Wu Muk Fung v. Vocalion Estates Ltd.

HCA000902/1986

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 902 OF 1986

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Coram: Deputy Judge Barnett in court.

Dates of Hearing: 19, 20, 23-27 February, 2 March 1987

Date of Delivery of Judgment: 12 March 1987

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JUDGMENT

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1. The Plaintiff is the registered owner of Lot No. 8B in Demarcation District No. 212, Sai Kung. He purchased the lot in April 1978. The Defendant is the registered owner of the adjoining Lot No. 8A, having purchased it in October 1979. Along their common boundary, the two lots are physically divided by a brick wall constructed by the Defendant. It is the Plaintiff's contention that the wall encroaches upon his property to the extent of some 108.5 square metres. He has brought these proceedings, therefore, in trespass and seeks possession of the land encroached upon together with an order for demolition and removal of the wall and so much of the Defendant's buildings as are erected on Lot 8B.

2. For its part, the Defendant does not admit that there is any trespass but contends that, if there is any trespass, the Plaintiff is estopped from alleging wrongful trespass, or alternatively, that the Plaintiff has acquiesced in or agreed to the erection by the Defendant of the wall and other structures on the Plaintiff's land.

3. As a preliminary point, I should mention that Mr. Wei, for the Defendant, addressed me upon the law in relation to the admission of extrinsic evidence in boundary disputes. Mr. Law, for the Plaintiff, did not touch upon this, taking it for granted, I think, that it is appropriate in this case. Suffice it to say that there could hardly be a case where the need more clearly arises.

4. The Plaintiff's case fell into two parts.  First, Mr. LI Kwai-wah gave evidence as to the most probable common boundary between the two lots. It is upon his evidence that the Plaintiff relies for the precise area of encroachment. Secondly, the Plaintiff himself gave evidence of the events which led to the present action. It is convenient, I think, to deal with the Plaintiff's evidence first.

5. Mr. Wu, the Plaintiff, said that he purchased Lot 8B in April 1978 when it consisted of fields used for growing vegetables. His lot was divided from Lot 8A by a narrow footpath which he assumed to be the legal boundary. Lot 8B lay about one foot below the level of the footpath or bund, while Lot 8A was about one foot lower again than 8B. Both lots were full of water.

6. The Plaintiff said that he ran a construction material company and that he had permission to use his land for storage. He intended to raise the level of his land to avoid flooding. For this purpose, he constructed a concrete wall on his land immediately next to and along the line of the footpath. This wall was some six or seven feet in height and, upon its completion, he raised the level of his land with soil to the height of the wall. A wire fence was built on top of this wall so that the overall height was about 10 feet.

7. There was no discussion with the then owner of Lot 8A about the construction of the wall. The work was carried out. The owner said nothing.

8. The Plaintiff said that the wall was not built in a straight line. In particular to the left or west of the rectangular structure which appears on Exhibit D7, and which it is common ground is the Plaintiff's store, there was a curve out in the direction of Lot 8A.

9. The Defendant became owner of Lot 8A in October 1979. Sometime thereafter, according to the Plaintiff, a bulldozer began levelling Lot 8A so that houses could be constructed. To this he had no objection because the Defendant was on its own land. Upon returning to his land one day, the Plaintiff discovered that the bulldozer had caused the collapse of about 40 feet of his retaining wall. The Plaintiff felt that the situation was sufficiently serious to warrant calling the police. Police officers arrived but said that it was a land dispute which should be settled between the parties. According to the Plaintiff, Mr. WONG Tung-fuk (Mr. T. F. Wong) of the Defendant and his son, WONG Siu-wah (Mr. S. W. Wong) were present at the time. They promised that they would reconstruct the wall.

10. Shortly after this, as a result of heavy rain, there was a further collapse which led to cracks appearing in the store on the Plaintiff's land. The Defendant took steps to prevent further collapse by laying out canvas to protect the soil from any further rain. This canvas can be seen, as can also the store, in the photographs which appear on pages 37 and 38A of the Defendant's bundle. The Defendant, however, did nothing about rebuilding the wall. Rather, after completion of structures on Lot 8A up to the first storey, the Defendant filled in its site and levelled it to the same level as the Plaintiff's land. After some months, the Plaintiff discovered that the Defendant was erecting a brick wall between the two lots. The wall was built in stages. But where the Plaintiff's retaining wall had followed the curve to which I have referred, the Defendant's brick wall was constructed in a straight line so that adjacent to the Plaintiff's store it encroached upon his land by some 6 or 7 feet.

11. The Plaintiff said he had two confrontations with Mr. T. F. Wong about the brick wall. First, they met in Sai Kung at a Cantonese opera where they almost came to blows. Secondly, in February 1981, the Plaintiff and his daughter called upon Mr. T. F. Wong to try and reason with him. There was a dispute in the course of which the Plaintiff was injured by a car belonging to one of Mr. Wong's sons. He was taken to hospital.

12. The Plaintiff also had resort to the District Office in Sai Kung but was advised that the parties would have to settle the dispute themselves. He also took the matter to the Chiuchow Clansmen's Association (both he and Mr. T. F. Wong being Chiuchow) in the hope that the dispute could be resolved by the Chairman in accordance with usual practice. Mr. T. F. Wong's only response was to challenge the Plaintiff to demolish the brick wall if he was capable of so doing.

13. The Plaintiff also had to visit the U.S.A. from time to time. It was not until September 1985 therefore that he commissioned a survey of the boundary. As a result of that survey, he commenced these proceedings in February 1986. The Defendant's response was to carry out further work on the land which is the subject of dispute.

14. The precise determination of the Legal boundary and the area of encroachment pleaded by the Plaintiff depends upon the evidence of Mr. Li, the Plaintiff's surveyor and Mr. Sam Mak who was called on behalf of the Defendant. Mr. Li is a qualified professional associate of the Royal Institute of Chartered Land Surveyors. He worked for the Government in land surveying between 1969 and 1985, during which period he undertook a year's training in the School of Military Survey in England. He left Government to set up his own firm of land surveyors. As might be imagined, he has considerable experience in boundary dispute in the New Territories.

15. Mr. Li said that he obtained a copy of Demarcation District sheet 212 (EXP1) which is to a scale of 1:1980 and which contains the lots in question. He explained that the D.D. survey is the only boundary survey of lots in the New Territories which has been carried out. It was carried out by Indian surveyors in the early years of this century. It was for fiscal purposes so that Government should know the amount of rent which should be levied upon the owner of each lot. Government charged rent of lc/0.01 acre. The accuracy at best is +1.5 metres. D.D. boundaries are, therefore, not wholly accurate and can only serve as some evidence of a boundary where it is in dispute.

16. Mr. Li then obtained a survey sheet dated 1960 (Ex P2) the oldest survey sheet obtainable. He enlarged the D.D. sheet to the same scale as the survey sheet and superimposed it on the survey sheet. He found that, along the disputed boundary at least, the D.D. boundary corresponded with bunds shown on the survey sheet, apart from one deviation. He took the view therefore that the bunds shown on the survey sheet indicate the most probable position of the common boundary. He was reinforced in this view when he obtained a copy of a plan of a short term waiver in respect of Lot 8 (Ex P3) and discovered that the boundaries thereon coincided with the boundaries which he had marked in on the 1960 survey sheet after correlation with the D.D. boundary. He said that as the waiver plan was prepared by Government, which has access to more information than private surveyors, it constituted a check against the accuracy of his survey.

17. Next Mr. Li obtained a copy of a survey sheet dated 1983 (Ex P4) the most up-to-date survey available at the time of his survey. He transferred the position of the bunds on the 1960 survey sheet onto the 1983 survey sheet based upon the common details on each plan. Taking the bunds as the boundary, he was able to scale off the boundary points against the grid on the 1983 survey sheet. He then went to the disputed area and pegged out the grid coordinates. He found the existing brick wall was encroaching upon Lot 8B. The exact position is shown on Exhibit P4 where the red line represents the true boundary calculated by Mr. Li while the unbroken line with solid dots at intervals, which runs to the right or east of the red line in the disputed area, represents the brick wall.

18. Mr. Li then surveyed the existing wall and finally plotted the true positions of the wall and the common boundary on Exhibit P5. This shows encroachment by Lot 8A upon Lot 8B of some 108.5 sq. metres.

19. Mr. Li conceded, however, that the accuracy with which he had plotted the common boundary could not be better than +1 metre. Consequently the area of encroachment might be more or less than 108.5 sq. metres. He maintained, however, that the common boundary which he had drawn on Exhibit P5 represented the most probable boundary position.

20. Mr. Li's evidence was attacked on several grounds. First, it was put and Mr. Li agreed that the two survey sheets which he used had an accuracy of +1 metre. It was then put that these inaccuracies should to some extent be added to the inaccuracy which Mr. Li admitted derived from the process of scaling the co-ordinates of the common boundary on the 1983 survey sheet. Mr. Li would not accept this. He explained that the common boundary position at which he had arrived was transferred onto the 1983 survey sheet based on the common position of paddy fields appearing on each survey sheet. The common boundary therefore had the same accuracy as the common features on each sheet i.e. +1 metre.

21. Secondly, it was pointed out that the 1960 survey sheet, which was used by Mr. Li, did not depict the whole of Lot 8B. The true and complete correlation between the enlarged D.D. sheet and the survey sheet could not, therefore, be shown. In any event, there was lack of correlation between the bunds and the eastern boundary, and many of the bunds lying within the lot itself. Mr. Li took the view that it was sufficient to concentrate on the disputed boundary. The D.D. sheet was only a guide to determining the boundary. If this meant that the D.D. outline did not elsewhere correspond with the bunds then those other boundaries could be adjusted accordingly. He also explained that bunds lying within a lot are likely to be moved over a period of years by the owner of the lot who would have control over them. Bunds constituting boundaries of a lot would not be so moved.

22. Thirdly, it was put to Mr. Li that the accepted practice in the New Territories is that, where there is in existence some physical boundary such as a wall which lies within 2 or 3 metres of the D.D. boundary, the physical boundary is accepted as the actual boundary. Mr. Li would not accept this practice although he agreed that he would take into account an existing wall if it was of old age. The existing wall in this case, however, was not of such an age.

23. Mr. Mak, the Defendant's surveyor, had an impressive list of credentials. They included F.R.I.C.S., Full Membership of the Hong Kong Institute of Land Surveyors and Chairmanship of the Land and Survey Division of the Hong Kong Institute of Surveyors. He spoke with considerable authority, gave clear if sometimes lengthy explanations and had a wealth of technical information readily available. I have to say at the outset that I found him more convincing and authoritative than Mr. Lee and where their evidence is in conflict I accept that of Mr. Mak.

24. Mr. Mak explained that having regard to the primitive equipment and methods used by the Indian surveyors in preparation of the D.D. sheets and having regard to the purpose, i.e. rent collection, for which the D.D. survey was made the D.D. accuracy is ±3 metres. This accuracy obtains to the 2 D.D. scales of 1:1980 and 1:3960. He also said that after taking into account the survey method and the plotting and inking of features onto the survey sheets accuracy would be +2 metres. The accuracy obtained by scaling off a boundary from a survey sheet would be only +1 metre. Taking all these matters into account, Mr. Mak said that the best accuracy that can be achieved in determining a boundary is between 3 and 5 metres. He maintained therefore that the practice in the New Territories is to accept as a boundary a physical feature that falls within 3 metres of the D.D. boundary.

25. Mr. Mak also obtained two adjoining survey sheets for 1960 (revised at 1978) (Ex D3). He tried correlation with an enlarged plastic transparency of the D.D. boundary. After aligning it with common distinguishable features he found that, within what is a professionally acceptable degree of correlation, the boundaries could be shifted a few metres either way. Indeed the boundary could be made to lie on either side of the existing wall.

26. Mr. Mak was of the view that he could not, by relying upon the D.D. and survey sheets, establish the common boundary more accurately than +3 metres. Accordingly, he adopted the common practice which is to take an existing physical feature as the boundary. In this case, it was the existing brick wall which he surveyed and plotted as the boundary.

27. Mr. Mak was cross-examined at considerable length. In my view, his evidence was not shaken. One important feature, however, did emerge. Mr. Mak had used two survey sheets, one of which was surveyed or revised up to 1980 (Ex D3) and the other surveyed in 1986 (Ex D4). The 1980 survey showed that the two lots were apparently divided by what Mr. Mak agreed is vertical masonry which would have different ground levels on either side. At one point, there is a distinct curve in this feature immediately to the left of the Plaintiff's store. In the 1986 survey, this feature, which is the apparent boundary, has become a free standing wall, and the curve has been replaced by a straight line. Mr. Mak first said that the difference could be explained by poor surveying. However, after saying that it is sometimes not easy to distinguish between a free standing wall and a vertical wall or masonry, be conceded that there might have been reconstruction in the intervening years.

28. Mr. Mak also conceded in cross-examination that the main highway running near the lots had been added to the D.D. sheet used by him in or after 1960. He would not accept, however, that it was not a feature which should be used in correlation with a survey sheet. He said that it is appropriate to use all physical features which are shown and pointed out that some physical features, such as streams or bunds, could also have moved during the years between the D.D. and subsequent surveys.

29. If Mr. Li, as he said, used the D.D. sheet only as evidence or a guide and, on that basis, decided that the bands on the 1960 survey sheet were the most probable common boundary, I am at a loss to understand why he did not adopt the line of the bunds in toto. Instead, he expressly agreed that at one point the boundary depicted by him in red on the 1960 survey sheet departs from the bund line. This is only explicable by him using the D.D. boundary line in preference to the bund line, a contradiction of his explanation. It also suggests some movement of the bund.

30. In cross-examination, while answering questions about the red boundary line on the 1983 survey sheet, he said that for the problem area, i.e. the common boundary, he transferred the boundary from the District Office waiver plan rather than the 1960 survey sheet. He appeared to me to have considerable faith in the waiver plan.

31. Mr. Li also agreed that there was a subjective element in fixing the boundary on the 1960 survey sheet.

32. Ex P4, the 1983 survey from which Mr. Li determined coordinates for the common boundary, does not show any bunds on or in the immediate area of the boundary. Mr. Li explained that he fixed the position of the boundary by taking measurements from 2 paddy fields common to the 1960 and 1983 surveys. Those paddy fields are marked by circles drawn by Mr. Li. I confess I find it difficult to accept that, on this rather slim basis, Mr. Li can achieve the degree of accuracy he says he has achieved.

33. I was also not entirely clear from the totality of Mr. Li's evidence from whence his +1 metre accuracy was derived. At one stage, he seemed to be saying it came from the scaling of the grid coordinates which would give an error of +0.3 metre but that he had allowed a safety factor of 3. At another time, he indicated it came from the accuracy of +l metre of the survey sheet itself.

34. In my view, it is not possible to ascertain a boundary with the degree of precision that Mr. Li maintains to be possible. Having regard to the quality of the original D.D. survey, the complete lack of permanent physical features lying on or very close to the disputed boundary, the degree of accuracy of subsequent surveys and further inaccuracies that must flow from the scaling process, I am not satisfied on the balance of probabilities that the common border is as delineated by Mr. Li in Exhibit P5. I am reinforced in this view by the evidence of Mr. Mak. Mr. Mak gave his evidence in a confident manner. He was able to give explanations for his views to my satisfaction. I accept the criticism that he missed the difference between the vertical masonry and the free standing wall, and also that his checking of the correlation between the D.D. sheet and the 1960 survey was perfunctory. Nonetheless I accept his evidence as to the degree of accuracy which is obtainable.

35. Mr. S. W. WONG, the Managing Director of the Defendant gave evidence. He said that his company purchased Lot 8A in October 1979. At that time, Lot 8A was about 6 or 7 feet lower than 8B. There was a concrete retaining wall between the 2 lots more or less following the line of a bund. He considered the bund to be the common boundary of the 2 lots as did the previous owner. Mr. Wong's company was in the same line of business as the Plaintiff. It urgently required 8A for the business because the Government was recovering the land which it had been using hitherto. For this purpose it was necessary to lay the foundations of various buildings and then level the site to the same level as Lot 8B to avoid flooding. A bulldozer was brought in to work on site formation. Some two or three months after work commenced, the Plaintiff's retaining wall collapsed, probably between June and July 1980. Mr. Wong attributed the collapse to the wet weather but conceded that the collapse was partly the fault of the activity on Lot 8A and that the Defendant was responsible for rebuilding the wall.

36. It took some days for Mr. Wong to contact the Plaintiff but eventually they arranged to meet on the site about a week or ten days after the collapse.

37. The Defendant produced photographs taken of the site of the collapse at the time. These appear on pages 37, 38 and 38A of the Defendant's bundle. They were admitted on behalf of the Plaintiff. The area of collapse can clearly be seen on the right of the photographs on page 37. Mr. Wong in his evidence said that he and the Plaintiff stood on the right-hand side of these photographs above the collapsed wall. He said that it was difficult to see where the original boundary had been because of the manner of the collapse. He and the Plaintiff suggested different lines along which the wall should be rebuilt. Each, of course, suggested different lines in their favour. The lines were about four feet apart.

38. Those involved in this dispute are Chiuchow. Because Mr. Wong and the Plaintiff could not agree, one of the Defendant's workmen, Mr. LAM Chung, an old Chiuchow gentleman, offered to mediate. He drove two wooden poles into the ground at either end of the collapsed area. He drew a string tight between the two poles. Both Mr. Wong and the Plaintiff agreed to this line which fell more or less mid way between their own lines. Mr. Wong's representation of the position appears or. Exhibit D12.

39. Thereupon Mr. Lam's son sprinkled powder along the ground to mark the line. Because of the weather and because it would be difficult immediately to rebuild the wall, Mr. Lam placed some concrete beams along the line by the powder. Some days after, the wall was rebuilt by Mr. Lam and his son.

40. Subsequently houses were built on 8A and the lot was filled with soil to bring it to the same level as 8B. Mr. Lam also built the existing brick wall which now divides the two lots.

41. Mr. Wong was positive that there was no complaint by the Plaintiff about encroachment until 1985 when the Plaintiff referred the matter to the Chiuchow Clansmen's Association and at which time he had had a survey carried out by a surveyor. The only dispute between them had been in February 1981 when they almost came to blows over the access to their respective lots. A common road serves both lots. Mr. Wong found that the Plaintiff had erected three concrete poles at the entrance to his lot which were impeding access to the Defendant's lot. The police did come on this occasion. There had, however, been no previous visit by the police at the time of the collapse as described by the Plaintiff.

42. LAM Chung gave evidence on behalf of the Defendant. He was a confused and confusing witness. He was adamant however, that there was a meeting between the Plaintiff and Mr. S.W. Wong as described in Mr. Wong's evidence. He gave a clear description of how he hammered the two poles into the ground, each about two feet from their respective ends of the remaining retaining wall and to the Defendant's side of the wall. He explained how the line having been established, he immediately helped dig three holes in the ground. These formed the foundation for a concrete beam which was completed within a day or two. A brick retaining wall was then built upon this beam. The whole was completed within about two weeks.

43. Mr. Lam then described how he continued the wall along the rest of the boundary leaving a gap of about five feet between the wall which he constructed and the Plaintiff's retaining wall I am satisfied, however, that Mr. Lam can only be referring to the existing brick wall which now divides the properties and not to a retaining wall as such for the Defendant's lot.

44. Mr. Lam could not remember when these events occurred. He did say, however, that at the time when he reconstructed the Plaintiff's wall there were already houses on the Defendant's land.

45. LAM Chung-kit, Mr. Lam's son also gave evidence. His evidence largely coincided with that of his father save that he said that the two poles placed in the ground by his father were only four inches from the ends of the remaining retaining wall. He said that this gap was filled with brick. He also said that when he started working on the collapsed section of the wall there were houses almost complete on the Defendant's land. He was also able to recognize the photographs on pages 37 and 38 of the Defendant's bundle but said that conditions were different from the photographs.

46. From photograph B on page 29 of the Plaintiff's bundle, in cross-examination he identified the three houses on the right as being those on the Defendant's land and that it was behind these houses i.e. between them and the Plaintiff's lot that the collapse occurred. He went on to say, in answer to questions from me, that there was an alley between these houses and the retaining wall which was on average about as wide as a man can spread his arms.

47. Finally Mr. T. F. Wong gave evidence. He said he was a director of the Defendant. He confirmed the work on Lot 8A and the collapse of the Plaintiff's retaining wall. He said that the Plaintiff did not communicate directly with him about this but through the chairman of the clansmens' association. He agreed to make good the wall. Subsequently he instructed his son to discuss the matter with Plaintiff. He himself did not take part in the meeting as he was recovering from an illness and left the work to his son. He could say, however, that the retaining wall was built before Lot 8A was filled with soil. The dividing wall was then built by Mr. Lam and his son along the line of the wire fence on top of the retaining wall. Construction took several months.

48. Mr. Wong explained that part of the dividing wall which varies in height and colour (Ex D14 photo 1A) is attributable to a collapse of that wall which itself had to be rebuilt along that section.

49. Mr. Wong was adamant that he heard of no complaint by the Plaintiff about the dividing wall until November 1985, through the chairman of the clansmens' association. His request for plans was not met by the Plaintiff.

50. I was not impressed by the Plaintiff. He was somewhat terse and unhelpful. If, as he alleged, he made several complaints about the dividing wall between 1980 and 1985 to the chairman of the clansmens' association, I find it difficult to believe that he would have taken no other action. There was clearly bad blood between the Plaintiff and the Wongs. I find his explanation that he had to visit the U.S.A. on several occasions rather feeble.

51. There was also a conspicuous absence of support for his contention that he complained to the association chairman.

52. In cross-examination, the Plaintiff agreed that the only area where the dividing wall did not follow the line of his fence was where the retaining wall had collapsed. He also agreed that it was only after he had had surveys carried out in 1985 that he realized that the Defendant was encroaching on his land, and that the surveys had been carried out because he was thinking of redeveloping Lot 8B.

53. It is clear to me that the survey was commissioned because the Plaintiff was considering redevelopment not because of any complaint the Plaintiff had about the wall. It was at this time that the Wongs acknowledged the first complaint by the Plaintiff.

54. Mr. S. W. Wong I found to be rather glib. However, he was not shaken by cross-examination. Mr. T. F. Wong, however, I considered an excellent witness who made no attempt to embellish his evidence when he might have done to his advantage. I have no hesitation in accepting him as a witness of truth.

55. Although employed by the Defendant at the time, Mr. Lam and his son were very casual workers. Neither had been employed by the Defendant before. Mr. Lam was asked to help with some work on the site and he in turn asked his son to help him. They had not since worked for the Defendant. Mr. Lam's evidence, and this was not challenged, is that he keeps a substantial number of pigs. He is a typical sturdy and independent farmer. I am satisfied that he was doing his best to recall accurately what occurred. Mr. Lam's son gave his evidence rather more clearly. His manner was also that of a person trying his best to remember events which occurred some years ago. I am satisfied that he is equally a witness of truth.

56. Both Lams said that they were able to start work on rebuilding the wall immediately after the line had been agreed. They also agreed that there were already structures on the Defendant's land. Mr. Lam's son also said that conditions at the time were different from the conditions depicted in the Defendant's photographs.

57. In saying that there were already houses on Lot 8A when they rebuilt the retaining wall, the Lams are in conflict with the Wongs. However, the Lams were being asked to recall events that occurred over 6 years ago. It would not be surprising if they were confused, particularly as they spent some months rebuilding the retaining wall and building the dividing wall, as to precisely when the houses were built.

58. Mr. Lam's son spoke of an alley between the houses and the wall. That seems to me to be more consistent with building the dividing wall. Further, I am sure he would have remembered if the houses had reached such an advanced stage when he was rebuilding the retaining wall in view of their close proximity.

59. I did not attach any weight to the opera incident and whether it arose out of this matter or a rather more ancient quarrel about waterpipes. I do not think that the discrepancy between the Defendant's pleading as to who sprinkled powder on the agreed line and the evidence to have any great importance. Nor do I think the discrepancy between what was put to the Plaintiff about the February 1981 dispute and Mr. S. W. Wong's evidence to be significant.

60. Generally, therefore, I accept the evidence of the Defendant's witnesses. On the evidence as a whole, I find the following facts:

1.    The bund which divided Lots 8A and 8B when the Plaintiff purchased Lot 8B was the legal boundary between the lots.

2.    The Plaintiff built a retaining wall along the line of that bund.

3.    The outer limit of that wall represented the boundary between the lots.

4.    Apart from a section of about 40', running alongside the Plaintiff's store, the existing brick wall and remaining wire fence mark the boundary between the Lots.

5.    The Plaintiff and Defendant agreed to a line along which the collapsed retaining wall should be rebuilt.

6.    The Defendant rebuilt the retaining wall in accordance with that agreement.

7.    The straight section of brick wall now running alongside the Plaintiff's store represents the line of the rebuilt retaining wall.

61. There is ample authority that a boundary may be fixed by agreement between the parties: Halsbury, 4th Edition, para 833.

62. In view of my findings, it is not necessary to consider whether proprietary estoppel or estoppel by acquiescence, or promissory estoppel or estoppel by representation apply. As to the latter, Mr. Wei suggested that the Plaintiff's retaining wall constituted a representation to the Defendant that it was the boundary between the Lots; while the raising of the level amounted to, I think, an abandonment of any land remaining outside the wall. I reject them as being representations sufficient to found such an estoppel.

63. As to acquiescence, in Taylor Fashions Ltd. v. Liverpool Victoria Trustess Ltd. (1981) A11 E R 897, after reviewing the authorities Oliver J. said at p. 915,

"Furthermore, the more recent cases indicate, in my judgment, that the application of the Ramsden v Dyson principle (whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial) requires a very much broader approach which is directed to ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment rather than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour."

64. The judge went on to adopt that approach which, with respect, I would follow. It is not, I agree, necessary to search for the 5 requisites demanded by Willmott v. Barber although, obviously, if those 5 requisites are present, particularly knowledge on the part of the person sought to be estopped of the existance of his right, the easier it will be to find an estoppel.

65. I am not unmindful of the reminder of the need for caution sounded by Fuad JA in Humphrey's Estate (Queens Gardens) Ltd v. A. G. and Anr (1986) HKLR 669.

66. In all the circumstances of the present case, I would have no hesitation in finding it would be unconscionable to allow the Plaintiff to assert his rights if it were to be found that the boundary as pleaded is the correct legal boundary.

67. The Plaintiff's claim is therefore dismissed.

Representation:

Mr. Dennis Law (Tony Kan & Ho) for the Plaintiff.

Mr. Paul Wei (Wong, Hui & Co.) for the Defendant.