Tang Woon Kai v. Tang Ting Chun
Read the full judgment text of CACV 56/1974 on BabelCite. This Court of Appeal judgment.
1. The issues in this appeal are of fact rather than of law.
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CACV000056/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 56 OF 1974 (ON APPEAL FROM O.J.619/73) -----------------
----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ. Date of Judgment: 5th November, 1975. ----------------- JUDGMENT ----------------- Pickering, J.: 1. The issues in this appeal are of fact rather than of law. 2. In 1970 the respondent herein took an action in the District Court for possession of certain land in the New Territories which he claimed was being held over by the appellant following a letting to the appellant in 1948. In the District Court the respondent obtained judgment "as claimed". The appellant's subsequent appeal to the Full Court was dismissed and his appeal to the Privy Council was dismissed for non-prosecution, the subsequent petition for restoration of that appeal being likewise dismissed. 3. In 1973 the appellant brought the present action against the respondent claiming an injunction to restrain the respondent from entering upon the appellant's land. The substantial defence to this action, so far as this appeal goes, was that the appellant was estopped per rem judicatem from claiming any right, title or interest in the land in respect of which an injunction was sought since that land was the same land possession of which had been restored to the respondent in 1970 in the District Court action and it was claimed, on behalf of the respondent, that the proceedings were frivolous and vexatious and an abuse of the process of the court. The learned judge in the court below, following a consent order for the trial of this issue as a preliminary issue, so found and gave judgment for the respondent, the appellant's counterclaim being ordered to be stayed and not to be proceeded with without the leave of the court. 4. This appeal is from that judgment. 5. The essential issue is whether or not the land in dispute in this action is the same land as that to which the respondent was restored by the judgment of the District Court in 1970. Mr. Bernacchi, for the appellant, concedes, as he conceded in the court below, that if this is the case then he is estopped per rem judicatem. It is his case, however, that the land cannot be said unequivocally to be the same land and to examine that contention it is necessary to refer to the Agreement for a lease entered into between the respondent and the appellant in 1948 and also the pleadings in the District Court action. 6. The Agreement, which was in the Chinese language and for a term of twenty years from 1st November 1948, included the following term:
7. The Particulars of Claim in the District Court described the property claimed as:
and the prayer was for "ejectment of the defendant from and possession of the Greenville Park". 8. It was the crux of Mr. Bernacchi's case for the appellant that the Agreement for the Lease in 1948 related to seven enumerated Lots only and that there had in fact been two leases, the second being an oral agreement between the appellant and the respondent's father for the use by the former of all the remaining area of what is now known as Greenville Park for such time as he should wish in consideration of a premium of $8,000. There were therefore two causes of action and no question of estoppel per rem judicatem and the sole matter for the consideration of this Court was the interpretation of the Agreement for Lease it being necessary to refer back to that Agreement in order to ascertain what actually was being claimed in the District Court. 9. In reply to these contentions Mr. Jackson-Lipkin, for the respondent, argued first that on a true construction of the Agreement for Lease that Agreement related to a single entity and not to several scattered and disconnected Lots; similarly, that the District Court action was for possession of an orchard - a single entity and the judge had ordered possession of a single entity to be given up. Secondly, the District Court action consisted of a claim for possession of Greenville Park and in that action there was a counterclaim by the present appellant relating to that park so that what is sought to be raised now by the appellant in this action ought to have been raised then because it was an essential matter in relation to trespass, to the framing of the claim it was designed to meet and to who should have the orchard. Thirdly, counsel urged, the learned judge in the court below was quite correct to have regard to the behaviour of the present appellant in the District Court proceedings and in these proceedings. As an example, he had said on oath in the court below that he had no land anywhere in the vicinity to which he could remove his goods and chattels and store them and that he had been trying without success to obtain storage space; he could not have said that, the argument went, if the litigation had not concerned the whole of Greenville Park and not a mere seven Lots and the assertion was inconsistent with his present argument that the District Court action had related only to seven Lots. 10. In the event we stopped Mr. Jackson-Lipkin after he had expounded the first of these arguments and invited Mr. Bernacchi to reply upon that aspect after which we dismissed the appeal. 11. Mr. Jackson-Lipkin, dealing first with the contents of the Agreement for a Lease, emphasised the constant repetition in that document of the description "the orchard" and the absence of any suggestion that what was involved was orchards or Lots or parcels of land. Of particular significance in this respect, counsel argued, was para.7 of the Agreement restricting the height of any building to be erected by the present appellant but providing that the restriction was to apply only to the areas immediately in front of and to the left and right of the ancestral tomb. That the clause was of a particular significance to the respondent was apparent from its concluding words "this is particularl noted". The significance of the clause when one looks at the sketch plan exhibited is that none of the seven Lots to which the appellant claims that the agreement for lease was restricted, falls either "immediately in front of" or "to the left or right" of the ancestral tomb. This point was not immediately clear but when it was realised that the plans which were provided for the use of this Court, contain certain material differences from that which was before the learned judge in the court below, in that some areas which should have been hatched green were in fact hatched blue or purple on our plans, the significance became very apparent for once the plan which was before the trial judge was consulted it was plain that no part of any of the seven Lots lies to the left or right of the ancestral tomb or indeed "immediately in front of it". We are unable to accept Mr. Bernacchi's contention that "immediately" in this respect was intended to include a plot 350 feet away from the ancestral tomb on what he tells us is much lower lying land than that upon which the tomb was erected. The distance in a straight line from the front of the tomb to the farthest perimeter of Greenville Park is approximately only 550 feet. I would add in parenthesis that a further unfortunate effect of the mistake in the hatching of the plan placed before this Court was to make it appear that the seven Lots were less scattered and more contiguous than in fact they are. 12. Again, counsel argued, quite apart from the fact that had the Agreement for Lease related to only seven Lots the reference therein would have been to orchards rather than to an orchard, the purpose of the letting was inter alia for an amusement park and food catering. The phrase was "an amusement park" not "amusement parks" and it would have been impracticable to have run such an enterprise upon seven scattered Lots. Furthermore there was a reference to food catering and of the many restaurants and appendant kitchens in Greenville Park none, with the exception of a part of one kitchen, was upon any of the seven Lots; similarly the theatre, which was one of the attractions of the amusement park, could also be seen from the plan not to be situated upon one of those Lots. It followed that the purpose for which the land was let was totally inconsistent with the letting of seven incontiguous Lots. 13. If the plain construction of the Agreement for Lease was insufficient to demonstrate that the letting could not have been a letting of a mere seven Lots, and for my part I think it is amply sufficient, the pleadings in the District Court action led inevitably, counsel urged us, to that result. The Particulars of Claim referred to "an orchard" now known as Greenville Park and recited the letting, in 1948, of "the Greenville Park" by the respondent to the appellant. The paragraphs of the Particulars of Claim incorporating those matters were admitted by the present appellant in his Statement of Defence as was the assertion in para.3 of the Statement of Claim "the Greenville Park was thus let and has thereafter been and still is being used by the defendant as an amusement park for business purposes". 14. Again, in an affirmation sworn in the course of the ex parte proceedings taken out by the appellant to restrain the respondent from entering upon the land, the appellant deposed to having converted "the whole area" in 1958 into an amusement park and said that the area was known as the Greenville Park. The "whole area" to which he referred contained, on the basis of his own affirmation, not seven Lots but thirty-four Lots and the appellant was saying in effect that the entire area was known long ago as 1958 as "the Greenville Park". 15. Moreover the litigation in the District Court had been for possession of "the Greenville Park" described as being "situate near the Taipo Railway Station" and "at" the seven Lots. The claim did not refer to Greenville Park situate at Taipo and "upon" the seven Lots and both parties knew exactly what was the subject of their litigation. 16. It seems to me to be indisputable that had the Agreement for Lease in 1948 related to seven Lots only and had the remaining portion of Greenville Park in truth been granted to the appellant by the respondent's father for use for as long as he wished in return for a consideration of $8,000, as was pleaded in the appellant's amended Statement of Claim in this action, the paragraphs to which I have referred in the Statement of Claim in the District Court action would never have been admitted but would have been challenged with the assertion that the appellant held two tenancies, one the Agreement for Lease of 1948 relating to seven Lots only and the other the oral agreement for the remainder of the land entered into with the respondent's father. Such a plea would have been fundamental to the appellant's case in the District Court and the fact that it was not made is strong evidence that he was well aware that he knew that the litigation concerned the whole area. 17. Finally it is to be observed that the prayer in the District Court action was for possession of the Greenville Park, that is to say that which the appellant has deposed to in ex parte proceedings in this Court as the correct description of the entire area. In the District Court judgment was given "as claimed" and at no time was it suggested to the learned District Judge that he could not make such an order but could only make an order confined to the seven Lots - nor was that suggestion made on the appeal to this Court against the District Court judgment. 18. For my part I found these considerations overwhelming and was convinced that the appellant was abusing the process of this Court to attempt to relitigate the very matter which had already been decided in the District Court action and in respect of which his earlier appeal to this Court had been dismissed. 19. It is true that there exist certain small discrepancies in regard to the delineation of Greenville Park. For example Lot 831 is now admitted by both sides to be outside the boundary of that park so that the letting in 1948 could only have been of six of the seven Lots plus the remainder of the Lots constitutes the Greenville Park. But this and other minor discrepancies did not result in ambiguity so that the plea of estoppel per rem judicatem could be met by the appellant. What was claimed was "the Greenville Park" and the judgment was "as claimed". 20. It was for these reasons that I was a party to the dismissal of the appeal with costs following the event. Representation: B. Bernacchi, Q.C. & M. Asome (J.S.M.) for Appellant. Jackson-Lipkin, Q.C. & R. Mills-Owens (W.K. Poon & Co.) for Respondent. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO.56 OF 1974 (On appeal from O.J. 619/73) -----------------
----------------- Coram: Briggs, Huggins & Pickering, JJ. Date of Judgment: ----------------- JUDGMENT ----------------- Huggins, J.: 21. In this action the Plaintiff seeks to establish his title to land in the New Territories. After much deliberation the parties agreed to the trial of a preliminary issue, namely whether the Plaintiff (to whom I shall refer hereinafter as "the lessee") was estopped by record from setting up a title to the land, there having previously been an action between the same parties in the District Court. The contention of the Defendant ("the lessor") was that in the previous action he had obtained judgment for possession of this land against the lessee. 22. The parties further agreed that the preliminary point should be decided upon the basis of specified documents and of a view by the judge. It is therefore surprising to find counsel for the lessee arguing on the appeal that the issue was one which could not have been decided in favour of the lessor on that basis and without other evidence. If that was counsel's view at the time I think it was improper for him to join in inviting the judge to undertake the trial of the preliminary issue on the terms agreed. At one stage it did seem to me open to question whether justice could be done between the parties without the hearing of further evidence, but the longer the argument continued the clearer it became to me that the judge had come to the right conclusion. 23. The preliminary issue raised a question of mixed fact and law, but the substantial dispute was one of fact - whether "the Greenville Park" of which the lessor claimed possession in the first action included the land which the lessee now claims. Mr. Bernacchi conceded that, if it did, an estoppel arose which would be a bar to the second action. 24. At the outset complaint has been made that the judge had regard to evidence other than that which it had been agreed he should consider. That additional evidence was adduced for the purpose of an interlocutory application in the action, but it was referred to by the judge in the judgment against which the present appeal is brought. More than that, he expressly stated that he had "accepted" that evidence. I think it is unfortunate that he should have referred to it, for by so doing he immediately opened up the possibility of an argument that he had (wrongly) taken it into account in reaching his decision. My first reaction was that he must have taken it into account. Mr. Jackson-Lipkin has persuaded me that he did not and that this evidence was mentioned merely in the course of a historical survey of the dispute up to date. When the judge parted from what he called "the background" and went on to decide the issue before him, he did not mention this evidence as a relevant factor, although he did specify the factors which, he said, had led him to his conclusion. It is manifest that at an earlier stage he had appreciated that he must disregard the additional evidence, counsel for the lessor having expressly conceded that he could not rely upon it. We should be slow to assume that the judge had forgotten the previous discussion of the matter. Even if he had gone outside the terms of the consent order, it may well be we could have said that no injustice had resulted and that it was clear he would have reached the same conclusion without the extraneous evidence, but it is not necessary to make any decision as to that. 25. At the root of the dispute between the parties lies an Agreement for a lease. It was for the lease of "an orchard", which was then described both by reference to lot numbers and by a boundary of bamboo trees. The judge was satisfied that the two descriptions were inconsistent, because the boundary of bamboo trees did not enclose one of the lots listed, yet, on the other hand, did enclose many more than the other six lots. Only four of the seven lots were contiguous and he was satisfied that "by no stretch of the imagination could [the seven lots] be said to be 'an orchard', or to form a unified entity". Clause 7 of the Agreement contained a restrictive covenant to protect the fung shui of an ancestral tomb, which covenant the judge justifiably said was inconsistent with the Agreement's having related only to the specified lots. This is obvious when one looks at a correct copy of the plans which formed part of the evidence in the case. (It is to be regretted that the copies put before us by the Appellant were very far from being correct.) Those plans tended to establish that "Greenville Park" was notoriously an entity at least from 1958 onwards, even though the precise boundaries have varied from time to time. The largest of the variations has resulted from encroachment upon Crown land to the north. In the District Court action it was admitted by the lessee that Greenville Park (in those proceedings described as "the Greenville Park") had been let to him under the Agreement for a lease and had been used by him as "an amusement park". More significant still is an affidavit sworn by the lessee himself from which it is apparent that "the Greenville Park" which he converted into an amusement park was not limited to the seven lots specified in the Agreement. 26. In my view the judge was right to conclude that the subject matter of the District Court action included the land which the lessee claims in the present action. By reason of the concession which has been made it is quite unnecessary to consider the many cases cited to us and I say no more than that I was not persuaded that the distinction between cause of action estoppel, issue estoppel and election estoppel is as nebulous as Mr. Bernacchi appeared to suggest. 27. I, too, would dismiss the appeal. Representation: |