Top Master (Hong Kong) Ltd v. E-amusement Technology Ltd

HCA1037 / 2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1037 OF 2008

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Before : Deputy High Court Judge Au in Chambers

Date of Hearing: 23 June 2009

Date of Decision:   23 June 2009

Date ofHanding Down Reasons of Decision:  29 June 2009

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REASONS   FOR   DECISION 

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A.  Introduction

1.The Plaintiff has since February 2005 been the registered owner of the basement (“the Basement”) and the staircase (“the Staircase”) leading from the Basement to the Ground Floor of Silvercorp International Tower (“Silvercorp Tower”), Nos 707, 709, 711 and 713 Nathan Road, Mongkok, Kowloon.

2.The Defendant has since August 2007 been the registered owner of the external wall (“Basement External Wall”) of the basement of Silvercorp Tower.

3.This is the Plaintiff’s application for:

(1)    Summary judgment for (i) rectification of certain plans of the Basement External Wall respectively annexed to the DMC and an assignment made in 1995 in relation to Silvercorp Tower, and (ii) various injunctions against the Defendant effectively to restrain it from trespassing the entrance to the Staircase located on the Ground Floor, and

(2)    An interlocutory judgment with damages to be assessed for the said trespass.

4.At the end of the hearing of the application on 23 June 2009, I gave unconditional leave to the Defendant to defend with reasons to be handed down later.  This is what I do now.

B.  Background leading to the dispute

5.By an assignment dated 22 August 2007 (“the 2007 Assignment”), the Defendant was assigned by its predecessor-in-title the Basement External Wall.

6.In the Schedule to the 2007 Assignment, the Basement External Wall is identified and described by reference to the Front Elevation (1) Plan annexed to an assignment 16 January 1995 with Memorial No UB6226390 (“the 1995 Assignment”) and thereon coloured green and hatched black.    I will refer to this Front Elevation (1) Plan of the 1995 Assignment  “the 1995 Assignment Front Elevation Plan”. 

7.By an assignment dated 17 February 2005 and registered in the Land Registry by Memorial No. 05031600110011 (“the 2005 Assignment”), the Plaintiff was assigned by its predecessor-in-title the Basement and the Staircase.

8.The Basement and the Staircase are identified and described in the Schedule of the 2005 Assignment by reference to the Basement Plan and Ground Plan (1) annexed to the 1995 Assignment.

9.The 1995 Assignment Front Elevation Plan is the same as a corresponding front elevation plan annexed to the Deed of Mutual Covenant of Silvercorp Tower dated 18 July 1994.    I will call this plan in the DMC “the DMC Front Elevation Plan”.

10.On the 1995 Assignment Front Elevation Plan, other than the wall surface, the entire open rectangular entrance (measured with 3,012 mm in height and 1,650 mm in width) to the Ground Floor and the Staircase is also coloured green and hatched black.   In other words, according to the description of the Schedule to the 2007 Assignment, this entrance to the Staircase would also be regarded as part of the Basement External Wall assigned to the Defendant.

11.The Defendant has since permitted a metal structure containing an advertising signage to be installed and to remain above the entrance of the Staircase, blocking the said entrance by about 308 mm in height. 

12.However, it is the Plaintiff’s case that:

(1)    Since the Staircase has been specifically assigned to it and does not form part of the common area of Silvercorp Tower, the Plaintiff as owner of the Staircase and the Basement is also given the exclusive right to use and enjoy the Staircase, which necessarily includes the sole and exclusive right to use and enjoy the entrance to the Staircase, free from any obstruction or interference by any other owner of any part of Silvercorp Tower.

(2)    By its ordinary meaning and on proper construction, the Basement External Wall could not have included the said entrance to the Staircase (which is not a wall but an open space).   The Plaintiff therefore says that it is clearly a clerical mistake that the entrance to the Staircase was coloured green and hatched black on the 1995 Assignment Front Elevation Plan and the DMC Front Elevation Plan.   The entrance should not have been so coloured. 

(3)    In the premises, the Defendant’s installation of the advertising signage blocking part of the entrance is wrongful and in interference with the Plaintiff’s exclusive right to hold use occupy and enjoy the Staircase and the Basement.

13.By reason of the Defendant’s wrongful installation of the metal signage at the entrance to the Staircase, the Plaintiff further says it has suffered loss and damage as it has to defer the commencement of a tenancy agreement whereby it has leased the Basement and the Staircase to a tenant at the monthly rent of HK$300,000.

14.By way of the present action, the Plaintiff seeks:

(1) Rectification of the 1995 Assignment Front Elevation Plan and the DMC Front Elevation Plan to the effect of disregarding and ignoring the green colouring and hatching of the entrance to the Staircase on the basis of a clerical mistake.

(2) Various injunctions against the Defendant for the removal of the metal signage installed at the entrance.

(3) Damages for the Defendant’s wrongful interference of the Plaintiff’s right to use the entrance to the Staircase.

C.  Applicable principles

15.The principles applicable to a summary judgment application are well known and not disputed.  Generally, it is for the Defendant to raise a triable defence which is worthy of belief and not frivolous.   Summary judgment ought not be given if there is a substantial question of fact that ought to be tried.  See: Hong Kong Civil Procedure 2009, paras 14/4/2, 14/4/3, 14/4/9, 14/4/11.

D.  The parties’ contentions

16.The primary relief sought by the Plaintiff is rectification of the 1995 Assignment Front Elevation Plan and the DMC Front Elevation Plan on the basis of a mistake. If it succeeds in obtaining the rectification, the other reliefs follow consequentially.

17.Thus, the core issue between the parties in this application is whether rectification of the plans as sought by the Plaintiff should be granted on a summary basis. 

18.The Plaintiff says the Court could now so summarily grant the relief of rectification, as the evidence of a mistake is clear and overwhelming. 

19.The primary and fundamental evidence which the Plaintiff relies on to support its present application is as follows:

(1) The 1995 Assignment Front Elevation Plan and the DMC Front Elevation Plan were both signed by the authorized person, one Mr Steve Leung.  He therefore should have personal knowledge of how and why the plans were so drawn and coloured.

(2) At the same time, on a building plan (“the Building Plan”) of the same front elevation of the basement external wall of Silvercorp Tower submitted by Mr Steve Leung to and approved by the Buildings Department shows that only the wall surface but not the entrance was coloured yellow to depict the external wall of the basement. 

(3) In other words, according the Building Plan, the entrance to the Staircase is not part of the basement external wall, which is of course different from the apparent effect of the 1995 Assignment Front Elevation Plan and the DMC Front Elevation Plan.

(4) Upon the Plaintiff’s solicitors’ inquiry by a letter dated 28 October 2008 as to which of these plans represented the correct position of the external wall of the basement, Mr Steve Leung replied by a letter dated 6 November 2008 saying to the effect that it was the Building Plan which correctly showed the external wall of the basement of Silvercorp Tower.  The letter is a short one which states as follows:

“We refer to your letter dated 29 October 2008, received in our office on 4 Nov., 2008 and wish to respond as follows:

1.   Only the area coloured in yellow as show in the Building Plan approved by the Building Authority dated 1 March, 1990 is the external wall, and the opening you referred to is the point of exit, where the staircase from the Basement shall be discharged to the street.

2.   If the opening is to be blocked, which will affect the exit from the basement and the safety of the occupants at the basement, prior approval from the Buildings Department will be required.”

20.Mr Kevin Pun, counsel for the Plaintiff, submits that given Mr Steve Leung’s answers in his above letter, which says it is the Building Plan which should be the correct one to show and identify the External Wall, the Court is entitled to summarily infer and conclude that the colouring of the 1995 Assignment Front Elevation Plan and DMC Front Elevation Plan was a result of a clerical mistake insofar as it included the entrance as part of the Basement External Wall.

21.Other than relying fundamentally on Mr Steve Leung’s letter as evidence to support this summary application, Mr Pun has also relied on the following contentions to further the Plaintiff’s case of a mistake:

(1) The objective and ordinary meaning of the word “wall” could not have included the entrance space.

(2) All the other front elevation plans of the 1995 Assignment of various floors of Silvercorp Tower also have the window openings or entrances coloured green and hatched to depict the external wall of that level, which are obviously absurd and cannot be correct. 

22.The Defendant however disagrees and argues that Mr Steve Leung’s letter could not be taken conclusively for the purpose of this summary judgment application, and it should at least given the opportunity to cross-examine Mr Leung at trial.   

23.Further, the Defendant submits that the other factors relied on by the Plaintiff are equivocal as to whether the colouring of the 1995 Assignment Front Elevation Plan and the DMC Front Elevation Plan was a result of a mistake as contended.  In particular, Mr Bruce Lau (counsel for the Defendant) draws my attention to the fact that the Basement External Wall was defined in the DMC as “such part of the external wall and façade facing Nathan Road of [Silvercorp Tower] as shown and coloured green hatched black on the [DMC Front Elevation Plan]” (emphasis added)

E.  Discussion

24.In relation to the fundamental evidence relied on by the Plaintiff, with respect to Mr Pun, I do not accept that Mr Steve Leung’s letter constitutes such an overwhelming evidence to prove summarily that the colouring of the 1995 Assignment Front Elevation Plan and the DMC Front Elevation Plan was a result of a mistake as alleged.   

25.I agree with the Defendant’s contention that it should at least be given the opportunity to cross-examine Mr Leung at trial regarding his answers.   I could well think of various aspects that Mr Leung should or could be cross-examined upon, before the Court could safely come to the conclusion that there was a clerical mistake in the colouring of the 1995 Assignment Front Elevation Plan and the DMC Front Elevation Plan as submitted by the Plaintiff.    As I am of the view that this matter should go to trial, I do not think I should go into any details as to the potential scope of cross-examination other than highlighting some of these concerns as follows:

(1) Mr Leung has not stated the letter that it was a mistake to colour the 1995 Assignment Front Elevation Plan and the DMC Front Elevation Plan in the way as we now see it.

(2) Mr Leung’s replies provided in the letter are not even sworn evidence.

(3) There is nothing to indicate on what basis Mr Leung has been able to come to the conclusion he has provided in the letter, and he should be subject to cross-examination to test the reliability, credibility and accuracy of his conclusion and answers.

26.In relation to Mr Pun’s other submissions, given my view on the triable nature of Mr Steve Leung’s answers:

(1) I am not satisfied that the dictionary meaning of “wall” alone makes it unequivocal that the 1995 Assignment Front Elevation Plan and the DMC Front Elevation Plan must be a result of a mistake in including the entrance as the Basement External Wall.  It must be noted that it is the Plaintiff’s own case that the 1995 Assignment Front Elevation Plan is copied from the DMC Front Elevation Plan to depict the Basement External Wall, which includes in its definition the wall and façade of the basement.   The word “façade” includes the meaning of the face or front of a building:  The New Shorter Oxford English Dictionary.   To me this is arguable as to whether it could include an entrance or not.

(2) I am also of the view that the fact that all the other front elevation plans included the entrances or window openings on the wall is similarly equivocal as to whether they are all a result of a mistake or otherwise. 

27.For the above reasons, I have come to the conclusion that, with the evidence before me, there is a triable issue on whether the 1995 Assignment Front Elevation Plan and the DMC Front Elevation Plan were so coloured to depict and identify the Basement External Wall as a result of a clerical mistake as alleged.

28.The matter should therefore go to trial.

F.  Conclusion

29.The Defendant has shown that there is a triable defence to the present claim.  I grant unconditional leave to the Defendant to defend, with costs of the application in the cause.

Mr. Kevin K.H. PUN, instructed by Messrs Eddie Lee & Co., for Plaintiff.

Mr. Bruce K.W. LAU, instructed by Messrs Anthony Kwan & Co., for Defendant.