Lo Brothers Limited v. Mak Kwan Ting

CACV000052/1985

BETWEEN

Coram: Sir Alan Huggins, V.-P., Cons & Kempster, JJ.A.

Date of Hearing: 30th July 1985

Date of Judgment: 30th July 1985

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an appeal against an order of Jones J. who was hearing an appeal against an order of a Master. The judge reversed the Master and directed that the Plaintiff (who was the Defendant to Counterclaim) should state the nature of its case by drawing a boundary on a plan similar to one which had been put in by the Defendant. This Counterclaim was in an action brought by the Plaintiff alleging trespass by the Defendant, who was threatening to destroy a wall which the Plaintiff alleges is on its land. The Counterclaim is for declarations as to the actual boundary of the two lots. The Defendant alleges that his boundary is further north than the wall. The Plaintiff in his Defence to Counterclaim merely denies that the boundary is along the line alleged by the Defendant. The Defendant therefore sought an order that the Plaintiff state on a plan the position where he said the boundary ran. The original request was that this line should be drawn on a .plan which was provided by the Defendant. The Plaintiff objected to that on the ground that the whole plan was inaccurate, and the judge allowed an amendment to the request and directed that it should be on a similar plan. However, the Plaintiff has appealed to this court and objects to being required to state the position on any plan, and Mr. Bleach argues that this was an oppressive and unnecessary application. It was made in the Counterclaim not in the Claim and he says that it is quite sufficient for him to deny that the boundary is in the position alleged by the Defendant. Mr. Waung argues that this is not sufficient, that the denial is pregnant with a positive assertion and that it is necessary to enable him to prepare his case that he should know where the Plaintiff alleges the boundary to be.

2. The learned judge took the view after careful consideration that it would be helpful at the trial that there should be such a plan. It may well be that it would be helpful to the trial judge if he did have a plan of the kind which it sought, but I am not satisfied that it was right that the Plaintiff should be required to give such a plan. It is apparent from the pleadings in the Claim that the Plaintiff alleges that his land extends at least as far as the wall, and it may be further. It will not be much further because the area in dispute appears to be very small, but the facts that the claim exists and that the Plaintiff has alleged that the wall is on the Plaintiff's land are sufficient indication in my view to the Defendant as to the case which the Plaintiff will seek to raise upon the Counterclaim, and the only purpose, as it seems to me, which this application can have is to seek to obtain from the Plaintiff some evidence by which the Plaintiff is going to defend the Counterclaim and even to prove his claim. For that reason I think it is wrong that this order should stand, and I would allow the appeal.

Cons, J.A.:

3. I must confess that for a while I was impressed by Mr. Waung's argument based on the pregnant negative and thought he was entitled to have some indication of the Lo brothers' contention in respect of the boundary. Had the counterclaim stood in isolation I think possibly I would still be of that view but it does not stand in isolation: there is the original claim by the Lo brothers, and on consideration it seems to me quite clear that Mr. Waung already has his answers in the allegations that are made in that claim. The pregnancy has, as it were, been aborted by the Statement of Claim, and I too would allow the appeal.

Kempster, J.A.:

4. I agree and have nothing to add.

30th July 1985

Representation:

J. Bleach for Appellant.

W. Waung for Respondent