Data Enterprises Limited v. The Macao Electric Limghting Company Limited
Read the full judgment text of HCA 9244/1983 on BabelCite. This High Court CFI judgment.
1. Chinglish is a language spoken by the Cantonese in Hong Kong and by their descendants in Canada, the United States of America and the United Kingdom. To the humorists it is amusing to the educationalists it is a cause of great sadness and to judges and counsel it is a great burden. Until this case began, I had never realised that it was also a danger.
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HCA009244/1983
BETWEEN:-
_________ Coram: The Honourable Mr. Justice Jackson-Lipkin in Court. Dates of hearing: 26th-30th March and 2nd-3rd, 5th-6th, 9th-13th April 1984 Date of delivery of judgment: 13th April 1984 Appearances: (Miss) Audrey Eu for the Plaintiff. Peter Cheung for the Defendant. __________ JUDGMENT __________ 1. Chinglish is a language spoken by the Cantonese in Hong Kong and by their descendants in Canada, the United States of America and the United Kingdom. To the humorists it is amusing to the educationalists it is a cause of great sadness and to judges and counsel it is a great burden. Until this case began, I had never realised that it was also a danger. 2. On the 24th day of October 1901 His Majesty King Edward VII granted to Luiza Josepha Vieira Ribeiro of 3 Chancery Lane, Victoria a piece of land in that part of Kowloon described in Exhibit 4 as abutting des Voeux Road. The part with which I am concerned lay between des Voeux Road (as it then was), Austin Road and Kimberly Road. According to the block plan attached to that Indenture of 24th of October 1901 (Exhibit 4), there were 4 lots of land: Kowloon Inland Lot Nos. 617, 523, 616 and 615. I do not need to recite the whole history of this piece of land because the principal part appears very clearly from Exhibits 31 & 31A prepared for me by Counsel: Each document was agreed by the other Counsel. 3. This parcel of land, which sold for $248.49 and commanded a rent of $228.00 a year, eventually came into the hands of a limited company and then 2 persons, Messrs. Leung & Tsang. Whatever the Ribeiro family had was developed, as appears from Exhibit 36, in 1949, into what were described in the plan as 4 "European type houses". I am concerned with one such building, then described as "European type house", which can best be described today as a "semi-detached block of flats", each half consists of 4 flats above the space for a garage. Fascinating as the history of this land may be, it is irrelevant to my judgment in present case because the Crown re-possessed the land in 1971, by which time, the portion of land with which I have to deal, had been divided and subdivided. The remaining section of Section B of Kowloon Inland Lot 616, that is 115 Chatham Road -the new name given to des Voeux Road when it was widened. The other half was Subsection 1 of Section B of the same Kowloon Inland, that is 117 Chatham Road. 4. What happened was this: In respect of the Plaintiff's Lot there was a Re-Grant of sub-section 1 of section B of Kowloon Inland Lot 616 as Kowloon Inland Lot 9937, that is the Plaintiff's half of the building and is known as 117 Chatham Road. 5. On 15th November 1971, there was a Re-Grant of the other half, which became known as Kowloon Inland Lot 9939, that came into the hands of the Defendant and is known as 115 Chatham Road. These two Lots, or rather the building on these two Lots, was semi-detached in the truest sense. The entire building was wholly detached on the southern and northern boundaries, but it shared a staircase in the front of the building and a staircase at the back of the building, the boundary line running through the middle of the staircases. The rear staircase ran down to the back door and the back door was set along the boundary line. The front was different because the entrance was not, as in the rear, at ground level: The entrance was at first I floor level, and that was reached by a double set of steps leading to a landing, whence one entered the building on the first floor landing level. That structure, the out sidesteps to the point at which they meet either end of a platform at the top, called the landing, was erected wholly within the curtilage of the two Lots, 9939 and 9937: It appears clearly from the ground floor plan, the bottom right hand corner of Exhibit 36, and from without it appears clearly from Exhibit FKC-9 exhibited to an Affirmation of Mr. Fung Ka-choi affirmed to-day. (And I add parenthetically, which was affirmed to-day for the sole reason that, to his Affirmation of 1st August 1983 in the Interlocutory Proceedings earlier in this action, he had exhibited but only a photostat - that is page 137 of Bundle B.). The original plan was for four European style houses, which, it appears from the Building office file, did not commend itself to the Building Authority, who thought it was "rather mean" and not of the quality that one would expect in the future Chatham Road, or what nearby, become Chatham Road. They, obviously, did not have a great life expectancy. And the time came, when the respective owners, the Plaintiff and the Defendant, thought about re-developing their respective halves of the building. 6. On the evidence before me, the first person to reach a decision was the Defendant. And the Defendant, as appears from the photographic exhibits in this matter, first put up hoarding, then scaffolding, then plastic sheeting and so on. And it became obvious the demolition was about to commence. Well, demolition did commence, and a certain amount of correspondence ensued between Solicitors for the Plaintiff and Defendant, between the Plaintiff's representatives and the Building Office, between the Building Office and the Defendant's architect and there were conversations between the Defendant's architect and the Plaintiff's Solicitors. All of which, if read, would give the impression of something happening which never happened. In due course, and, it seems more than possible, due to the use of "Chingish", a Writ was issued on 20th July 1983. On it was endorsed a Statement of Claim and to it was exhibited a plan. The Statement of Claim runs from pages 2-6 in Bundle A and the plan appears at page 7. After certain recitals, there came this paragraph, (paragraph 6 on p. 11) :-
And the yellow hatched black described the entirety of the back staircase, the entirety of the front staircase, the southern front steps and the platform of the front steps. 7. Paragraph 5 of the Statement of Claim averred that the owner for the time being of 117 Chatham Road enjoyed an easement over the staircases and landings erected on the property 115, coloured yellow and hatched black, and by reason of long user of the 33 years, it was averred that the Plaintiff was entitled by prescription to the Rights of Way of the said staircases of landings. Then comes paragraph 7.
And then it says:-
And then it says:-
That did not mean what it said. On the 25th of November that was amended by adding to paragraph 5, an alternative averment, namely that the easement of necessity arose over the said staircases and landings by implied grant upon the re-grant of the said Lots by the Crown, in other words, on 4th and 15th November respectively in the year of our Lord 1971. I am not at this point dealing with the other pleas, I am dealing at the moment only that the ones to which I have already referred. 8. In March this year, a far-reaching re-amendment was made of Paragraph 5 of the Statement of Claim which then read:-
The Prayers of the Statement of Claim remained unaltered, and they were as follows:-
which is 115, says:
That Prayer appears on page 15-F of Bundle A and the plan appears on 15-H, and it behoves me to re-read that Prayer.
and, on the plan on A15-H, that which is yellow hatched black is the entirety of the back staircase, the entirety of the front staircase, the southern half of the platform of the front steps and the southern front steps. 9. Paragraph 2 claims a declaration that the Plaintiff is entitled to a Right of Way over the staircases and landings referred to in paragraph 5, Prayer 3 is for a further declaration that the demolition of the staircases and landings referred to in paragraph 1 of the Prayer, that is the one I have read twice, was wrongful and unlawful. 10. And then there are other Prayers which at this moment I need not deal with, but, due to the events which happened, additional sub-prayers were added to Prayer 8, (which was for further and-other relief), as appeared on 15-J of Bundle A. None of what I have read from the Statement of Claim and none of the Prayers bears any relation to the subject matter of this action. 11. To the Statement of Claim, to the Amended Statement of Claim and to the Re-Amended Statement of Claim, the Defendant had to plead. And it did. It pleaded that the whole of the 115 had been completely demolished for the purposes of re-development. (That was untrue, because the southern half of the platform of the front steps had not been demolished.). And it then embarked on a series of pleading which cover paragraphs 3, 4, 5, 6 and 7, which read:-
12. I return to Exhibit FKC-9 and page 137 of Bundle A. What this action was or is about on the aspect of the case that I already touched on, is nothing more than the demolition of what is described on page 137 of Bundle B as "a" staircase of No. 115 Chatham Road: No staircase within the building had been demolished: No landing within the building had been demolished: The entrance landing, being the top stroke of an original-type Chinese character for "8", had not been demolished: The northern steps, of course, belonging to the Plaintiff had not been touched. It is apparent now why I spoke of "Chingish" and confusion. I have, therefore, first of all, before I proceed to any other matters in issue between parties, to decide if was there a Right of Way in the Plaintiff Company over the southern front steps of this semi-detached building at the time of the demolition. If there were not such a Right of Way, was there an easement that arose by implied grant in November 1971, or was there an easement which arose by implication on the re-grant of November 1971. Alternatively, was there an easement of necessity which arose upon the re-grant in November 1971. The claim for a Right of Way by prescription was abandoned on the first day of the trial, and it does not, therefore, fall to me to consider that problem. This is one of those rare, cases, where there is a clear bifurcation between law and reason. And I have to cope with it. The re-grants which, copies of which appear at pages 13-22 and 23-34 of Bundle C, contained references to Rights of Way. 13. I will dell with the first one first, that is the Plaintiff's premises at 117. C-14 shews that the Lot prescribed in the First Schedule and shewn pink on the plan, was granted for a term of 150 years - and that is No. 117. And it shews the Particulars and Conditions of that grant followed, and one of those was the surrender of the old Lot described in the Second Schedule, and that was part of the land I already described. It is Section 1 of Section (b) of Kowloon Inland Lot 616. What that meant was, therefore, that the old Lot which was held on a Crown Lease with a term of 75 years from 1901 was being surrendered, it would vanish and be replaced by the re-grant. I do not need to go through the General Conditions and I will pass to the Special Conditions at page 18. Special Condition 1(b) says this:-
That is Exhibit 4. The term, as I have said, was 75 years. And, therefore, nothing, in the Re-Grant could be taken in any way whatsoever to extend the existing Rights of Way beyond the autumn of the year 1976. It is quite clear that prior to the Re-Grant, the inhabitants of the two halves of the building, 115/117 Chatham Road, mutually enjoyed rights of ingress and egress, passage and re-passage to and from and over both sides of the front steps, (northern and southern), the front platform/landing, the first floor landing, the staircase in the front, the entrance to the flat roof in the front, the entrance to the flat roof at the back, the staircase at the back and the back hall-way. Between Special Conditions 9 and 10 appear these words:-
Which shews that the Re-Grant contemplated re-development of the property. 14. The Re-Grant to the Defendant of 115, which is dealt with at C-24, was also for 150 years, and involved the surrender of the 75-year lease. It contained, on page C-28, Special Condition 1(b).
That Re-assignment appears at page C-35 and the Crown Lease is, of course, Exhibit 34. On page C-30 it appears between Special conditions 10 and 11 the words:-
It is quite clear from what I have read that there had been Rights of Way up to November 1971. Nobody has sought to dispute that. Equally clear that, if there had been no provision in either of the Re-Grants, the law would have come to the rescue of the parties or an equity such as those being now prayed, to preserve those rights so long as the buildings existed. But that is not what happened. The Crown in its wisdom prescribed that the old Rights of Way should continue only until the end of the term created by the old lease, and each of these Re-Grants specifically provided, therefore that they would not be taken in anywise to extend those Rights beyond the date of the term of years created by the old Crown Lease; so they neither extended the term nor could be deemed to extend the term. Implication, therefore, was specifically excluded. Miss Eu urged upon me that I should look at it quite differently, I should look to the common intention of the parties and see what that was, and the effect that it had, and the authorities that she cited to me shewed that, in appropriate cases, that is exactly what the Courts have done. What Miss Eu urged upon me was this that, at the time of the Re-Grant, I should take the common intention of the parties to have been that, at some time in the future, that is 5 years thence in October 1976, there should spring into life, an implied Grant of the Right of Way, rather as if the Crown had a Right of Way in pectore and like the later revelation of the prior creation of a Cardinal, breathe life into this hitherto unknown Right of Way. None of the cases cited to me gives even the slightest hint, let alone indication, that that situation has ever been contemplated by any Court. All implied Grants had been Grants implied by a mythical intention of the parties at the time of the Grant in order to make the Grant effective. In fact, in one of the authorities, the maxim ut sit res magis valeat quam pereat was relied on, which shews that the mind of the Judges and the Law Lords, in the case cited to me, were directed to the position of either the genuine or the mythical intention of the parties at the time of the Grant. The idea of something lying in pectore for 5 years, in the face of the terms I have just read, is in my judgment insupportable, and insupportable by any of the authorities cited to me. 15. It is suggested in the alternative, that an easement of necessity arose upon the Re-Grant, but an easement of necessity of this type relates only to land-locked property. This property was not land-locked in 1971. There was, by express Grant from the Crown, a 5-year of Right of Way granted to each party. It was not land-locked. "Ah, well", said Miss Eu, "this is as may be: But it was clear to the Crown in 1971 that there was the possibility that it would become, land-locked in 1976", and, therefore, again there lay concealed in the bosom of the Crown this easement, which would spring to life in 1976. I have had cited to me, Blackstone, Cheshire and Burns, Gale, Halbury, Jackson, Leaf, Stroud and a host of authorities, and nowhere among those is there the slightest hint that that situation could ever arise. And, on the authorities cited to me, and on the present state of the law, I hold that it is quite impossible for me to say that an easement of necessity arose in 1971. 16. This is the point at which reason and law bifurcate, and it is something which I, for one, will not tolerate. This Court will not permit a situation to arise whereby the inhabitants of one half of the building with a common staircase, can be shut off entirely from using that building merely because of the effluxion of time of an express Grant of Right of Way. What then? Mr. Cheung conceded that there must be user of the common staircase by those who live in or resort to 117. He is quite correct in doing so: No Court would hold otherwise. He, however, declined to attach any label to it. Up to the moment of demolition, or I should say up to that moment, prior to the re-development, at the time when, apart from one old lady, there were no people actually living in 117 - that means a year to two years before the demolition - there was mutual enjoyment of the front and the back staircases, and to and from the front staircase, there was mutual enjoyment of the landing of the front steps and mutual enjoyment of the north and south front steps. In my judgment, there arose from that, an implied license from one to the other, and the other to the one, that there would be uninterrupted user of both staircase and of both entrances and there would be uninterrupted user of the front steps for so long as the building remained in its then-state. That licence, I hold, would not extend so as to preserve in perpetuity the right of the inhabitants and owners of 117 to pass or re-pass over the front steps of 115, should 115 be demolished. The reason is simple; because it is a licence in the nature of an easement of necessity - and necessity does not require the use of the south steps. The north steps are more than adequate for the enjoyment by 115 of the whole of its building and of the front common staircase. Miss Eu urged upon me that I should find that, by acquiescence a proprietary estoppel, something greater than the implied mutual licence, to which I referred before the midmorning adjournment. I am not going deeply into it: Suffice it to say that, both on the law and on the facts of this matter, I do not find myself able to uphold that plea, in that the constituents necessary to establish by acquiescence a proprietary estoppel, something greater than what I have found, are absent. Acquiescence there might be said to have been in the mutuality of use. Acquiescence there may well have been over the south steps. But the other constituent parts required to establish a right to the south steps are not there. If I were wrong, and there were vested in the Plaintiff at the material time rights greater than those I have held that the Plaintiff has, I would not, on the totality of the evidence put before me, that is the oral evidence of Mr. Ho and Mr. Chu, the oral evidence of Mr. Jay, the site view, Bundles A, B, C and D and the Exhibits, that is what I mean by the totality, I would not have found myself properly able to give a mandatory injunction for the reinstatement of the south steps, and I would not so have exercised my discretion. In no way, on the evidence before me, could this be said to be a case for a mandatory injunction, particularly where, if the circumstances were otherwise, damages would have been a quite suitable alternative remedy. 17. I then have to consider what damages I would have granted. 18. Having examined the site visually and physically, looking at KC-9 and all the photographs in this action and all the plans in the action, I would have made an award of nominal damages, because if I were wrong and there were such a right, it is a right of nominal value. The steps called the B steps on B137, that is the north steps, are more than adequate for access to the building, as I think I have already said. But this is all academic and fortunately it is, because if I stuck strictly to necessity, the Plaintiff would not even have the use of the Defendant's side of the rear staircase, as Counsel for the Plaintiff readily conceded. It is fortunate that I have found something more. But even my finding is academic, because the Defendant company, by its Counsel, made an oral grant and undertook to have the same to put into the form of the Deed in these terms: "The Defendant company hereby, through its Counsel,"(and those four words, of course, will not appear in the Deed)"grants and reserves under the Plaintiff Company and its assigns rights of ingress and egress and of passage and re-passage over and along those parts of the platform of the front steps, the front and back halls, the common staircases, front and back, and the entrance to the flat roof of the suit premises as lie within the curtilage of the premises of the Defendant Company situate at Kowloon Inland Lot 9939 and known as 115 Chatham Road, Tsim Sha Tsui, Kowloon, for the use by the Plaintiff Company and of any person or persons holding of or under or from the Plaintiff Company, of the premises of the Plaintiff Company situate at Kowloon Inland Lot 9937 and known as 115 Chatham Road of the aforesaid or any part or parts thereof.".". 19. And Mr. Cheung has just properly interrupted my judgment to remind me that the oral grant made through him was, as appears from my notes, "without prejudice", and despite the state of the law to the contrary. Those words will, of course, appear in the Deed, so, strictly there was no need for me to mention them in this judgment. Mr. Cheung has also properly reminded me that the Plaintiff has not said that it would accept such a Grant. This is as it may be: If the Defendant rejects the Deed prepared by the Defendant solicitor, so be it, it will be the sufferer; it will have an implied Grant by My finding of an implied user, and if that be something less than it is offered in the Deed, that is unfortunate for the Plaintiff. It is not for me to tell the parties what to do. I have made my finding. I find there is an implied mutual licence. The Defendant in its wisdom has offered something marginally more, but without prejudice and without regard to the state of the law. If the Plaintiff wants to reject it, it may. 20. I believe that I was dealing with damages. There is no quantifiable loss by not having the south steps and only having the front steps. If, in my discretion, I had ordered the reinstatement of front steps, among other things it would require the setting back of the whole of the ground floor frontage of the new building at 115; that is a fairly minor matter as far as I am concerned, but it did enter into my consideration when I considered if I would have exercised my discretion to grant a mandatory injunction were I inclined to find a right. As I have said I would not have granted such as injunction. I would then have had to assess the damages in the light of everything that I have heard, everything that I have seen, everything that I have examined, all photographs, the plans and measurements at which I have looked and the rights and users, and, if I came to conclusion that nominal damage would suffice there would have been nominal damages in the sum of $100, that is to say, if I were wrong, and if there had .been a right to use the south front steps. That deals with the physical aspect of this claim, and I now pass to the remainder of the matters before me. 21. The Plaintiff complains that, as a result of the demolition, its own premises have become unsound and have deteriorated in value, and it claims that it has suffered loss and damage in that the previous tenants moved out due to the demolition work, and it claims that the Plaintiff has been unable to attract new occupants: That appears in paragraph 13 in these terms:-
It arises in this way. Paragraph 10 pleads that, in the course of demolition, the Defendant left the rear portion of 115 as a three-sided erection attached to the rear of 117. (A simple glance at the building plans would shew that the demolition was intended to be carried out in two parts, and had been approved to be in two parts, and that the rear part was the second phase of the demolition). The Plaintiff further pleads that, as a result of the demolition, the party wall has become exposed to the elements without having been reinforced or adequately reinforced. Also that as a result of the partial demolition, the doors of 115 (that formerly led to the common staircases) were left standing in the party wall and opening on to the common staircases and landings, and that the Defendant had failed securely to board or to stop up the gaps left by such doors, and, also, that the demolition of the Defendant's portion of the flat roof left a dangerous situation, which had been inadequately fenced. The Plaintiff said that its building was endangered by the wind effects caused by the retention of the Defendant's rear portion, and that "the party wall has become eroded, and will be liable to further erosion, and that rain and water continue to seep through the party walls into 117: That rain and water continue to seep through the gaps of the doors on to the common staircase, landings, and that the said occupants are liable to fall off the flat roof of 115.". The "said occupants" are presumably the potential occupants referred to in paragraph 11. And it said that the Plaintiff had called on the Defendant to abate the nuisances, but that the Defendant refused to do so. Dealing with those pleaded matters first, as I say the rear portion was intended to be the second phase of the demolition, and it has been demolished. Demolition was completed in the late summer of 1983. And it is interesting to see, as I saw, the result of the retention for a while of the rear portion. According to the pleading, the whole of 117 was endangered by wind effects created by the retention of the rear portion. I was not able to find any effect on the Plaintiff's building which could be said in any way to have derived from a few months' retention of the rear portion of 115. When Dr. Yau gave evidence before me, he explained to me what he meant by "endangered by wind effects", but was not able to point out any danger having in fact occurred, or to any damage having in fact occurred, as a result of the few months' retention of the three-sided erection, nor it was suggested to Mr. Jay, when he gave evidence, that any untoward result had followed from demolishing in two parts instead of all in one. The party wall is still not reinforced and the latest opinion from the Building Authority, in the autumn of last year, was that it appeared to be in sound condition, and he for one did not order that anything be done about it. Exhibit 23 shews him as reporting in his files. It is Memorandum 43 in the Building office File. Exhibit 23, in this case, is Item 4. The exposed party wall appears to be in good condition and with the cut beams and slabs having been rendered (as is the usual practice in such cases). 22. The Defendant's servants and architect, on being informed of the danger of having wooden planks separating the Plaintiff's flat roof from a gaping void, had a line of brick wall erected and covered in cement or cement plaster, it matters not which; it is accepted now by the Plaintiff that it is a safe and adequate boundary protection. It can be seen in the photographs which are contained in Bundle C and in the various Exhibits. There was a period, undoubtedly, a period of some danger. But, as the building was kept locked, and it. is clear that not even the Defendant could get access to its own staircase, the danger was very small. But, nonetheless, the Plaintiff is entitled to some damages for the potential danger between the moment of demolition of the Defendant's half of the flat roof and the erection of the brick and cement wall (as opposed to the planking). That, again, is purely nominal, and will carry with it an award of nominal damages of $100. 23. It is then said that the party wall has become eroded and will be liable to further erosion. Not in a single photograph, not in anyone's evidence, not to my eyes, not to anyone else's eyes is there the. slightest evidence of erosion of the party wall. 24. What then is left? There is the seepage of water through the party walls into 117 and there is the gaps surrounding the doors on to the common staircase. I have to deal with those both as nuisance and on the pleading of paragraph 13, to which I have referred. 25. The plea that the Plaintiff's previous tenants moved out of 117 due to the Defendant's demolition of 115, is utterly without foundation. The evidence of Mr. Ho, the evidence of the correspondence, the evidence contained in the affidavits which consisted of some few parts of the few of which were put before me, but which were contained in Exhibit B, are wholly against it. Although Exhibit B has not been dismembered to separate the parts referred to, from the parts not referred to, the marginal notes of my Notes of Evidence will shew that evidence to which reference has been made, and, if a schedule of that is ever required, I can have it made available to Counsel on reasonable notice. 26. So I have to look at the seepage of water through the party wall and the gaps around the doors in the light of the pleas (a) it is a nuisance, (b) it has rendered the Plaintiff's property unsound, (c) it has caused a deterioration in value the Plaintiff's property and (d) the Plaintiff has suffered loss and damage in that it has been unable to attract new occupants. 27. I will deal with unsoundness first. The only thing that could possibly come into the category of unsoundness, apart from the failure to put a wall across the flat roof, is a L-shaped crack running across a part of the wall of the 117 side on the third floor. It is clearly seen from photographs in Exhibit C, at C-79. Dr. Yau, whose evidence on this point, was unchallenged, said that that crack was due to faulty construction of the building in 1949. That evidence, as I say was unchallenged and, if one looks closely at C-79, one will see that the crack follows the upper horizontal and right hand and vertical lines of the brick infill between the structural members of the building; the column and the beams constituting the wall corner and the roof support in that particular room. My view of it accorded exactly with what Dr. Yau said. It follows, therefore, that, in the absence of anything else whatever, the plea of the Plaintiff's property having become unsound must fail. 28. I now pass to the deterioration in value, and say only this, that I shall deal with that under the heading of water seepage through the party wall and through the gaps of the doors, as one, and not as a separate matter, under the heading of nuisance. 29. I pass now to the Plaintiff having been unable to attract new occupants. I found Mr. Ho a pleasant man in a situation of grave embarrassment. He clearly is a well-brought up young man of a traditional family background. And I much admire him for his attitude. His filial devotion is such as to be highly commended, and I only wish that I had more witnesses in this Court who observed the proprieties of a Chinese family in the way in which Mr. Ho did; it is only too rare in this day and age: But it put him, as a witness on his oath, in a position of grave embarrassment. Data Enterprises Limited is a limited company, incorporated under the provisions of the Companies Ordinance. But I have not just come out of a jungle, and I am not sitting in The Strand, and I know perfectly well What a Chinese company is. Of course, if there were, in this Court, a conflict between the provisions of the Companies Ordinance (and like statutory provisions) and the customs of a Chinese family company, the law would absolutely prevail. But there is no such conflict here, and I will treat the Plaintiff as what it is in truth, a Chinese family company. So long as Mr. Ho's father is alive, healthy and well, and I hope he will so remain for a long time, Mr. Ho Junior has practically nothing to do with the running of that company. He may wish things, and he may hope things: Both of those became evident to me when he was giving evidence. He may even try to say things. But, whatever he says is subject, as it should be in any good Chinese family, to the wishes of the paterfamilias, the parents societatis, Mr. Ho Senior. Now Mr. Ho Senior quite clearly thought of redeveloping his building. Mr. Ho Senior wavered in that determination. Mr. Ho Senior looked at the state of the market, and, I suspect, he looked with mistrust upon the company next door. And so far as Mr. Ho Junior, who gave evidence, is concerned, there came a time when his father decided not to develope. I discount entirely his evidence in reference to company meetings, resolutions, board meetings, minutes: Even if there were any, which was not proved, they would have no meaning. They might have a meaning in law, but they would not have a meaning in fact; and what I am concerned here with is fact and not law. The embarrassment of which if spoke was this. Most of Mr. Ho's evidence ought to have been objected to as wholly inadmissible. He knew it was inadmissible. He knew he was trying to express his views without offending his father. He knew what he would like to do with the building. He knew perfectly well that the tenants did not move out because of the demolition, and he knew perfectly well that there had been no real attempt to get tenants into the building during the time that his father was considering demolition. He might have let in one or two people for a one-year lease, if he had found anybody suitable, anybody he could trust to get out and not to follow the usual Hong Kong practice of. hanging on and on and on and on and on at the end of the lease with one excuse after another (usually a series of estoppels based on "oral representations"). The advertisements really did not carry, matters much further. The building was locked up. The Plaintiff alone had the keys. Nobody could get in without an appointment, because somebody on the Defendant's side (I think that it was Mr. Jay) tried to gain entry he was not able to do so, because the caretaker would not open the external grille. The dates were on the list handed in to me, but there appeared to have been slightly more advertisements than were set out therein, because Mr. Ho tells that he recollects advertisements in other months, but there was, clearly, no serious attempt to attract anybody back into these premises at the start, or during the period, of demolition, just it is abundantly clear on the evidence that there was nobody there who was caused to leave by the demolition. The oral and written evidence makes that clear beyond peradventure. I saw these premises. We spent a whole morning there. They are in a disgusting state, even by Hong Kong standards. There are water marks and stains going from the outside to the inside. The down pipes are rusted right through, so that any rain at all will pour out and run down the walls, and, of course, as a result there will be some form of seepage. Some pipes are hanging loose and dangerous: They have now been taken away as a result of representations made by me at the sight of the danger. An area of the north wall, which clearly was either badly built or so deteriorated to the point that it needs urgent treatment, is letting in water to the north inner walls of all of the rooms. There were even on the ceilings and walls, some water stains which could not be wind-driven; they would clearly be coming through the walls. There were broken windows and there were broken window panes. From many windows there were handles missing. There were also missing the rod and peg (which holds the window in an open position, and also helps to to hold it in a shut position), missing - in some cases just the rods, in some cases the rods and the pegs: And, according to Mr. Ho, I did not see it myself, in some cases the pegs alone. And that is true also of the staircase window to the front common staircase. The whole place is in a state of shocking disrepair. What Mr. Ho tells me, and I believe it, is this. If he did find tenants, and if his father approved them, and if it did fit in with any of his plans, he would do such redecoration as those prospective tenants may wish in order to get the premises into a lettable state. But, is that state of affairs due to the demolition? Is it due to water seepage through the party wall? And is it due to rain and water seepage round the doors? Now the party wall has caused me great concern because there are water stains and water marks; of that there is no doubt. But there are water stains and water marks on the other walls. There could be a good answer to that, because what Miss Eu says is, "Ah, yes. But the walls are, and always had been, outer walls and something can be done about them. But this was a wall that was never intended to be an outer wall, it was a party wall. And it remains a party wall exposed to all the elements until such time as the Defendant completes its re-building. Therefore, it is more susceptible to water seepage and dampness than any other. And that is actionable in nuisance and it is rather that matter which rendered the Plaintiff unable to attract new occupants, because, if they made good all the other walls, and the windows and the floor boards and the ceilings, and the pipe work and the drainage work, they would still be unable to attract new occupants, because they could not put the party wall right, because seepage would continue.". I was not convinced by what I saw and examined, nor on the other evidence, that the water marks were caused by seepage through the party wall by a failure to plaster it over on the outside (as is sought in sub-paragraph (b) to the remedy sought under paragraph 8 appearing on page 15-J of Bundle A.). This property has been left empty, with the. exception of Mrs. Cheung's property for a very long time, a very long time by any standard, but a particularly long time by Hong Kong weather standards. And I am once again driven to remind Counsel of the famous case of the late Mr. Holmes concerning the horse "Silver Blaze", because counsel will remember, I think I told them before, the observation of the late Mr. Holmes to Dr. Watson that the significance lay in the stable dog; and Dr. Watson said that the dog did not bark: And the late Mr. Holmes was heard to observe that that was the significance of the dog. In this case, it would have been the most simple matter for the Plaintiff to have called he, or she, or they, who took possession of Mrs. Cheung's flat after she moved out, to say that there were no stains on that wall when the lady moved, and that, therefore, they can only have come as a result of the demolition. No such evidence was called. Nor was any evidence called of the state of any of the other floors immediately prior to demolition. And from what I saw myself, and from the absence of that evidence, and on everything else, I can not attribute those stains to water seepage. However, Dr. Yau observed and I observed and some of the photographs shewed, and Mr. Jay has conceded, that someone at some time has made some holes on the southern face of the party wall, and there is little doubt that water can get through the floating layer, probably through the rendering into the brick work of the party wall. And if that is allowed to continue, dampness will undoubtedly work its way through the brick work to the floating layer on the north, or Plaintiff's, side of the wall, and it is possible that some of the stains on the north side of the party wall could thus have been caused. Mr. Jay, in his evidence, admittedly quite frankly and openly that those holes ought never to have been left by the Defendant's sub-contractor. He says it was the undoubted duty of the contractor, as he went on with his demolishing, working his way down the building in the demolition, to plug and to render any holes in the party wall that were then there. It is a clear failure of duty of that subcontractor. The sub-contractor in this case is a particularly naughty man, because Mr. Jay did in fact order him, as a result of conversations with the Plaintiff's Solicitors, not to demolish the south front steps, and yet he did so. Mr. Jay ordered him to block up the Defendant's doors leading to the common staircases - he did not do so. And in this also he failed in his duty. I gather from the Defendant that that work is to be done, but, if invited to do so I will accept that and then make an Order, in modified terms of B on page J, that the Defendant do render all the holes and cracks on the south facing side of the party wall. That could only be made ex abundanti, because I have been told that the rendering is to be done, and, indeed, may already be in the course of being done. But the Plaintiff is undoubtedly entitled to such an Order. 30. I now pass to the rear staircase doors. I will readily concede from what I have seen, and so will the Defendant, that there may at one time have been a danger of rain, and most certainly of wind coming into the rear staircase from above and below the doors. The rear staircase, I suppose, is originally the servant's staircase. It leads to what was originally a scavenging lane. And quite clearly it is used for the bringing in of food and the taking out of rubbish. It is therefore, not quite as elegant as the front staircase must once have been in their prime. Where in the front, there are a tall cathedral-like windows guarding the staircase well, there is nothing at the back between each flight of stairs. There is a long open space. Either side of the central concrete pillar is open to hail, rain, sleet, snow and wind. And if any wind or water came into the rear corridor or rear landings through the tiny gaps at the top of the rear staircase doors, or the even smaller ones at the bottom, it would, in my judgment, be de minimis when compared with what would come in in the normal course of events, and what, from the construction, would be expected to come through the great open spaces of the holes in the rear outer wall. Nonetheless, there was a consent order that those doors be boarded up, and it appears that, for a while, they were not. Eventually, as part of the safety aspect, steel columns were erected running between the floor slabs of what had been the rear staircase landings by those rear doors on 115, and that steel was encased in concrete. There is, therefore, immediately without those doors, a sheet of concrete-encased steel, a slab, as it were.That does not abate the nuisance, because the nuisance, although small, is there. And although it is de minimis compared with the other, it is just sufficient to justify an Order that those doors be made wind and water-proof. I had my dounts as to whether that could in fact be done because of the concreteencased steel slabs that I have talked about, but I am assured by Counsel for the Defendant that there is sufficient space between those slabs and the rear door for a workman to get in and to affix a sheet of hardboard, or several sheets of hardboard clinker-style, over the door and door frame of the rear doors. There will, accordingly, be an Order that that be done. However, although that must be done, as has been offered, and it has probably been done by now, so far as damages concerned, it is in truth in de minimis, and no award can be made for it. I should say that an attempt was made to remedy that state of affairs at one time, in a small way, by having a small concrete baffle erected on the floor of some of the rear doors to stop any water that may come in, from running into the corridor. It was a reasonable attempt, but in my judgment, insufficient. Sufficient to save the Defendant from damages, but not to save it from an Order to block up. 31. Now I pass to the front doors. At one time, these were open. There is no doubt of that, and that was exceedingly dangerous. There were admittedly iron grilles, but those could be opened if they were unlocked, or the lock could be picked and they could be opened. Some of them, Miss Eu tells me (but I must say I did not observe it myself) had no locks. One I do recall was secured only with wire. After complaints by the Plaintiff, the Defendant did something about that. It closed the doors, put the burglar chains on, and of course those burglar chains would be on what had been the inside of the doors, that, at present, would be in the open air: In other words, going up the common staircase in the front, they would be on the other side of the door. The Defendant had bolts fitted to all the doors, but unfortunately, not all the bolts put there were pushed to, and, when I carried out my inspection, I found one door still to be ajar. The Defendant is in breach of the Consent Order, and there must, therefore, be an Order (as I have just made in relation to the rear doors) that the front doors be boarded up. And again, going on what I have been told by counsel, be boarded up by the affixing of a sheet of hardboard, or sheets of hardboard clinker-style, over the door and door frame. I am told that that can easily be done. And indeed, when I passed the premises recently, I saw scaffolding there, and so there should be no trouble in the Defendant doing that. 32. There remains, however, that wind and water have blown in, wind constantly and the rain throughout the last year (which, in the Chinese calendar, was a "water year"!) What is said is that the water did come in, caused the cracking of some of the floor boards placed over the steps and risers of the front common staircase (if "floor boards" be the correct term, in that they are planks) and caused to rise from the floor, where the door is still ajar, a number of the blocks constituting the floor blocks (in the nature of rather large parquet-flooring blocks.). On the balance of probabilities, I find that the planks on the staircase were reduced to their present state by age, wear and tear and because of the broken windows of the staircase windows. That is my deduction from what I saw from the photographs and from the other evidence. I do not consider it probable that has been caused by the gaps above and below the Defendant's front doors on the common staircase. On the balance of probabilities, the loose parquet flooring on the floor on the one landing where I found them, was not caused by that water. It is more likely to have been caused by workmen going to and fro, old age, constant use and bad upkeep. And bad upkeep is not speculation on my part, it is a reasonable deduction that any ordinary person would make from the state of the premises I saw. Nonetheless, the open doors as they were, the open door as it was when I saw it, the wind and the water could have some effect on potential tenants, and also would hold up any idea of redecorating the hall-ways outside each flat of 117 and the staircase well. However, I just can not see that it could in any way hold up the redecoration of the flats themselves. And in my judgment, that redecoration has been held up by a combination of three things:-
For example, the type of redecoration undertaken might be quite different; if, for example, a recording studio wished to move into one of those flats( and not a single occupant, if such could be done lawfully). I do not accept and cannot accept on the evidence that redecoration was held up because of the gaps round the doors. But there has undoubtedly been a nuisance, it must undoubtedly have been a factor, particularly when the doors were open, in making the premises even less attractive to the beholder, the beholder being, of course, a prospective tenant. The Plaintiff in addition to having the Order to board up is entitled to some damages by way of nuisance. 33. I was shewn some large baskets full of rubbish on the rear staircase. There was some dispute, but little evidence as to how they got there. They contained a mixture of rubbish, and some of it was undoubtedly wallpaper from the Plaintiff's own premises. However, I have been told that the parties have come to an agreement of that whereby the Plaintiff will give access to the Defendant and the Defendant, entirely without prejudice, will have the baskets removed. 34. What is claimed is the loss of the open market rental from 1st April 1983 at $48,000 a month to 1st November 1983 and continuing. There is a number of things to be said about that:-
There was put before me by each party a valuation of these premises. The valuation was based on the premises being in good and tenantable condition and was based on focal comparables. Only one valuer gave evidence. That was the gentleman who came after Dr. Yau, Mr. Chu: And he very frankly confessed the inaccuracy of valuations when asked why his valuation was different from the Defendant's valuation. He told Counsel for the Defendant, "Well, you know, it is at all a matter of opinion, so everyone, each one of us feels.". And the remarks that fell from their Lordships' House recently in matters relating to actuarial assessments and assessments of future rates of inflation, apply equally here. If I were to take a market value at all, I would take it, and such a course has been accepted by both Counsel, as half-way between the Plaintiff's valuation and the Defendant's valuation. And both Counsel accept that, if I were going to use that standard, it would be equitable. In Ngai Shiu Ki v. Tuen Muk Ka Luk, an action in the High Court (and numbered 3626 of 1981) heard by Mr. Justice Cons, sitting as an additional Judge of the High Court, in January last year, the learned Judge was adjudicating in a different context altogether. He was faced with the question of "user", because the "primary user" of the premises to which his attention was directed was not that of domestic purposes but of commerical purposes. What he said was this:-
Few of my brethern attract greater respect from than Mr. Justice Cons, both at First Instance and in the Court of Appeal, but I decline to follow him in this particular instance. I feel here that it would be quite wrong, in all the circumstances of this case, to award damages on the basis of a commercial letting. And I accept that the rents must be considerably lower for domestic premises, particularly having regard to their size in this day and age. The question is: What damages and from when? I have said what I would apply if I were using open market rental; I would use that discounted value, as it was called in evidence, from the figures that appear in the two valuations. That was mentioned to me by Mr. Ho and Mr. Chu. And those - I am not going to repeat all those figures. They are known to both Counsel and the parties, and we have been over them in evidence again and again. But, having regard to the proportionately small blame which I find myself to attribute to the Defendant the Plaintiff's inability to attract new occupants, it is not a proper test to apply the whole rental. The only way I could do it would be to say of each discount, what percentage is age, what percentage is decrepitude, what percentage is faulty maintenance, what percentage is faulty construction, what percentage is size, what percentage is the lack of a lift, what percentage is being overlooked by double-decker buses, what percentage is change of user in the neighbourhood and what percentages are a little wind and water. It is an almost impossible exercise to conduct, to work out the percentage of wind and water fro the blame of not attracting potential tenants. It would be the most idle of speculation. But, as I said, if I had to do it, and if I were wrong in my other assessment, it would be a proportion of the discounted rental values taken for domestic purposes half-way between the two valuations. Speaking for myself, if I were obliged to do that exercise, it would be something between 5% and 10%. But I consider that to be the wrong approach. The approach that I consider is that of a normal award of damages for nuisance, not readily or easily quantifiable. The nuisance lasted for a short time. The nuisance has now stopped. And being on the generous side, I will award $5,000 general damages for that minuscule nuisance. 35. In conclusion, I should say something about the existing Prayer A under Prayer 8, where I am asked to order the complete demolition of the doors and the door frames as well as the sealing-up of those door frames with brick and plaster, which is based on a number of things, not merely upon nuisance; it is based also on. Exhibit 2(iii) shewing the Defendant's plan for the future, and it is based upon what appeared, at one time, to be the probability that the Defendant would never need to use the common staircase at all. But I have heard, and I accept, the evidence of Mr. Jay that, as the architect, he wishes to keep for his clients a degree of flexibility, so that, if, for example, a tenant in the new building of 1st, 2nd, 3rd or 4th floor, or any combination thereof, requires to use the front staircase, either to get from one floor to another floor, or from one floor to the ground floor, he ought to be able to use them. And, therefore, I think it would be wrong, and I can see no justification on the evidence of the Plaintiff, for me to order the complete demolition of the doors and door frames and the bricking up of the doorways. 36. Let the Defendant be quite clear, it will have no right to use the north front steps. The mutuality of which I spoke in relation to the front steps was the mutuality so long as the character 兀 ("baht") [as Counsel have called it throughout the hearing] remained. Once the south leg of baht has been taken off, that part of the license that I have found as a license to the Plaintiff to use the Defendant's south front steps, vanishes with it. It is a mutual license, so that the Defendant's right to use the north front steps will equally vanish. The mutuality will remain for the common staircases, of course. And that situation has been accepted by Mr. Jay, on behalf of the Defendant, in his evidence, so no dispute on that will arise. If the Defendant wishes to use the front common staircase in future, it will have to take two steps (1) obtain a modification of the building plans from the Building Authority to allow it to break through the wall proposed to be made in 115 abutting the party wall and (2) re-open 115's doors leading into the common staircase in the front of the building. If the Defendant wishes to do that, then it will have access from the 4th floor to the 3rd, from the 3rd floor to the 2nd floor and from the 2nd floor to the 1st floor. At the 1st floor level, it will have no right to do anything other than go to the front entrance of 117 and breathe the fresh air, and, therefore, if it wishes to re-enter the building, save of course in the case of an emergency, such as a fire, it will have to do so at the 1st floor level into its own new premises. In fact, if one translates the letter of Jay & Lieu, C-90, into English, I believe that is probably what was originally intended - that you could get back into the new building at 1st floor level and so down to the street. Clearly, nobody from the Plaintiff company is going to stand armed and accoutred at the head of the north steps in the event of a fire, saying to the fleeing inhabitants from the new building at 115 "You shall not pass". I mentioned the question of the use of the north steps only in normal, ordinary circumstances. And I repeat; in normal, ordinary circumstances, its use is henceforth denied to the Defendant. Should the Defendant restore the south front steps, that part of the mutuality of the licence may well revive, but that is not a matter for me now to decide. 37. That, I apprehend, deals with all the matters in the Prayer of the Statement of Claim, and, as there is no counterclaim, I now come to the question of costs on which I will hear Counsel. 38. Counsel both urge upon me that I should in relation to the costs divide the action into two: Steps staircases and nuisance and damage. Miss Eu urges that I should divide it half and half. Mr. Cheung says I should divide it 30 and 70, 70 on the nuisance and damage and 30 on the steps and stairs. Attractive as Mr. Cheung's argument sounds, I do not think it is right,' because they are so interlinked. For example, the days spent on the site visit gave me as much insight into the presence or absence of common intention as it did of the state of the building. I found it very difficult to divide them up as broadly as that. Nuisance and damage together in my judgment occupied 60% of the time we have spent and steps and staircases 30%, and that includes the adjournments which Counsel required from time to time. On the steps and staircases, there is this difficulty. It is admitted by the Plaintiff and averred by Mr. Jay in his evidence on behalf of the Defendant, that, at no time prior to the issue of the Writ, had the use of the common staircases been denied to the Plaintiff by the Defendant. After the service of the Statement of Claim, as far as the Defendant is concerned, it had never denied the use of the staircase, but the Plaintiff and the Plaintiff's advisers took the view that the Defendant was denying to the use of the common staircases, both the front and the back staircases. I read Paragraph D as a negative pregnant. It merely denies the Plaintiff's allegations. It does not say there is no right to passage and re-passage by whatever it may be called, license or so on. But to the layman, it looks like an outright denial of any right of passage and re-passage. It follows that I can not accede to Mr. Cheung's suggestion that there should be no order as to costs on the 30% of the case. The Plaintiffs have succeeded, but they succeeded to only a very small part. And, in my judgment, the fairest apportionment I can make, taking into account everybody's conduct, and the time spent, is that the Plaintiff should recover 30% of the total costs. On the nuisance and damage, the Plaintiff has succeeded in obtaining an order for nominal damages, an order for damages $5,000, an order for the plugging up and rendering of holes of the party wall, an order for the proper water and water-tight and wind proofing of the doorways belonging to the Defendant: However, a very great deal of time was spent on an analysis of an affirmation of Mr. Ho and his oral evidence of letting and letting values, and cost has been involved in the calling of Mr. Chu and the preparation of some valuation reports, which in the end, were of no assistance. And taking all that into account, the fairest order would be that the Plaintiff to recover 60% of the 60% of the total costs, because it has, in fact, succeeded in more than it has lost. 39. Now I come to the costs reserved by Mr. Justice Power. On the 21st of July last, a Summons was issued for an order for the reinstatement and restoration of the staircases and landings, shewn in yellow hatched black on the plan annexed to the Summons, (and that shews the entirety of the common staircases and the south front steps), and also an order for the demolition of the rear portion of the building, the reinforcement of the party wall, and the erection of proper, fencing on the flat roof. A Consent Order was made by Mr. Justice Power on the 3rd of August, wherein the Defendant undertook securely to board up the staircase windows without prejudice to any its rights in the action, and no other Order was made. I have to hear Counsel now, and, I hope, shortly, on the question of what I should do with those costs. There was a time when I indicated to Miss Eu that I felt that the proper order would be that the Plaintiff should pay the. costs on a common fund basis, in that the Court was grossly deceived by the Affidavits and the Pleadings before it. I am now quite satisfied by what Miss Eu has told me, that there was not any intention to deceive. My attention at that time had not been drawn to the photostat on B-137, but only to the contents of the Summons, the contents of the Pleadings and certain passages, false passages I should add, in some of the Affirmations; but I have now seen the original of B-137, and I have seen what is written on B-137, and I accept what Miss Eu said that there was no intention to deceive the Court: That if the matter had proceeded, Mr. Justice Power would have seen at once that all that was being disputed was the demolition of staircase A on B-137. Nonetheless, he did reserve the costs to me, and I now deal with them. I am very obliged. to Miss Eu, who has now pointed out to me that, on page 7 of Bundle A, the hatching referred to in paragraph 6 if the original Statement of Claim, relates only to the south steps and to the south side of the landing at the top of the steps (which was referred to as the "top part" of the character "baht")(八). I am obliged to Miss Eu further for having indicated that the lines that cross the other part of the yellow on page A-7 are not "hatching" at all, but printed lines to indicate the stairs on the original plan, and, therefore, the part that is "hatched" for the purposes of paragraph 6 of the original Statement of Claim, page A-3, is only the south steps and the southern platform, as it were, of the top of "baht" (八). That becomes quite clear when one looks at the original Statement of Claim, which I have just this moment had handed to me by my Clerk - I have never seen it before: The one in the Bundle of Pleadings, alas, conceals that distinction from the beholder. If I had, in fact, seen in the Bundle a document identical to what has now been put before me from the Registry file, I would not have fallen into that error. Similarly, it is quite clear from the original Summons of the 21st of July that only one part is "hatched", and that is the southern part of the platform at the top of the steps, in other words, the southern part of the transverse part of "baht" (八) and the south steps. This demonstrates the need for Solicitors to ensure that the Bundle of Pleadings contains clear copies, identical in all respects to those served (and also filed in the Registry), or typewritten where necessary. 40. The Defendant will pay to the Plaintiff one quarter of the costs reserved to me by Mr. Justice Power in his Order of the 10th of August. 41. All the other Orders that I have made in the course of this judgment, will eventually be drawn up in the formal "judgment" document which must be submitted to my clerk for hi is prior approval. I hope that can be done before the end of this Term. 42. May I say how deeply indebted I am to the two of you I had some most interesting arguments from both of you, and you have had me swaying one way and the other: You have pointed grave lacunae in the common law, because I really meant what I said, namely that reason and law departed at a certain point of time in this case. Also I am grateful to you for your patience in the face of the host of questions which I felt it necessary to ask both your witnesses and you two: Thank you very much.
Representation:
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