Lau Kwok King v. Cashpoint Limited t/a Chequepoint Bureau De Change

DCCJ014272/1983

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

ACTION NO. 14272 OF 1983

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BETWEEN

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Coram: H.H. Judge D'Almada Remedios

Date of judgment: 27th January, 1984

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JUDGMENT

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1. The Plaintiff is the owner of shop 6 on the 1st floor of Mirador Mansion, Nathan Road. I will hereafter refer to this shop as the 'suit premises'. The Plaintiff is also the owner of the adjoining shop which is shop 7 on the 1st floor. The suit premises and shop 7 on the 1st floor are let to Lydia Company who is the tenant of the ground floor shop 7. The ground floor shop is not owned by the Plaintiff. At the time when the Plaintiff's premises were let to Lydia Company, there were elongated windows facing Nathan Road in shops 6 and 7 on the 1st floor. These windows were, after the letting and with the Plaintiff's consent, blocked up with wooden boards by Lydia Company who carries on a retail business on the ground floor. The boards were put up six or seven years ago. The windows are still covered with those boards. Lydia Company is still the Plaintiff's monthly tenant but if, at any time, vacant possession is delivered, there would be no difficulty in removing the boards when the Plaintiff or any new tenant can have the amenity of the windows that stretch across the frontage of both the suit premises and shop 7 on the lot floor or if the boards are not removed, the Plaintiff or the new tenant can use such space for advertising or other purpose.

2. The Defendant, Cash Point Limited, trading as Chequepoint Bureau De Change, is a tenant of shop 6 on the ground floor which is immediately beneath the suit premises on the 1st floor.

3. In July 1983, the Defendant, without the consent of the Plaintiff or his tenant, constructed what can be described as a box-like structure above the Defendant's ground floor shop which, had the windows in the suit premises not been covered with wooden boards, would deny to the occupant of the suit premises the use of the windows or any view to the street below or to the front or to the side. The box-like framework, designed as a signboard of the Defendant's business, conceals the entire frontage of the suit premises abutting on Nathan Road which has made the suit premises not visible from any part of Nathan Road or any other road. In short, the front section including the outer wall of the suit premises has been boarded in by the signboard.

4. The Defendant's signboard is partly supported by an iron rod or rods affixed to the external wall of the suit premises.

5. The Plaintiff therefore seeks an injunction to restrain the Defendant from trespassing on the external wall of the suit premises and for an order that the box-like structure be removed as it is constructed against the premises of the Plaintiff.

6. The main thrust of the Defendant's answer to the Plaintiff's claim is that trespass is actionable only at the suit of the person in possession of the land; that the tort is essentially a violation of the right of possession and not of ownership; a landlord cannot sue for trespass to land in the occupation of his tenant. Such an action can only be brought by the tenant. I accept what the Defendant says to be fundamental. However, in fairness to the Plaintiff, he has pleaded that the act complained of is injurious to his reversion to justify the relief he seeks without the necessity of joining his tenant as a co-plaintiff: see 24 Halsbury (4th Edn.) paragraph 983.

7. It would be helpful if I start by considering whether if this action had been instituted by the tenant as plaintiff he would be entitled to the remedies as claimed. It is contended on behalf of the Defendant that as section 2 of the Multi-Storey Building (Owner's Incorporation) Ordinance defines "common parts" of a building to include external walls, the exterior wall of a building is, therefore, owned by all flat owners and not by any individual. For this reason (it is said) the tenant standing alone cannot maintain an action for trespass. I am unable to accept this argument. The expression "common parts" is merely a convenient mode of designating the portions of the building that come within the meaning of that expression when reference is made to it in any section of the ordinance. An argument along similar lines as that advanced by the defendant was rejected in Chung Yuk Wah v. Golden Gate Ford factory (1963) D.C.L.R. 106, 114. In the absence of any provision in a lease to the contrary, the letting of a flat or unit in a building includes the external walls enclosing the part so demised: 23 Halsbury (3rd edition paragraph 1113; also Koo Cheuk Sun v. Tang Wai Chung (1963 H.Y.L.R. 891, 901. An iron rod or stanchion affixed by the defendant to the plaintiff's property would constitute a trespass at the suit of the tenant in possession and he would be entitled to an injunction as was ordered in the Chung Yuk Wah case (supra).

8. It would also be my view that the tenant in possession would be entitled to an order for the removal of the signboard structure. To effectively box-in, cover up and hide from view the front portion of a shop in the way the Defendant has done - irrespective of how the tenant currently treats the front portion of the shop - can in no way be justified. It is an invasion of his right. There can be no merit in the suggestion that because the windows are blocked up that what the Defendant did can be regarded as permissible. The boards can be removed without difficulty. If instead of boards there were shutters the sophistry in the argument that because the windows were blocked up becomes apparent. The tenant's right to use the windows if he so pleases is concomitant with his tenancy. So also is his right to have the outer portion the shop space that is now covered up by the Defendant seen by the public and to have any signboard he may wish put up on his external wall or where the windows are in a manner visible to anyone on Nathan Road who may choose to look. Clearly there was an intrusion of the tenant's rights: see Lau Tau Shing v. Lau King Lim (1959) H.K.L.R. 354, In Carlisle Cafe Co. v. Muse Brothers & Co. (1897) 46 W.R. 107, it was held that the defendant had a right to use the outer walls and that a signboard put up by plaintiffs so as to cover the Defendant's outer walls to the extent of 2 1/2 feet was a derogation of that right.

9. I now come consider the rights of the plaintiff. He is the registered owner of the suit premises and it is not denied that he has a reversionary interest. His right to sue is only available if he can show that some injury of a permanent character is occasioned to his reversion by the trespass. If so, his right exists and it does not matter that the damage or injury may be remedied before his reversion comes into possession. Many instances may be given of cases in which a reversioner is entitled to pursue his claim during the continuance of the term or prior interest, such as, obstructing a right of way (Kidgill v Moore (1850) 9 C.B. 364); obstructing ancient lights (Metropolitan Association v. Petch (1858) 27 L.J.C.P. 330); building a roof with eaves which discharge rainwater onto the land (Tucker v. Newman (1839) 11 Ad. & E. 40); causing structural injury to buildings by vibration (Shelfer v. City electric Co. (1895) 1 Ch. 287); disturbance of water rights (Howarth v. Sutcliffe (1895) 2 Q.B. 358); allowing sewage to pollute a river and thus infect adjacent land (Jones v. Llanrwst U.C. (1911) 1 Ch. 393).

10. However, an action by the reversioner would not lie for acts which are of a mere temporary character not affecting his reversion. This would be in keeping with the principle that it must be left to the person in possession to determine whether he wishes to pursue any claim which affects him and not the reversioner. But where what is done causes actual harm of a sort as to affect the value of the reversioner's interest in the property, the reversioner may maintain an action for trespass although the tenant in possession makes no complaint (Mayfair Property Co. v. Johnston (1894) 1 Ch. 508). In such at case, the reversioner's rights are not controlled by the intentions of the tenant in possession. The action by the reversioner is independent of the remedy which the tenant may have for the same act in respect of the damage to his possession (Shelfter v. City Electric Co. (1895) 1 Ch. 287) and for that purpose may pursue such rights as may be open to him without waiting until his future estate falls into possession. Why the tenant has not been joined as co-plaintiff in the action before me has not been explained. But for obvious reasons it cannot be right for any reversioner to be left without remedy if a recalcitrant tenant chooses to condone the act of a stranger causing damage to the property or refusing to lend his name to redress the injury to the landlord.

11. Whether the nature of the injury is of a permanent character or whether the reversion is or is not injured is a question for the jury: Tucker v. Newman 11 Ad. & E. 40; Jones v. Llanrwst U.C. (1911) 1 Ch. 393, 404. It is essentially a question of fact to be decided on the merits of each particular case.

12. For myself, I would take it that an injury is permanent if it is irreversible. To drive a hole into the wall of the plaintiff's property and attach an iron rod would be an injury of a permanent character. It is a completed wrong that has done damage to the property. It is physical damage of a permanent nature and the plaintiff does not have to postpone his claim until his reversion falls into possession. His right arises by reason of the damage and it is not dependant upon the extent or degree of the damage. The defendant says that there is only one rod attached to the wall of the suit premises. The plaintiff disagrees. The defendant's box-like framework that encloses the portion of the premises that faces Nathan Road is approximately 14' x 10' x 10' and is so constructed that I am unable to see precisely how many rod or rods are affixed to the Plaintiff's property to support that structure although I have had the opportunity of visiting the site together with the parties.

13. Just as matting and scaffolding erected immediately outside the wall of a verandah will constitute trespass as in the Lau Tao Shine Case (supra), so also, on the same principle, would the tort in this action arise even if the signboard had not been supported by any rod affixed to the suit premises. As I have stated above, the plaintiff, to maintain this action, will have to prove, as a general rule, that the trespass complained of produced injury of a permanent character to his reversion. It is submitted on behalf of the defendant that as the defendant's lease is for a term of three years from the 22nd July, 1983, such injury as there may be is temporary and not permanent. Is the same argument to prevail if the lease is for five years or more or from month to month? I think the answer, deduced from the cases, is that if the trespass causing the injury is a completed wrong of a non-transient nature which does not cease by itself unless something is done to remove it, then it endures indefinitely and will thereby continue to affect the land even after the interest of the reversioner becomes an interest in possession.

The meaning of the word 'permanent' was stated by Parker, J., in Jones v. Llanrwst (supra) in the following manner:

Consequences can be regarded as permanent if what has been done affects the value of a landlord's reversionary interest in the property. The plaintiff stated in evidence that the existing signboard has caused his property to be considerably diminished in value. He is unable to sell or lease his property for what it is worth. I have no doubt the offending structure has prejudiced the plaintiff in the way he has stated. If as a result of the defendant's act the value of the property is depreciated and will continue to have that effect until something is done about it, the injury is in that sense permanent. If so, it also matters not when the plaintiff's reversion will fall into possession.

14. On the evidence I accept, and it is not disputed, that at the initial stage when the plaintiff noticed scaffolding outside ground floor shop 6 which he presumed was in preparation for the construction of a signboard he immediately lodged the substance of his objection with the plaintiff's contractor. He had occasion to complain again the following month when he went to collect rent from his tenant and noticed that the metal framework of the signboard had been completed. Thereafter the matter was taken up with the defendant culminating in these proceedings. The plaintiff is entitled to the injunctions as claimed and I grant the orders asked for in paragraphs (1) and (2) of the prayer in the particulars of Claim with costs.

Representation:

Mr. K.H. Suen instructed by Messrs Tsoi & Co, for the Plaintiff.

Mr. G. Collins of Messrs Robertson, Double & Boase for the Defendant.