Hui Ngok v. Mak Kit Chan

HCA000331/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 331 OF 1971

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Coram: Li, J.

Date of Judgment: 1st February 1973

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JUDGMENT

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1. This is an action in which the plaintiff asks for a declaration that he is entitled to the exclusive use and enjoyment of the staircase of the premises from the ground floor to the first floor known as No.44, Jordan Road, Office "C" (hereinafter referred to as "the Flat") and also for an injunction requiring the defendant to remove the iron gate and other obstructions placed on the said staircase. I should point out that it is an unfortunate case - unfortunate in the sense that the deed of assignment as prepared by solicitors is not that clear as to indicate unambiguously and precisely the intentions of the parties. I would also like to point out that it is the duty of any solicitor who undertakes conveyancing work to take instructions from their clients. If instructions are taken, such instructions must be incorporated in a deed of assignment. After all, a solicitor's office is not a printing-press. It is not to copy and re-copy precedents of conveyancing, Each and every document must be tailored to suit individual requirements. Had that principle been strictly complied with, there should not be necessity for this action. Be that as it may, there is an ambiguity in the deed of assignment and therefore leave doubt between the parties.

2. The plaintiff's action is based on a deed of assignment giving him exclusive possession of the Flat. His ground is that, by virtue of that deed of assignment, he has acquired the exclusive use, and ownership of the stairway leading from the ground floor to the Flat. I shall refer to this staircase simply as "the staircase". Alternatively, he claims that by virtue of that assignment, he has a right of way over the staircase. The defence is that the staircase was never meant for the use of the occupier of the Flat. It was built for another purpose to which I shall refer later. It is also the contention of the defendant that the staircase was never part and parcel of the deed of assignment, and that no one had any right of way to that staircase except the inhabitants of the adjoining property known as No.46, Jordan Road, of which the plaintiff has always been and still is, the registered owner.

3. It is common ground at least it is not seriously challenged, that the plaintiff is the registered owner of No.46, Jordan Road. The defendant is the registered owner of No.44. These two sets of property originally shared a common staircase which was the former site of the staircase in this action. At one time there was negotiation between the plaintiff and the defendant and some others as to how they should re-develop their property. The defendant denied this in evidence, saying that there was no negotiation at all. However, I regard this point as completely irrelevant because even if there had been any negotiation, the negotiation never came to any result because it broke down. As a result, the defendant worked together with the registered owners of adjoining property known as No.40 and No.42 of Jordan Road. They built a building comprising the former site of Nos.40, 42 and 44, Jordan Road. The demolition of the property in 44, 40 and 42, of which only No.44 is relevant for the purposes of this action, took place in September 1963 and completed by March 1964. The new building at No.44 was not completed until 1965. After the new building was completed, the defendant was allocated two floors namely, the ground floor of No.44 and the Flat. At the time of the demolition of No.44, it was a requirement on the part of the Building Office in the Public Works Department, that a staircase in the form of temporary structure he erected so as to serve the tenants in No.46. This was so, bearing in mind that at one time the properties of No.44 and No.46 of Jordan Road had a common staircase. The plaintiff subse quently also applied to re-develop the property in No.46. The premises of No.46, or old premises at No.46 was demolished in the months between April and July 1964. Thus, by the time when the new building at No.44 was completed, the building at No.46 had already been demilished and yet the staircase - that is the staircase the subject matter of this action - which was re-built with some more permanent material leading up at one stage from the ground floor to the first floor could not serve any of the tenants of the former building at No.46. In early 1969, the defendant let the flat to a barber shop known, I believe, as the Rainbow Barber Shop. Then on the 10th April, 1969 the defendant assigned the Flat to a couple by the name of Lau Kou and Lau Wai Lin. The deed of assignment is exhibited before me in an agreed bundle in pages 39 to 43. On the 21st December, 1970, Lau Kou and Lau Wai Lin assigned the Flat to the plaintiff. Such as are the facts which are not seriously challenged by either party.

4. The plaintiff's case is that by virtue of her assignment to Lau Kou and Lau Wai Lin, the defendant had assigned that portion of the premises covering the staircase and in any event the staircase at the time of the assignment led to nowhere except the barber shop in the Flat. It served nowhere else. On the part of the defendant, it is alleged that the staircase or any part of the staircase was not included in the assignment at all. Furthermore, that staircase was used not by the tenant of the barber shop but was used by tenants of No.46, Jordan Road of which facts the plaintiff had ample knowledge and therefore there could not be a right of way granted over the staircase. At the commencement of the trial, I visited the scene of these properties and it may be of use to record my observations.

5. I saw that there was a staircase at No.44 which at the moment led up from the ground floor to the first floor to which was blocked. There was no way to go through that staircase now to the first floor. On the other hand in the property now comprising No.44, there was a grand entrance in the middle of the building from which there were at least two lifts and two staircases leading up to the upper floors, including the first floor and would lead to the Flat. But it would be a cumbersome way of getting to the Flat. At least it would not be half as convenient as the staircase which could lead direct to the Flat. I proceeded to the first floor and entered the premises of Office "C" i.e. the Flat. There I went through to another door on the opposite side which was nearer to the property at No.46. I observed that although there was a door leading to the staircase which gave direct access to the Flat. But the staircase was blocked by a partition erected near the top steps of the staircase. On the landing there was no further opening to go up to the second floor. The only opening was to go into the Flat. At the same time. No.46 had already built the partition wall so that all one could see at the landing was a complete cul-de-sac, subject to one opening to the Flat. I also proceeded to the third floor of the premises in No.44 and I observed that there was another stairway leading half way down to the second floor. Again, the second floor staircase was blocked by a partition at the bottom. It could not go any further up because it came to an abrupt end there. It could not go down to the second floor any more because it was blocked also.

6. Now, in his evidence before me, the plaintiff said that there had been some negotiation at the early stage of the re-development scheme, but it broke down. As a result, the defendant joined with other owners to re-develop her property. At the time of the re-development of No.44 he had already demolished his own building at 46 so that the staircase could not be for the use of his tenants at No.46. In 1969, Lau Kou and Lau Wai Lin purchased from the defendant the Flat and in December he took an assignment to acquire the same property. According to him, at the time when he acquired the Flat he had seen the staircase - being used extensively and frequently by customers of this Rainbow Barber Shop. His witness Lau Wai Lin gave corroborating evidence as such. Therefore he assumed that this staircase was part and parcel of the property of the first floor, or at least it is so enjoyed by the occupier of the Flat. Soon after he acquired the Flat, he found that the defendant put up a gate at the staircase to stop people going up. He wrote through his solicitors to the defendant's solicitors claiming his right of way, but the defendant's solicitors returned denying his right of way. These letters are exhibited in the agreed bundle page 63 and 64 respectively.

7. The defendant's evidence is this. In early 1969 she was still the registered owner of the Flat. She let the Flat to the present tenant, the Rainbow Barber Shop, to operate as such. At that time there was no opening to the staircase. The staircase was built only to accommodate the tenants of the old house at No.46. However, her tenant, soon after the letting opened up a door leading out to the staircase and then to the ground floor and the street of Jordan Road. She said that it was done without her permission. She forbid them to use it. At the time when she assigned the Flat to Lau Kou and Lau Wai Lin, she emphatically told them that at no cost could they ever use the staircase and she had a right to demolish the staircase once it was known that it was not required by those people in No.46. By that time it was certainly not required. That is why I criticize the solicitors preparing that deed of assignment between the defendant and Lau Kou. The deed of assignment certainly did not include her demand or her emphatic warning. She said that no one used the staircase anyway and by the time the plaintiff acquired the Flat, no one used the staircase. She felt she was entitled to block up the stairway which was part and parcel of her own property not yet assigned to anybody at all. That is my understanding of her evidence. The architect she called gave evidence that the staircase was erected to comply with the P.W.D. requirements and to accommodate the tenants in No.46. On such further evidence, I find as facts - apart from the facts I have referred to and not seriously challenged - at the time when the defendant let the Flat to the Rainbow Barber Shop, there was a blank wall on that side of the Flat and no opening to the staircase. However, the tenant - the barber shop - opened a door to the staircase to the knowledge of the defendant and no action was taken. I can only assume that there was a waiver of any breach of covenant. That door was opened without any protest by the defendant. Once that door is opened, it is obvious to even a child of 3 that it was with the intention of utilizing the staircase. The staircase had been frequently utilized by customers and by all people having ingress and egress to and from the barber shop. It was the most convenient way.

8. I now come to the assignment. In April the defendant assigned the Flat to Lau Kou and Lau Wai Lin. Despite her evidence, that warning was given to Lau Kou and Lau Wai Lin such a term was never incorporated in the deed of assignment. Her intention is completely irrelevant. When it comes to a construction of a document, the cardinal principle is that extrinsic evidence may not be adduced for the interpretation of the document except under exceptional circumstances of which there is none in the present action. She already said that the deed of assignment had been clearly explained to her. She knew of the contents. She executed it. The question is the construction of this document and this document alone because the assignment from the defendant to Lau Kou and Lau Wai Lin and the assignment from Lau Kou and Lau Wai Lin to the plaintiff are in practically identical words - at least the habendum in that documents are in identical words. The question is, whether on the construction of that document, the plaintiff is right in contending that the staircase had been conveyed to him together with the Flat or whether the defendant was right that it is not included in the first floor. I am indebted to counsel for their reference to authorities in support of their contention. But in the construction of a document the sole answer is to be found in the document itself. The proper authorities may be of some assistance but certainly they have no binding effect on such consturction. Mr. Chau for the defendant contends that if any property were to pass in an assignment, it must be by express words. The first thing is that on page 40 of the bundle the only area assigned were those described as Office "C", 44 Jordan Road, first floor, and referred to the area coloured pink. As to the right of way, Mr. Chau contends that the right of way must be capable of being subject matter of a legal grant, and that the assignor had not reserved any right. Further, he refers to the mutual covenant which shows no staircase at all and the plan on the assignment as attached to the deed of assignment of April 1969, namely, page 39 had ample other staircase to lead to Office "C". There is no indication in the plan attached to the assignment to show the staircase as being subject matter of the assignment. Further, he contends that the deed of mutual covenant between the various occupiers of the building of No.40, 42 and 44 shows nothing of the staircase leading from the ground floor to the Flat. Whatever right of way it has not been shown in the deed of mutual covenant. The assignment also refers to the deed of mutual covenant.

9. Mr. Li for the plaintiff, on the other hand, contends that the assignment, if ambiguous, clearly indicates that the plaintiff has the area that is coloured pink and when there is any ambiguity, whether in the words or in the plan, whichever is clear and unambiguous must prevail. As to the right of way, he contends that since the staircase had been used extensively and enjoyed even though at first by licence of the defendant, such licence was elevated by the words of the first assignment from defendant to Mr. Lau, and became a right of way. When the plaintiff acquired it in December 1970, such right of way passed to the plaintiff. He further suggests that the lack of mention or marking in the mutual covenant plans of the staircase only goes to show that the plaintiff made exclusive use of it and no other tenant of the property had the use of the staircase.

10. Having heard the arguments on this subject, I have now to refer to the documents in question. The first document in question is the deed of assignment at page 39 to 42, namely, the assignment from the defendant to Lau Kou and Lau Wai Lin. For this, I only need to read the habendum. It reads as follows: "The Vendors assign unto the Purchasers the property with the right to the exclusive use and enjoyment of all that the first floor of No.44 Jordan Road (otherwise known as Office C on the first floor of the said Building) as is shown and coloured Pink on the plan hereunto annexed. And all rights of way (if any) and other rights and all privileges easements and appurtenances thereto belonging or appertaining or therewith at any time used held occupied or enjoyed". When I read the wording of the habendum, the words connote clearly that only Office "C" on the first floor of the said building known as No.44, Jordan Road i.e. the Flat was assigned. However, it refers to a plan and refers to an area coloured pink. That is conflict between the wording and the plan because the area coloured pink in the attached plan on page 39 of the agreed bundle obviously covered the area that is occupied by the staircase in question. It also includes the area that is occupied by the upper staircase leading from the second floor to the third floor of the property No.44. Such is the ambiguity. I would have thought that in a situation as this, if the plaintiff were not entitled to the staircase, he would have been at least entitled to the horizontal area on the first floor space which is at present occupied by the staircase. He would also have the right of mutual support from the tenant or occupier of the ground floor. But at the moment that space is a vacuum because slanting down is a gap occupied by the staircase. I need only refer to the deed of assignment between the defendant and Lau Kou for the purposes of construction. As I said, the assignment from Lau Kou to the plaintiff are in identical wording as far as the habendum is concerned. If I construe one, I have to construe the other. In this connection, I would like to refer to a further finding of fact which is that there must have been at one time a motive to build the staircase in question. The motive was, as I can infer from the circumstances and the evidence, that the defendant thought she was obliged to maintain a staircase to be used in common with the plaintiff's property No.46. Subsequently it was found that the defendant was not obliged to do so. Hence the staircase which was blocked up at the first level. The staircase was not built to accommodate the tenants of No.46 because by the time when No.44 was completed, there was no building no tenant in No.46. I cannot presume that the staircase is to enable people to walk up there so as to jump into an empty plot of land. Nonetheless, it was built with permanent material and the defendant found that such a staircase was convenient for the first floor as long as she was the owner. When she let the Flat she could also observe that the tenant was her tenant and open up a door to lead to the staircase would be convenient for the tenant and would enhance the rental value of the Flat. Therefore she had indeed raised no objection and allowed people to use the staircase. But when the Flat is purchased by the plaintiff with whom she might have some disagreement she now sees fit to block up the staircase. But that is neither here nor there. This is only a further finding of fact. Be that as it may, I find that there are certainly a mbiguities in the wording of the assignment but no ambiguity in the plan which speaks for itself. I see that there is force in Mr. Li's argument in saying that when there is no ambiguity on the plan or at least one part of the document, that part of the document should prevail. Having regard to the principle as supported by the authorities cited to me, I am satisfied that that must be the correct proposition of the law. I further find that it is also correctcin law to say that, when the deed is ambiguous, it must be construed generally against the grantor. As the defendant is the grantor in this case, the deed is construed against her. I raise the principle that he who alleges must prove. But that is only a procedural point. The plaintiff has complied with the procedure by producing a deed which however ambiguous to the defendant, is at least clear as far as the plan is concerned because the plan is hatched pink and covers the whole area that is under the ownership of the defendant when she granted the area coloured pink.

11. That would have disposed of this action. But if I were wrong in so construing the words in the habendum, I would like to refer further to the other part of the wording in the habendum and this is "All right of way and other rights and all privileges easements and appurtenances thereto belonging or appertaining or therewith at any time used held occupied or enjoyed." There is no ambiguity in this part. Although the plan attached show the other staircases and the lift leading to the Flat, there is also in evidence that the staircase was in existence at the time of the grant and used extensively by various people, customers, to the barber shop. That was a privilege or right of way used therewith a nd enjoyed. This right of way is certainly capable of being the subject matter of a legal grant. That is quite distinguishable from the case of Green v. Ashco Horticulturist, Ltd., 1966 2 All England, 232. The right of way in the present case has been used not subject to any qualification, whereas in the other case, the Green's case, the right was used subject to exigencies of the requirements of the landlord. In the present case the right of way was capable of being subject matter of a legal grant. But not the right of way in Green's case. I rule that a right of way had been granted to the plaintiff in this case. Under the circumstances and for the reasons aforesa id, I give judgment to the plaintiff by granting a declaration that he is entitled to the exclusive use and enjoyment of the stairway beca use it leads to nowhere except to his premises. Or alternatively if I am wrong in this then I rule that the plaintiff is entitled to a right of way over the staircase and an injunction requiring the defendant to remove the obstructions and iron gate would therefore follow and it follows with costs.

Representation:

Andrew Li (Woo & Kwan) for plaintiff

John Chau (P.H. Sin & Co.) for defendant

Oral judgment reduced into writing.