when the licence is to commence. The Designated Route is also different from that as stipulated under Clause 3. THE LEGAL PRINCIPLES Summary judgment 26.The principles for granting summary judgment is well known. To resist an O 14 application, the defendant must show that there are triable issues and condescend into particulars. The court has to determine two questions: firstly, whether what the defendant says is believable as opposed to whether its version of events is to be believed; and secondly, if it is, whether what the defendant says amounts to an arguable defence in law. In determining the first question, the court should not embark on a mini trial of the action on affidavit evidence. The burden of proof is not a heavy one. It is not the function of the court at this stage to assess if a defence will succeed at trial. Insofar as the second question is concerned, summary judgment will not be granted if there are arguable defences or serious disputes of law: Schindler Lifts (Hong Kong) Ltd v Ocean Joy Investments Ltd [2003] 1 HKC 438. Specific performance 27.In determining whether specific performance should be ordered, the court considers whether damages would be an adequate remedy. Usually damages are regarded as inadequate in relation to matters concerning land and/or interests in land: Spry: The Principles of Equitable Remedies (9th ed) pp.62-63. 28.Where parties have entered into an agreement to execute another document, the court can order the execution of such latter document without regard to whether provisions therein are such that the court can decree to be specifically performed. The agreement to be specifically enforced is only the execution of the latter document so as to vest in the parties the rights they have mutually agreed to confer: Spry p.130. Easement by necessity 29.Easement by necessity is one without which the property retained cannot be used at all, and not one merely necessary for its reasonable enjoyment: Tang Tim Fat & Anor v Chan Fok Kei & Ors [1993] 2 HKLR 373 at 383. Where the grantor grants simultaneously to two (or more) grantees plots of land in such circumstances that the granted plot(s) is rendered landlocked, it may be implied in favour of such plot(s) a way of necessity. However, once selected, the route cannot be changed subsequently. It is essential that a way of necessity is limited to the necessity existing at the time of grant: Tang Tim Fat at 383. Even if some of the surrounding land belongs to third parties, a way of necessity may be still be implied. Nonetheless, realistic possibilities of access via third-party land will make it difficult for the plaintiff to establish a way of necessity. See also Halsbury’s Laws of Hong Kong (2nd ed) §§230.518 and 230.588; Megarry & Wade §§28-013 to 28-014, 28-024. 30.The test of an actionable interference of a right of way is not whether what the dominant owner is left with is reasonable, but whether his insistence on being able to continue to use the whole of what was granted or contracted for is reasonable. The servient owner has no right to alter the route unless such a right has been expressly or impliedly conferred on him: Megarry & Wade §30-004. ANALYSIS Jurisdiction 31.In the defendant’s written submissions, counsel for the defendant Ms Tang raised a jurisdiction point as to the District Court’s power to grant specific performance of a licence agreement (as the defendant so characterizes it) in relation to the Designated Route under s 37 of the District Court Ordinance (Cap 336). In the course of the hearing, and in light of s 36 of the District Court Ordinance, Ms Tang confirmed that the jurisdiction point is the same as her “uncertainty argument”, ie the Settlement Agreement was uncertain and unenforceable so the court has no jurisdiction to compel specific performance of the same. That seems to me to be a question of substantive law and not one of jurisdiction. Specific performance of Clause 3 of the Settlement Agreement 32.Under Clause 3 of the Settlement Agreement, the defendant is to grant a right of way to the plaintiff along the Designated Route. 33.I first make two preliminary observations. First, the availability of a right of way is an interest in land, and plainly damages is not an adequate remedy for the plaintiff. Second, it does not appear to me to make any difference as to whether Clause 3 envisages a tenancy or a licence (the technical difference, of course, is whether the plaintiff would be entitled to exclusive possession). After all, it is plain that the plaintiff ultimately seeks uninterrupted access through the Designated Route. 34.I am unable to accept the defendant’s submission that Clause 3 is uncertain over the commencement date of the “tenancy”. Clause 3 already provides for (i) the area concerned (the area coloured blue on the sketch plan annexed to the Settlement Agreement); (ii) the consideration to be paid by the plaintiff ($10 per year); (iii) the term of the “tenancy” (10 years). As for the commencement of the licence period, it is a matter of construction. In my judgment the commencement date of the “tenancy” is the date when the plaintiff has completed his obligations in Clause 1. Since the plaintiff would have lost his right of way through the Pink Area when the same was to be returned to the defendant, I am satisfied that the objective intention of the parties was for the “new” right of way (hence the commencement date of the “tenancy”) to arise at the same time. 35.Nor do I agree with the defendant’s submission that further negotiations were intended by the parties in view of the defendant’s intention to build a small house on D’s Lot. This argument ignores the fact that the right of way was already clearly designated on the sketch plan annexed to the Settlement Agreement; there was accordingly nothing further to be negotiated insofar as the location of the right of way was concerned. The criticism that the area marked blue on the sketch plan annexed to the Settlement Agreement did not perfectly tally with the Designated Route is without merit: first, the marking was done on a sketch plan so it is plain that it was not intended to be an exact designation (eg one done with the assistance of surveyors), and second, in any event the defendant’s construction of the New Brick Wall was an acknowledgement and acceptance by conduct as to the precise location of the right of way; the sole purpose of building the New Brick Wall was to seal off the Designated Route from the remainder of D’s Lot. 36.Clause 4 of the Settlement Agreement (that a small house may be constructed within D’s Lot and the plaintiff may not raise any objection) does not advance the defendant’s case, since Clause 3 was not made subject to Clause 4. If the defendant had genuine concerns that the small house that is to be built might need to encroach on the Designated Route, the defendant should not have agreed to the specific designation of the right of way in Clause 3 in the first place. 37.In relation to the defendant’s contention that the plaintiff did not push for the signing of the licensing agreement for almost 2 years and that the plaintiff did not pay the HK$10 “rent”, it does not appear that the defendant had raised this issue contemporaneously. Indeed, by a letter from the defendant’s solicitors dated 8 November 2017, the defendant had no objection to provide an access route to and from P’s Lot. Subsequently by letter dated 1 December 2017, the defendant’s solicitors provided a draft “Tenancy Agreement” (路權租用合約) to the plaintiff’s solicitors (I should also observe at this juncture that the defendant’s solicitors described the right of way as a “tenancy” and the draft agreement as a “tenancy agreement” in these letters). It would therefore appear to me that the defendant has by conduct waived any delay on the part of the plaintiff to press for the conclusion of the licensing agreement; the delay also caused no prejudice to the defendant. Furthermore, on any view the HK$10 “rent” is a nominal figure and it is no surprise that the defendant did not treat the plaintiff’s failure to pay as a repudiatory breach of the Settlement Agreement. The plaintiff has confirmed through his solicitors at the hearing that he is willing to pay for the accrued and accruing “rent”. 38.I am therefore satisfied that there are no triable issues insofar as the specific performance of Clause 3 is concerned. I will therefore give summary judgment in favour of the plaintiff, with the Designated Route being the route referred to in Clause 3 (and acknowledged by the defendant by the building of the New Brick Wall as explained above), upon the plaintiff’s payment of all sums that have become due. The commencement date of such right of way was 28 July 2016 (ie the date referred to in Clause 1 for reasons stated above) and the plaintiff’s entitlement will therefore expire on 27 July 2026. 39.I will also briefly deal with the plaintiff’s argument on proprietary estoppel. This is, in my view, just another way of describing specific performance of Clause 3. This is because the alleged representation from the defendant was precisely the terms of the Settlement Agreement. In other words, taking the plaintiff’s argument to the highest, the defendant’s representation was to agree to give a right of way to the plaintiff for 10 years (but not indefinitely), so the estoppel could only (at best) entitle the plaintiff to a right identical to the specific performance of Clause 3. 40.As to the plaintiff’s argument regarding easement by prescription, it seems to me arguable that whatever easement by prescription the plaintiff has obtained (and I express no view one way or the other whether there was indeed such easement by prescription), that easement has been extinguished by the Settlement Agreement. It would appear to be arguable that one of the commercial purposes of the Settlement Agreement was for whatever right of way the plaintiff might have over D’s Lot (eg the Pink Area) to be extinguished in exchange of a new right of way (ie the Designated Route). I do not intend to go further on this issue since it is not pleaded and I have not heard full argument from the parties as to the possible effect that the Settlement Agreement might have over any past (i.e. pre-Settlement Agreement) easements. Easement by necessity 41.I now proceed to analyse the plaintiff’s case for a permanent right of way over D’s Lot by way of an easement by necessity. 42.P’s Lot originated from a Block Crown Lease in 1905. On 1 July 1973, by operation of s 4 of the New Territories (Renewable Government Leases) Ordinance (Cap 152), a new lease was deemed to have been granted which created a new leasehold interest: Chan Tin Shi & Ors v Li Tin Sung & Ors (2006) 9 HKCFAR 29 at §29. Subsequently in 1997, by operation of s 6 of the New Territories Leases (Extension) Ordinance (Cap 150), the then existing lease was extended until 30 June 2047 but there was no grant of any new lease: Chan Tin Shi §§9, 10, 23, 35. Therefore, the time to consider whether a right of way by necessity arose should be 1973 (being the time of the relevant grant). 43.For the purpose of this summary judgment application, I am not satisfied that the plaintiff is able to prove that P’s Lot was landlocked in 1973 for an easement by necessity to arise. The 1965 DD Sheet only showed the state of the lots in 1965 but things might have changed by 1973. I consider this an arguable issue that should be resolved at trial. I will give leave to the defendant to defend on this issue. Injunctive relief 44.Having reached the conclusion that the plaintiff is entitled to specific performance of Clause 3 of the Settlement Agreement, I further require the defendant to remove the remaining parts of the Alleged Offending Structures. The provision of a key to open the lock of the gate (if there is one) is insufficient for the plaintiff’s free and uninterrupted access through the Designated Route: Chin Ling Investment Ltd v The General of the Salvation Army (unreported, HCA 1/2012, 19.08.2016 at §79). 45.I do not consider the granting of a prohibitory injunction (restraining the defendant or his agents from interfering with the right of way) necessary in view of my findings above. I trust that the parties should know their respective positions as to the usage of the Designated Route (at least for the foreseeable future). This however does not preclude any future injunction application if and when the need arises. CONCLUSION 46.For the above reasons, I conclude that:-
47.Now that the plaintiff has obtained final judgment for specific performance of Clause 3, I do not know whether he still wishes to proceed to trial on the remainder of the action (ie the claim based on an easement by necessity). This might also have an impact on costs of the action, the application and the hearing. I therefore direct the plaintiff to inform the court whether he still intends to proceed to trial with the remainder of the action within 14 days after the handing down of this Decision. I further direct the parties to lodge and exchange written submissions on costs (no more than 5 pages) within 7 days thereafter in light of the plaintiff’s position. If summary assessment of costs is sought, the relevant statement of costs should be lodged together. I will then deal with costs issues on paper.
Mr David P H Wong of Wong, Hui & Co for the plaintiff Ms Candy Tang, instructed by Thomas Li & Yu for the defendant
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