Cheng Sau Ching, Helena and Another v. Fleetwood Investment Ltd.

HCA004524/1992

Case No: A4524 of 1992

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Findlay, in Court.

Dates of hearing: 27, 28, 29, and 30, September, 3, 4, and
                  5 October 1994.

Date of handing down of judgment: 19 October 1994

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JUDGMENT

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The Dispute

1. This dispute is about a right of way vested in the plaintiffs as owners of a dominant tenement over servient tenements owned by the defendant. The plaintiffs say that the defendant has interfered with their enjoyment of the right of way. They claim a declaration, mandatory and prohibitory injunctions, damages, including exemplary damages, interest and costs.

The Background

2. In 1956, four attached buildings were erected on a terrace above Robinson Road. These buildings were numbered 109, 109A, 109B and 109C Robinson Road, and each rested on a Section of Subsection 1 of Section A of Inland Lot No. 946. Each building is four storeys high over car ports. They are somewhat unusual for buildings of their size in Hong Kong in that the floors within the buildings each have both a front and rear means of access.

3. The plaintiffs are sister and brother. They are the registered owners of a one-quarter share of Section A of Subsection 1, which is 109C. They have the exclusive right to "use, occupy and enjoy" the third floor of the building.

4. The defendant is the registered owner of 109, 109A and 109B Robinson Road. It is also the owner of an adjoining property at 64 Conduit Road. The defendant is erecting a large residential building complex on these sites.

5. As owners of 109C, the plaintiffs enjoy a right of way over 109, 109A and 109B. This right is expressed as "a full right and liberty for ... the owners and occupiers of ... [109C] ... their servants and licensees (in common with all others having the like right) at all times ... by day or night for all purposes connected with the use and enjoyment of ... [109C] ... to pass along over and upon those portions of ground ... [marked on a plan] ...". So far as it is relevant to this action, the right of way runs from the boundary of 109C for about 103 feet 6 inches from north to south along the eastern boundary of 109, 109A and 109B, being along the back of the buildings that were on those sites, and then for about 85 feet from east to west along the southern side of 109. The total area is about 942.5 square feet.

6. The first plaintiff, Madame Helena Cheng is married to Mr Chow Cham Leung. 109C was assigned to Mr Chow's first wife in 1976. Later, 109C was assigned to Mr Chow's daughter and, in 1986, to the plaintiffs. Mr Chow and his family lived at 109C from 1976 to 1986. Mr Chow said that he moved out of 109C in 1986 because it was no longer as auspicious. In 1986, the property was leased for two years and then occupied, from time to time, for short periods by companies shooting films. It was then leased again for one year from 1 August 1991 to the end of July 1992. Presently, it is licensed again for filming purposes.

7. The defendant decided to seek to develop 109 Robinson Road and the site on Conduit Road, which is contiguous. Between August and November 1988, the defendant acquired 109, 109A and 109B Robinson Road and the Conduit Road land. It attempted also to acquire 109C. It agreed with owners of ground floor and the first floor to purchase those properties for $14 m. Negotiations with the plaintiffs to purchase the third floor were unsuccessful. Mr Chow, who was negotiating on behalf of the plaintiffs, wanted $22 million, which I find was far in excess of any reasonable valuation of the plaintiffs' share of 109C. The defendant decided to proceed with the development excluding 109C from the scheme.

The Sequence of Events

8. In January 1989, the defendant asked Mr Anthony Lawrence, an expert on matters concerning the Building Authority, for comments and recommendations on measures to safeguard the interests of owners 109C. He inspected the site twice in January and February 1989.

9. Mr Lawrence said that he noted that the rear staircase 109C discharged onto what had once been a service lane at the south side of 109, 109A and 109B. The lane was obstructed at the north-eastern corner by a locked gate so he could not gain access to it. From the condition of the lock on the gate, growing vegetation and spider webs, he formed the opinion that the lane had not been used for some time.

10. Mr Lawrence was aware of the existence of the right of way, but he is an expert on the Buildings Ordinance and Regulations, not a lawyer, and he concerned himself with what would satisfy the Building Authority in relation to providing a satisfactory route from the back of 109C. He believes he proposed what has been called the diversionary lane running to the front on 109B along the side of 109C, but he says that it may be that the defendant already had this in mind when he was consulted. This diversionary lane, which was intended to be in substitution for the existing route of the right of way, was included in the plans for the development scheme submitted to the Building Authority. These plans were approved. Mr Lawrence said that he believed that the diversionary lane was more satisfactory as a way than the existing way because it was over a shorter, more direct route, and was safer because it had no corners around which an ill-intentioned person might lurk. In response to a suggestion that this way might pose a fire hazard if 109C was burning in the front, he said he did not accept this, and added that the Building Authority would not have approved it if it had not been safe.

11. Mr Lawrence had long experience in the office of the building authority and he said that diversionary lanes proposed by developers in substitution for existing ways over which rights of way were exercisable were quite frequently imposed as conditions of building approval. Although he knew that the Building Authority had no authority to relax a right of way, and this was well known, he could not recall any case where a diversionary lane had not proved acceptable to the users of a right of way.

12. The defendant's attitude to the diversionary lane and the right of way was, as described by Mr Lau Chi Keung, the defendant's manager, the same as that of Mr Lawrence. Mr Lau knew of the right of way, but it did not occur to him that the plaintiffs might find the substitution of the diversionary lane for the existing way to be objectionable. This sort of substitution was common practice, and he believed that the right of way was not being used. He did not take legal advice of the defendant's scheme, which he knew would permanently obstruct the route over which the right of way existed. This was not a deliberate decision; the problem did not enter his head

13. The first activity on the building site seems to have been in early 1990 when a contractor entered for the purpose of testing the sub-soil. Mr Yip Kwok Wing gave evidence about this. The buildings were still there then. He said that the metal gate at the north-eastern corner was securely closed, and that it was evident from the appearance of the gate and the difficulty of breaking it open that it was not in good condition. In February or March 1990, a platform was erected on the south side of the buildings on the way. Testing started on 12 March, but was suspended on 13 March because an occupant of 109B complained that the platform obstructed a door. So the platform was removed. Work resumed on 8 June 1990 after the complainant vacated 109B. The platform was again erected. Work was completed in July 1990. No hoarding was then erected on the site. It is clear that the platform would have interfered with the use of the right of way.

14. In March 1990, Mr Wong Lau of the contractor employed to demolish the buildings on 109, 109A and 109B inspected the site. Mr Wong saw the platform erected on the right of way and an open metal gate on the east side. In April 1990, the contractor entered the site to commence work. In late July 1990, hoarding was erected around the site. Mr Wong says the hoarding completely blocked the lane on the north side. He says that towards the end of September, just before the demolition work was complete, a request was made to another of the contractor's employees to fit a movable panel in the hoarding near 109C. This was done, but, he says, the right of way was still blocked by the hoarding on the north side. He says there were not two movable wooden panels in the hoarding to allow use of the right of way

15. Mr Chow says that in May 1990 he noticed the demolition work being carried out on 109, 109A and 109B. He noticed hoardings at the front of the site, but not at the ends. He used the right of way and the back entrance to 109C. He found wooden partitions across the way with planks functioning as doors which could be opened by unlooping some wire. He was able to go through the way without difficulty. This was after the demolition work was complete; he did not use the way during demolition work because this would have been dangerous.

16. In July 1990, Mr Chian Yiu Hing was instructed to fit a meter box at the site. He went to the site in late July 1990. The buildings were then being demolished. The front was fenced off with hoarding, and he had to enter the site through a central opening. He placed the meter box so that it effectively blocked the lane. He said that one could pass the box, but only with considerable difficulty.

17. Mr Yip Tung Keung told me that he stored building materials on the vacant site of 109, 109A and 109B from about April 1991. He says that when he first entered the site the whole of the frontage was blocked by hoarding. To gain entry he had to force one of the planks. The rear entrance to the back of 109C was blocked by a movable panel. He used the site until late July 1991.

18. In October 1991, the caisson contractor took possession of the cleared site. Mr Cheung Hon Leung told me that the whole frontage was then fenced with hoarding; there was one plank near the centre secured with nails. In April 1992, he was told to erect a temporary lane next to 109C, which he did.

19. Following a report from his wife, Mr Chow went to the site on 30 January 1992. He saw that holes were being dug on the way, and that there were heaps of building materials and debris blocking it.

20. On 19 February 1992, the plaintiffs' solicitors wrote to the defendant complaining that:

1. The emergency fire escape route from the rear entrance of 109C Robinson Road through the rear lane of the building has been blocked or fenced off by wooden petition [sic] or planks;

2. The whole of the said escape route and the rear lane which forms the common right of way has been blocked by heaps of building materials or debris; and

3. There are large holes on the ground surface of the rear lane which are the result of the bore hole tests carried out by your company's agent the construction company that carries on the construction and demolition works."

21. The defendant responded to this letter by a letter dated 2 March 1992 saying that it had made provision for the diversionary lane and that it would make a temporary lane available within two weeks.

22. The plaintiffs' solicitors replied by letter dated 1 April 1992 saying that the defendant's proposal was unacceptable, and demanding removal of impediments on the original right of way.

23. On 23 April 1992, defendant's solicitors wrote to plaintiffs' solicitors saying that:

(1) the plaintiffs had not before complained that the site had been fenced off by wooden hoarding since about April 1990;

(2) the defendant had provided a temporary diversionary lane and this would be made permanent;

(3) the defendant would suffer great loss if it were required to restore the original lane; and

(4) the defendant would consider "any reasonable suggestion" regarding a monetary payment.

24. On 6 July 1992, the plaintiffs issued a writ against the defendant.

25. On 21 July 1992, the plaintiffs issued an inter-partes summons claiming an injunction. This summons was heard on 25 August 1992 and an order was made by consent. This order provided that the defendant would not submit at the trial that the plaintiffs' claim for a mandatory injunction should be affected by the plaintiffs electing not to proceed with the application for an interim injunction. The consent order also provided that -

"the defendant will not at the trial rely on any additional hardship which may be occasioned to the defendant by reason of -

(1) the defendant's continuation with the construction of the building at 109-109B Robinson Road between the date of the Order and the trial and

(2) any building on the said way which may have been done between the date of the Order and the trial would have to be pulled down or filled up."

26. The defendant did continue with the construction of the development on 109-109B Robinson Road and Conduit Road. However, in November 1992, it caused its building plans to be amended and obtained the approval of the Building Authority for the construction of a lane in much the same position as the way. The construction of this lane was complete in June 1993. The diversionary lane was completed in permanent form in September 1994.

27. In order to make provision for the lane in the position of the way, the defendant was obliged to reduce the number of parking spaces in the new building by 11, incur expense in the sum of $5.35 million to change the building to allow for the lane and to suffer a delay of about 71/2 months.

28. According to Mr Lawrence, the southern section of the new lane built to provide for the right of way is 1.8 metres wide, compared with a 1.5 metres width of the former passage. The eastern section is 1.5 metres wide; the same as the old passage. The alignment of the southern section is exactly the same. The alignment of the eastern section is .3 metres different. The position and elevation of the entrance and exit are the same. The gradients are about the same, so the steps are much the same. The new passage is well lit .

29. We visited the site on 27 September 1994. I saw that the southern section of the passage was covered with wooden planks. These will be removed on completion of the development, and then, above the passage, for about half its length will be a ramp to allow access to the building from Conduit Road. This ramp will not interfere with the use of the passage. The eastern section of the passage is in the form a tunnel and is of a height adequate for normal use. The diversionary lane was complete and adequate for normal use. This lane is open to the skies

The Pleadings

The Plaintiffs' Case

30. The plaintiffs say that between mid-1991 and 29 January 1992, the defendant wrongfully caused or allowed buildings works to be done on the right of way in the form of making bore holes for caisson piling, and wrongfully caused or allowed building materials and debris to obstruct the right of way and the plaintiffs' lawful enjoyment of the right of way.

31. They say that between 30 January 1992 and 4 July 1992, the defendant caused or allowed wooden partitions to be put across the right of way completely obstructing any passage through the way and the plaintiffs' lawful enjoyment of the way.

32. Despite demands commencing 19 February 1992, the plaintiffs say the defendant has continued wrongfully to obstruct the way thereby restricting, preventing and interfering with the plaintiffs' enjoyment of the way

33. According to the plaintiffs, they have been disturbed in their enjoyment of the right of way and have suffered damage under section 17 of the Supreme Court Ordinance, Chapter 4.

34. It is said that the defendant has wrongfully obstructed the free use by plaintiffs, their tenants or licensees of the way for access to and egress from the property. In particular, they have been prevented from using the way as a fire escape in the event of fire in the northern end of the property.

35. By reason of acts and continuance of nuisance, the plaintiffs plead they have suffered loss and damage. In this context, the plaintiffs say that, on assumption that damages are awarded in lieu of an injunction, they claim damages to be estimated by court as equivalent to a proper and fair price payable for the acquisition of the right of way, being based on profit the defendant expects to make from redevelopment. They also claim the cost of abating the nuisance, being the cost of repair and reinstatement of the way to enable plaintiffs and others to pass over the way.

36. They claim:

1. A declaration of their entitlement to the right of way.

2. An injunction to restrain the defendant from building upon the right of way.

3. An injunction to restrain the defendant from obstructing the right of way.

4. An order to remove buildings etc. and restore the right of way.

5. Damages and interest under section 17.

6. Compensatory damages for nuisance.

7. Exemplary damages.

The Defence

37. The right of way vested in plaintiffs is admitted, although this admission was made only in July 1994.

38. The lane at the southern and eastern sides of the site was effectively but temporarily blocked from June 1990 until 4 June 1993

39. A platform was in place on the way during June 1990 and July 1990.

40. A hoarding for the demolition work was there from July 1990.

41. A meter box was in place on the way from July 1990.

42. Caisson work commenced on the site in October 1991.

43. Since April 1992, the defendant made a lane available on a neighbouring property to pass more directly and effectively to the front. It will continue to make it available.

44. Since 4 June 1994, the defendant has made a second lane available in the same or substantially the same position as the original lane to enable plaintiffs to have access and egress in practically and substantially the same manner. This will remain available.

45. The defendant avers that the lane was blocked for a very long period of time prior to the commencement of works by the metal gate at the north-eastern end.

46. Neither plaintiffs nor tenants or occupiers used the lane for a long period of time.

47. Since 1988, Mr Chow was aware that the defendant intended to erect a new building on the site.

48. From 5 January 1989, it was evident to Mr Chow from a drawing made available to him on that date that the right of way was to be built on.

49. Mr Chow visited 109C about 8 to 10 times per year between 1988 and mid 1991, and he must have had knowledge of the obstructions, but the plaintiffs made no complaint.

50. The defendants deny the plaintiffs suffered any damage or loss.

51. The plaintiffs entitlement to exemplary damages is denied.

52. The defendant pleads that it was seriously prejudiced by plaintiffs' laches delay and acquiescence.

53. Any injury suffered by the plaintiffs was minimal and temporary.

54. The defendant claims vacation of a registered lis pendens.

55. The defendant says that the last occasion the First Plaintiff used the right of way was in 1989, that the Second Plaintiff has not used it since 1986 and Mr Chow last used the way in mid-1991.

Plaintiffs' Reply

56. The diversionary lane would not be effective if there were a fire in the front part of 109C.

57. The gate at the north-eastern corner of the way was there from 1976 to March or May 1990. The gate was for security purposes. The plaintiffs had keys.

58. The first plaintiff and Mr Chow visited 109C about ten times a year from 1988 to mid-1991, but had no knowledge of any substantial interference with right of way until 29 January 1992.

Assessment of the Evidence

59. The only evidence given on behalf of the plaintiffs was that of Mr Chow. There was no suggestion that the plaintiffs themselves were unavailable to give evidence, or that other relevant evidence was not readily to hand.

60. Mr Chow gave evidence of his thoughts, views, feelings and intentions. He is not a plaintiff. I was not given any reason why I should equate Mr Chow's mind with that of the plaintiffs.

61. I was left feeling uncomfortable by the evidence of Mr Chow. He was not an impressive witness. He had a tendency not to answer questions in a direct and straightforward manner. He was evasive. His evidence was punctuated by unjustifiable pauses before he answered. The content of his evidence was equally unimpressive. He is not stupid; he is an intelligent and successful businessman.

62. Mr Chow was faced with a dilemma and I believe he fully appreciated this. He knew that if he said that the right of way was in use and was obstructed before January 1992, he would have difficulty in explaining why he had done nothing about this before the plaintiffs' solicitor's letter of 19 February 1992. Such conduct might be taken as acquiescence. So, he said, he had used the way on his visits to the property, but the way had not been obstructed. He says that he visited the property about ten times a year from 1988 to the middle of 1991. He speaks specifically of a visit in the middle of 1990. He describes in some detail how he was able to negotiate the way using the wooden doors in the hoarding unlooping the wire fastenings. He did not complain about this because there was no interference with the right of way. In cross-examination, his evidence about this became confused. In re-examination, it became clear that what he was saying was that the wooden doors allowed passage only from east to west unless a door was unfastened. Although he says he did not complain about this, the first complaint recited in the solicitor's letter of 19 February 1992 is that the way had been blocked by "wooden petition or planks".

63. There are further unsatisfactory aspects to his evidence.

64. He gave evasive and contradictory evidence regarding speaking to a certain Madame Woo.

65. In his affirmation, it is stated clearly that he had not seen the platform on any of his visits. If he had seen it, he would have complained. In evidence, he said that in June or July 1990, he had seen the platform on a visit, but it was only temporary so he did not complain. Shortly after, on another visit, the platform had been removed.

66. He says during his visits from 1988 and before the one on 30 January 1992, the way was not obstructed in any way. He says he could not enter while the demolition work was going on, but he could do so when it was over. He was evasive on this point under cross-examination.

67. I find that I cannot accept that Mr Chow found that the right of way was always unobstructed before 30 January 1992. On his own evidence, the way was obstructed during the demolition works, while the platform was in place and, in one direction anyway if the doors were fastened, while the hoarding was there.

68. Mr Chow knew about the defendant's plans to redevelop the sites. He had a special interest because the defendant had negotiated with him in connection with the scheme. He saw a considerable degree of activity associated with the redevelopment. He knew that there was a substantial degree of obstruction of the way for a considerable period prior to 30 January 1992, and he did nothing about it. He says the right of way was very important to him. Essentially, he says that, without the right of way, he could not use 109C. I cannot believe that, on his version of events, it did not occur to him to wonder, at least, what was to become of the valuable right of way. Yet, he did nothing about this situation until the solicitor's letter of 19 February 1992. The only reasonable inferences to draw from this is either he did not care about the obstructions or he saw an opportunity, if he delayed making a complaint, to put pressure on the defendant to pay out a large sum of money. The charitable inference is that the obstructions of the way mattered not.

69. In the result, I do not trust Mr Chow, and do not think I can place reliance on what he says.

70. I accept the evidence of the other witnesses to the facts I have outlined.

The Right of Way

71. The right of way is situated on land belonging to the defendant. The right detracts from the usual rights of ownership vested in the defendant only to the extent necessary for the plaintiffs to exercise their right of way. The defendant may, within the limits the law allows, do what it wishes with its own land so long as what it does is not inconsistent with the use of the right of way.

72. There is no doubt that what the defendant did on the land over which the right of way existed had the potential to interfere substantially with the exercise of that right. On the evidence and the defendant's pleadings, the way over which the right could be exercised was effectively blocked for a substantial period of time. But this is not enough to get the plaintiffs home. To succeed, the plaintiffs have to show, not only that the way was being used inconsistently with their right of way, but also that they sought to exercise their right and they were unable to do so. Clearly, this point is appreciated by Miss Yuen: She says in her written outline of plaintiffs' final submission - "Cause of action accrued in January 1992". It was not until this date that it could be said, on the plaintiffs' case, that the defendant's acts had caused any interference with the exercise of the right of way.

73. Mr Chow says that in early 1992 he was considering moving back to 109C because the accommodation was better. On 29 January 1992, his wife and a geomancer went to the site. She saw the caisson holes and other obstructions on the way. Mr Chow went to the site on 30 January and saw the same thing. His plans to return to 109C were frustrated by the fact that he would not be able to use the rear entrance of 109C, which is what he had been advised to do by his mentor in things fung shui, a Buddhist Master. He was asked his plans for 109C now. He said the fung shui concerned him most. He had been told by the elders that it would be all right to move back to 109C if the passage-way were restored because that was where the fung shui lies. This is strange. He says he moved out of 109C in 1986, when, of course, nothing had been done to the way, because he was advised that the property was no longer auspicious. Even if one accepts what Mr Chow says, there is not one word here of what the plaintiffs felt about the matter.

74. I have found that before 30 January 1992, the obstruction of the way was of no importance to anyone. No one complained that their rights were being interfered with. That much is clear. Mr Chow says that, from 30 January 1992, the obstruction of the way was important because he wanted to exercise the right of way.

75. The property was leased for one year from 1 August 1991. There is no evidence that the tenant sought to exercise the right of way, and no evidence that Mr Chow and his wife could have moved into 109C before August 1992. In April 1992, the defendant provided the diversionary lane.

76. In the light of the facts and my findings, I turn to the relief claimed by the plaintiffs.

The Declaration

77. The plaintiffs claim a declaration of their entitlement to the right of way. The defendant now admits the right of way so no declaration is necessary, although the fact that the defendant admitted this right only in July 1994 may have some bearing on costs.

The Injunctions

78. The plaintiffs claim injunctions to restrain the defendant from building upon and obstructing the right of way. They also claim an order that the defendant remove all buildings and anything substantially restricting, preventing or interfering with the reasonable enjoyment of the way, and restore the way.

79. The plaintiffs entitlement to these orders depends on whether what they complain about is subsisting now. As I have said, the defendant is entitled, within the law, to do what it wishes with the land over which the right of way exists, provided this does not substantially interfere with the exercise of that right. What it has done is to build on the land over which the right subsists. That it is entitled to do. The question is: In doing so has it substantially interfered with the exercise plaintiffs' right of way? The plaintiffs are able to leave the rear door of 109C and gain access to the front of the buildings by essentially the same route as before. I have seen the way and, to my mind, it is convenient and sufficient. On the evidence, I accept that the way is very little different, certainly as affects it usability, from the original way. But Mr Chow says that he does not like it. Mr Chow says he does not like it because, in the first place, "it interferes with the fung shui". Even if it were proper for a court to take into account the special sensitivities of a person in these circumstances, I simply do not trust Mr Chow; I believe he was not a truthful witness. The content of his evidence on this point is also suspicious. The reason for his use of the back entrance has become elevated over time from acting on the advice of fortune-tellers and what he describes as a habit into a strong belief that he must follow the advice of his Buddhist Master. It is also the case that this primary concern featured not at all in the formal complaint made by his solicitors or in the plaintiffs' pleadings. I am left with the impression that Mr Chow is inventing reasons why he should not approve the reconstituted right of way.

80. In my view, his other reasons are equally spurious. He cites inadequate ventilation; the air would not be as fresh as before and it would be humid. This is nonsense. The way is short and the air supply is sufficient. He complains that the stairs are of different height and levels; they would, he says, suffer from shortness of breath. This is also not credible. The evidence is that the way as reconstructed is much the same as before and I accept this.

81. In any event, I have before me only the stated feelings of Mr Chow. He is not a plaintiff in this action. There is no evidence of what the plaintiffs think about the reconstructed way. In this event, I can only look at what has been provided as the route over which the right of way is to be exercised and ask myself if a reasonable person would be satisfied. I believe he would.

82. In my judgment, there is nothing in the complaints about the reconstructed way raised by Mr Chow, and I reject them as genuine concerns.

83. The truth of the matter is that 109C is now better supplied, considering the reconstituted way and the diversionary lane, with more adequate means of using the back entrance than it was before. The plaintiffs have also had the advantage of having the retaining wall running along the way reinforced.

84. In my view, there is absolutely no basis on which I could make the orders claimed. I believe there is now no interference at all with the exercise of the right of way and no real possibility that there will be any such interference in the future.

Damages

85. Where I find there is no case for an injunction; where I refuse an injunction on the merits rather than as a matter of discretion, in my view, there is no room for awarding damages in substitution for an injunction. I am aware that Fritz v Hobson (1880) 14 Ch D 542 is an authority to the contrary, but this seems to cut across the clear meaning of the statute, which, in my opinion, says to the judge: "In a case where you might grant an injunction, you may award damages in lieu or in addition.". If no case is made out for the grant of an injunction, I do not see how the jurisdiction to grant damages in lieu or in addition arises. I suppose it matters not in this case because, in any event, the plaintiffs claim damages for nuisance.

86. On what basis am I to assess damages? Not for any physical damage to the land over which the right of way exists; that land belongs to the defendant. The damages should be assessed on the extent to which, if at all, there has been substantial interference with the exercise of the right of way.

87. On the plaintiffs' case, they were not aware before the end January 1992 that the exercise of their right of way was being obstructed. So they could have suffered no damages before that date. The plaintiffs' property was leased until the end of July 1992, and there is no evidence that the tenants were inconvenienced, assuming that one may equate their inconvenience with that of the plaintiffs. So no damages were suffered before then. From April 1992, the diversionary lane was available to 109C. On 4 June 1993, the reconstituted way was available for use. If Mr Chow is to be believed, the situation is that from 1 August 1992 to 4 June 1993, the plaintiffs were unable to use the way, and they were inhibited from moving back into 109C for this reason.

88. It is not suggested by the plaintiffs that they suffered any actual loss arising from this inability to use the way between 1 August 1992 and 4 June 1993.

89. If Mr Chow's evidence is accepted, there would be no doubt that the plaintiffs' right was infringed between 1 August 1992 and 4 June 1993. But, even on this assumption, I would not regard this as a serious infringement. Being unable to assume that the plaintiffs share his special stated concerns, even if I could legitimately take those into account, I must view the situation as if the plaintiffs were ordinary, reasonable people. From that viewpoint, they suffered no actual loss and were not even seriously inconvenienced. As normal people, they would have ordinarily used the front door of their property. This was in no way obstructed. If, on occasion, they wished to use the rear door, they could have done so, travelling by way of the diversionary lane. The damages to be awarded in these circumstances would be minimal. Certainly, in my view, there is no call, in a case such as this, to apply the "user principle" mentioned in Wrotham Park Estate v Parkside Homes [1974] 1 W.L.R. 798. This principle is for use to avoid "the defendants [being left] in undisturbed possession of the fruits of their wrongdoing" (at page 812) and to assess damages "to be awarded to the plaintiffs in place of mandatory injunctions which would have restored the plaintiffs' rights" (at page 815). There is no question in this case of the defendant being left in possession of the fruits of their wrongdoing; they have given them up. Nor is there a call for damages in place of restoration of the plaintiffs' rights. As I have found, these rights have been restored.

90. In reality, I have found that Mr Chow is unworthy of belief. This being the case, on what evidence could I find that the plaintiffs wished to exercise their right of way during the period 1 August 1992 to 4 June 1993, but were unable to do so? There is no evidence of this other than that of Mr Chow. That being the case, I am unable to find any damages arising from the plaintiffs' inability to exercise their right of way.

Exemplary Damages

91. Nor do I consider that this is case for the award of exemplary damages. It is true that the defendant was aware of the right of way, but it took expert advice about what to do to protect the interests of the owners of 109C. Mr Lawrence gave advice and this advice was in accordance with the common practice. A diversionary lane was provided. Of course, in law, this was not sufficient. One cannot oblige a person to accept the substitution of a different right for an existing right, even if they are of the same value. But it is not difficult to understand how the defendant could have believed this was sufficient. Ignoring Mr Chow's idiosyncrasies, the genuineness of which I doubt, a reasonable person would have been perfectly content, even very satisfied, with the provision of the short, direct diversionary lane as a means of using the rear entrance in substitution for the longer, indirect existing way. Of course, when the defendant received the letter dated 1 April 1992 from the plaintiffs' solicitors, it became aware that the diversionary lane was not acceptable, although the letter does not say why. The reason relating to fung shui given by Mr Chow is not mentioned in the letter. The defendant's solicitor sought to persuade the plaintiffs to accept the diversionary lane and offered to consider any reasonable suggestion regarding a monetary payment. These attempts failed, and the plaintiffs issued a writ on 6 July 1992. On 21 July 1992, plaintiffs issued an inter-partes summons claiming an interim injunction. In response to this, the defendant filed an affirmation by Mr Lau Chi Keung dated 19 August 1992. In this (paragraph 16) he refers to Mr Chow's desire stated in his affirmation filed in support of the plaintiffs' summons, on the advice of fortune tellers, to retain the original path. Mr Lau says the defendant is prepared to provide a passageway through the building following roughly the same route as the old way. The defendant proceeded to alter its development scheme to provide the way over the original route, and obtained the approval of the Building Authority for this on 16 November 1992. This way was available for use on 4 June 1993. As I have said, in order to make provision for this, the defendant was obliged to reduce the number of parking spaces in the new building by 11, incur expense in the sum of $5.35 million to change the building to allow for the lane and to suffer a delay of about 71/2 months.

92. This, in my judgment, is not behaviour calling for exemplary damages. The conduct of the defendant does not, in my view, fall within the description of the behaviour justifying the award of exemplary damages in Rookes v Barnard [1964] AC 1129. I do not believe that this is a case, on the facts I have found, "Where a defendant with a cynical disregard for a plaintiff's rights has calculated that the money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity." (At page 1227). This might have been the case if the defendant had said: "We have built on land over which you had a right of way. You no longer have a right of way over that land. You must accept a right of way over other land, because if we change things, we will lose a lot of money." It did not say this and it did not do this. It restored the land over which the right of way existed. It went to considerable expense and inconvenience to do so.

The Result

93. In the result, I find that the plaintiffs have not made out a case for any of their claims, and they are dismissed.

The Lis Pendens

94. My findings lead inevitably to the defendant's right to have the lis pendens vacated, and I so order.

Costs

95. On my findings, each of the parties may be entitled to part of their costs. In the absence of agreement, I will hear counsel on the order that should be made on this aspect of the matter.

Representation:

Miss M. Yuen and Mr G. Lam, instructed by Messrs. Chan, Wong and Lam, for the plaintiffs.

Mr R. Kotewall QC, Mr B. Yu and Mr D. Wau, instructed by Messrs. Lo and Lo, for the defendant.