Sung Mei Chi v. Stone Target Ltd.

CACV000056/1995

IN THE COURT OF APPEAL

1995, No. 56
(Civil)

_______________

H E A D N O T E

_______________

The plaintiff's case being that the defendant company had encroached on land of which she was the registered owner; the defendant admitting that it was in occupation of a portion of such land but seeking to justify such occupation by asserting a possessory title through limitation; and the plaintiff claiming possession of the portion of her land occupied by the defendant: it did not defeat her claim that she had been drawn by the defendant into an unsuccessful attempt to describe the location of the encroachment in survey terms.

____________

____________

Coram : Nazareth, V.-P., Bokhary and Mayo, JJ.A.

Date of hearing : 7 June 1995

Date of judgment : 7 June 1995

__________________

J U D G M E N T

__________________

Bokhary, J.A. (giving the judgment of the Court):

1. The plaintiff is the registered owner of a piece of land in the New Territories. She acquired it in March 1967. And it would seem to be of about 4,000 square feet in area.

2. In 1989 and 1990, the defendant company acquired a number of adjoining lots. One of those lots abuts the plaintiff's land.

3. Then in early 1981, the defendant set out to build a petrol station on its lot abutting the plaintiff's land.

4. As it turns out, however, part of the petrol station was built on the plaintiff's land. The extent of the encroachment is, it seems, about 800 square feet.

5. On February 9 this year, Findlay J gave judgment for the plaintiff for: (i) possession of the land encroached upon; (ii) $25,000 by way of damages for trespass; and (iii) costs on the High Court scale.

6. The defendant now appeals against the order for possession and the order as to costs.

7. By way of defence, the defendant relied on limitation. It asserted that it had been in undisturbed possession of the encroached land for a period of over 20 years preceding June 30, 1973. Why that is the relevant date does not matter. That it is the relevant date is not in dispute. Anyway, the judge found against that defence on the facts.

8. As to the claim for damages, the defendant disputed that the plaintiff suffered any damage. But the judge found on the facts that she had. And there is no separate appeal against the award of $25,000 damages if the defence of limitation fails.

9. On the question of costs, the defendant argues now as it argued below that even if it has to pay the plaintiff's costs, those costs should only be on the District Court scale. Furthermore, says the defendant here as it said below, the plaintiff should pay to it i.e. the defendant the difference between the costs which it incurred in the High Court and the lesser costs which it would have incurred if this case had been brought in the District Court, which is where the defendant says the case should have been brought. The judge considered it appropriate to award costs on the scale of the court in which the case was heard, the High Court.

10. We now have the defendant before us, repeating part of its arguments on limitation and all of its arguments as to costs.

11. As to limitation, only one ground of appeal was argued. It is the first ground of appeal. And it reads:-

"It was the Respondent's/Plaintiff's pleaded case that, since July 1991, the Appellant/Defendant had trespassed into part of Lot No. 2081B (R.P.) and that part of the land alleged to be trespassed into located East of the Eastern brick wall of the then existing Spanish house erected at the adjacent lot (i.e. an area within the dirt path). The Appellant/Defendant whilst admitted trespassed, by itself and its predecessors-in-title, into part of Lot No. 2081B (R.P.) averred that the area in its (and that of its predecessor-in-title) possession located at West of the Eastern brick wall of the said Spanish house and, at the same time, the Appellant/Defendant relied upon the provisions of the Limitation Ordinance as a defence. In support of her pleaded case, the Respondent/Plaintiff called oral evidence with a view to proving that the Appellant/Defendant had, since July 1991, erected a new concrete wall some 25'-30' East of the said Eastern brick wall (i.e. on an area within the said dirt path). In the premises, the learned trial judge erred in giving judgment in favour of the Respondent/Plaintiff for possession of an area West of the said brick wall, being an area not sued upon by the Respondent/Plaintiff."

12. Quite simply, there is nothing of assistance to the defendant in any of that. With his usual ability and perhaps an unusual degree of courage, Mr Leong has attempted to make bricks without straw.

13. The plaintiff's pleaded case could not be simpler. It was that she was the registered owner of certain land, and that the defendant was in occupation of a portion of her land. She asked for possession of the portion of her land occupied by the defendant and damages for trespass.

14. Equally simple was the substance of the defence raised. The defendant admitted that the plaintiff was the owner of such land, and that it was in occupation of a portion of it. It sought to justify such occupation on the basis that it was in possession of that portion under a possessory title arising by way of limitation.

15. But the defendant then muddied the water. Survey was not an issue. But the defendant behaved as if it was. And almost nothing is easier to muddy than issues as to survey in the New Territories. The defendant pleaded all sorts of particulars: talking about walls which had been demolished and replaced, dirt driveways and the Japanese occupation.

16. If the defendant chose to make its own defence complicated, that was its own lookout. But it could not by complicating its own defence legitimately complicate an extremely simple case brought by the plaintiff.

17. Unfortunately, counsel then representing the plaintiff - not Mr Chain who appears for her before us - allowed himself to be drawn into complication by pleading a Reply adding to it.

18. Once the genie was out of the bottle, confusion was soon twice confounded when further and betters particulars of the Reply were requested and then supplied pursuant to request.

19. The plaintiff's then advisers seem on this occasion to have lost sight of the wise plaintiff's rule that if you have a simple case you do not allow the defendant to complicate it for you. Fortunately, that lapse did not prove fatal in this case, although it might have delayed things a bit.

20. We cannot allow the plaintiff's simple claim to be defeated by complication created by the defendant. She is entitled to practical justice from the courts.

21. The judge displayed a sound awareness of survey difficulties in the New Territories. And he restored simplicity when he said:-

"The plaintiff is the owner of the disputed 800 odd square feet and the defendant is in possession of it without leave of the plaintiff. It is for the defendant to show that it is entitled to remain in possession. It seems to me that, looking at the evidence in the best possible light for the defendant, it has failed to do this."

22. The first ground cannot be brought into battery for the purposes of bombarding the plaintiff's claim however completely the complication which it entails may destroy the defence which it was for the defendant to make out.

23. The plaintiff was drawn into an unsuccessful attempt to describe the location of the encroachment in survey terms. But the attempt was as unnecessary as it was unsuccessful. Part of the defendant's petrol station encroaches on the plaintiff's land. The defendant knows which part of its petrol station does that. And that is enough.

24. With the failure of the first ground, which is only ground in regard to limitation, nothing remains in the appeal except the question of costs. And it seems to us that the judge was plainly right in regarding the plaintiff as perfectly reasonable in bringing this claim in the High Court.

25. The fact that the damages recovered came only to $25,000 is neither here nor there. It would not have mattered if the plaintiff had not sought any damages. Somebody was on her land and she wanted them off. Any substantial piece of land in the territory Hong Kong is of considerable value, and has considerable potential for increase in value. It was perfectly reasonable for the case to be brought in the High Court. The judge's order for costs is not only within his discretion, but is obviously the right one.

26. In these circumstances, it only remains only for us to acknowledge the skill with which Mr Leong presented his argument and, we might add, the charm with which he dealt with some rather barbed questions from the bench.

27. We dismiss this appeal.

[Costs]

28. It is not disputed that the plaintiff is entitled to the costs of the appeal. We award her the same.

Representation:

Mr Benjamin Chain (instructed by Albert K.K. Luk & Co.) for the plaintiff/respondent

Mr Alan Leong (instructed by Augustine C.Y. Tong & Co.) for the defendant/appellant