Tai Mo Piu and Others v. Lam Ka Yee Emma
Read the full judgment text of DCCJ 3848/2020 on BabelCite. This District Court judgment was delivered on 15 July 2025.
1. This is the trial of an action where the Plaintiffs claim for an easement of right of way and related reliefs.
Cites 9 cases
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DCCJ 3848/2020 [2025] HKDC 1067 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 3848 OF 2020 -------------------------------------
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------------------------- JUDGMENT ------------------------- 1.This is the trial of an action where the Plaintiffs claim for an easement of right of way and related reliefs. Introduction 2.The Plaintiffs (“Ps”) and the Defendant (“D”) are owners of two adjacent pieces of land known as Lot No 3325 and Lot No 3326 in DD 116 respectively, each erected thereon a 3-storey small house. These two plots of land with the corresponding small house erected thereon are hereinafter referred to as “Lot 3325” and “Lot 3326” respectively. 3.Lot 3326 is at the direct north of Lot 3325. There is another relevant plot of land, Lot No 3319RP, also with a small house erected thereon (hereinafter referred to as “Lot 3319RP”), which is at the west of and separated from Lot 3325 and Lot 3326 by a narrow strip of government footpath (“the Footpath”), as shown on a plan under Appendix 2 to the Amended Statement of Claim ("ASOC"), which is reproduced in this Judgment as Annex 1. 4.Ps mainly rely on an express grant of right of way under a Deed of Grant dated 6/11/1995 (“the Deed of Grant") to base their claim against D. Initially, Ps also pleaded an alternative claim for easement by prescription. But, during the adjournment of the trial for oral closing submissions, Ps indicated to the Court through their solicitors’ letter dated 16/7/2024 that they would no longer proceed with such claim. This is taken as Ps’ abandonment of this alternative claim. 5.Essentially, the Deed expressly granted a right of way over a specified portion of Lot 3326 in favour of the owners of Lot 3319RP and the owner(s) for the time being of the Neighbouring Property as so defined in the Deed of Grant (ie Lot 3325), their successors-in-title and assigns, and other relevant persons as related to the latter two plots of land as specified therein, at all times, to go pass repass over along through and upon the said specified portion for the purpose of going to and from Lot 3319RP and Lot 3325, with or without carriages motor or other vehicles (“RoW”). 6.The operative clause for the grant (i.e. clause 1 of the Deed) given its importance for resolving the parties’ dispute is quoted verbatim below:-
7.In the Deed of Grant, "the Grantees" are defined as (1) Li Kiu Cheung ("LKC") and Jim Man Chu, i.e. LKC's wife ("Jim") of G/F of Lot 3319RP (the 1st Grantee), and (2) Wong Yin Ling, who was one of the two registered tenants-in-common holding half share of 1/F of Lot 3319RP under the Assignment dated 13/3/1990[1] (the 2nd Grantee), whereas "the Co-owners" are named as Yung Chun Ka and Au Yu Bing[2], who were the then registered joint tenants of 2/F of Lot 3319RP, according to the land search. 8.The Neighbouring Property mentioned in the above clause of grant refers to Lot 3325, which is more precisely defined earlier in the Deed of Grant as “... ALL THAT piece or parcel of ground registered in the said Land Registry as LOT NO.3325 IN DEMARCATION DISTRICT NO.116 TOGETHER with the messuages erections and building thereon (hereinafter called “the Neighbouring Property”)” 9.On 1/8/2007, D became the owner of Lot 3326, taking up an Assignment thereof from Madam Lam Chi Wing (“LCW”), who was the owner of Lot 3326 at the time of the grant. 10.The 1st Plaintiff ("P1") and the 2nd Plaintiff ("P2") are husband and wife, and the Plaintiff ("P3") is their son. On 28/2/2013, Ps became the owners of Lot 3325. The owner of Lot 3325 at the time of grant was one Lapereau Fashion Limited[3] ("Lapereau"). On 10/8/2010, Lapereau assigned Lot 3325 to V-Power IT Limited ("V-Power"), from whom the property's title was subsequently conveyed to Ps. Ps’ case 11.According to Ps’ case, in about February 2019, D began to wrongfully interfere with and obstruct the RoW by building a fence wall of bricks to enclose the boundary of Lot 3326 ("the fence wall"). In about June 2019, the construction of the fence wall was completed. Thereafter, D entered into a deed of cancellation dated 18/6/2019 with the current owners of G/F of Lot 3319RP (i.e. also LKC and Jim) and 1/F of Lot 3319RP (i.e. Li Chung Man and Li Yee Cheung[4]) with the intent and purport to cancel the Deed of Grant ("the Deed of Cancellation"), without obtaining Ps’ consent. Nor was the owner of 2/F of Lot 3319RP a party to such deed. On the evidence before this Court, the current owner of 2/F of Lot 3319RP is one Chan Ling Nga, who does not appear to have any particular relationship with the owners of G/F or 1/F of Lot 3319RP, apart from the fact that they are being neighbours. 12.Despite Ps’ repeated demands, D refused to cease her wrongful interference and obstruction to their use and enjoyment of the RoW. 13.In this trial, Ps essentially claim for:-
14.Although Ps initially claimed damages for wrongful interference and obstruction with the easement of RoW and the Pathway against D, Mr Stanley C.K. Siu, counsel appearing for Ps, indicated in his closing submissions that Ps are content to seek nominal damages only. D’s case 15.In response to the above reliefs sought, Mr Vincent Chiu, counsel appearing for D, basically advanced in his closing submissions four main points of contention on D's behalf to defend Ps' claims:-
Analysis 16.In the analysis below, this Court would first set out the factual background (which is largely undisputed) leading to the grant of the RoW and then deal with the relevant surrounding landscape features, before going into the crux of the issues in dispute. Background for the grant 17.On about 30/11/1982, Lee Wai Kwong became the registered owner of Lot 3326. 18.On about 30/10/1991, Lee Wai Kwong as vendor entered into a Conditional Agreement for the sale and purchase of Lot 3326 with LCW as purchaser at a consideration of HK$2.38 million (“the Conditional Agreement”). The agreement specifically provided that upon completion, the vendor would execute a Deed of Grant to grant a right of way in respect of a specified portion of Lot 3326 to the owners of Lot 3325 and Lot 3319 RP, which portion is coloured red on a building licence plan annexed to that agreement for identification purpose ("the Plan"). Clause 23 thereof provides thus:-
19.On about 23/2/1993, Lee Wai Kwong passed away. 20.On about 10/6/1993, the premium for removal of the non-alienation clause of the Building Licence No 3303 regarding Lot 3326 was paid by Lee Kwok Ching and Lee Kwok Chi, the executors of the estate of Lee Wai Kwong, deceased (“the said deceased”). 21.On about 6/11/1995, the two executors as vendor executed the Assignment of Lot 3326 in favour of LCW. On the same date, pursuant to the Conditional Agreement as evidenced by the paragraphs (3) and (4) of the recital of the Deed of Grant (as quoted below), the executors (qua grantors) ("the Grantors") also entered into the Deed of Grant to grant the RoW in such terms as cited in paragraph 6 above:-
22.Clause 2(b), (c) and (d), clause 3 and clause 4(a) and (e) of the Deed of Grant (as quoted below) are those clauses that D have referred at trial to contend that Ps and their predecessors were in breach, thereby preventing Ps from enforcing the covenant of the RoW thereunder. Pausing here, this Court wish to point out early that nothing really turns on clause 3 in this case, and no submissions can really be made by Mr. Chiu to show how Ps or their predecessors in title would be in breach of such clause, and I find such contention wholly misplaced after considering all the evidence in particular light of this Court's observations and findings under the discussion of Point 3 below.
23.On 13/12/1995, the Deed of Grant was registered against Lot 3326 with the Land Registry. 24.On 1/8/2007, when LCW assigned Lot 3326 to D, the Assignment was expressly made, amongst others, subject to and with the benefit of the Deed of Grant of the RoW as registered in the Land Registry[6]. A similar clause is also contained in the Assignment of Lot 3326 in favour LCW dated 6/11/1995[7]. Surrounding landscape features The Footpath 25.The Footpath (coloured yellow on Annex 1 plan) was paved with concrete serving as a pathway for the pubic, immediately adjacent to the western boundary of Lot 3325 and Lot 3326, and the eastern boundary Lot 3319SA and 3319 RP. 26.According to a field survey conducted by D's expert on 23/12/2021[8], the Footpath would lead from a man-gate (which was erected next to a vehicular gate) going all along in south-east direction with the adjacent Lot 3319 SA[9], Lot 3319RP, Lot 3320, Lot 3322 on its west, and the adjacent Lot 3326, Lot 3325, Lot 3324SA and Lot 3324SB on its east. An index plan showing the various location of these lots was produced at Trial Bundle, p.293. The Pathway 27.According to the evidence as produced at the trial, it appears that before the boundary of Lot 3326 was sealed off by fence wall, the RoW have been used together with the Footpath (which is defined as "the Pathway" in the ASOC) for vehicular passage leading Lot 3326, Lot 3325 and Lot 3319 RP to a public road in the north of the man-gate and the vehicular gate (as mentioned in paragraph 26 above) at the entrance of the Pathway ("the northern public road"). 28.According to the aerial photos as annexed to Ps' surveyor expert's report, both experts agreed that the Pathway (including the RoW) was unoccupied between 1990-2018. 29.Both experts are in consensus about the boundaries of the RoW, and Ps' expert agreed to adopt D's expert's measurements of the RoW as shown in the two plans annexed to D's expert report under Annex 1A and Annex 1A-1[10]. These two plans are now reproduced in this Judgement as Annex 2. Since there is no indication (in terms of measurements) regarding the extent of the RoW on the Plan (ie the one initially annexed to the Conditional Agreement and subsequently incorporated in the Deed of Grant by reference[11]), the extent was therefore graphically deduced from the Plan based on the scale by the two surveyor experts. Vehicular gate and man gate at the entrance of the Pathway 30.As per her own pleaded case[12], D admits that in about 1990, a big metal gate fit for vehicular passage, and another small metal gate (next to the said big gate) for human access were installed at the entrance of the Pathway leading to Lot 3326, Lot 3319 and Lot 3325. Both gates were installed by the same developer, and they were never locked, but accessible by anyone. 31.In about 2015, the original metal gate was replaced with a metal gate by D bearing the same measurements and erected on the same location (“the 2015 metal gate”) because the original gate was damaged as a result of a collision by a stolen vehicle in the same year. Such metal gate was not locked and was likewise accessible by anyone. 32.In 2019, when D and Mr Lee sealed off the boundaries of their respective lands, D built a new small metal gate[13] in the fence wall facing the Footpath under her lock and key. After the Deed of Cancellation was entered into, D further replaced the 2015 metal gate with a gate that was also under D's lock and key (“D’s metal gate”). Flower bed 33.According to an aerial photo taken on 11/10/1994, there was already a flower bed outside the G/F of the small house erected on Lot 3326, When one takes an aerial view of Lot 3326, the flower bed was like a reverse-L shape with its longitudinal side facing north, near the vehicular metal gate, and its lateral side facing west, directly adjacent to the east front of the RoW.[14] 34.In fact, the experts agreed to the extent of physical structures within the Pathway including the RoW as shown in Plan No.6138/03 attached to D's expert report as Annex 3A-1A[15]. This plan also shows, amongst others, the reverse-L shaped flower bed (coloured blue thereon). The two experts are also in agreement of the historical measurements of the tiled platforms of Lot 3325 and Lot 3326 set out in para 4.2 of D's expert report[16] stating, amongst others, that the distance of the flower bed from the RoW is just "0m to 0.11m". Tiled platform 35.As said, it is common ground between the parties that the three-storey small houses erected on Lot 3325, Lot 3326 and Lot 3319RP were constructed by the same developer. As can be seen from screen captures of the Google map street views of the site in the past, these small houses showed similar outward appearance with balconies built of the same style, and tiled platform paved outside the G/F of each small house[17]. 36.The tiled platform at Lot 3326 remained there until 2019[18], and that for Lot 3325 up to the date of trial. The tilted platforms on Lot 3326 and Lot 3325 are slightly raised from the asphalt on Lot 3325 and 3326, as can be seen from a photo produced by Ps showing the kerb of Lot 3325 platform.[19] As can be seen from the aerial photos at the material times, the western limit of the tiled platform of Lot 3326 extended in a straight line till it reached the lot's southern boundary. Side door at the east of Lot 3325 site 37.Before the closure of the boundaries of Lot 3326 and Lot 3319RP, apart from gaining vehicular access to Lot 3325 through the Pathway (including the RoW), vehicles can also reach Lot 3325 by a "road" at the east of Lot 3325 and Lot 3326, where a rather uniform boundary wall (of the same height) can be seen to have fully enclosed the eastern physical boundaries of both plots of land.[20] There is a side door[21] erected at the boundary wall of Lot 3325 at its north-east, giving exit to this "road" ("the Side Door"). 38.However, if one looks at the aerial photo taken in 1990 to 1994[22], the government land at the east of Lot 3325 and 3326 were covered by vegetation. On the totality of evidence before me, the "road" as mentioned in the preceding paragraph does not appear to be a public road (at least there is no or no sufficient evidence to convince this Court to that effect). In other words, having a benefit of vehicular access connecting the public road at the north of Lot 3326 leading to Lot 3325 by virtue of the RoW (as combined with the Footpath according to Ps' pleaded case), if subsisting, would appear to be convenient and valuable to the owners of Lot 3325, for the better and enhanced enjoyment of their land. Issues in dispute 39.After carefully considering the parties’ submissions and the evidence in this case, it would appear to this Court that the issues in dispute would boil down to whether Ps (being successors-in-title to the owner of Lot 3325 at the time of grant, i.e. Lapereau) despite neither Lapereau nor Ps are party to the Deed of Grant can nonetheless take benefit of the easement of RoW created thereunder or not. If not, this is the end of the matter. If yes, this Court would further need to determine the extent of the RoW so granted, and the related contentions from each side flowing therefrom. 40.This Court would focus on the testimonies given by the witnesses revolving around these issues/contentions, though being mindful at the same time of the totality of evidence in this case, before arriving at its findings for resolving the disputes between the parties. 41.Bearing the crux of the matter in mind, I would now deal with Mr Chiu's four points of submissions in turn. Point 1 42.To begin with, by construing the Deed of Grant as a whole against the relevant background circumstances of this case, it appears to this Court that Lot 3325 and Lot 3319RP are plainly dominant tenements, for which the portion of land of Lot 3326 specified under the Deed of Grant as the RoW is serving as the servient tenement for the benefit and use by the owners of the two dominant tenements, and their respective successors-in-title and assigns. In my judgment, an easement of right of way as so defined under the Deed of Grant was validly and effectively created after having regard to the whole circumstances of this case. 43.Further, the term "the owners(s) for the time being of the Neighbouring Property" as defined in the Deed of Grant, in my view, means the owner(s) of Lot 3325 existing at the time when the Deed of Grant was executed. By that time, the construction of the three small houses on the subject three plots of lands had been well completed, and in fact the small house at Lot 3325 had already been assigned to its 1st owner, Lapereau, back in 1990. LKC and Jim became the registered owners of G/F of Lot 3319RP on 30/8/1991, Wong Yin Ling and Yip Yau Tai became the registered owners of 1/F of Lot 3319RP on 13/3/1990. Whereas, the first owner of 2/F of Lot 3319RP seems to be one Ching Chun Shing who became the registered owner thereof on 13/3/1990. 44.This historical background is to a certain extent reflected by recital (3) of the Deed of Grant stating that “the said deceased had agreed to grant a right of way over portion of the said premises hereinafter described (hereinafter called “the said Portion”) to the owners and occupiers of the Grantees’ premises and ALL THAT piece or parcel of ground registered in the said Land Registry as LOT NO. 3325 IN DEMARCATION DISTRICT NO. 116 TOGETHER with the messuages erections and building thereon hereinafter called “the Neighbouring Property”)” 45.As said, Lapereau or as the Deed of Grant puts it with a more generic phrase - owner(s) for the time being of the Neighbouring Property - was however not a signing party to the Deed of Grant. Section 26 of CPO 46.On the date of hearing the parties' oral closing submissions, this Court directed counsel to provide further written closing submissions on the legal question (as raised by this Court) as to whether section 26 of the Conveyancing and Property Ordinance (Cap 219) (“CPO”) is engaged in the present case, in particular, whether Ps (as non-signing party to the Deed of Grant) can claim or take the benefit of the RoW/easement as granted thereunder. 47.Section 26 states thus:-
A preliminary question 48.When addressing the question of applicability of section 26, Mr Chiu raised a fundamental point by submitting that the term “the owner(s) for the time being of the Neighbouring Property” as contained in the Deed of Grant actually refers to the future owners of Lot 3325, so that Lapereau would not enjoy the RoW anyway in the first place, and as such, no easement could pass down the chains of title to Ps. 49.If Mr Chiu’s submission is right, then no question of section 26 would arise. His argument effectively runs like this: there was no mention of Lapereau’s name in the Deed of Grant, whereas in contrast, the name of the Co-owners (ie the owner of 2/F of Lot 3319RP - Yung Chun Ka and Au Yu Bing - who were also non-parties to the deed at the time of grant) were specifically named in the Deed of Grant. Also, the Co-owners of the Grantees' premises, was only defined as "Co-owners" but not "Co-owners for the time being" in the Deed of Grant. So, Mr Chiu urged this Court to interpret "the owner(s) for the time of being of Neighbouring Property", to mean the future owners of Lot 3325 only, thereby excluding the owner of Lot 3325 who was existing at the time of grant, i.e. Lapereau. 50.Having carefully construed the Deed of Grant as a whole against the relevant background circumstances and reviewing the authorities, I cannot accept Mr Chiu’s interpretation. This Court has no doubt that the subject phrase refers to the owner(s) of Lot 3325 existing at the time of grant, i.e. Lapereau (as shown to be the case by the evidence produced in this trial, in particular, by the relevant land search). 51.First, as pointed out above, clause 23 of the Conditional Agreement made reference to the fact that the said deceased had agreed to grant the right of way in question to the owners and occupiers of Lot 3319RP and Lot 3325 (see : paragraph 44 above), and the RoW was subsequently granted pursuant to this Conditional Agreement (see : recital (3) of the Deed of Grant). Prima facie, the term "owners" in both instruments should consistently be accorded with the same meaning, unless there is clear wording in the context to the suggest the contrary. The natural and ordinary meaning of the term "owner(s) for the time being" can certainly mean the owner(s) of Lot 3325 existing at the time of grant. Though, in some other special contexts, according to the authorities cited by Mr. Chiu, the phrase "for the time being" is capable of interpretation to encompass a changing state of affairs. I have considered those authorities as submitted by Mr Chiu, they are not directly on the point like the one as arisen in this case. I do not find them applicable to our present context, for reasons as shall be further explained below. In any event, be that as it may, even if the phrase "owner(s) for the time being of the Neighbouring Property" does carry with it the connotation of 'a changing state of affairs', it should in that case still cover Lapereau at the time of grant as well as the future owners of Lot 3325. This Court sees no sound reason at all to exclude Lapereau according to the background of and the reasonable interpretation of the grant. 52.And Mr Chiu cannot proffer any reasonable basis to explain why the Grantors would rather intend to grant an interest of easement in favour of the future owners of Lot 3325 as contended (who had not yet existed at the time of grant), but single out Lapereau so as not to allow it being the then existing owner of Lot 3325 from benefitting the RoW in the first place. Viewed thus, with respect, the interpretation as submitted by Mr. Chiu is most arbitrary and contrived. 53.Second, the interpretation as submitted by Mr Chiu cannot sit well with operative clause of the Deed of Grant (i.e. clause 1) providing, amongst others, that the Grantors would grant unto the Grantees, the Co-owner(s) and the Owner(s) for the time being of the Neighbouring Property the RoW and to hold “the right and liberty herebefore granted unto the Grantees, the Co-owners and the Owner(s) for the time being of the Neighbouring Property and their respective successors in title and assigns” for the residue of the terms of years as created by the Crown Lease thereof being extended till 30/6/2047 under section 6 of the New Territories Leases (Extension) Ordinance (Cap 150). 54.With respect, if the phrase “the Owner(s) for the time being of the Neighbouring Property” as quoted above does not refer to the owner(s) of Lot 3325 existing at the time of grant (ie Lapereau) but refers instead to its future owners only (who were not yet in existence), one would rhetorically ask : these "successors-in-title and assigns" in respect of Lot 3325 as referred to in the italicised phrase quoted above would be the "successors-in-title and assigns" of whom? On the other hand, if the phrase "the owner(s) for the time being" is construed in its natural and ordinary sense to mean the existing owner(s) at the time of grant (i.e. Lapereau as shown by the land search), then the word "respective" can be used in its proper and ordinary sense to match with the three prior correlated terms - "the Grantees", "the Co-owners" and "the Owner(s) for the time being of the Neighbouring Property" consistently and in good sense. 55.In light of the aforesaid, this Court needs not speculate into the exact reason behind why Lapereau’s name was not expressly mentioned in the Deed, there can a myriad of possibilities. 56.Amongst others, since Lapareau was not a signing party to the Deed, it might be owing to their then available information, the Grantors could not be sure if there were other owner(s) of Lot 3325 existing at the time of grant apart from Lapereau, so that their lawyer doing the drafting work would prefer to put the term - the owner(s) of Lot 3325 - in a generic sense, to cover Lapereau as well as the other owner(s) for the time being of Lot 3325, just in case these other owner(s) really existed at the time of the grant. Whereas, concerning the actual ownership of 2/F of Lot 3319RP, the Grantors might have ascertained from Yung Chun Ka and Au Yu Bing themselves or from any other sources as the Grantors felt confident to rely on to put down their specific names in the Deed of Grant. Being so, this would also save the need of using the phrase "for the time being" (in the sense of existing at the time of grant) to gloss the term "the Co-owner(s)" as defined in the Deed of Grant to refer to "Yung Chun Ka and Au Yu Bing", for it would otherwise be stating the obvious. 57.Yet, irrespective of whatever the reason behind might be (which, as said, this Court is strictly speaking not required to speculate into), on the available evidence before me, I have no doubts that "the owner(s) for the time being of the Neighbouring Property (i.e. Lot 3325)" upon the reasonable and objective construction of the Deed of Grant as whole, would mean the owner(s) of Lot 3325 existing at the time of grant, which includes Lapareau, given the above analysis. The relevant person must be identifiable and in existence at the time of grant to invoke s.26 CPO 58.Mr Chiu’s submits that there is authority saying that section 26 of the CPO only applies to a person who is identifiable and in existence when the relevant instrument was created. I agree this is a legal rule that the invocation of section 26 is so subject to. In Chitty on Contracts, 35th ed, vol 1, para 21-138 states thus:-
59.Section 56(1) in the above commentary refers to section 56(1) of the Law of Property Act 1925, which is the English equivalent to section 26 of the CPO, and it states thus:-
60.The wordings of s.56(1) of LPA 1925 and s.26 of the CPO are similar but not identical, but their differences are not material for the present purposes. I would think that those English authorities on s.56(1) of LPA 1925 as discussed herein would remain helpful to assist this Court to construe the legal parameters of section 26 of the CPO, as relevant for this Court's determination in the present case. 61.But the above legal requirement as pointed out by Mr. Chiu would not be a hurdle for Ps, for this Court has already made a finding over the construction of the term “the Owner(s) for the time being of the Neighbouring Property” to mean or otherwise include Lapereau, which was both existing and identifiable at the time of grant, who was caught by section 26, as opposed to Ps who are future purchasers (speaking from the point of reference at the time of grant), whom section 26 is not directly applicable to. 62.That notwithstanding, I think Ps can indirectly apply section 26 of the CPO, by first invoking its application to Lapereau as the covenantee of RoW which easement was granted to it by the Grantors under the Deed of Grant, and then to pray in aid of either section 16 or section 41 of the CPO to enforce such covenant against D. 63.In my view, the editors of Land Law in Hong Kong, 5th ed, elucidate the viability of these two legal routes by their commentary at paras 8-21 and 8-23, and paras 12-46 and 12-47 respectively: -
64.Meanwhile, I would continue to address section 26 of the CPO concerning another fundamental legal requirement for invoking its application (as raised by Mr. Chiu), before I shall return to deal with sections 16 and 41 of the CPO in more detail. The Deed of Grant is not merely for the benefit of Lapereau as the third party but purports to contain a grant to or covenant with them 65.Mr Chiu further submits that section 26 applies only to the grantee or covenantee with whom the covenant or agreement was purported to be made. The fact that the covenant, if enforced, is for the benefit of a third party does not entitle such a third party to rely on section 26. He refers this Court to Incorporated Owners of Mirador Mansion v Tecowin Development Ltd [1999] 4 HKC 113; Fantastic State Ltd v Tien’s Organic Farm & Ors [2019] 3 HKLRD 438; Amsprop Trading Ltd v Harris Distribution Ltd [1997] 1 WLR 1025, at 1031E. 66.In my judgment, the relevant legal proposition as distilled from the previous authorities is nonetheless more aptly put by the learned editors of Chitty on Contracts, vol 1, 35th ed, at para 21-138 commenting on section 56(1) of the Law of Property Act 1925 (UK) as follows:-
67.It would appear to this Court that the present situation came within the precise words of section 26 where the Deed of Grant has in my view plainly the purport of granting the interest of the easement to the “owner(s) for the time being of the Neighbouring Property, ie including Lapereau. Or, to put it another way, such grant as made under the instrument would also mean that it purports to contain the easement covenant with such owner(s). In particular, the terms of grant/easement covenant contained in the operative clause are uniform in the treatment of the Grantees, the Co-owners, as well as the Owner(s) for the time being of the Neighbouring Property (which is shown to be Lapereau at the time of grant on the evidence before this Court). 68.In Megarry & Wade on The Law of Real Property (8th ed), para 28-006, the learned editors comment on the creation of express grant of easement thus:-
69.The aforesaid observation is further reinforced by the following salient features as noted from the Deed of Grant:-
70.I am not aware of any authority that has been drawn to my attention that would prevent this Court from coming to the legal conclusion as mentioned in paragraph 67 above. On the contrary, I think what was said by Mr. Recorder Robert Tang SC (as he then was) in Incorporated Owners of Mirador Mansion v Tecowin Development Ltd [1999] 4 HKC 113 at pp.123I-124E concerning the legal parameters of section 26 of the CPO would tend to support the aforesaid views of this Court:-
71.Regarding the case of Amsprop as cited by Mr Chiu, it is distinguishable from the present case. In that authority, Neuberger J (as he then was) construed the legal effect of a mere covenant under a sublease, and took the view that it was agreed between the sub-leasee and his direct landlord (i.e. the leasee) to allow the superior landlord (i.e. the headlessor) to enter into the premises to carry out repairs under the certain circumstances. His lordship came to the view that the relevant covenant was only meant to be for the benefit of the superior landlord, but not was not intended to be enforced by the superior landlord (when read alongside with other clauses under the sub-lease). In stark contrast, the wordings of the Deed of Grant in the present case are crystal clear in saying that the Grantors granted the RoW unto the owners of Lot 3319RP and Lot 3325, irrespective of whether they are signing parties to the Deed (like the 1st and 2nd Grantees) or non-signing parties (like the Co-owners and the Owner(s) for the time being of the Neighbouring Property, ie Lot 3325) and held unto them and their respective successors-in-title and assigns such RoW on "equal footing". 72.Further, in this case, there is a grant of interest of easement of RoW to the Grantees (ie of the G/F and 1/F of Lot 3319RP), the Co-owners (ie of 2/F of Lot 3319RP), and the Owner(s) for the time being of the Neighbouring Property (ie Lot 3325), as opposed to a mere repairing covenant (which although was entered for the benefit of the superior landlord, and yet was not intended to be made with or enforced by it) as considered by the court in Amsprop. 73.Neuberger J made reference to two cases cited by the plaintiff’s counsel in that case, namely, Stromdale & Ball Ltd v Burden [1952] Ch 223 and Wiles v Banks (1984) 50 P & CR 80 and sought to distinguish them. Yet, this lordship never queried these two cases are good law (see Amsprop, p.1032B-D) And his lordship further pointed out that each authority concerned with whether a purported grant to a person who was not a party to the deed could be enforced by that person. In both authorities, the courts found that the non-party could indeed do so. 74.In Stromdale & Ball Ltd v Burden, the defendant landlord, who was the under-lessee of a three-storey house, granted a licence by deed inter partes to two tenants, allowing them to assign their term of years in the ground floor of the property to a named assignee (i.e. the plaintiff) who was not a party to the deed. The licence included an option for the plaintiff assignee to purchase the landlord's leasehold interest in the entire house during the term at a stated price. After the assignment was executed, the plaintiff exercised the option during the term. It was held that, under section 56(1) of the Law of Property Act 1925, the "land" referred to the landlord's house, and the option to purchase the leasehold interest constituted an interest in the land and an agreement concerning the land. Therefore, the plaintiff, despite not being a party to the licence, was held to be entitled to specific performance of the option. 75.At pp.234-235, Danckwert J had the following to say, which reasoning I respectfully agree and consider it pertinent and can be applied with equal force in the present case:-
76.In Amsprop, Neuberger J also cited a passage from Megarry and Wade stating that it accurately summarised the ambit of section 56 of the Law of Property Act 1925 (ie the English counterpart of s 26 of CPO). At p 1032D-E, Neuberger J said:-
77.Again, this passage just echoes with the commentary as cited from Chitty in paragraph 66 above, and I have explained above why that legal parameter for section 56 of LPA 1925 (as ought to be similarly applied to section 26 of the CPO) is met with in the circumstances of this case. CPO, section 41 78.I now turn to s 41(1), (2) and (3) of the CPO, which I think that Ps are entitled to rely on for enforcing the express covenant of RoW granted under the Deed of Grant in relation to Lot 3325. In my judgment, the legal requirements provided thereunder are likewise satisfied in this case.
79.After carefully construing the Deed of Grant as a whole against its relevant background circumstances and reviewing the evidence, this Court holds that:-
80.In these circumstances, this Court is satisfied that section 41(3) of the Conveyancing and Property Ordinance (Cap 219) (“CPO”) is also engaged in this case, by virtue of which, Ps when becoming the owner of Lot 3325 (through the chains of title as traced back to Lapereau) can enforce the covenant of RoW against D. CPO, section 16 81.As pointed out in paragraph 63 above, given the applicability of section 26 to this case as found by this Court, apart from section 41 of CPO, Ps can also resort to section 16(1) of the CPO to acquire the benefit and enforce the covenant of RoW against D. 82.Section 16(1) of the CPO provides thus:-
83.Despite there is no mention of any express grant of RoW in the Assignment from Lapereau to V-Power, nor in the one from V-Power to Ps, I think that once the easement was created and granted to Lapereau as owner of Lot 3325 in such way as discussed above, the easement would become an interest appurtenant to Lot 3325, and it can be and was effectively passed on to Ps under section 16(1) of the CPO under the circumstances of this case. 84.At the flip side of the coin, the burden of the easement was also expressed to be imposed on the two respective owners succeeding the Grantors of the RoW, first in the Assignment of Lot 3326 from the Grantors to LCW, and then in the following Assignment from LCW to D. (see paragraph 24 above). In passing, it also goes without saying the interest of easement as validly created/granted under the Deed of Grant (which was registered against Lot 3326 with the Land Registry) would also bind D as a subsequent purchaser of the legal estate with notice. Point 2 85.On this point, this Court agrees with Mr Chiu’s submission that as a matter of reasonable construction of the Deed of Grant, the subject of the grant thereunder was clearly confined to the coloured area in the Plan annexed to the Deed of Grant (as produced in Trial Bundle at p.318) (see : paragraph 18 above), notwithstanding that the RoW so granted is being described therein as “... with or without carriages motor or other vehicles of any description”. These words do not have the effect of “enlarging” the RoW as delineated by the Plan in the Deed of Grant, and yet Ps were contending to that effect at the trial. A material unpleaded RoW issue 86.In the course of the trial, Mr Siu on Ps’ behalf raised a material unpleaded issue in respect of the extent of the RoW for the first time. In gist, Ps now assert a right of way beyond that as delineated on the Plan, and that Ps should have a right of way over an additional portion over the former tiled platform area of Lot 3326, which contended extent was indicated by Ps’ counsel on a photo (now marked as Court Exhibit ‘P2’) [26] (“the Additional Portion”). 87.After carefully reviewing the evidence and the pleadings and submissions from both sides, I agree with Mr Chiu’s submission that the point on the Additional Portion is indeed a newly contended point, which is beyond Ps’ pleaded case. 88.For, it is plain and obvious that even according to P’s own pleaded case, it is the RoW which is combined with the Footpath that form a wide concrete pathway, which is defined as “the Pathway” under paragraph 18 of the ASOC, that was fit for serving as a vehicular passage leading Lot 3319RP and Lot 3325 to the northern public road (see paragraph 27 above). The Additional Portion now sought to be demolished by Ps is erected on the tiled platform area at Lot 3326, but not on the concrete Pathway as pleaded. See: Court Exhibit P2. 89.Mr. Siu seeks to argue that the plan under Appendix 2 to the ASOC ("the ASOC plan")[27] (which clearly does not cover the Additional Portion) that Ps have relied on to claim the RoW is "for identification purpose only" (as so pleaded under paragraph 19 of the ASOC). And as such, Ps' pleaded case would not preclude them from contending that the actual extent of the RoW as intended under the Deed of Grant is beyond the extent which is shown in stippled violet on the ASOC plan[28] (see : ASOC, para 19(a)) 90.With respect, I disagree. For, it is clear to this Court that the Pathway, which is unmistakenly pleaded as a concrete pathway, can in no way include the platform outside the small house of Lot 3326, which was paved with tiles (as opposed to concrete) at all material times. Also, it can be clearly seen from the ASOC plan that the RoW as pleaded does not cover any part of the tiled platform of Lot 3326 which was aligned with the eastern limit of the RoW (drawn in a straight line on such plan). This Court's observation is fully supported by the expert evidence from both sides. 91.The two surveyor experts were expressly instructed to measure the extent of the RoW pursuant to paragraph 2(a) of the expert directions given by Master B Mak on 3/9/2021, which states thus:
92.And according the plan (marked Annex 3A-1A) annexed to D’s expert report, which was reproduced (with magnification) from the survey record plan of Lot 3326 dated 18/5/2010 with mark up of RoW dimensions[29] (to which P’s expert also agrees[30]), the eastern limit of the RoW (as measured and delineated thereon) is directly adjacent to (but plainly with no part thereof overlapping with) the tiled platform area of Lot 3326 (which is coloured yellow on that plan)[31]. 93.It is well settled that unpleaded issues cannot be raised out of evidence which is to be or has been adduced, and it is the pleaded issue that will define the evidence not the other way round. A court will not proceed to judge the merits of a party’s defence by reference to an unpleaded case. See: Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663, paras 21 and 22; Mak Shiu Tong v Yue Kwok Ying (2004) 7 HKCFAR 228, para 55. 94.Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. See: Wing Hang Bank Ltd v Crystal Jet International Ltd [2005] 2 HKLRD 795 (CA), 798J-799F. There was however no application sought by Ps to amend their pleadings even after seeing D's closing submissions objecting to such point of Additional Portion being raised. 95.In these circumstances, I do not see it right nor fair to permit Ps to run the contention on the Additional Portion which in truth and in substance basing on an unpleaded issue. Therefore, this Court can refuse to entertain the submissions and evidence adduced by Ps in relation to the Additional Portion basing on this procedural reason alone. In passing, it was also due to similar reasons that this Court refused to allow a point of implied release of the easement in question (as submitted under paragraphs 71 to 73 of D's Written Opening by making reference to the previous conducts of D and Ps' predecessors over their respective lands) from being run by D at the trial, since the necessary material facts as required for establishing such legal defence are likewise not pleaded in the Defence. Substantive merits of Ps' contention 96.Nonetheless, even if this Court needs to proceed to judge the substantive merits of Ps' contention for whatever reason (which I fail to see there is any here), with respect, I think Mr Siu’s submissions that such portion of the former platform area (where the Additional Portion is currently erected thereon) form part of the RoW are still misconceived. I have considered the authorities submitted by Mr Siu in this regard, but they cannot advance Ps' contention under the circumstances of this case. I do not think this Court needs to delve into these authorities in this judgment given my above reasoning on the pleading point that is already sufficient to dispose of the Additional Portion contention. It suffices for this Court me to set out its observation on the crux of this substantive issue to demonstrate why Ps' such contention is not acceptable. 97.First, there is no dispute between counsel that the extent of the RoW is a matter of construing the language of the grant under the Deed in the light of the surrounding circumstances at the time of grant. 98.The operative clause of the grant did not describe the extent of the RoW in words. The language used is nonetheless clear enough to this Court that, as said, the extent of the RoW is a portion of Lot 3326 as coloured red on the Plan initially annexed in the Conditional Agreement and then incorporated in the Deed of Grant by reference. See: paragraph 18 above, and para (3) of the Recital of the Deed cited at paragraph 21 above. 99.Apparently, the coloured portion on the Plan is not demarcated with any figures for the dimensions of the RoW, and this is why experts’ evidence was called for by the parties to take measurement in accordance with the experts’ direction as mentioned above. That notwithstanding, one can quite confidently tell that the coloured area on the Plan extends in NW direction up to the northern boundary of Lot 3326, and in SE direction to the southern boundary of the same lot. 100.It can also be discerned from the Plan that the eastern limit of the RoW (as represented by the area coloured red thereon) aligns with the physical boundary of the tiled platform outside the small house of Lot 3326 (facing west), given quite a uniform distance between such eastern limit of the RoW and the line demarcating the western outer-wall of the small house (running from its NW corner to its SW corner). As discussed above, this is verified by both experts after their careful examination, among others, of the surrounding landscape features, the survey record plans and the aerial photos over the years. 101.After carefully going through different photos taken of the site at different periods (as produced in the Trial Bundle) paying particular attention to the location of the flower bed outside the small house of Lot 3326 and the tiled platform areas at both Lot 3325 and Lot 3326, this Court is fully convinced that there is no way the concrete pathway (as pleaded in the ASOC to demarcate the scope of RoW) can extend into the tiled platform of Lot 3326, and this can be clearly seen by looking at a screen capture of Google map street view of the site taken in April 2009, as annexed to D’s expert report under Annex 6A-1 (which was unchallenged at the trial)[32]. 102.Next, according to the aerial photo of 11/10/1994 (under Annex 4A-1 to D's expert report)[33], the flower bed already existed before the RoW was granted, it clearly did not form part of the RoW. And as clearly shown by the survey record plan of 18/5/2010 as mentioned in paragraph 92 above, the RoW was running along directly adjacent to the lateral side of the flower bed, and then aligning in a straight line with the edge of the tiled platform of Lot 3326 all the way up to the southern boundary of Lot 3326. 103.Mr Siu seeks to argue that the surveyor experts derived their measurements by scaling, which are bound to be imprecise. However, any difference between the measurements taken by scaling from the survey records and the actual site condition concerning the eastern limit of the RoW[34] as may be given rise by scaling, cannot impossibly be translated into a distance of about a few feet (ie the length of the Additional Portion as extended from the eastern limit of the concrete Pathway into the former tiled platform of Lot 3326 that Ps now seek for its demolition as marked on Court Exhibit P2). Even according to Ps’ own expert’s observation from the aerial photos (as stated in para 16 of his supplemental report), ‘[b]etween 1990-2008, the platform on Lot 3326 was generally aligned with the eastern limit of the RoW’, and neither expert ever suggested there is any possibility that any part of the southern portion of the RoW can extend beyond into the tiled platform, let alone to such substantial extent as now contended by Ps. On the contrary, D's expert categorically states in para 4.2 of his expert report that the historical measurement of the distances of Lot 3326 platform from the RoW to be "0m to 0.11m" and Ps' expert also agreed to adopt these figures.[35] 104.The two experts in para 6 of their Joint Statement in fact said that "we are agreed that there were only about one to two centimeters differences between our measurements of the RoW due to scaling and correlation of the RoW Plan.". 105.In light of the aforesaid, it is evident that Ps’ contention is seriously contradicted by the two experts’ evidence. 106.Seeing this, Mr Siu ventures to urge this Court to look into the history of the actual usage of the vehicular passage, and submits that there were some periods in the past when vehicles could travel on the tiled platform area of Lot 3326 to reach Lot 3325, and that this vehicular usage would reflect the extent of the RoW granted. In this regard, he refers in particular to the photo under Court Exhibit P1. 107.With respect, I cannot agree. When it is crystal clear to this Court (upon reasonable interpretation of the Deed of Grant as a whole) that the specified portion coloured red on the Plan annexed to the Conditional Agreement (subsequently incorporated into the Deed of Grant by reference) was intended by the Grantors to demarcate the extent of the RoW at the time of grant as not including any tiled platform area of Lot 3326 (and the RoW's boundaries are now verified by the expert’s measurements confirming this point), the fact that the respective owners of Lot 3326 and Lot 3319RP somehow permitted vehicles to travel on their respective tilted platforms in the past to facilitate vehicles to completely drive through the RoW so as to reach and even park on Lot 3325, would not by itself be sufficient to show that the Grantors intended the actual extent of the RoW to be deviating from what was clearly demarcated on the Plan. This is because, LCW and/or D could just be accommodating at the time, and this would not necessarily reflect what is actually permitted under the grant. 108.Mr Siu then tried to resort to the phrase “with or without carriages motor or other vehicle” at the operative clause of the grant to submit that somehow the RoW granted ought to be fit for both vehicular access and access on foot. This type of phraseology would appear to be adopted with modifications from precedents for drafting clauses on right of way, and were subject to consideration by courts in previous authorities. Needless to say, each case has to be decided on its own merits. In my view, such phrase as appeared in the present operative clause of the RoW cannot support Mr Siu’s argument, when it is considered in light of all the circumstances at the time of grant. 109.It is undisputed or indisputable that, all along, the RoW has to be combined with the Footpath in order to provide sufficient width for, say, a sedan of normal size to drive along to reach Lot 3319RP. The RoW alone (given its decreasing width when it proceeds along from north to south[36]), without the Footpath, would not be sufficient. In the past, practically speaking, if the driver wanted to drive the sedan to further reach Lot 3325 (without travelling on Lot 3326 tiled platform), he had to do so by driving the sedan onto part of the tiled platform of Lot 3319RP before entering into Lot 3325. This point can be illustrated by the actual site condition as captured by the same Google map street view taken in April 2009 as referred to in paragraph 101 above[37], and the Annex 1 plan attached to this judgment. In other words, if a private car was parked on the tiled platform area of Lot 3319RP next to the southern portion of the RoW like the case as shown in the screen capture (or as in the current situation where the boundary of Lot 3319RP is now completely sealed off by fence wall), it would appear very difficult for the driver to manoeuvre the sedan (let alone a 7-seater car) to completely drive through the RoW so as to go into Lot 3325 unless part of it has to travel on the former tiled platform area of Lot 3326 as well. This may also explain why Ps now have such a strong desire to seek for the demolition of the fence wall to such an extent as including the Additional Portion. 110.The occurrence of the past and current scenarios as pointed out above would however in this Court’s view be within the reasonable contemplation of the Grantors, as nothing in the Grant or elsewhere to suggest that the owners of Lot 3319RP at the time of grant, ever promised to keep the tilted platform of Lot 3319RP free and unobstructed to facilitate vehicles to completely drive through the RoW first onto Lot 3319RP and then to further reach Lot 3325. 111.As such, it would also be reasonably clear to the Grantors that they could not grant vehicular access of RoW to the owners of Lot 3325 to such extent of “guaranteeing” that vehicles of whatever size must be able to go pass the RoW, so as to get into Lot 3325, even if the owners of Lot 3319RP would no longer accommodate to allow vehicles to travel over any part of their property. This is because "the said Portion" under the operative clause of the grant over which vehicles are permitted to go pass and repass is of a definite boundary as can be clearly seen from the Plan as analysed above. Having said that (even with the sealing off of Lot 3319RP boundary), the narrowest part of RoW (if combined with the Footpath) would still appear to wide enough to allow a motorbike of normal size to drive through so as to reach Lot 3325. 112.The measurements of the widths of the RoW as taken by D's expert (set out at para 4.1 of his report) are agreed by Ps' expert[38], and they are quoted as follows:-
113.In light of above analysis and upon the construction of the Deed of Grant as a whole against the actual site condition of the RoW at the time of grant, it can be reasonably construed that the Grantors only intended to allow the RoW over Lot 3326 (only to such extent as demarcated on the Plan) to be used for vehicular access so long as the surrounding circumstances permit, given the limited width of its narrowest portion (abutting the northwest corner of the tiled platform of Lot 3325) would not appear to be sufficient per se for even a private car of normal size to drive through. 114.But that may be considered sufficient at that time for the owners of Lot 3319RP (when the boundary is not yet sealed off), because they can make use of the Footpath at the same time to provide sufficient combined width to gain access to their own land. As for the owners of Lot 3325, the RoW may appear less valuable to them (when compared with the case of Lot 3319RP), for if the owners of Lot 3326 and Lot 3319RP would no longer accommodate (as in the cases discussed above), they can only drive vehicles of fitting widths through the Pathway. As pointed out above, the narrowest RoW width is about 0.95m, and if combined with the corresponding Footpath width, the relevant Pathway's width would be about 2.36m according to the experts' agreed measurements. Be that as it may, objectively speaking, the RoW would still appear to be of significant value to the owners of Lot 3326 because they can prima facie have vehicle(s) of such kind travelled into the RoW zone up to where the relevant width of the RoW at the site reasonably permits, even though they cannot have vehicle(s) of whatever size(s) they want to drive pass the RoW, so as to go onto their own land and have such vehicle(s) parked there. 115.I would also think that if the extent of the RoW was not properly demarcated with a definite boundary in advance, but left any part of it as ambulatory and subject to changes along with the surrounding parameters (such as, for instance, the boundary of Lot 3319RP became sealed off in 2019), this would put the owners of Lot 3326 under a precarious position always subject to the risk of offending clause 2(d) of the Deed of Grant by obstructing the RoW unknowingly, if they place or erect anything on the tiled platform area beyond the flower bed, especially the farther away from the flower bed, and the closer to the common boundary of Lot 3326 and Lot 3325 (even though no part of the tiled platform area was covered by the red coloured portion demarcating the extent of RoW as shown on the Plan which is now confirmed by both parties' experts). 116.In light of the above analysis, I accept Mr Chiu’s submission made in this regard that the phrase “with or without carriages motor or other vehicle” as relied by Ps do not have the effect of altering or expanding the extent of the ROW (which has been delineated by the coloured portion on the Plan). Mr Chiu referred this Court to an English Court of Appeal's decision in White v Richards (1994) 68 P&CR 105 (CA). In that case, the grant provision does not limit the type of motor vehicles which could pass through the right of way (which was coloured in brown on a plan appended to the relevant instrument). The Court of Appeal upheld the trial judge's interpretation of grant, and held that even so the physical characteristics and dimension of the right of way at the time of the grant could nevertheless restrict the type of vehicles which could pass through. 117.The English Court of Appeal's judgment at pp.109-111 is instructive:
118.Lastly, Mr Siu appears to have submitted to the effect that the Plan should be disregarded in the interpretation of the Deed of Grant for determining the extent of RoW because it was for “identification purpose only”. With respect, such argument goes against the authority of our highest court. I have carefully considered Mr. Siu's submissions touching on this point, but I cannot accept the same. 119.Pausing here, before I move on. It is observed that Mr. Siu's submission seems to carry with it an erroneous factual assumption. He said at para 37 of his closing submissions that "the parcel clauses of the Deed, i.e. Clause 1 to Clause 5, do not involve the "plan"." This is not entirely correct because clause 1 (being the operative clause of for the grant) made express reference to "the said Portion", which is defined earlier in paragraph (3) of the Recital to be that as mentioned in Clause 23 of the Conditional Agreement (see : paragraph 18 above). And that Clause 23 in turn describes the right of way is such portion of Lot 3326 as shown coloured red on the Plan. 120.Essentially, I accept Mr Chiu’s submission (citing the CFA’s decision in Green Park Properties Ltd v Dorku Ltd (2001) 4 HKCFAR 448, that even the Plan was glossed with the phrase “for identification purpose only” as marked on the original building licence plan at its left bottom corner by the Building and Lands Dept of Yuen Long District Lands Office[39], this would not obscure the importance of such plan in our present context, which as illustrated by the above analysis can properly identify the extent of the RoW in this case. Having further the benefit of reading the measurements taken by the experts cross-checking with the site conditions and other official survey records of the site (who have come up with an agreed a plan demarcating the boundaries of the RoW with sufficient precision). According to the two experts, any differences between their measurements of the RoW due to scaling and correlation of the Plan are only about one to two centimeters, that in my view is negligible. In these circumstances, I have no hesitation to come to the view that the specified portion of Lot 3326 as coloured red on the Plan would fairly and reasonably represent the extent of RoW as intended under the grant as well back up by experts' measurements. 121.In Green Park, on the vendor's appeal to the Court of Final Appeal, at issue was whether it was permissible to ascertain the precise boundary of the property by reference to a tenancy plan. 122.Litton NPJ (with whom Li CJ, Bokhary and Ribeiro PJJ and Lord Millett NPJ agreed) held as follows:-
123.In light of the aforesaid, in particular, the experts' agreement on the measurements of the dimensions of the RoW as shown on two plans prepared by D's expert as annexed under 'Annex 1A' and 'Annex 1A-1' to his report[40] (see : the two experts' joint statement, Section A, para 6), this Court would make a finding that the extent of the RoW as granted under the Deed of Grant is being such as demarcated on these two plans. Point 3 124.On this point, the tide has however turned against D. I have considered Mr Chiu’s submissions and authorities in this regard. But with respect, I think there is simply no or no sufficient evidence (as so found by this Court) to show that Ps or their predecessors-in-title were in default of obligations under the Deed of Grant, so as to prevent the RoW from being first granted to Lapereau, and then passed on through the chains of title to Ps by virtue of s 16 of the CPO, or to preclude the benefit of the easement covenant from being enforced by Ps through section 41(3) of the CPO. 125.Upon reviewing the authorities submitted by Mr Chiu, I hold that any exercise by Ps and their predecessors' rights of easement of the RoW would be suspended if any of them will be in breach of the obligations as specified under clauses 2 and 3 of the Deed of Grant (but not extending to such payment obligation under clause 4(a) to pay for the charges and expenses incurred in connection with the Deed, which ought to be borne by the signing parties to the Deed only[41]), especially when clause 4(e) (as cited in paragraph 22 above) is read alongside with clause 5, which provides that:-
126.But since the owners of Lot 3325 are not signing parties to the Deed and further given the special mechanism for the Grantees' procurement of compliance by the Owners of Lot 3325 as provided under clause 5, despite Mr. Chiu's argument to the contrary, I would think that, in relation to the period since the date of the Deed of Grant up to the erection of fence wall by D to enclose the RoW in 2019, Lapereau, V-Powers and Ps (as owners of Lot 3325 at different periods of time) can only be meaningfully held to be in breach of the relevant obligations under clauses 2 and 3 upon the occurrence of the following two pre-conditions:-
127.On top of that, it would also appear sensible and in fact goes without saying that the Grantors or their successors-in-title and assigns of Lot 3326 (including D in this case) are also entitled to directly make a demand upon the relevant owner of Lot 3325 to comply with the relevant obligation(s) that has or have arisen. 128.This is especially the case when, say, the easement of RoW (as between Lot 3319RP and Lot 3326) has become extinguished for whatever legitimate reason(s), since clause 5 may no longer be workable should that situation arise. 129.But even in that case, this Court would still be inclined to think that, as a matter of principle,
130.Surely, one cannot be held to be in breach of an obligation which has not yet arisen. It would also appear unreasonable to construe the terms of the Deed of Grant to hold the owner(s) of Lot 3325 to be in breach of the relevant obligation(s) without making a prior demand (as mentioned in either paragraph 126(2) or paragraph 127 above) upon them to comply since they are not signing parties to the Deed of Grant. Prima facie, the owners of Lot 3325 would not know when the relevant Crown rent of the Lot 3326 became due and payable, and it would also make no good sense, nor fair to hold them liable under clause 2(c) before the due proportion(s) of Crown rent or other costs and charges in connection with the RoW that ought to be contributed by the owners of Lot 3325 was even apportioned for their payment. 131.Insofar as may be necessary, this Court would make a holding that the pre-conditions as mentioned in paragraphs 126 and 127 above would be reasonably and necessarily implied in the Deed of Grant for its effective operation before the relevant owner(s) of Lot 3325 can be held liable for any default(s) of the obligation(s) as provided therein, so as to suspend their rights to use the RoW during any such period(s) of default(s) in accordance with clause 4(e) of the Deed of Grant. 132.After carefully considering the evidence and submission of the parties, I find that there is in fact no or no sufficient evidence in this case for D to prove on balance of probabilities that LCW, D or LKC/Jim had ever demanded Ps or their predecessors to comply with the obligations as provided under clauses 2 and 3 of the Deed of Grant (before D's erection of fence wall to enclose the boundary of Lot 3326 in 2019). In light of the above analysis, this Court also finds that Ps and their predecessors in title cannot be held to be in breach of any the alleged breaches of the relevant obligations as contended by D in any event. 133.I will refer to the history of the relevant usage of the RoW by the relevant owners of the 3325 since the Deed of Grant (and the responses of LCW, D and LKC at different periods) to explain why this Court find the contended non-compliance to prevent Ps from taking the benefit of the RoW cannot be established. 134.To begin with, back to the time of the grant in 1995, there is no evidence that there was any relevant obligation(s) which had arisen, and Lapereau was asked to comply with but they failed to do so. According to paragraph 5(c) of LCW’s witness statement, Lot 3325 was vacant most of the time back then, and she let a lady and a gentleman use the RoW (whose identities are not clear from LCW’s witness statement, and they might be Lapareau’s tenants or licensees) to drive their vehicles through the RoW to park at Lot 3325 (though they did not park their cars there often), without complaining they have not complied with any obligations of the Deed of Grant. 135.As for D, she said in her witness statement that after she became the owner of Lot 3325 in 1997, she saw one Ms Carol Cheng of Lapareau moved in to reside in Lot 3325 in about 2009. It appears from the overall tenor of D’s witness statement suggests these two neighbours were living in harmony. D also let Ms Coral Cheng park her car side by side with D's car in between their two small houses. 136.After V-Power became the owner of Lot 3325, according to D, one Ms Cheung moved in, but she did not drive a vehicle. D further said in about 2010, she agreed with Ms Cheung to replace the wooden fence (which she erected earlier at the boundary between Lot 3325 and Lot 3326) with a shared brick wall. There was no discussion between herself and Ms Cheung about the right of way or the Deed of Grant at all. Shortly after the erection of that shared wall, Ms Cheung constructed the Side Door to facilitate her exit from her property. Ms Cheung never drove or parked any car. During the beginning of Ms Cheung’s period of residence, the owners and/or tenants of Lot 3325 did not use the RoW, and did not park any car on Lot 3325 or have any complaints about the RoW at all material times. 137.In these circumstances, since D became the owner of Lot 3326, if there were then really any obligations under the Deed so happened to have arisen but not complied with by the owners of Lot 3325 in her perspective, one would expect D to expressly and directly say so in her witness statement, but this is not what she did. 138.Rather, D said obliquely in the earlier part of her witness statement that LKC informed her none of the owners of Lot 3325 ever contributed to costs and liabilities of the Deed of Grant, and Mr Li further confirmed that, Ps and/or their predecessors in title have not repaired or kept them in good repair the condition of RoW, they never paid Crown Rent, costs, charges and expenses, in connection with the said Deed, nor legal charges and expenses in connection with the said Deed equally. 139.However, these evidence of D is neither here nor there because there is no mention that LKC has ever demanded any of the owners of Lot 3325 to contribute to the maintenance or repair the RoW or the payment of the Crown or any costs, charges and expenses in connection with the RoW in accordance with clause 5 of the Deed of Grant, and the relevant owners of Lot 3325 failed to comply. 140.This observation is actually reinforced by what LKC said in his own witness statement (at para 5) to the following effect: he was advised by the lawyers acting for the Grantors that the duties for maintaining and paying all expenses for the RoW shall be shared between “the registered owners of Lot No.3326, the parties of the Deed and their respective successors”, and he never mentioned that (according to his belief or understanding) these duties shall be shared by the owners of Lot 3325. LKC further said at para 6 of his witness statement that he and Jim agreed to the said terms and to share for all costs of the RoW with LCW and the subsequent owners of Lot 3326. 141.On the other hand, P2 under cross-examination said that she knew of the Deed of Grant before they purchased Lot 3326, and she also knew that Ps have the obligation to make contribution to the repair and maintenance of the RoW. After the incident when the vehicular gate was damaged in 1995, she told LKC that if they need to contribute to the repair of the gate they would do so, but LKC said it was not necessary. LKC in the witness box confirm this was the case under cross-examination. 142.In fact, the Crown rent for the whole Lot 3326 was paid by D, there is no evidence that D ever ask LKC to contribute to the payment of Crown rent. It seems unlikely that LCK would somehow demand the owners of Lot 3325 to contribute for payment of Crown rent, especially when there is no evidence of any apportionment of the due proportion of Crown rent was ever made for seeking payment of contribution from the relevant owner(s) of Lot 3325 for any period(s) of time. 143.At the trial, substantial time were spent by both sides in dealing with a letter dated 3/3/2021 issued by D’s solicitors to provide answers to the Request for Further and Better Particulars of paragraph 10 of the Defence dated 2/2/2021[42] ("D's F&BP Letter"). Under paragraph 10 of the Defence, certain defaults and/or breaches of the covenants contained in clauses 2, 3 and 4 of the Deed of Grant were pleaded. Those pleaded defaults and/or breaches were exactly repeated under paragraph 30 of D’s witness statement, save the word ‘successors in title’ as appeared under paragraph 10.1 to 10.4 of the Defence would appear to be wrongly pleaded. According to D's evidence, such word ought to be replaced by the word ‘predecessors in title’ as used in paragraph 30(a) to (d) of her witness statement instead. No leave was sought to amend paragraph 10 of the Defence at the trial. 144.But even assuming that leave to amend had been sought by D to plead in line with paragraph 30 of her witness statement, the analysis and findings made by this Court above (in particular, the finding as mentioned in paragraph 132 above) would already dispose of such contended case of D, which is rejected by this Court. 145.Subject to this overview, I now turn to the individual answers given under D's F&BP's letter. 146.First, to answer Request (1)(a) for particulars of when the RoW was alleged to have (been) repaired, and Request 1(b) for particulars of what condition of RoW needed to be repaired and/or kept in good repair[43], Ds listed out the following headings of expenses as allegedly incurred in relation to their pleaded repair or maintenance works:-
147.In relation to these answers given by D, this Court further observes and finds that:-
Point 4 148.Given this Court's above analysis and findings, and in particular that the Deed of Grant was valid and effective in creating and granting the interest of the RoW easement to Lapereau which was in turn legitimately and effectively passed on to Ps through the chains of title, and further that the burden and benefit of the easement covenant run with the lands of Lot 3326 and Lot 3325 respectively, so Ps is entitled to take the benefit and enforce the easement covenant by virtue of section 16 and section 41(3) of the CPO for reasons as explained above. 149.In these circumstances, this Court also finds that the RoW so created and granted under the Deed of Grant vis-a-vis Lot 3325 could not be validly extinguished merely by the current owner of Lot 3326 and the owners of the G/F and 1/F of Lot 3319RP entering into the Deed of Cancellation without involving the current owners of Lot 3325 (ie Ps). It is also doubtful whether the RoW easement so created and granted to the predecessor in title of 2/F of Lot 3319RP under the Deed of Grant could be extinguished without any evidence of the current owner of 2/F of Lot 3319RP agreeing to the release of such easement. 150.On this basis, but for a technical procedural point which I shall return later, Ps would appear to have a good cause to seek for the vacation of the Deed of Cancellation from the Land Registry. Because given this Court's above findings that the interest of easement was validly created and is still subsisting as between Lot 3325 and Lot 3326 and enforceable by Ps, qua the current owners of Lot 3325, it would be false and misleading for clause 1 of the Deed of Cancellation to state that "the said Deed [i.e. referring to the Deed of Grant] is hereby cancelled and shall have no further effect whatsoever". (emphasis supplied). 151.Nonetheless, Mr Chiu submitted that the vacation of the Deed of Cancellation would involve the other parties executing such Deed, namely, LKC and Jim, but Ps ought to but did not join them in this action for the purpose of seeking the order of vacation of such deed. 152.I tend to agree with Mr Chiu that these two other parties should have been joined for such purpose. Be that as it may, this does not preclude this Court from making a declaration to the effect that the Deed of Cancellation is invalid and shall have no effect with respect to the easement of the RoW as so created and granted under the Deed of Grant between Lot 3325 and Lot 3326, and such easement is still subsisting, when in this Court's view the overall justice of this case clearly demands such a declaration be made. 153.Plainly, such declaration would affect Lot 3325 and Lot 3326, and can be registered with the Land Registry. Injunctive reliefs 154.Given the above rulings, the replacing of the 2015 metal gate by installing a new metal of her own under her lock and key[44], and the erection of the fence wall enclosing the western boundary and part of the southern boundary of Lot 3326 has plainly constituted a unlawful interference with the easement of the RoW, and these wrongful acts have wholly deprived Ps' property right and benefit and enjoyment of the RoW to pass and repass between their land and the public road at the north of the site (as conferred under the grant and so found by this Court). On the evidence before me, I also find that the fence wall was erected without Ps' consent, and Ps did protest while it was under construction. 155.As such, after considering the parties' submissions and the overall circumstances of the present case, this Court sees it just and right to grant a mandatory injunction ordering D to completely demolish at her own costs the fence wall now enclosing the western boundary and part of the southern boundary of Lot 3326 so as to restore the RoW (as so found by this Court at paragraph 123 above). For the avoidance of doubts, the whole portion of fence wall (with its outer-side facing west), where a major part of which (including D's new small gate erected thereat) has encroached into the Footpath (which is government land), is required to be fully demolished. As for the portion of fence wall (with its outer-side facing south) is only required to be demolished to the extent of the southern boundary of the RoW as demarcated on Annex 2. 156.In this connection, I respectfully adopt the principles as succinctly summarised by Au J (as he then was) in Billion Star Development Ltd v Wong Tak Chuen [2012] 2 HKLRD 85 (at para 38) on granting an injunction to restrain unlawful interference with a right of way. In particular, I fully agree that the right of way is property right which if not protected by an adequate remedy, becomes diminished as in the present case:
157.Regarding D's metal gate as now erected at the entrance of the RoW (which is currently under D's lock and key), the parties are directed to lodge with this Court within the next 21 days a set of agreed terms for either keeping it or having it demolished, for this Court's approval in line with this Court's above findings and the further observations as mentioned in paragraph 158 below. In this connection, the parties should try their best endevaour to reach an agreement in line with the CJR objective, but failing such agreement, they should set out their respective proposals and their submitted reasons for the Court's further consideration within the same time limit). 158.The Court sees it just and appropriate to let the parties have a chance to work out this matter by themselves in particular noting that substantial costs would appear to have been spent for the installation of D's metal gate, bearing in mind a vehicular gate has always been at the same location (see : paragraphs 30 to 32 above). The set of costs for the prior installation of the vehicular gate by D would not be wasted if it can be kept and further costs for demolishing the same and rebuilding a new vehicular gate can be saved. On the other hand, the parties should bear in mind whether the keeping of the existing vehicular gate is workable in light of the surrounding circumstances after the demolition of the fence wall as ordered, and there is also the practical consideration that needs to be properly addressed by the parties that if the gate is to remain to stand as it is, which particular person(s) concerned that duplicate key(s) to the gate should be given, since D said that it is currently under her lock and key[45]. 159.Regarding the prohibitory injunction as sought by Ps as per relief (c) under the Prayer of the ASOC, after considering the parties' submissions and overall justice of this case, this Court would tend to think that it is not appropriate to make such order in the circumstances. In particular, this Court is inclined of the view that D committed her present tort under the mistaken belief that Ps has not acquired the benefit of the RoW, though it turns out to be wrong. Further, the mandatory junction as granted aforesaid would appear to be sufficient to redress D's wrongful interference of the RoW, especially noting that there is no or no clear evidence suggesting that D would continue or otherwise repeat the unlawful interference of Ps' use and enjoyment of the RoW in future. The declaration of the extent of the RoW granted by this Court also clarifies the rights and liabilities of the parties vis-a-vis the right of way. See : Chiu Hung Shun Paul v So Ka Tai CACV 136/2005 (unrep., 5 December 2005) per Ma CJHC (as he then was) at para 16. Issue of damages 160.Given the above Court's finding that D has infringed Ps' property right of easement of RoW, in principle, Ps are entitled to claim damages against D as permitted under the law. However, Ps have to adduce the necessary evidence to prove and substantiate the loss they claimed to have suffered as a result. Further, this Court also reminded Mr. Siu to provide authorities to support Ps' claim for damages for loss of comfort as pleaded in the ASOC when counsel were addressing the Court in their openings, and yet there were no specific cases identified by Mr. Siu to suggest the proper quantum of the general damages for Ps' loss of comfort claim at the closing submissions stage. Mr. Siu only referred the Court to some passages from Gale on Easement, 21st ed, generally commenting on (1) various heads of damage as may be available, (2) assessment of loss is generally based on tort, (3) diminution in value as a head of loss, (4) loss of amenity, and another passage from McGregor on Damages, 21st ed, para 39-017. 161.With respect, it would not be too helpful for Mr. Siu to refer the Court to these commentaries, when he was fully aware that Ps have not adduced the necessary evidence to substantiate their pleaded damages.
162.For completeness, Ps also generally claims for (1) loss of the RoW created and granted under the Deed, (2) loss of the Pathway and/or the RoW as a vehicular access to Lot 3325, and (3) wrongful interference with P's enjoyment of the Pathway and the RoW (as pleaded under paragraph 39(a), (b) and (d) of the ASOC). In my view, any one of these pleaded losses would be subsumed under either one of the two limbs of loss as discussed in the paragraph 161 above under the circumstances of the present case. In any event, according to Mr. Siu's submissions, Ps are content to seek for nominal damages for their damages claim only. 163.In light of the above analysis, in response to the relief of "damages for wrongful interference with the easement, RoW and the Pathway" (as sought under relief (d) of the ASOC), this Court would make an award nominal damages of HK$100 for Ps' contended loss for diminution of the property value of Lot 3325, on the basis that although I am satisfied that some loss of that kind would be occasioned to the property due to the loss of vehicular access during the period of the wrongful interference, the necessary evidence as to its quantum is not given, and hence it cannot be sufficiently proved. See : McGregor on Damages, 22nd ed, para 134. 164.Regarding the relief (e) under the Prayer of the ASOC for "damages for loss of comfort as a result of the wrongful interference and obstruction of Right of Way and/or Pathway", this Court would likewise grant nominal damages in the sum of HK$100 but on the following basis :
165.Since only nominal rather than substantial damages are awarded in respect of P's damages claim, it is this Court's provisional view Ps should prima facie be responsible for compensating D's costs spent in meeting such claim. 166.Hong Kong Civil Procedure 2025, vol 1, para 62/2/6 states thus:
167.The Court cannot accept Mr. Siu submission that if the damages for the diminution in value of Lot 3325 is not pleaded in the first place, Ps will not be able to sue for this head of loss in the event they are to sell the land. Irrespective whether this is really so, the fact remains that such claim is not seriously pursued by obtaining the necessary expert valuation evidence to substantiate the same, and costs have been incurred by D to defend against such claim. 168.As for the damages for loss of comfort as claimed, Ps chose not to provide any specific authority to submit an appropriate conventional sum for this court to consider, but rather be content with nominal damages (but claimed in an erroneous way). Viewed thus, the aforesaid manner as to how P presented such damages claim would indeed appear inappropriate and unreasonable, also consuming substantial judicial time and resources to address their unjustifiability in the sense as illustrated above. Disposition 169.Due to the above reasons, judgment be entered against the D and it is ordered that:-
Costs 170.This Court also make a costs order nisi that D shall pay Ps’ costs of this action (including all costs orders previously reserved, if any), together with certificate for counsel, to be taxed if not agreed, save and except that Ps shall pay D costs of this action in relation to P’s alterative claim for easement by prescription as pleaded under the ASOC, as well as D's costs in defending Ps' damages claim, together with certificate for counsel. 171.The aforesaid costs order nisi shall become absolute in the absence of any application within 14 days to vary the same. 172.Lastly, it remains for me to thank counsel for their assistance rendered to the Court.
Mr Stanley C.K. Siu, instructed by T.K. Tsui & Co, for the 1st to 3rd plaintiffs Mr Vincent Chiu, instructed by Leung Kin & Co, for the defendant Annex 1
Annex 2
[1] Trial Bundle, p 222 [2] Trial Bundle, p 225 [3] According to the land search, the Assignment in favour of Lapereau is dated 9/1/1990. [4] These two persons took up the Assignment of 1/F of Lot 3319RP from Wong Yin Ling on 30/3/2012. [5] Trial Bundle, p.318 [6] Trial Bundle, p.665 [7] Trial Bundle, p.179 [8] D's expert report, para 2.1 [9] Lot 3319 SA is at the direct north of Lot 3319RP. [10] Trial Bundle, pp.467-468 [11] see : paragraph 18 above [12] Defence, para 20 [13] This small gate is facing SW direction as shown on the Annex 1 plan. [14] Trial Bundle, p 477; see also, p 489 [15] Trial Bundle, p.474 [16] See : The experts' joint statement dated 8/6/2022, Section A, para 7. [17] See : the photo produced by Ps at Trial Bundle, p.149, 489, 490 [18] See : photo at Trial Bundle, p.809 [19] See : photo at Trial Bundle, p.144 [20] Trial Bundle, pp.18 and 160 [21] Trial Bundle, pp 449-450 [22] Trial Bundle, pp 795-798 [23] Section 56(1) here refers to section 56(1) of the Law of Property Act 1925, which is the English equivalent to section 26 of the CPO. Although the wordings of s.56(1) of LPA 1925 and s.26 of the CPO are not identical, the differences between the two are not material for affecting this Court's view on the applicability of the latter provision to Lapereau in the present case. [24] i.e. the word "them" is apparently referring to both the signing parties and non-signing parties [25] ie referring to Lot 3326 as so defined earlier in the Deed. [26] Court Exhibit "P2" is the same photo produced at p.819 of Trial Bundle, but with marking thereon done by Mr. Siu while submitting the extent of fence wall (situated on the former tiled platform area of Lot 3326) that should be demolished. This area according to Ps contention should also be covered by the RoW under the grant. [27] ie Annex 1 plan reproduced in this Judgment [28] The Footpath is coloured yellow on the ASOC plan (see : para 19(b) of the ASOC). [29] Trial Bundle, p.466, para 5.1 [30] Joint Statement by both experts dated 8/6/2022, para 7 [31] Trial Bundle, p.474 [32] Trial Bundle, p 490 [33] Trial Bundle, p 477 [34] In passing, no issue was taken by Ps on the two experts’ measurement of demarcation of the western boundary of the RoW. [35] The experts' joint statement, para 7. [36] See : Annex 1 plan attached to this Judgment. [37] But, this time, the 2009 screen capture produced at Trial Bundle, p 489 should be looked at, which is marked with different markings as per Annex 6A to D's expert report. [38] See : The two experts' Joint Statement, Section A, para 6 [39] As to the precise context as to how the phrase 'for identification purpose' is used, one should refer back to Clause 23 as cited in paragraph 18 above. [40] Trial Bundle, pp.468 and 469 [41] see : paragraph 147(9) below. [42] Trial Bundle, pp 40-43 [43] Trial Bundle, p.41 [44] see : paragraphs 30 to 32 above [45] see : paragraph 32 above | ||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 3848/2020