Che Sio Fong v. Fung Wai Kam

DCCJ 987/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 987 OF 2012

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DECISION AND REASONS FOR DECISION

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Background

1.The parties are neighbours of a building (the “Building”) erected on Lot No 1653 (the “Lot”) in Demarcation District No 9 (now known as 83B Yuen Leng, Tai Po, New Territories).  The Building is a three-storey building built on the Lot comprising the ground floor (the “G/F”), the first floor with a balcony (the “1/F”), the second floor with a balcony (the “2/F”) and a roof (the “Roof”). The 1/F and the G/F together form a duplex unit in the Building with an internal staircase.  There is another staircase connecting the G/F, the 1/F and the 2/F of the Building (the “Stair”).  A wall was built along the boundary of the Lot (the “Boundary Wall”).

2.By an assignment dated 12 August 2011, the plaintiff became and still at the trial of this action remained the registered owner of the G/F and the garden thereto (the “Garden”) (together the “G/F Properties”) of the Property.

3.The defendant was and is the registered owner of the 2/F, the Roof and the Stair (together the “2/F Properties”) since about 14 June 2000 shortly after the Building was built.

4.The Lot was and is subject to and with the benefit of a deed of mutual covenant dated 14 June 2000 (the “DMC”).  There was a plan with the title “Garden and Right of Way” annexed to the DMC (the “Garden Plan”).  On the Garden Plan there was an area coloured yellow and marked “Right of Way” (the “Yellow Part”).

5.The plaintiff agreed that the defendant as owner of the 2/F Properties and her tenants and/or licensees were entitled to a right of way over the Yellow Part for the purpose of, inter alia, ingress to and egress from the 2/F Properties (the “Right of Way”).  The plaintiff’s case was that the Right of Way was confined to the Yellow Part but the defendant built two metal gates (the “Metal Gates”) at the locations beyond the Yellow Part.  The Metal Gates were built between the external wall of the Building and the Boundary Wall.  In so doing, a strip of land of the Lot including the Yellow Part was enclosed (the “Strip”).  The plaintiff claimed that the defendant had trespassed on her land being the part of the Strip beyond the Yellow Part (the “Disputed Land”). The Strip led to a gate opening at the Boundary Wall (the “Front Gate”) through which the defendant ingress to and egree from the 2/F Properties.  The Front Gate was located on the Disputed Land whereas the exiting end of the Yellow Part had been blocked by the Boundary Wall.  Plans had been annexed to my judgment handed down on 9 June 2014 showing the locations of the aforesaid structures.  I shall not annex those plans to this decision again.

6.In my judgment I found that the plaintiff was entitled to exclusive possession of the Disputed Land and was entitled to have the Metal Gates removed from the Disputed Land.  I granted an injunction restraining the defendant, her servants, agents, tenants and licensees from using, occupying or enjoying the Disputed Land (the “Injunction”).  However, as the Front Gate (which was built on the Disputed Land) was currently providing the only exit for the defendant and her family to go out and get in the 2/F Properties, I stayed execution of the Injunction until an exit from the Yellow Part was opened at the Boundary Wall or until further order.  I also granted liberty for the parties to apply to the court on residuary matters relating to the removal of the Metal Gates and the Front Gate and opening of an exit at the Boundary Wall from the Yellow Part.

The plaintiff’s application

7.On 5 August 2014, the plaintiff took out a summons (the “Summons”) seeking an order requiring the defendant to open an exit at the Boundary Wall alongside the Yellow Part within 14 days, failing which the plaintiff should be at liberty to remove the Metal Gates away from the Disputed Land and relocate them along the boundary of the Yellow Part and to remove the Front Gate away from the Disputed Land (the “Application”).

8.The Summons was first returned before me on 4 September 2014 when I adjourned the Application for the parties to negotiate and to make further attempts of mediation to find a solution for the removal of the Metal Gates and the Front Gates.  Unfortunately, the parties were unable to resolve the matters between themselves and the hearing for the Application was restored before me on 11 December 2014.

9.The plaintiff filed an affidavit on 10 December 2014 informing the court that she had contracted to sell the G/F Properties.  The sale was scheduled to complete on 26 June 2015.

10.After considering the parties’ submissions made on 4 September 2014 and 11 December 2014, I ordered on 11 December 2014 that upon certain undertakings given by the parties the stay of execution of the Injunction be uplifted six months after the completion of the sale of the G/F Properties with costs reserved.  I now set out below the reasons for my said decision and my ruling on costs for the Application.

11.The plaintiff was represented by Mr Tang at the September hearing and by Ms Wong at the December hearing.  The defendant was represented by Mrs Chan at both hearings.

The plaintiff’s case

12.The plaintiff submitted that she had on 13 June 2014 asked the defendant to open an exit from the Yellow Part within 28 days with no avail.  The defendant only repeated that the position for the proposed exit was blocked by a tree and a flower bed which argument had already been raised at the trial. The defendant further said that she was taking positive actions in looking into the feasibility of opening an exit from the Yellow Part without specifying what actions had been taken. 

13.By a letter dated 18 July 2014, the defendant alleged that the owners of lot 734SA (the land onto which the Yellow Part led to) were untraceable and hence an exit from the Yellow Part could not be opened.  The plaintiff criticized the defendant of providing no specific as to what steps the defendant had been taking to trace the owners of lot 734SA.

14.In her affirmation filed on 1 September 2014, the defendant said that she had made enquiries with village elders and Mr Yip Koon Fat (one of the defendant’s witnesses at the trial), the village representative, as to the whereabouts of the owners of lot 734SA and was told that the said owners were untraceable and could not been contacted.  The defendant affirmed that she was told by Mr Yip that the reason for the Front Gate being built at its current position was because the owners of lot 734SA refused to consent an opening at the proposed position which would trespass on lot 734SA.

15.The plaintiff submitted that the proposed exit was situated within the Lot and the opening of the exit from the Yellow Part was not conditional on the defendant gaining access through lot 734SA.

16.The plaintiff submitted that the reason why the court stayed the execution of the Injunction was to give a grace period to the defendant.  The defendant could not turn her own difficulties into an excuse to trespass upon the plaintiff’s land indefinitely.  The grace period was a matter of the court’s discretion, not a matter of right and could not last forever.  The plaintiff should not be deprived of the fruit of the judgment.

17.The plaintiff also complained that the defendant had conducted in an unreasonable and uncooperative manner since the delivery of the judgment by parking her car in front of the main gate of the G/F Properties blocking the plaintiff’s exit and by creating disturbing noises at late night and early hours in the morning.

The defendant’s case

18.The defendant’s counsel submitted that the court would never deprive the defendant a proper access to the public footpath.  The defendant submitted that the Front Gate could not be relocated to the position contended by the plaintiff, ie at the Boundary Wall along the edge of the Yellow Part, which had the effect of trespassing onto lot 734SA.  The reasons cited by the defendant’s counsel in her skeleton for the September hearing were that “P should have known that there is a tree and a planter blocking the proposed exit and that the exit will open to the land of Lot 734SA.  P is well aware that the owners of that lot would not give consent for a right of way.”

19.The defendant denied the alleged noise nuisance and said that the purpose of the plaintiff for making the Application was for the ulterior motive of compelling the defendant to remove her car parked in front of the main gate of the G/F Properties.

20.The defendant complained that the plaintiff poured urine and faeces to the parking space where the defendant parked her car.

Discussion

21.The defendant’s counsel submitted that injunction was an equitable discretionary remedy and no court would grant the injunction sought by the plaintiff for the reason that no consent from the owners of lot 734SA for a right of way for the defendant had been shown by the plaintiff.

22.The defendant’s counsel further submitted that lifting of the stay would cause incredible hardship onto the defendant by denying her access to her dwelling.  She submitted that the stay of the Injunction should continue permanently.  She referred to Snell’s Equity 32^nd ed para 18-044 which stated that the court would give damages in lieu if the injunction was oppressive to a defendant.  She also referred to the following passages in The Principle of Equitable Remedies 9^th ed by Spry at pp 414 to 417:

“In the second place, the court may in its discretion decline to grant an injunction if to do so would result in such substantial hardship to the defendant that, account being taken of any detriment that the plaintiff will suffer on his being confined to damages, disproportionate prejudice would be caused by its intervention.” (p 414)

“On the one hand there are cases where the plaintiff is concerned merely to vindicate his rights and is not expected to suffer substantial hardship or inconvenience even if a breach takes place. Here if the defendant is able to show that to grant an injunction would cause him disproportionate hardship the court may consider it unjust to do so; and this may be the case even where the plaintiff is merely seeking to enforce a negative covenant or undertaking that has been voluntarily assumed by the defendant.” (pp 414-415)

“Further, when the balance of hardship between the parties is being considered there is taken into account, not merely the prima facie entitlement of the plaintiff to have his rights enforced, but also the knowledge of the defendant, where he has known at the material times that he has been acting in breach of the rights of the plaintiff.” (pp 415-416)

“Often a defendant is able, according to these principles, to show that he will suffer substantial hardship if an injunction issues but is not able to show that that hardship is sufficient, in view of other circumstances, to justify the confining of the plaintiff to damages. Here it may be found that by suspending the issue of an injunction, or by limiting its terms, the material hardship may be mitigated without any undue inconvenience to the plaintiff.” (p 417)

23.The above matters are relevant when the court is considering whether an injunction should be granted and if so, on what terms.  In the present case, the injunction sought by the plaintiff has already been granted and no appeal against that decision has been lodged by the defendant.  The views of these learned authors do not assist the defendant in the present application.

24.The defendant’s submission on the proposed exit being blocked by a tree and a planter had already been dealt with in paras 101 to 105 and 143 of the judgment.  I shall not repeat the same here.

25.The defendant’s counsel submitted that the defendant did not purchase a land- locked property as the 2/F Properties had access through lot 733SA to the public footpath.  I have dealt with the land- locked issue in my judgment (see paras 130, 131 and 142 of the judgment) and do not propose to repeat the same here.  The so call “public footpath” is in fact a footpath running through various private lands, namely lots 733SA, 733RP and 734SA.  Suffice it for me to point out again that an exit from the Yellow Part will also lead to the same footpath albeit at different part of the footpath. 

26.The defendant’s counsel also raised the issues of easement of necessity and derogation from grant.  Easement of necessity was neither pleaded in the defence nor raised in the trial.  Nevertheless the issue of necessity had been considered when the court considered the land-locked issue, the non-derogation from grant issue and the Wheeldon v Burrows sense of quasi-easement in paras 119 to 144 of the judgment.  

27.This is neither a re-trial nor an appeal hearing of the case.  I had in my judgment granted liberty for the parties to apply on the wording of the order and the judgment and on residuary matters relating to the removal of the Metal Gates and the Front Gate and relating to the opening of an exit at the Boundary Wall from the Yellow Part. (See para 179 of the judgment)  However, “liberty to apply” does not entitle a party to come and ask that the order itself shall be varied. (See Cristel v Cristel [1951] 2 KB 725 at 728; Ng Dai Choy Chan & Anor v Ng Li Lun & Anor [1958] HKLR 252)  Issues already dealt with at the trial will not be re-opened here.  Issues which should have been raised at the trial but not so raised will not be permitted to be raised here.  The court does not allow any attempt to have a re-trial for this case at the hearing for the Application.

28.In the defendant’s affirmation filed on 8 December 2014, the defendant produced a note signed by one of the co-owners of lot 734SA stating that he did not consent for the defendant to have access to the footpath through his lot or to remove the tree and the planter. I noted in para 131 of the judgment that the owners of lots 733SA, 733RP and 734SA had not built the boundary walls of their properties to the boundary of their respective lots leaving space for the said footpath which showed that the owners of these lots were prepared to carve out part of their lands to provide access to the public road to the neighbouring lots. No evidence has been adduced to show that these owners had imposed any measures to restrict any person from enjoying such convenience offered by them. I am not prepared to accept the said note produced by the defendant at its face value.  I do not accept this as conclusive evidence that the defendant would be unable to obtain access to the footpath for the 2/F Properties whether through lot 734SA or other lands.  I also do not accept that it was impossible for the defendant to arrange an exit for the 2/F Properties. Of course, the defendant may have to pay a price for such access. 

29.The defendant’s counsel submitted in her skeleton for the December hearing that: “This piece of litigation is most disproportionate.”  “This is an outrageous and contumelious disregard of CJR and the Court’s clear condemnation of disproportionality.”  She further submitted that: “The Court should take this very seriously and should stay the injunction permanently and dismiss the summons with costs on this disproportionality ground alone.”

30.The defendant’s counsel seemed to have forgotten that the defendant failed in her defence in this case.  It was the defendant’s maintenance of her stance (eventually rejected by the court) which rendered the trial unavoidable.  If this is a disproportionate case, the defendant has contributed to the disproportionality and I am of the view that the defendant had contributed equally if not more than the plaintiff to such disproportionality. If it was not the defendant maintaining to the end of the day a stance which was eventually rejected by the court, the disproportionality of this case would have been greatly reduced. The criticism of the defendant’s counsel applies equally to her client. I do not see how the court should stay the Injunction in favour of the defendant on the ground of disproportionality in such case.

31.The defendant’s counsel stated in her skeleton for the September hearing that: “The Court did in fact ruled [sic] that without the new opening being functional to D, P cannot remove the Gates.”  I did not make such ruling.  The stay provided in the judgment was to allow a reasonable time and opportunity for the defendant to arrange an exit for the 2/F Properties.  The Injunction granted was not conditional on the defendant having built an exit for the 2/F Properties.  That is why I ordered that execution of the injunction should be stayed until an exit from the Yellow Part was opened at the Boundary Wall or until further order. The Injunction may still be enforced even without an exit from the Yellow Part being opened.

32.I do not agree that the court shall on the one hand grant an injunction in favour of the plaintiff and on the other hand permanently stay execution of the injunction to deprive the plaintiff of the fruit of her successful litigation.  In DBS Bank (Hong Kong) Ltd v Ngai Yim Shing & Anor [2005] 2 HKLRD 740 at 746-747, Lam J (as he then was) stated in the context of a mortgage action that:

“18. Indulgence had been given to the applicant [the tenant of the property concerned] by Master Hui in September 2004. Whilst the court no doubt has the inherent power to grant a stay of execution to give an occupant reasonable time to vacate from the suit premises, that power should not be exercised in a manner incompatible with the position that a plaintiff is entitled to the fruit of his judgment.”

33.The same principle applies here.  I am of the view that the stay of the Injunction should be uplifted after allowing a final opportunity for the defendant to arrange an exit for the 2/F Properties.  Arrangements with the owners of lot 734SA or the owners of the G/F Properties are both available options.  However, in view of the cross complaints made by the parties against each other, I do not see that there is any realistic chance that the parties to this litigation may resolve the problem in an amicable way.  As the plaintiff had contracted to sell the G/F Properties, I am prepared to allow the defendant an opportunity to discuss with the new owner of the G/F Properties who is not burdened by the ill feeling generated by this litigation to find a way out.

34.In the meantime the infringement to the plaintiff’s property rights shall be reduced to the minimum. The defendant through her counsel agreed to give an undertaking to relocate the Metal Gates within 28 days at the defendant’s expenses to the edges of the part coloured pink on the annexed plan which will result in returning possession of part of the Disputed Land to the plaintiff. Upon such undertaking, I agreed at the hearing on 11 December 2014 to uplift the stay after a reasonable period beyond the completion of the sale of the G/F Properties to allow an opportunity for the defendant to discuss with the new owner of the G/F Properties for a solution.  The parties agreed that six months after the completion should be allowed.

35.In the premise, I made the order referred to para 10 above.

Costs

36.Execution of the Injunction was stayed to allow reasonable time for the defendant to arrange an exit for the 2/F Properties.  Almost two months had lapsed since the delivery of the judgment when the plaintiff took out the Application and more than six months had lapsed when the hearing of the Application was restored before me on 11 December 2014.  The plaintiff is entitled to have the Injunction uplifted forthwith after such reasonable time had lapsed.  The defendant still had not sorted out the arrangements and required more times and further opportunities to find a way out for her problem.  In such case, the defendant was seeking further indulgence.  It is only fair that the defendant shall bear the costs of the plaintiff for the Application and I so order by way of an order nisi.

37.I make an order nisi for the defendant to pay the plaintiff’s costs for the Application (including costs previously reserved in relation to the Application) to be taxed, if not agreed with certificate for counsel.

38.The aforesaid costs order nisi shall become absolute 14 days after the date of this decision unless any party shall apply to vary the same within this 14 days period.

Mr David WK Tang (for the hearing on 4 September 2014) and Miss Carol Wong (for the hearing on 11 December 2014), instructed by Tsang, Chan & Woo, for the plaintiff

Mrs Dora KH Chan, instructed by Rene Hout & Co, for the defendant