Read the full judgment text of CACV 000217/2007 on BabelCite. This Court of Appeal judgment was delivered on 1 April 2008 before Tang VP, Cheung JA, Yuen JA.
Property law – easement by implication – right of way – rule in Wheeldon v Burrows – section 16 of the Conveyancing and Property Ordinance, Cap. 219 – prior common ownership – continuous and apparent quasi-easement – made road forming a continuous and apparent means of communication – exception to diversity of occupation requirement following Long v Gowlett and Bayley v Great Western Railway Co. – whether s.16 applies to a legal charge (the Kenney Mortgage) – non-use of the right of way for a short period prior to assignment not fatal – vehicular access necessary for reasonable enjoyment of dominant tenement despite padi description in Block Crown Lease, per Attorney General v Melhado Investment Limited – whether right of way excessive following Batchelor v Marlow – whether illegality under Town Planning Ordinance, Cap. 131 defeats acquisition of easement following Bakewell Management Ltd v Brandwood – whether plaintiff must plead illegality following Tinsley v Milligan – use of access road itself not unlawful – discretion to grant injunction – width of injunction – adjoining lots in D.D. 107 Yuen Long – Widecorp common ownership from 1993 – Kenney Mortgage 1994 – steel bridge over nullah 1994/1995 – GE Capital mortgage 1996 – 2000 Assignment by Kenney to Mr Mok – 2005 assignment to plaintiff – 2006 GE sale to defendant blocking access – Draft Kam Tin North Outline Zoning Plan – container lorry parking not permitted under zoning – appeal from Barma J dismissed with costs – declaration and injunction upheld.
Legal issues: Whether a right of way arose under section 16 of the Conveyancing and Property Ordinance · Whether a right of way arose under the rule in Wheeldon v Burrows · Whether illegality under the Town Planning Ordinance defeats the easement claim · Whether the court should exercise its discretion to refuse the injunction
Outcome: Appeal dismissed with costs; declaration of right of way and injunction in favour of the plaintiff upheld.
Cited by 4 cases