Wong Wai Ying Anita and Others v. So Kwai Chung and Another
Read the full judgment text of HCA 2580/2018 on BabelCite. This High Court CFI judgment was delivered on 5 December 2022.
1. The issue in this action is whether the Plaintiffs’ property is entitled to an easement of a right of way for passing and repassing over the Defendants’ property by vehicle or on foot.
Cited by 4 cases · Cites 3 cases
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HCA 2580/2018 [2022] HKCFI 3596 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2580 OF 2018 ________________________ BETWEEN
________________ Before: Deputy High Court Judge Kenneth Wong in Court Dates of Hearing: 6 to 10, 13 and 16 June 2022 Date of Judgment: 5 December 2022 _________________ JUDGMENT _________________ A. THE ISSUE AND BACKGROUND 1.The issue in this action is whether the Plaintiffs’ property is entitled to an easement of a right of way for passing and repassing over the Defendants’ property by vehicle or on foot. 2.The Plaintiffs are the co-owners of Section E of Lot No 2221 in Demarcation District 120 in Yuen Long, New Territories (“Lot 2221 SE”), on which a 3-storey house is erected (“the Plaintiffs’ Property”). It is located at Ma Tin Tsuen, Shap Pat Heung, Yuen Long. Ma Tin Tsuen is a village in Shap Pat Heung. The Plaintiffs’ Property is known as No. 456 Ma Tin Tsuen (“House 456”). 3.The 2nd Plaintiff, Madam Tang Choi Woon (“Madam Tang”) and 1st Plaintiff, Miss Wong Wai Ying Anita (“Miss Anita Wong”) are the registered owners in joint tenancy of the Ground Floor, the Garden appurtenant to the Ground Floor and First Floor of the Plaintiffs’ Property. The 3rd Plaintiff, Miss Wong Wai Shan (“Miss W S Wong”) is the registered owner of Second Floor and the Roof of the Plaintiffs’ Property. 4.The Plaintiffs are family members. The 2nd Plaintiff, Madam Tang is the mother of Miss Anita Wong and Miss W S Wong. They use the Plaintiffs’ Property as family home. 5.The Defendants are the registered owners as tenants in common of the Remaining Portion of Lot No. 2230 in Demarcation District 120 (“the Defendants’ Property” or “Lot 2230 RP”). It is a vacant lot with no building ever built thereon, and the Defendants have not made any use of it. 6.It is necessary to describe the locality of the Plaintiffs’ Property. A copy of the Lot Index Plan (No. LIP106670P) by the Survey and Mapping Office of the Lands Department attached to the Statement of Claim is annexed here (the “Plan”). The Court and the parties conducted a site visit in the afternoon of the second day of the trial. From what I saw, and as can be seen from the Lot Index Plan:
7.The Defendants’ Property lies immediately between the Plaintiffs’ Property and Shap Pat Heung Road. As was apparent during the site visit, if one wishes to drive from the Plaintiffs’ Property to the highway of Shap Pat Heung Road, the vehicle must pass through the Defendants’ Property. B. THE PLAINTIFFS’ CASE 8.The Plaintiffs purchased Lot 2221 SE from Mr Wong Kwok Ho as the vendor[2]. The purchase was completed on 18 July 2008. 9.Madam Tang first viewed Lot 2221 SE in 2006, when she was introduced to Mr Wong Ming Kwong, the 2nd Defendant. The 2nd Defendant showed her around Lot 2221 SE. At that time, Lot 2221 SE was a construction site where House 456 was being built. Mr Wong explained to her what the house would look like after completion. He also explained to her the perimeters of the house. 10.The 2nd Defendant told her that Mr Wong Kwok Ho was his son and he (i.e. Mr Wong Ming Kwong) was the beneficial owner of Lot 2221 SE[3] and could discuss the sales matter on behalf of his son. 11.Madam Tang told the 2nd Defendant that she liked Lot 2221 SE because it was convenient, close to the main road (i.e. Shap Pat Heung Road) and had room for parking cars of her family. 12.The 2nd Defendant assured Madam Tang that there would be a paved porch area for car parking. He pointed out the location of Lot 2230 RP to her and told her that it was the only ingress and egress from Lot 2221 SE to Shap Pat Heung Road, that it belonged to him and Madam Tang could freely use it for vehicle access to and from Shap Pat Heung Road without obstruction (the “D2’s Promise”). Thereafter, Miss Anita Wong also went to view Lot 2221 SE with Madam Tang. She was received by the 2nd Defendant and he also made the same promise to her. 13.In reliance of the D2’s Promise, Madam Tang and her two daughters decided to purchase the Plaintiffs’ Property. But for this promise, they would not have made the purchase. 14.Since completion of the purchase in July 2008, on the strength of the D2’s Promise, the Plaintiffs had parked their 2 vehicles in the front porch of House 456 and routinely used Lot 2230 RP as an easement of right of way to pass and repass with and without vehicle to and from the Plaintiffs’ Property (the “Claimed Right of Way”). It served as the main and only access from the Plaintiffs’ Property to Shap Pat Heung Road and vice versa. 15.The Plaintiffs’ use of the Claimed Right of Way met with no obstruction from anyone including the Defendants. 16.The use continued until 15 October 2018, when the 1st Defendant placed 6 concrete blocks right in front of the Plaintiffs’ Property. These concrete blocks blocked the paved porch area of House 456 and seriously hampered vehicle access to and from the Plaintiffs’ Property. The Claimed Right of Way was not completely blocked because of the position which the Plaintiffs parked one vehicle there. 17.The 1st Defendant posted a sign attached to the concrete blocks, stating thereon:
18.On 30 October 2018, the 1st Defendant placed 3 additional concrete blocks in front of the Plaintiffs’ Property, narrowing the access to and from House 456 further. As a result, one of the Plaintiffs’ vehicles which was parked in the Plaintiffs’ Property was trapped and could not be driven out. 19.I shall refer to the said two occasions of blockade by the 1st Defendant collectively as “D1’s Blockade”. 20.On 1 November 2018, the Plaintiffs obtained an interlocutory injunction from L. Chan J, which ordered the 1st Defendant to forthwith remove the D1’s Blockade and restrained the 1st Defendant from doing any acts which might hinder the Plaintiffs’ reasonable access through the Claimed Right of Way to the public road, failing which the Plaintiffs should have the liberty to remove the concrete blocks. The order also restrained the 1st Defendant from interfering with the Plaintiffs’ use and enjoyment of the Claimed Right of Way as marked in red on the Plan until trial or further order. This Court should note that this injunction continues and no application has been made to set it aside. 21.The Plaintiffs claim that in the above circumstances, the Defendants are estopped from denying that the Claimed Right of Way had been granted to the Plaintiffs since 2008. 22.The Plaintiffs say, further or alternatively, the Claimed Right of Way was and is an easement by necessity by reason that the Plaintiffs’ Property would otherwise be landlocked. 23.At the trial, the Plaintiffs through their counsel expressly dropped the claims for damages and exemplary damages, as well as their reliance on the doctrine in Wheeldon v Burrows as pleaded in paragraph 4(a) of their Reply to the Defence of the 1st Defendant. They only asked for a declaration in respect of the Claimed Right of Way and an injunction restraining the Defendants from interference of their use and enjoyment of the Claimed Right of Way. C. THE DEFENDANTS’ CASE C1. The 1st Defendant’s Case 24.The 1st Defendant denies the Plaintiffs’ entitlement to the Claimed Right of Way. 25.The 1st Defendant did not admit the D2’s Promise. Even if the 2nd Defendant did tell the Plaintiffs that they could use any part of Lot 2230 RP as an access road[5] for their vehicles to and from the Plaintiffs’ Property, this could only amount to a license or permission given by the 2nd Defendant to the Plaintiffs personally and not amounting to accommodating the Plaintiffs’ Property as a dominant tenement of any easement including the Claimed Right of Way[6]. 26.The D2’s Promise, if amounting to a grant of any interests, rights, permission and/or license to the Plaintiffs to do anything over or at Lot 2230 RP for any indefinite period, is not binding on the 1st Defendant[7]. 27.The D1’s Blockade or the 1st Defendant’s Defence had already revoked or revokes any grant of any such interests, rights, permission and/or license to the Plaintiffs by the 2nd Defendant which were not for any indefinite period[8]. 28.The Claimed Right of Way is not an easement of necessity because it is not the only ingress and egress to and from the Plaintiffs’ Property[9]. 29.The 1st Defendant admitted that he placed the D1’s Blockade. He nevertheless averred that it did not amount to any blockade of the Plaintiffs’ Property because there was no complete blockade[10]. C2. The 2nd Defendant’s Case 30.Mr Wong Kwok Ho, the vendor of Lot 2221 SE, was the registered and beneficial owner of Lot 2221 SE. He was not a trustee of the 2nd Defendant[11]. 31.The 2nd Defendant denied that in 2008, he told the Plaintiffs that the Plaintiffs could freely use the Defendants’ Property as an access road[12] for their vehicles to and from the Plaintiffs’ Property[13]. 32.The Plaintiffs have access to and egress from the Plaintiffs’ Property through Lot 2221 RP[14]. At all material times, the Plaintiffs could make use of Lot 2221 RP situate at the front door of the Plaintiffs’ Property to access to the main road. The Plaintiffs do not require to pass on the Defendants’ Property to have access. The implied easement claim fails for want of necessity[15]. 33.The 2nd Defendant also pleaded a flurry of other arguments in his Amended Defence[16] but they were not run (and indeed not mentioned at all) by his counsel at the trial. Therefore, they are taken to have been abandoned. D. UNDISPUTED FACTS 34.The following salient facts are not disputed:
E. D2’S PROMISE 35.In my judgment, for the reasons below, I find it to be more likely than not that the 2nd Defendant had made the D2’s Promise (as described in paragraph 12 above) to Madam Tang. In essence, before the Plaintiffs purchased the Plaintiffs’ Property, and before the Pre-Sale Agreement dated 8 September 2006, the 2nd Defendant orally assured and promised Madam Tang[21] that should she purchase the house then being constructed on Lot 2221 SE (now House 456), she could freely use the land in front of Lot 2221 SE (i.e. Lot 2230 RP) for vehicle access to and from Shap Pat Heung Road. I also find it to be likely that the 2nd Defendant also repeated the same promise to Miss Anita Wong who also went to view Lot 2221 SE with Madam Tang. She was received by the 2nd Defendant and he also made the same promise to her. 36.The Easement Clause in the Pre-Sale Agreement is telling. The title of this clause is “easement” or “right of way” (“路權”). It indicates that this clause concerns easement or right of way, which is not a licence which is terminable at will, and there is no indication from this title or in the clause itself that such easement or right of way is subject to limitation, e.g. time limit. In the clause, Mr Wong Kwok Ho as vendor promised (“保證”) to Madam Tang as purchaser that at the time of completion (“在成交時”), i.e. when the sale and purchase of the Plaintiffs’ Property is completed, there will certainly be (“定會有”) an access through which (“通道”) one could pass from (“由”) the property (i.e. the Plaintiffs’ Property) to (“通出”) public road (“政府馬路”) (the “Access”). 37.In the context of the Pre-Sale Agreement, it would be most extraordinary to say that such Access is limited to a walkway for people to walk on foot and excludes vehicle ingress and egress. Looking at the vicinity of Lot 2221 SE, the only nearby main public road was Shap Pat Heung Road. As mentioned in paragraph 34(8) above, it was expected to be completed in or around 2006, and the section of the Road immediately outside Lot 2230 RP comprises both pavement for walking and highway for vehicles. Therefore, in my view, the Access should include both walkway and driveway. 38.During the site visit, it is noticed that use of private cars is commonplace in the vicinity of the Plaintiffs’ Property, and private cars were parked around many houses as well as on the vacant sites of Section D of Lot 2230 and Lot 2230 SE as well as the subject Lot 2230 RP. 39.So on written record Mr Wong Kwok Ho had indeed made a promise to Madam Tang in the Easement Clause of the Pre-Sale Agreement. However, as mentioned in paragraph 34(7) above, there is no dispute on the fact that Madam Tang did not meet with Mr Wong Kwok Ho during the negotiation of the purchase of Lot 2221 SE and it was the 2nd Defendant who was responsible for this[22]. As such, the likelihood has to be that it was the 2nd Defendant who agreed with Madam Tang and promised to Madam Tang that there would certainly be a right of way through which she could pass from the Plaintiffs’ Property to the public road as in the Easement Clause. 40.As mentioned in paragraphs 34(8) and 37 above, the only public road nearby is Shap Pat Heung Road, which is connected to Lot 2230 RP at the entrance. There is no other way through which Madam Tang could walk or drive to Shap Pat Heung Road. 41.The problem for Mr Wong Kwok Ho as vendor was that he owned no other lot in the vicinity. Without the assistance of his father the 2nd Defendant, it was simply impossible for him to promise the availability of any access to Madam Tang so as to enable Madam Tang to drive or walk from Lot 2221 SE to Shap Pat Heung Road. In other words, it was simply not possible for Mr Tang Kwok Ho to have agreed to insert the Easement Clause into the Pre-sale Agreement, unless the 2nd Defendant also promised to give a right of way to Madam Tang, allowing her to walk or drive through his own lot, i.e. Lot 2230 RP to Shap Pat Heung Road. It was likely that in order to induce Madam Tang to buy the Plaintiffs’ Property, the 2nd Defendant made such a promise[23]. 42.Therefore, in my judgment, the 2nd Defendant did make the D2’s Promise, or otherwise his son Mr Wong Kwok Ho would have breached the Easement Clause. 43.This also explained why the 2nd Defendant saw fit to instruct[24] the contractor of Lot 2221 SE to build the Extended Wall as mentioned in paragraph 34(11) above. Given the D2’s Promise, which made Lot 2230 RP the right of way for Lot 2221 SE, there became no need for the 2nd Defendant to consider and provide other right of way to Madam Tang. 44.I do not consider it to be the case that at all material times, the 2nd Defendant and Madam Tang had ever had in mind to utilize Lot 2221 RP to serve as the right of way for Lot 2221 SE. This is because:
45.In paragraphs 6 and 11 of his witness statement, the 2nd Defendant states as follows:
46.I agree with Mr Sunny Chan for the Plaintiffs that the agreement for sale and purchase reached between the 2nd Defendant and Madam Tang, referred to in paragraph 6 of his witness statement cited above, is in fact the Pre-Sale Agreement (the one which includes the Easement Clause), instead of the two formal agreements for sale and purchase that the 2nd Defendant (as Mr Wong Kwok Ho’s attorney) signed with Miss W S Wong (on 29 May 2008) and Madam Tang and Miss Anita Wong (on 18 July 2008) respectively. 47.As such, in light of the Easement Clause, it would be very much the fact that the 2nd Defendant had promised Madam Tang that the Plaintiffs could use Lot 2230 RP as the access to the Plaintiffs’ Property. As Madam Tang purchased House 456 as residence of her family, the purchase is on a permanent basis, i.e. lasting for the remaining term of the Government lease, and (on the above analysis) Lot 2221 RP was not and there was no other alternative access, in my judgment, the 2nd Defendant must have made the D2’s Promise. Lot 2230 RP must have been promised by him to serve as a right of way for Lot 2221 SE. 48.Therefore, the last sentence in paragraph 11 of his witness statement cited above (which says no right of way or otherwise was granted by me to the Plaintiffs) is nothing but a clunky denial which is inconsistent with what he said in the rest of paragraph 11 and paragraph 6 and cannot withstand the scrutiny as analysed above. 49.In conclusion, based on the above analysis, I do accept the evidence of Madam Tang and Miss Anita Wong on the making of the D2’s Promise. I find it to be likely that when the 2nd Defendant respectively showed Madam Tang and Miss Anita Wong around Lot 2221 SE in 2006, Madam Tang and Miss Anita Wong had emphasised to him the importance for Lot 2221 SE to have vehicle access to and from the public road and in response, he represented to Madam Tang and Miss Anita Wong by pointing out to them the old Lot 2230 RP (then comprising the current Sections D and E, Lot 2230 and Lot 2230 RP) and stating that he was the owner and assured them respectively that if they purchased Lot 2221 SE, Lot 2230 RP will serve as the access. I make the finding as set out in paragraph 35 above. 50.I therefore also accept the evidence of Madam Tang and Miss Anita Wong that if the 2nd Defendant did not make the D2’s Promise as to the Claimed Right of Way, Madam Tang would not have bought the Plaintiffs’ Property. This is also supported by the fact that since completion of the purchase in 2008, the Plaintiffs have continuously driven their cars in and out of the Plaintiffs’ Property through Lot 2230 RP without any interruption for more than 10 years. If before the Pre-Sale Agreement Madam Tang was told that she would not be allowed to drive in and out through Lot 2230 RP, and that there would be no other alternative access for driving to and from the public road, it would be very likely that she would not have purchased the Plaintiffs’ Property. 51.If Madam Tang was told before signing the Pre-Sale Agreement that although she could drive through Lot 2230 RP for now, this is a temporary measure only and one day the Defendants would have the power to terminate the arrangement and stop her and her family to drive through the Defendants’ Property again. Bearing in mind there was no other access that she could drive through to the public road, it is likely that that she would also not have bought the Plaintiffs’ Property. 52.I shall now deal with the legal question, namely, given the above findings of fact, whether an easement or right of way in a proprietary nature has been established by the Plaintiffs, so that the Defendants are estopped from denying the Plaintiffs’ right to go pass and repass Lot 2230 RP for access to and from the Plaintiffs’ Property e.g. by erecting a blockade. F. PROPRIETARY ESTOPPEL 53.The Court of Final Appeal in Cheung Lai Mui v Cheung Wai Shing (2021) 24 HKCFAR 116 has summarized the principles as follows:
54.Based on the facts as found above, in my judgment, an equity arises in favour of the Plaintiffs because the elements of proprietary estoppel has been established:
55.In all the circumstances of this matter as described above, including also that Lot 2230 RP is vacant and serves as the only access to Shap Pat Heung Road for cars from the Plaintiffs’ Property, I consider that it is proportionate and appropriate to grant the declaration of the Claimed Right of Way. 56.Mr Yan Kwok Wing, counsel for the 1st Defendant, submitted that since the 2nd Defendant is only a co-owner of Lot 2230 RP, his promise to Madam Tang should not be held binding on his client. Hence the remedy of estoppel should not be made available to the Plaintiffs. First he relied on a footnote in Gale on Easement by Jonathan Gaunt QC and the Honourable Mr Justice Morgan, 21st ed.:
57.Second he relied on Deputy High Court Judge Stewart Wong’s judgment in Cheung Leung Tak v 張秀雯 and Cheung Chi Hung [2018] 5 HKLRD 579, which I shall quote from paragraph 44 to paragraph 54:
58.I have the following observations:
59.Taking into account the 1st Defendant was not a party involved in the sale and purchase of House 456, his awareness of the use by the Plaintiffs of Lot 2230 RP as vehicle access for many years, and other matters mentioned in paragraphs 54, 55, 57 and 58 above, I remain of the view that it is appropriate and proportionate to grant the declaration of the Claimed Right of Way. Because of the D1’s Blockade, which would become unlawful in light of declaration that I am minded to grant, I consider just and appropriate to grant the injunction as sought in the Statement of Claim. G. IMPLIED GRANT OF NECESSITY 60.This topic can be disposed of quickly. As set out in paragraph 44 of Cheung Leung Tak, following the English Privy Council’s judgment in Manjang v Drammeh (1991) 61 P. & C.R. 194, the threshold requirement for an easement to arise by an implied grant by necessity is that there has to be found a “common owner” of a legal estate in two plots of land. The two plots of land in the present case, Lot 2221 SE and Lot 2230 RP, do not have a common owner. At the material time in 2006 when the D2’s Promise was made, Lot 2221 SE was owned by Mr Wong Kwok Ho and Lot 2230 RP was owned by the 1st Defendant and the 2nd Defendant as tenants in common. The two plots have no common owner. Therefore, no easement may come into place by implied grant of necessity, despite there is no doubt that apart from Lot 2230 RP, there is no other access to serve Lot 2221 SE. H. DISPOSAL 61.For the above reasons, judgment shall be entered in favour of the Plaintiffs against the Defendants, and I make the following order:
62.I further make an order nisi on that costs of the action (including those costs reserved) be paid by the Defendants to the Plaintiffs, to be taxed if not agreed. The order shall become absolute unless a party applies for variation within 14 days from the date of this Judgment. 63.I thank the parties’ counsel for their assistance.
Mr. Sunny Chan instructed by Messrs K.C. Ho & Fong for the 1st to 3rd Plaintiffs Mr. Yan Kwok Wing instructed by Messrs. Ho & Partners for the 1st Defendant Mr. George Chu instructed by Messrs. Leung Kin & Co. for the 2nd Defendant [1] Recently, by a Deed Poll dated 31 March 2022, the 2nd Defendant divided Lot 2221 RP into 2 pieces and named the piece abutting Lot 2221 SE Lot 2221 SG. See paragraph 44(5) below. [2] Precisely, as mentioned in paragraph 3 above, Madam Tang and Miss Anita Wong purchased from Mr Wong Kwok Ho Ground Floor, the Garden appurtenant to the Ground Floor and First Floor of House 456, and Miss W S Wong purchased from Mr Wong Kwok Ho Second Floor and the Roof of House 456. [3] This assertion is denied by the 2nd Defendant. The analysis, as will become clear in the sequel, does not require me to determine the veracity of this assertion. [4] There was no certified or agreed translation adduced. [5] In my view, it is apparent from the site visit that the description of Lot 2230 RP for the Claimed Right of Way as “access road” in paragraph 7(b)(i) of the 1st Defendant’s Defence is inaccurate. Lot 2230 RP is small and its surface is by itself undulating and uneven. It is not at a road and cannot be as such. Although to get into the Plaintiffs’ Property from Shap Pat Heung Road, or vice versa, one must get through Lot 2230 RP, it only takes, as I would reckon, a few seconds for a vehicle do so. [6] paragraph 7(b)(i) of the 1st Defendant’s Defence [7] paragraph 7(b)(ii) of the 1st Defendant’s Defence [8] paragraph 7(b)(iii) of the 1st Defendant’s Defence [9] paragraph 7(d) of the 1st Defendant’s Defence [10] In my view, this argument (effectively saying, “an incomplete blockade is not a blockade”, like “half an orange is not an orange”) is vexatious, frivolous and futile. In any event, this plea is not relevant to the main issue as to whether the Claimed Right of Way exists. If the Claimed Right of Way is established, there is no doubt that the D1’s Blockade constitutes unlawful interference of the right of way. [11] paragraph 4(b) of the Amended Defence of the 2nd Defendant [12] See Footnote 5 above. [13] paragraph 5 of the Amended Defence of the 2nd Defendant [14] paragraph 5 of the Amended Defence of the 2nd Defendant [15] paragraph 5C of the Amended Defence of the 2nd Defendant [16] They include (a) want of particularity in paragraph 5A of the Amended Defence, (b) no sufficient period of accrual at common law in creating any claim on prescription in paragraph 5B of the Amended Defence (Nonetheless this Court did not notice that the Plaintiffs have pleaded or relied on prescription.), (c) Article 6 of the Basic Law in paragraph 6B of the Amended Defence, (d) sections 3(1) and 3(2) of the Conveyancing and Property Ordinance, Cap. 219 and the rule under Walsh v Lonsdale in paragraphs 6C and 6D of the Amended Defence. [17] This agreement was produced by Madam Tang when she was cross-examined by the 1st Defendant’s counsel. This appears to me not too much of a surprise to the Defendants. Firstly, at page 222 of the Trial Bundle B there was a bill dated 7 September 2006 (one day before this agreement) from Messrs John Chan & Co., Solicitors to Madam Tang, in respect of Lot 2221 SE. Works done by the solicitors in that bill include “2. preparing the pre-sale and purchase agreement in Chinese” and “3. attending signing of document” “(items 2 & 3), 1/2 share”. This probably means Messrs John Chan & Co were instructed to prepare this pre-sale agreement and attend its signing, and “1/2 share means the legal costs were to be shared between Mr Wong Kwok Ho as vendor and Madam Tang as purchaser. The signing was witnessed by a clerk of the firm. Secondly, during cross-examination, the 2nd Defendant admitted that the agreement was signed at the office of Messrs John Chan & Co. [18] Therefore, the recital of the agreement described the manner of this sale as “預售樓花” (pre-sale of residential property). Probably it was also for this reason that the agreement was called “預售合約” (Pre-Sale Agreement). [19] The 2nd Defendant recalled in his evidence that heavy construction vehicle utilized the entrance at Lot 2230 RP for transportation of construction material. [20] Paragraph 6 of Witness Statement of the 2nd Defendant [21] In the Statement of Claim, paragraph 4, it was pleaded that the 2nd Defendant made this promise to the Plaintiffs in 2008 and the Defendants are stopped from denying the Claimed Right of Way. The 1st Defendant’s counsel took a pleading point and submitted that the Plaintiffs cannot now say the promise was made in 2006. I reject this argument. Firstly, all the material facts have been pleaded in the Statement of Claim. Secondly, with the production of the Pre-Sale Agreement (which all parties have failed to discovered earlier) at the trial during cross-examination of Madam Tang, it has now become incontrovertible that the relevant negotiation between the 2nd Defendant and Madam Tang took place before the signing of the Pre-Sale Agreement in 2006. No party expressed surprise. No party suggested that further investigation was necessary. [22] During cross-examination, the 2nd Defendant accepted that he was the only person who negotiated with Madam Tang. He said he attended the office of Messrs. John Chan & Co. with his son Mr Wong Kwok Ho for signing of the Pre-Sale Agreement. He said he brought his son to the solicitors’ office because Mr Wong Kwok Ho did not know the place. [23] During cross-examination, when the Plaintiffs’ case was put to the 2nd Defendant, he denied barely the existence of the D2’s Promise. However, he could not explain how the Easement Clause came into the Pre-Sale Agreement. He only said he was not a party to the Pre-Sale Agreement. In my judgment, this is plainly unbelievable, given that he was responsible for the negotiation of the sale to Madam Tang and the construction of House 456, accompanied his son to sign the Pre-Sale Agreement, and even signed the two formal agreements for sale and purchase and executed the Assignments on completion as his son’s attorney. [24] See paragraphs 45 to 46 below. It can be inferred that after the Pre-Sale Agreement, the 2nd Defendant gave instruction to extend the wall into Lot 2221 RP to separate the two houses at Lot 2221 SE and Lot 2221 SD. [25] The 2nd Defendant states at paragraph 6 of his witness statement that, “I also thought the extended portion of the wall [i.e. the Extended Wall] could be removed for access purpose whenever necessary.” He did not say this was an agreement that he reached with Madam Tang. This was only his “thought”. Therefore, this statement is really neither here nor there. The fact that the Extended Wall has never been removed since its erection in 2008, which means that it remains as a block for access for the last 14 years, speaks for itself. Moreover, even if the Extended Wall were removed, as mentioned in paragraph 44(3) below, two gates still stand in the way. Lot 2221 RP always remains blocked and not accessible. [26] During cross-examination, the 1st Defendant, rightly in my view, accepted that there can be no access to the main road without committing trespass against Lot 2223 and Lot 2224. [27] During cross-examination, the 2nd Defendant, also rightly in my view, accepted that Lot 2221 RP does not provide an egress. [28] The last sentence of paragraph 6 of the 2nd Defendant’s witness statement. See Footnote 25 above. [29] This is not to mention that Lot 2221 RP (before it was divided) could not serve the Plaintiffs as an access from Lot 2221 SE to the main road, i.e. Shap Pat Heung Road. [30] Paragraph 13 of the 1st Defendant’s witness statement [31] See Footnote 5 above. | ||||||||||||||||||||||
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