Wong Pui Wan v. Wong Wing Kwong and Others
Read the full judgment text of DCCJ 118/2014 on BabelCite. This District Court judgment was delivered on 8 January 2019.
1. Following the delivery of judgment herein on 12 February 2018 (“the judgment”), the defendants took out 4 summonses:-
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DCCJ 118/2014 [2019] HKDC 14 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 118 OF 2014 ---------------------------
--------------------------- Before: Deputy District Judge Mak in Chambers (Open to Public) Date of Hearing: 27 July 2018 Date of Decision: 8 January 2019 -------------------- DECISION -------------------- INTRODUCTION 1.Following the delivery of judgment herein on 12 February 2018 (“the judgment”), the defendants took out 4 summonses:-
THE VARIATION OF COSTS APPLICATION 2.I shall first deal with the variation of costs application. Legal principles on costs 3.Deputy District Judge Elaine Liu in Jiang Zhong v Up Cheer Ltd, DCPI 2047/11, 18 April 2016, unreported, has usefully summarised the legal framework in relation to the question of costs, which I gratefully adopt:-
4.In the context of the parties settling the matters in dispute short of a trial, I find the summary of the relevant principles by Au-Yeung, J in Famous Marvel Co Ltd & ors v Conversant Group Ltd & ors, HCA 2153/2009, 29 October 2012 (unreported) instructive, which I also gratefully adopt:-
Costs of the disputed issues 5.In the judgment, I considered that the plaintiff was the major winner and therefore made an order nisi that the defendants should pay 50% of the plaintiff’s costs of this action. 6.By their application, the defendants asked that the plaintiff should pay 20% of their costs in this action. 7.Mr Andrew Mak, counsel for the defendants, relying on Poon Ching Man v Lam Hoi Pun [2016] 3 HKLRD 815 and Golden Bright Manufacturer Ltd v Sunlight Electronic Toys Manufacturing Co Ltd, HCA 927/2001, 8 November 2007 (unreported), submitted that in assessing the percentage of costs of the party who is entitled to costs, the court should assess the amount of time spent on the issues in dispute. 8.I have no doubt that the amount of time spent by the receiving party on the issues in dispute is a way of assessing the percentage of entitlement. 9.At the trial, there were 2 main issues in dispute, namely, the adverse possession issue and the easement issue. In relation to the adverse possession issue, the defendants have only succeeded in part, ie the land whereon the disputed hut was erected. The defendants have failed on the easement issue. 10.It is true that the adverse possession issue had taken more time both in terms of evidence and trial time. It is also true that within the adverse possession issue, more evidence was adduced in relation to the disputed hut. However, this does not mean that the battle on the disputed hut had occupied the majority the of evidence and trial time. This can be readily reflected in the judgment. 11.In assessing the percentage of costs entitlement, I have indeed taken the above factors into account. 12.In the affirmation of the 2nd defendant, he set out an estimation of the works done by his lawyers on all the issues (including the drainage issue which was settled by way of a Tomlin Order) in the action. I do not think such estimation is of assistance to the defendants. Firstly, the input of works on the various issues depends on the approach of the handling lawyers and the strategy deployed. Hence, the work inputs on different issues in the same case may vary from lawyer to lawyer. There is no place for a straitjacket. Indeed, the approach adopted by lawyers for one side should not be the same as those for the other side. More importantly, when assessing the percentage of entitlement, the court is looking at the case objectively as a whole and the degree of success of the winning party. The decision must reflect where justice lies on the question of costs. 13.Here, the plaintiff had succeeded in part of the adverse possession claim and had successfully defended the easement claim. Had he not failed to claim possession of the disputed hut, he should be entitled to recover the whole of his costs. In my view, therefore, the order nisi that I have made is doing justice to both parties and is appropriate. Costs of the settled issue 14.Turning to the question of costs in respect of the settled issue, ie the drainage claim, the 2nd defendant deposed that “since the plaintiff objected to the right of drainage of the defendants, the Tomlin Order means the defendants had won”. 15.It is necessary to examine the pleaded case of the plaintiff. 16.In the statement of claim, the plaintiff said his permission to the 1st and 2nd defendants was to build the drainage works on his land, ie Lot 611BRP, according to a plan numbered SF01B which was registered in the Land Registry (“the plan”). However, they had constructed 2 manholes on Lot 611BRP which were not in accordance with the plan. Further, the defendants had built a large water pipe which was not in the plan. Waste water from the pipe flew onto the plaintiff’s land with bad smell[1]. He therefore prayed for an order that the 1st and 2nd defendants “to remove and or reinstate all structures which are not included in the plan as registered under the memorandum”. The gist of the plaintiff’s complaint is that the defendants did not build the drainage works on his land according to the approved plan. 17.The settlement agreement between the parties on the drainage claim is in the following terms:-
18.To my mind, the agreement is an total acknowledgement of the case of the plaintiff, namely, that the defendants had failed to build the drainage works according to the plan and the defendants have undertaken to rectify the mistake by demolishing the wrongful works and to rebuild the drainage works in accordance with the plan at their costs. The assertion of the 2nd defendant is therefore factually unsustainable and must be rejected. 19.It is also necessary to examine the defence of the defendants to the drainage claim. 20.The defendants did not dispute that they had caused drainage works to be done on Lot 611BRP. They said they did so because they were already in adverse possession of the said land and that the plaintiff’s right and title thereon had extinguished[2]. The defendants also alleged that when they carried out ground-based measurements, soil investigation and testing on the said land in 2006 without first obtaining the consent of the plaintiff, the plaintiff raised no objection at all[3]. Further, upon the objection raised by the defendants, the plaintiff abstained from placing stones on the said land when he was building a house on Lot 612 between 2009 and 2010[4]. Lastly, the defendants alleged acquiescence on the part of the plaintiff[5] and entitlement to an easement of drainage[6] since the early 1960s. 21.It is common ground that the drainage works complained of were done on the disputed open space adjoining the disputed hut. 22.The main thrust of the defence is that the defendants had adversely possessed the disputed open space since the early 1960s. This accounted for the inaction of the plaintiff when the defendants made use of and the plaintiff’s own refraining from using the disputed open space. 23.Needless to say, this line of defence stands or falls together with the defendants’ claim of adverse possession of the disputed open space. 24.For reasons stated in the judgment[7], the defendants’ claim on the disputed open space has failed. The natural consequence is that if the drainage claim is put on trial, this line of defence would also fail as a matter of course. 25.In relation to the defence based on easement, it seems that the defendants are not relying on the rule in Wheeldon v Burrow but the doctrine of lost modern grant. 26.The fallacy of the defence is that the land of the defendants, namely, Lot 856, is not adjoining Lot 611BRP. It has to be remembered that by a condition of exchange dated 16 December 2003, when the Government granted Lot 856 to Wong WC, the 1st and 2nd defendants as tenants-in-common in equal shares in exchange of Lot 610B2, a small piece of government land was created between Lot 856 and Lot 611BRP. The drainage pipes of the houses on Lot 856 have to firstly pass through the said piece of government land before reaching Lot 611BRP. That being the case, I have grave doubt that the defendants would succeed on the claim of easement over Lot 611BRP if this issue is put on trial. 27.The above analysis has driven me to the conclusion that the defendants would not be entitled to costs on the drainage claim. 28.Taking into account the substantial overlapping of the adverse possession claim and the drainage claim, the overall costs apportionment should shift in favour of the plaintiff to a small extent. On this note, I tend to agree with Mr Erik Shum, counsel for the plaintiff, that the award of 50% of the total costs to the plaintiff is already very generous to the defendants. 29.I therefore dismiss the defendants’ application for lack of merits. THE AMENDMENT APPLICATION 30.The amendment application can be disposed of briefly. 31.At paragraph 130 of the judgment, I held that the plaintiff’s title to Lot 611BRP whereon the disputed hut was built as depicted in Plan 1 attached to the re-re-amended defence and counterclaim was extinguished. At the same time, I ordered that vacant possession of the area in Lot 611BRP outside the disputed hut be delivered to the plaintiff. This conclusion was reached after considering all the evidence and applying the relevant principles in law. In my judgment, the defendants had adversely possessed the disputed hut, no more and no less. 32.Having delivered the judgment, this court is functus officio. Any party who is dissatisfied with the judgment may seek leave to appeal. 33.The concern of the defendants is this. The triangular area immediately outside the entrance to the disputed hut is within the boundary of Lot 611BRP, which, by the force of my judgment, was not adversely possessed by the defendants. For that very reason, possession of the said triangular area should be delivered to the plaintiff. This has created a practical difficulty to the defendants as far as the use of the disputed hut is concerned. 34.It is suffice for me to repeat that the conclusion that I have reached was after due consideration of the evidence and the relevant principles in law. The sealed judgment has rightly and accurately recorded the effect of my judgment. There is no room for me to reconsider, amend, supplement or otherwise alter the said judgment. The effect of my judgment may have caused difficulty to the defendants in using the disputed hut which they have adversely possessed. Be that as it may, that is something they have to live with if they do not seek to overturn the findings of this court by way of appeal. After all, it is not the function of this court to give a judgment which does not accord with the evidence and the law in order to suit the need of one of the parties. 35.By reasons of the aforesaid, the defendants’ amendment application must be dismissed. COSTS 36.I order that the defendants do pay the plaintiff costs of the 4 summonses with certificate for counsel, to be taxed if not agreed.
Mr Eik Shum, instructed by Wong Poon Chan Law & Co, for the plaintiff Mr Andrew Mak, instructed by T Y Lam & Co, for the 1st, 2nd and 3rd defendants [1] paras 13-15 of statement of claim [2]para 13(b) of re-re-amended defence and counterclaim [3]para 13(c)(iii) of re-re-amended defence and counterclaim [4]para 13(c)(iv) of re-re-amended defence and counterclaim [5]para 13(f) of re-re-amended defence and counterclaim [6]para 13(g)-(j) of re-re-amended defence and counterclaim [7]paras 70-84 of the judgment | ||||||||||||||||||||||
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