WAN KOON WO v. LI YIN NAI AND ANOTHER

DCCJ 1994/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1994 OF 2012

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JUDGMENT
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Introduction

1.  This is a boundary dispute.  The owners of two adjacent pieces of land claim ownership of an area between them.

Dramatis personae

2.  The plaintiff is the registered owner of G/F, 1/F of Lot 436 in DD 29, Ting Kok Village, Tai Po (“Lot 436”).  The 1^st defendant is the registered owner of Lot 435 of the same village (“Lot 435”).  The 2^nd defendant is the building contractor of the 1^st defendant for the redevelopment of a small house on Lot 435.  

3.  The late Wan Ping Yau is the plaintiff’s father.  He was the registered owner of Lot 436 since 1981/1982. He redeveloped Lot 436 into two 3-storey houses in 1991.  The plaintiff became the registered owner of Lot 436 by way of succession.  On 20August 2010, the 2^nd floor and the roof of Lot 436 were assigned to Lui Chi Lai and Yiu Wing Hong, they are not parties to this action.

4.  The plaintiff’s house is currently occupied by his sisters, Sandy Wan and Pat Wan.  This action was conducted by Sandy Wan by way of a power of attorney dated 14 April 2012.

5.  On 30 August 2007, the 1^st defendant became the registered owner of Lot 435.  Leung Yan Fai is the 1^st defendant’s husband and also an indigenous villager of Ting Kok Village.

The plaintiff’s claim and the defences

6.  Prior to 2007, a brick wall, or some remnants (“the Brick Wall”), was erected immediately next to the external wall of the plaintiff’s house, the land which it was built was the subject of dispute in this action (“the Disputed Area”).

7.  The plaintiff alleges the 1^st and 2^nd defendants had demolished the Brick Wall, which was within Lot 436, while the 2^nd defendant was redeveloping Lot 435, the construction works trespassed onto Lot 436.  The plaintiff further alleges the 2^nd defendant’s construction works caused damage to the plaintiff’s house.  At time of the complaint, the building works in Lot 435 was up to one storey high, the plaintiff applied for an interlocutory injunction against the 1^st and 2^nd defendants to restrain them to continue the building works.  The 1^st and 2^nd defendants gave undertakings to withhold the construction works pending determination of this dispute.

8.  The 1^st and 2^nd defendants said the Brick Wall was the remnant of the house in Lot 435, it was within the boundary of Lot 435.  They are entitled to demolish it and to build a small house which embraces the Disputed Area.  There was no trespass.  To fully utilize his land, he is entitled to build a small house with an abutting wall to the plaintiff’s external wall.  No damage will be caused on the plaintiff’s house.

Events leading to the dispute  

9.  In August 2007, the defendants demolished the Brick Wall.  The plaintiff claimed it was done without his consent and had casted a toe kerb (“the Toe Kerb”) on the Disputed Area.

10.  Prior to the commencement of the redevelopment of Lot 435, the 1^st defendant submitted a survey report for determination of the boundary of the two lots prepared by Kwong Che Sing (“Kwong”) dated 18 January 2008 and was lodged with the District Land Survey Office.

11.  The 1^st defendant then engaged the 2^nd defendant to build a small house on her lot. 

12.  The plaintiff alleged an agreement was reached between the parties in a meeting held in 2009, prior to the commencement of the construction works on Lot 435, where they agreed (“the alleged 2009 Agreement”):-

(i) parties recognized that they each owned 50% of the Disputed Area;

(ii) the defendants would not build any wall or structure in physical contact with the external wall of the plaintiff’s house;

(iii) the defendants would not demolish the Toe Kerb; and

(iv) the plaintiff and his family would not raise objection or complaint to the District Land Office against the 1^st defendant’s plan to build a small house on her land.

13.  The 1^st and 2^nd defendants agreed parties met sometime in 2008 but denied the alleged 2009 Agreement.

14.  Further and in alternative to the alleged 2009 Agreement, the plaintiff claims 50% ownership of the Disputed Area was recognized by custom of Ting Kok Village.

15.  In November 2011, the 1^st and 2^nd defendants, in carrying out constructions of the house on Lot 435, demolished the Toe Kerb and had scraped excess concrete on Disputed Area and the plaintiff’s external wall.  Apparently, the plaintiff was uncontended of the acts of the 1^st and 2^nd defendants, she complained to Pang Kim Hung, a village representative.

16.  In or about late November 2011, a written agreement was signed by the 2^nd defendant, as the 1^st defendant’s building contractor with witnesses to settle the dispute arising from the construction of the 1^st defendant’s house.  The 2^nd defendant agreed to repair the external wall of the plaintiff’s house (“the 2011 Agreement”).

17.  In December 2011, the 1^st and 2^nd defendants erected an abutting wall to the plaintiff’s external wall, in the course of doing so, the 2^nd defendant drilled holes and embedded them with iron nails.  At that time, the building works of Lot 435 had reached up to 1^st floor. Sandy Wan made a complaint to the police and the building works came to a halt thereafter.

18.  The 1^st and 2^nd defendants resumed works in or about April to June 2012.  By reason of this, the plaintiff applied for an interlocutory injunction against the 1^st and 2^nd defendants.  By consent, an order dated 12 November 2012, the 1^st and 2^nd defendants gave undertakings pending trial of the following:-

(i) not to further use and further interfere with the plaintiff’s external wall;

(ii) not to carry out further works on the plaintiff’s external wall;

(iii) not to affix any further structures on further items on the plaintiff’s external wall; and

(iv) not to carry out further construction works in connection with the building of the 1^st defendant’s house.

19.  The plaintiff further pleaded estoppel by convention and/or promissory estoppel.

20.  The plaintiff further complained of water seepage caused by the damage done on the external wall of the plaintiff’s house by the 2^nd defendant.

21.  The plaintiff further insisted, should the 1^st defendant has ownership over the Disputed Area, she is not entitled to build an abutting wall against the plaintiff’s external wall.

22.  In gist, the plaintiff’s claim is premised on the breach of the alleged 2009 Agreement where the 1^st defendant has trespassed onto the plaintiff’s land; such acts had caused nuisance to the plaintiff when damaging the plaintiff’s external wall in Lot 436.

23.  In this action, the plaintiff seeks two declaratory reliefs that the 1^st and 2^nd defendants are not entitled to (i) use, possess or occupy the external wall of the plaintiff’s house and not entitled to (ii) use, possess and occupy the Disputed Area; and to carry out works or erect any structure over the area.  The plaintiff further seeks an injunction to restrain the 1^st and 2^nd defendants to interfere the plaintiff’s use over the half of the area of the Disputed Area; and an order against the 1^st and 2^nd defendant to demolish all structures erect and to deliver vacant possession of the Disputed Area.

24.  The plaintiff’s claim for mense profits and damages were abandoned.

Issues

25.  The following are the issues of this action:-

(i) Where is the common boundary between Lot 435 and 436 (“the boundary issue”)?

(ii) Whether there is a custom in Ting Kok Village according to which the owners of Lot 435 and Lot 436 each owned 50% of the Brick Wall (“the custom issue”)?

(iii) Whether the parties entered into the alleged 2009 Agreement?  If so, whether it is binding and enforceable on the 1^st defendant (“the 2009 agreement issue”)?

(iv) If there was no agreement, whether there would be estoppels as alleged by the plaintiff (“the estoppels issue”)?

(v) How should the 2011 written agreement be interpreted (“the 2011 agreement issue”)?

(vi) Whether the damage done to the plaintiff’s house has been rectified (“the rectification works issue”)?

(vii) Whether the way the 1^st defendant’s house was constructed would cause structural problems (“the construction work issue”)?

(viii) Assuming the 1^st defendant boundary covers the Disputed Area, whether the 1^st defendant is entitled to build a wall abutting to the plaintiff’s external wall (“the abutting wall issue”)?

(ix) Did the construction of the 1^st defendant’s small house in Lot 435 caused water seepage in the plaintiff’s house?  If an abutting wall was to be constructed on the plaintiff’s wall, whether it would cause water seepage to the plaintiff’s house (“the water seepage issue”)?

(x) Is the plaintiff entitled to the reliefs sought in his statement of claim (“the relief issue”)?

The boundary issue (Issues I)

Expert evidence

26.  The plaintiff claims 50% ownership of the Disputed Area.  The 1^st defendant claims entire ownership.

27.  The 1^st surveyor report on boundary plan was done by Kwong, the 1^st defendant’s surveyor on 18 January 2008.  Kwong was not called as a witness at trial.

28.  Subsequently, the boundary dispute surfaced.  The plaintiff first engaged Yvonne Cheu (“Cheu”) to compile a surveyor report on 24 December 2011.  She concluded the plaintiff must have ownership and rights over the Disputed Area because it was constructed on the boundary of Lot 435 and Lot 436.  She found there was a “concrete block along the building line at the southern end” laid by the plaintiff.  Cheu attempted to rely on DD 29 control sheets to establish the existence of the Brick Wall.

29.  Cheu’s conclusion on boundary was in conflict with Kwong’s report.  I find Cheu’s findings were oversimplified. Cheu’s conclusion was not helpful because it was premised on the plaintiff’s instructions.  In circumstance where the DD29 control sheets could not identify the Brick Wall, Cheu gave no further evidence in respect of its existence. She did not specify the date of inspection at all which is crucial in stating the location of the Brick Wall. 

30.  Cheu’s assertion can never been tested and resolved as Cheu was not called to give evidence at trial.  I therefore attach no weight to Cheu’s report.

31.  At trial, both parties relied on the opinion of different surveyors, namely Joseph Wong for the plaintiff and Eric Tang for the 1^st and 2^nd defendants.

32.  Both Joseph Wong and Eric Tang agreed a five – step procedure shall be adopted to define boundaries as established in the Code of Practice issued pursuant to section 29 of the Land Survey Ordinance, Cap 473:-

(i) follow the intention of grant;

(ii) adopt original occupation;

(iii) respect boundary features;

(iv) adopt common boundary previously defined; and

(v) provide reasons for discrepancies.

33.  Both experts agreed in their joint statement to observe the Code of Practice, and stated “we have to adopt Mr Kwong’s plan as a final decision unless we find substantial evidence to prove Mr Kwong’s definition is wrong”.  Joseph Wong accepted “no defects could be proved over the definition of Kwong.”

34.  In the joint statement, both experts said, applying the one meter rule, the DD sheets were unable to define the boundary.  The only discrepancy between Kwong and Cheu’s plan was only 0.1 metre.

35.  The joint statement is the starting point to analyse the expert evidence. I find the joint statement is a fair one because in Ho Man Lap v Ho King Kiu, HCMP 1684/2013 at §12 & 14, it is decided an earlier plan is deemed to be correct until there is strong evidence to suggest the boundary information of the first one is wrong.  There is no error in law that strong evidence is required to challenge an earlier plan.  Common boundaries previously defined by an authorized land surveyor should be adopted unless the previous boundary definition is proved to be wrong.

36.  Joseph Wong preferred and agreed with the boundary definition of Cheu because Cheu has taken into account the existence of the Brick Wall at time of the compiling the report. He disagreed with Eric Tang and Kwong’s opinion because they were not alerted to the existence of the Brick Wall.  Nevertheless, during cross examination, he made it clear that he could not have said Kwong’s opinion was incorrect, he cannot fully disagree with Kwong’s survey.  He further said, the Disputed Area between the definition of Kwong and Cheu’s report were overlapped by an insignificant dimension of 10 cm, he was unable to draw a conclusion.

37.  Joseph Wong criticized Kwong’s opinion was deficient because he had no opportunity to inspect the Brick Wall.  He attempted to rely on a survey report compiled by his company in July 1997 for sewage design to establish the existence of the Brick Wall.  I accept the defendant’s submission that Joseph Wong’s opinion was unwarranted.  The reason being, at time of Kwong’s report, the Brick Wall has already been demolished.  Secondly, as the 1997 survey report was not done for boundary definition, the survey errors and tolerance of such report are different.  Not to say the 1997 report was not exhibited in his report, the methodology of such survey was unknown.  I am unable to accept the 1997 survey report could be of assistance to the support Joseph Wong’s opinion.  I disagree Joseph Wong could have relied on a report done by his predecessor to establish there was evidence of the Brick Wall.  

38.  It is also the plaintiff’s case that the Brick Wall was a party wall which should be shared between two owners.  During cross examination, Joseph Wong gave different views on the definition of a “party wall”: he first agreed a party wall serves a function of supporting two structures; a party wall does not necessarily be rested in the middle of the wall; and a party wall could wholly belong to one side.  In absence of site inspection of the internal structures of two houses, I doubted the conclusion that the Brick Wall was a party wall.

39.  Both Joseph Wong and Eric Tang agreed, in defining a party wall, one has to take into consideration of the views of the two adjourning owners.  When no consensus between the owners can be reached, a prudent surveyor has to inspect the internal structures of two houses before reaching such conclusion.  Regrettably, Joseph Wong concluded the Brick Wall was the party wall without adopting his initial view on classification of a party wall, precisely, no inspection on the internal structure of the houses were done; no explanation given as to why the middle point the Brick Wall was the boundary of two lots.

40.  Eric Tang’s report and his oral testimony came with reasons.  Eric Tang admitted, he was equipped with limited resources at time of compiling his report.  Eric Tang was frank in admitting his mistake in Appendix L in his report where a diagram depicting Lot 435 – 437 was wrongly drawn.  

41.  Eric Tang opined, firstly, the on-site features were insufficient to determine the boundary.  He made it clear that one ought to inspect the internal structures of the houses to determine whether a party wall existed.  Having said that, with limited resources, he relied on an old photo[1] to say that the house on the two lots were not supported by one party wall, but were built separately with their own walls.  His said so because (with the aid of the photos produced by the plaintiff at the beginning of the trial[2]) he found (i) the height of the house in Lot 436 was higher than that of Lot 437, the height of the canopies were of distinct heights; and (ii) the walls of Lot 435 and 436 were built with different exterior features.

42.  Eric Tang further said the three houses in Lot 435, 436 and 437 were built with different heights in light of the plaintiff’s photos and the aerial photos[3].

43.  For one thing, I agree with Eric Tang to the extent that the photos (both the plaintiff’s photos and aerial photos) shown the three houses on Lot 435, 436 and 437 were built with different heights, the possibility of a party wall (that is a wall supports two adjacent houses) would be much lower.  I accept Eric Tang’s analysis, that he maintained a more impartial view to say the Brick Wall was belonged to Lot 435.

44.  I conclude Joseph Wong has no basis to draw the conclusion that Cheu’s boundary definition is to be preferred because (i) the intention of grant (usually the demarcation district sheets) were unclear or uncertain; (ii) the 1997 survey done by a colleague of his company should not to be relied on, and (iii) the Brick Wall has already been demolished at time of Joseph Wong inspection.

45.  I also refer to the last criteria in the Code of Practice – to provide reasons for discrepancy, if one said the previous surveyed result of Kwong is to be incorrect, the party should have raised a substantive error of Kwong’s definition on the boundary.  Neither Joseph Wong nor Eric Tang could state such reason.  In such circumstance, Kwong’s definition on the boundary should be adopted.  A party wall did not exist between Lots 435 and Lot 436, but rather, the houses were built abutting to each other, but with their own supporting walls.

46.  In assessing expert opinion, an expert’s reasoning is of utmost importance.  It must be the case that the reasoning brings about the conclusion, not vice versa.  An expert should not be pre-empted with a conclusion and then goes back to look for justifications.  Joseph Wong’s opinion falls within this category.  His conclusion was not derived from the 5-tests in the Code of Practice, but rather his pre-empted view on the boundary issue. Joseph Wong’s analysis is unpersuasive.  On balance, I prefer Eric Tang’s analysis to Joseph Wong’s. 

Factual evidence

47.  Credibility of witnesses is assessed with two objective tests: (i) whether that part of his testimony is, in a material way, inherently plausible or implausible; (ii) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example is often given of such evidence is contemporaneous documents).  (See Yu Ming Investment Ltd v Peng Ru Chuan Richard, HCA 814 of 20112, 5 May 2005)

48.  The plaintiff invited me to draw adverse inference against the defendants on the basis that the 1^st defendant and Lam Cheung Mui (one of the factual witness of the defendant) did not testify at trial of this action.  I do not find this is an appropriate case to do so when it is known that the 1^st defendant is only the title owner of Lot 435 who has no involvement in the action.  Lam Cheung Mui, a very old lady, was not called at trial for health reasons.

49.  Ms Sandy Wan testified.  She was born in 1967.  She has been living in Lot 436 save she had gone abroad from the period from 1986 until 1991.  She learned from her father and other villagers and had believed that the Disputed Area (where the Brick Wall was located) was owned by both Lot 435 and Lot 436, in other words, the registered owners of both lots of land has 50% ownership of the Disputed Area.

50.  Sandy Wan said when she was young, she recalled the Brick Wall was built with green bricks（青磚）.  She remembered her father painted it white.

51.  At time of redeveloping the two houses in Lot 435, she did not participate in the construction matters, nor was she involved in the dealings between her father and the Land District Office.

52.  Although there are some inconsistencies in respect of historical events over decades, as one might have forgotten the details throughout the years, I accept the Sandy Wan’s evidence in respect of the historical events.

Factual evidence in relation to the alleged party wall

53.  Sandy Wan’s evidence in establishing the boundary of the two lots was not to be believed.  I am not satisfied that her evidence can establish the factual basis of the boundary between the two lots.  She accepted, as a matter of background, that there were two old houses erected on Lot 436 prior to 1991.  The condition of the house on Lot 435 was in poor condition and there was a one-storey Tsz Tong on Lot 437.

54.  Sandy Wan alleged the owner of Lot 437 (another adjacent lot of land next to Lot 436) at time of redeveloping Lot 437, has physically encroached on Lot 436.  In fact, she spoke for her later father, without personal knowledge. 

55.  Sandy Wan evaded questions in respect of the Brick Wall and the Toe Kerb, she was uncertain of the dimensions of the Toe Kerb where she gave instructions to the contractors.  She claimed the Toe Kerb was built for indentifying the boundary, on the other hand, she built an open drain next to the Toe Kerb in Lot 435 without the consent of the 1^st defendant.  Surprisingly, she agreed had the 1^st defendant followed her idea to have built her house with a gap (around 1 foot wide) between two houses, which created practical difficulties in maintaining the external walls of the two lots of land. 

56.  Other inconsistencies were found in the instructions given by Sandy Wan to both Cheu when compiling the survey report.  It was recorded therein “that [the Wans] would not demolish their portion of party wall for building safety reasons, and half of the party wall or “the land” would be returned to Wan sisters when Lot 435 was redeveloped”.  Neither did the plaintiff pleaded it as the plaintiff’s case, nor could Sandy Wan remember she had given such instructions to Cheu.

57.  In fact, Sandy Wan has requested the Lands District Office to redefine the boundary between Lot 435 and Lot 436.  Only that the Lands District Office replied in a letter dated 30 November 2011, the parties were invited to settle the boundary dispute by themselves.  In doing so, Sandy Wan said she has engaged Cheu to compile an expert report, she later chose to instruct another expert, an authorized land surveyor, Joseph Wong to give opinion of the same issue.  Nevertheless, the plaintiff submitted a different case at time of applying an interlocutory injunction in June 2012.  Sandy Wan denied giving instructions to Cheu, her expert that there was an agreement between 1^st defendant and the plaintiff that the Disputed Area would be returned to the plaintiff at time when the 1^st defendant redeveloped Lot 435.  She blamed Cheu to have wrongly stated her instructions.  She tendered photos of houses of another village which she claimed to be houses of Ting Kok Village.

The custom issue (Issue II)

58.  The plaintiff pleads 50% ownership of the Brick Wall between adjacent owners is a custom of Ting Kok Village.  The allegation itself lacks sufficient evidence in support.  Particularly, when Sandy Wan was being cross examined on the custom of Ting Kok Village, she gave no account of the custom of Ting Kok Village that the owner of Lot 436 and Lot 435 each owned 50% of the Party Wall; she gave no answer or comment to the questions put to her by the senior counsel of the defendants   during cross examination.  I can put no further that there is no concrete evidence showing the alleged custom of Ting Kok Village that each of owners of adjacent lands owned 50% of a party wall between two adjacent lots.  Her belief was only premised on the saying of her late father and some other villagers of the Ting Kok Village, which is at its highest, hearsay evidence. 

59.  There are legal requirements in establishing a custom, the alleged custom must have existed from time immemorial; it must have the force of law being invariably followed in the locality; and it must be reasonable and certain[4].

60.  Sandy Wan attempted to demonstrate with limited number of examples that party wall existed between two houses.  It is indisputable, where Sandy Wan could not have resisted, that there were more than 400 houses in Ting Kok Village which no party wall existed.  The houses of two adjacent lots are either constructed with a walkway in between, or with abutting walls.  Her allegation that the ownership was derived from custom of Ting Kok Village was unfounded.

61.  In the premises, I do not find Sandy Wan a credible witness, apart from the historical events of her family, I reject her evidence.

The alleged 2009 agreement issue (Issue III)

62.  The plaintiff claimed the alleged 2009 Agreement was a binding agreement to define the boundary between the two lots of land.

63.  Pat Wan, sister of Sandy (also known as 八姨) was present at the meeting.  She was aware the 1^st defendant was about to build her house on Lot 435, she was concerned that an abutting wall might be built onto the plaintiff’s house, she took the initiative by asking Lam Wai Hung and the Pang Kim Hung to call for a meeting with the 2^nd defendant and Leung Yan Fai, the husband of the 1^st defendant, to discuss both the boundary of the two lots of land and the construction of the 1^st defendant’s house.  

64.  Pat Wan said, she could not recall the exact time of the meeting on that day.  All three of them discussed in Ting Kok dialect (a dialect similar to Hakka), she took them to inspect the plaintiff’s house, shown them the boundary, and then directed them not to build an abutting wall onto the plaintiff’s house.  The meeting lasted for one hour.  At that time, Dik Yuen Ma came out from his house and approached them.  Pat Wan said the agreement has been reached.  Dik Yuen Ma will be a witness of such agreement in event of dispute.

65.  Dik Yuen Ma testified he witnessed the meeting and claimed an agreement has been reached between Pat Wan, the 1^st and 2^nd defendants.  Nevertheless, it is doubtful whether Dik Yuen Ma could understand the entire conversation.  He agreed, the conversation was in both Cantonese and Ting Kok dialect, he does not understand nor could he speak Ting Kok dialect.

66.  On the part of the defendants’ evidence, both the 2^nd defendant and Leung Yan Fai said, on that day, they went to Lot 435 for a chat, Pat Wan appeared but it was not meant to be a formal meeting with the Wan’s sister.  The 2^nd defendant was aware of the presence of a gentleman, later known to be Dik Yuen Ma, he was not a witness to the discussion.  The 2^nd defendant agreed, Pat Wan, at time of the meeting stated the plaintiff owned half of the party wall.  Both Leung Yan Fai and himself did not replied affirmatively they replied, the 1^st defendant has engaged a surveyor to redefine the boundary and Lands Department for purpose of redeveloping Lot 435, no approval has been granted.  The 2^nd defendant recalled the issue of building an abutting wall was raised, he remembered he told Pat Wan that it is feasible to build a house adjacent to the plaintiff’s house without an abutting wall to the plaintiff’s house.

67.  In this meeting, I find Dik Yuen Ma was only a bystander.  He was not present throughout the entire conversation.  Dik Yuen Ma could have overheard something but he was not a reliable person to witness the conclusion/agreement (if any) made in that alleged meeting.

68.  I find the defendants’ evidence on this issue is more probable.  The alleged 2009 agreement did not exit.  It would be very unlikely that a boundary issue, a serious one, could be agreed, or capable to be agreed in a casual chat, without being reduced in writing.  The meeting was a casual encounter but that the plaintiff has exaggerated it as an agreement on boundary.  I accept the 2^nd defendant’s evidence is more probable when he bumped into Leung Yan Fai on that day and then went to Lot 435 for a chat, without particular purpose.  All the exchanges relating to the Disputed Area was mere far from mere discussions, but discussions.  

69.  My findings are supported by the defendant’s evidence, at that time, the 1^st defendant has only submitted an application with the District Lands Office for developing of a small house on Lot 435, coupled with the submission of Kwong’s plan, there was no reason for the 1^st defendant to reach an agreement, or to confirm the boundary between two lots of land during this casual meeting.

70.  One further point, for the fact that in the plaintiff’s letter dated 12 April 2012, the plaintiff’s solicitors specifically replied to the defendant’s letter dated 30 March 2012 on the issue of the boundary of the two lots, had there been such agreement, which was an important one, Sandy Wan must have given instructions to her solicitors to mention the alleged 2009 agreement in the same letter.

The estoppels issue (Issue IV)

71.  The plaintiff pleaded estoppel by convention and/or promissory estoppel in event no agreement was reached in the 2009 meeting.  The plaintiff claims he would have raised an objection/compliant to the District Lands Office in relation to the 1^st defendant’s application for redeveloping a small house on Lot 435; by not raising the objection, the plaintiff therefore suffered detriment.

72.  I accept the defendants’ submissions that the plaintiff’s plea of estoppels is unsustainable[5].  The plaintiff has assumed by way of the alleged 2009 agreement, the 1^st defendant is not entitled to build on the Disputed Area.  If this is so, the plaintiff does not need to rely on estoppels.  The alleged 2009 agreement is relevant on the assumption that the 1^st defendant is entitled to build on the Disputed Land and she promised not to do so, the plaintiff relied on this promise and then refrained from filing an objection to the District Land Office against the 1^st defendant’s application to build a small house on Lot 435.  Even if this is so, I fail to see there is any detriment suffered by the plaintiff, an objection against the 1^st defendant’s application to build a small house on his lot is not determinative because the decision rests with the District Lands Office.

73.  Lastly, on the pleadings itself, the plaintiff did not identified the prohibited acts of the 1^st and 2^nd defendants unequivocally in the statement of claim.

74.  The plaintiff’s claim on both estoppels by convention and promissory estoppels must fail.

Apparent/ostensible authority – the 1^st defendant

75.  It is also the plaintiff’s pleaded case that the 1^st defendant’s husband or the 2^nd defendant is and are acting for and on behalf of the 1^st defendant.  However, there is no evidence that the 1^st defendant was holding out to the plaintiff, or the Wan’s family that he was acting with the authority, whether actual or apparent, of the 1^st defendant, it follows that if the Wan’s family were not aware of existence of their principal, there is no room for such application of such legal principle[6].

76.  Circumstantial evidence revealed, the 2^nd defendant was the building contractor of the 1^st defendant, he would not have the usual, apparent authority to enter into any binding agreement to define the boundary the two lots.  Although Leung Yan Fai was 1^st defendant’s husband, the relationship itself could not bring about the apparent authority on the part of Leung Yan Fai. Leung Yan Fai and the 2^nd defendant only engaged in an informal discussion on building matters of Lot 435, it was too far fetch to infer both of them would enter into any binding agreement on the boundary between two lots.

Analysis on the question on boundary

77.  Parties relied on Colin Sara, Boundaries and Easements, 5^th edition, at paragraph 6.22,

“it follows that it may be necessary to analyse the time at which and the purpose of which the wall was originally constructed. It is submitted that what the authorities are dealing with are really inference from the facts rather than legal presumptions. In some cases a careful analysis of the facts may show either that the wall was originally erected for the benefit of one of the adjourning owners only, or that it was clearly erected for their joint benefit either because both properties were then in common ownership or because the adjourning owners got together to build it. Where, however, the court is not able to reach any clear conclusion on the purpose for which the wall was built it seems that it will be regarded as a party was providing that both parties use it. This is the extent of presumption.”

78.  The burden rests with plaintiff to demonstrate his claim over the ownership of the Brick Wall.  The plaintiff’s evidence is insufficient to discharge his burden of proof. Sandy Wan’s evidence, asserting it was her later father’s wish, that prior to 1991, the Brick Wall was shared between the house owned by her father on Lot 436 and the owner on Lot 435.  In or about 1991, her father decided to redevelop two houses on Lot 436 into a three-storeyed house, in doing so, the Brick Wall was kept for reason not to damage or cause danger to the house on Lot 435.  In or about 2007, the defendant demolished their house and the Brick Wall.  The plaintiff casted the Toe Kerb along the immediate boundary within Lot 436. 

79.  Her late father’s wish and intention could not assist the plaintiff in establishing their ownership of the Brick Wall.  Sandy Wan admitted, she has no involvement in the redevelopment in Lot 436, she testified merely on the intention of her late father.  There were circumstantial evidence that at the time of redeveloping Lot 436, the house in Lot 435 was abandoned.  It is fair for the builder, to keep the Brick Wall in Lot 435 for safety purpose.  Furthermore, should the Brick Wall marked the boundary of the two lots of land, it is absurd for the plaintiff not to have raised objections to either the 1^st defendant, or any governmental bodies when it was being demolished in 2007 by the 1^st defendant.

80.  The plaintiff (or Sandy Wan) further attempted to embrace the half share of the Brick Wall by requesting the District Lands Office to re-survey on the boundary of both lots in her letter dated 9 November 2011 which was subsequently refused by the same in the letter dated 30 November 2011.  She then instructed Cheu to do a surveyor’s report which I have placed no weight.

81.  Factually, the construction of the houses in Lot 436 and Lot 437 (the adjacent house on the other side of Lot 436) are very different.  A one-storeyed Tze was built on Lot 437 whereas the plaintiff’s house in Lot 436 was 3-storyed high.  One could have known it is impossible for party wall to support both buildings with different height, it is implausible that a party wall could have existed.

82.  The Toe Kerb.  Sandy Wan said it was built for the purpose of marking the boundary of the two lots of land.  Nevertheless, her evidence is doubtful when she was unable to estimate the width of the Toe Kerb.  If this is so, it would be implausible for her to mark the boundary of the two lots of land.  It is more practicable to say the Toe Kerb was meant to serve the purpose for drainage when a drain was built immediately next to it.  It is far from definition of a boundary.

83.  The colour of the bricks of the houses in Lot 435 and Lot 436 might be some pointer to the existence of a party wall.  Sandy Wan was unable to say or to recall the colour of the bricks of the two houses prior to their demolishment.  The 2^nd defendant, being a resident in Ting Kok Village since 1982 who had acquired his own house in 1992, and also an experienced builder, he testified the remnants of the Brick Wall (which he had demolished) were made of green bricks.  He recalled, the tiles of the roof of the old structure of Lot 435 were resting on the external wall of the plaintiff’s building.  He explained, as far as he understood, the tiles on the roof of a party wall will not be placed on top of the party wall itself, but be placed around 4 – 6 inches from the party wall, for drainage purpose.

84.  Leung Yan Fai was aware of the green brick wall on Lot 435, whereas the wall of house on Lot 436 was made with yellow mud bricks.  He explained a yellow mud brick wall was less costly than a green brick wall.  The latter came with a smooth surface, usually more well off families would build their houses with green bricks.

85.  Leung Lap Ping, another villager of Ting Kok Village testified, no partition wall existed between the houses because he saw each houses contained their own walls.   

86.  Pang Kim Hung, another villager testified there were no structures on both Lot 435 and Lot 436 before the plaintiff’s father undertook to rebuild Lot 436.  There was no interconnecting wall.  He remembered the bricks on Lot 436 were built with yellow mud bricks.

87.  The plaintiff’s evidence on ownership is unsatisfactory.  Obviously, the plaintiff could not have shown that the Brick Wall was a party wall of the two lots of land, even if he is capable to doing so, it is again difficult to prove the boundary of the two lots of land was the midway of the Brick Wall.

88.  I came to this conclusion because a party wall, as defined in section 2 of the Building Ordinance (Application to the New Territories) Ordinance, Cap 121 means a load-bearing wall[7], the same definition was found at page 6 of the Land Department’s Guideline for Building New Territories Exempted Houses.

89.  The legal proposition of the ownership of a party wall is well said in Megarry & Wade, the Law of Real Property, 8^th edition at paragraph 30-041 to 30-046.  In summary, boundary walls dividing one property form another may be in the sole ownership of one owner, free from any rights of the other.  As a general rule, ownership of a party wall follows the ownership of the land upon which it is built. It is possible for party walls to be owned by adjourning owners as tenants as common.  Where a party wall is built entirely on the land of one owner, there is a presumption that the wall belongs to that owner.

90.  The plaintiff argued there was peaceful occupation between the parties on the boundary of the two lots of land, the Brick Wall was erected for more than 100 years, therefore, the boundary must be the 50% or midway of the Brick Wall. I find this argument unfounded. Should there be peaceful occupation, no boundary dispute should not have existed.  As one may recall, the house in Lot 435 was abandoned when the late father of Sandy Wan rebuilt his house on Lot 436.  The Brick Wall was not demolished for safety reasons.  There was no evidence that the ex-owner of Lot 435 acceded to the boundary definition. It was only in 2007, when the 1^st defendant acquired ownership in 2007, the dispute surfaced.

91.  Considering all evidence, I find it is more probable that the Brick Wall was built in Lot 435 and was not a party wall to both structures of Lot 435 and Lot 436.  It were remnants of the building of the original house in Lot 435.  That explains the acts of the late father of Sandy Wan, who left the Brick Wall undisturbed at time of constructing his house in Lot 436.  It is more probable than not that Sandy Wan casted the Toe Kerb after the demolition of Brick Wall for drainage purpose, instead of reinstating the boundary between the two lots of land.

The 2011 agreement issue (V)

92.  The 2011 agreement came into being because Sandy Wan complained the 2^nd defendant had damaged the rear corner of the plaintiff’s external wall of the plaintiff’s house by the end of November 2011.  She further discovered, on 28 November 2011, the 2^nd defendant had fixed steel grids on Lot 435, she was dissatisfied the 1^st defendant to build a small house with an abutting wall to the plaintiff’s house.

93.  Without indicating the extent of such damage, the 2^nd defendant admitted his wrongs and agreed to repair the damages area.

94.  Sandy Wan was involved to the extent that to place a chop on the 2011 agreement at the village council.  She clarified the agreement was signed at various places, not at the village council of Ting Kok Village.  She said Pat Wan, her sister was a better person to testify how the agreement had come about.  She concluded, it was the family’s consensus that the 1^st and 2^nd defendants could not build their house abutting to the plaintiff’s wall.

95.  Quite a number of witnesses testified on this issue.  Sandy Wan said she discussed with the 2^nd defendant on 27 November 2011 and then the agreement itself was signed on 28 November 2011.  Dik Yuen Ma and Lee Si Sang were in the vicinity.  Sandy Wan asked them to evidence the 2^nd defendant’s admission that he has damaged the rear part of the wall of the plaintiff’s external wall and his undertaking to do the repair.

96.  The witnesses signed the 2011 agreement, then followed by Pang Kim Hung.  Sandy Wan then obtained a chop from the village council and finally, she asked the 2^nd defendant to sign on it. 

97.  Sandy Wan further explained what she was thinking of the meaning of “夾口” at time of signing of the agreement was referred to the part of the cement put to repair the damaged wall.  She admitted she did not mention the Brick Wall, the Toe Kerb and the abutting wall in the agreement.  She agreed nothing has prevented her from highlighting the same in the 2011 agreement.

98.  Dik Yuen Ma was also one of the witnesses of the agreement.  He confirmed Sandy Wan and Pat Wan drafted the agreement, he only signed as a witness.  He agreed the written agreement was prepared at time of the meeting.

99.  Lee See Sang was also a witness to the agreement.  He said the parties discussed on 27 November 2011. He was approached by the Wan’s sisters in the青年會and has signed it on 28 November 2011.

100.  The 1^st and 2^nd defendants’ case was very different.  The 2^nd defendant testified he had agreed to guarantee because there was a consensus between himself and Sandy Wan that an abutting wall will be built to the plaintiff’s external wall, or otherwise, he would not have guaranteed to make good any water seepage, if any, occurred in the plaintiff’s house.  He said the agreement was signed on 29 November 2011 in the presence of Pang Kim Hung, not the other witnesses.  The 2^nd defendant admitted he did not pay much attention to the contents of the 2011 agreement, for instance, he did not specifically referred to repair work on the foundation.  He signed it for the sole purpose of facilitating construction works on Lot 435 free from further disturbance from the Wan’s sisters.  He disagreed Dik Yuen Ma has participated in the meeting.

101.  I accept the 2^nd defendant’s evidence to be more probable.  It is fair for the 2^nd defendant, as a builder for the 1^st defendant to procure undisturbed construction on Lot 435, the expected completion date might be delayed if the complaints from the Wan’s sisters are continuing.

102.  The interpretation of the 2011 agreement did not prohibit the 2^nd defendant expressly from building an abutting wall onto the plaintiff’s external wall.  The gist of such agreement was mainly agreement on the repair of the damaged part of the rear corner of the plaintiff’s external wall, and any potential water seepage problems.

103.  It is again no indicator to the boundary issue because at time of signing of such agreement, it is worth noting that, at the time of the meeting, Sandy Wan took the view that she was unsure about the boundary between the two lots of land.  She explained she had requested the Land District Office to redefine the boundary.  In absence of reply from them, she was unable to confirm the exact boundary.  She was in the course of engaging a surveyor to define the demarcation of the two lots, only that she was not given the opinion at time of the meeting. 

The rectification issue (Issue VI)

104.  Sandy Wan complained the defendants have damaged the external wall of the plaintiff’s house at time of redeveloping Lot 435 in April 2012.  Sandy Wan particularly alleged there would be water seepage problems should the 1^st defendant abutted her external wall to the plaintiff’s.  She claimed there was water seepage over the external wall of the plaintiff’s house when the owner of Lot 437 built an abutting to the plaintiff’s wall.

105.  Sandy Wan agreed, although the defendants failed to obtain consent from the plaintiff in demolishing the Brick Wall in 2007, she did not particularly objected to it because the Brick Wall was unsafe.  She further said, the defendants damaged part of the rear corner of the external wall of the plaintiff’s house.  She further agreed, although there was no direct evidence to prove water seepage was caused by the construction work on Lot 435, water seepage might be caused by some other reasons. 

106.  The 2^nd defendant said the foundation of Lot 436 has protruded into lot 435, his workers need to streamline the excess part but not to damage the plaintiff’s external wall.  The 2^nd defendant admitted, his workers have drilled holes onto the wall of the plaintiff’s house.  He undertook to repair the plaintiff’s external wall.  He was given to understand this was done for the purpose of securing the abutting wall to the plaintiff’s external wall.  The Wan’s sister did not accept his apologies.

107.  Sandy Wan engaged her expert, Cho Hing Cheung to give opinion as to how the damaged wall should be repaired.  She claimed, she had given no consent to such works.  She explained, she could have opted for more than one opinion of the method of repair.  Sandy Wan made a report to police, the repair works in Lot 435 stopped.  

108.  Sandy Wan was only a factual witness, her allegations on the construction work/water seepage should be best resolved by expert evidence.  The parties relied on two structural engineers as their experts, namely Cho Hin Cheung and Philip So for the plaintiff; Dennis Pho and Cheung Hoi Keung for the 1^st and 2^nd defendants.  On the construction issue, the experts came to polarized opinion on the methodology of the construction work by the 2^nd defendant on Lot 435.  

109.  For an easy understanding of the expert opinion, the expert report of Cho Hin Cheung and Dennis Pho came into the scene at an earlier stage. In Cho Hin Cheung’s report dated 26^th April 2012, he said,

“Drilling holes to the external wall at Lot 436 will damage the load bearing brick wall. Also the gaps between the external walls of two buildings will become wider due to concrete shrinkage, creep effect. Subsequent to that, rain water will seep through the gap and cause the cast-in mild steel anchor bars to be corrode [sic]. Years later, the external wall of Lot 436 will suffer water leakage.”

110.  Cho Hin Cheung made a series of recommendations for repair works.  The 1^st and 2^nd defendants engaged Concrete Repair Technology Limited (a company recommended by Cho Hin Cheung) to carry out the repair works.  Dennis Pho, a registered structural engineer by the defendant, gave evidence such repair works recommended by Mr Cho Hin Cheung were completed satisfactorily.  The 1^st and 2^nd defendants then engaged Dennis Pho to inspect the external wall.  He confirmed, in his report dated July 2012, the repair works suggested by Cho Hin Cheung were satisfactorily completed. Dennis Pho came to a conclusion that the defendant’s construction works shall not constitute adverse effect to the plaintiff’s external wall.

The construction issue (Issue VII)

111.  Then, two other experts came into scene: the plaintiff engaged another structural engineer, Philip So[8] and the 1^st and 2^nd defendants engaged Cheung Hoi Keung as their experts to give opinion on the impact of the construction of the 1^st defendant’s house in Lot 435.  Both Philip So and Cheung Hoi Keung prepared a joint report on 30 August 2013.

112.  Philip So inspected Lot 435 on 20 August 2012 (at a time when the house in lot 435 was built at up to the 1^st floor).  His opinion was premised on a photograph supplied by the plaintiff.  He said the construction works were below standard. Criticism was focused on (i) the construction debris remained at the foundation of the works, which would affect the bearing capacity of the new house; and (ii) no blinding layer was laid at the foundation level.  He anticipated settlement or tilting would occur in the future.  During cross examination, Philip So agreed, as at the date of trial, no differential settlement or tilting was found.

113.  Philip So alleged the construction of 1^st defendant’s house is short of proper supervision by appointed persons.  Nevertheless, he did not identify technical defects in his report, save the omission of a blinding layer, which is a good practice in construction field.

114.  Philip So identified some building debris on the construction site of Lot 435.  No objective evidence can be elicited from Philip So on the whereabouts of the debris after the photo was taken.  I am unable to accept his opinion be premised on a snapshot on 28 November 2011 that building debris existed.  The small house on Lot 435 has been built up to 1^st floor at time of his inspection.  He has no idea whether the appointed person, a technician or a registered professional engineer[9] (T2 or RPE) has been instructed by the 2^nd defendant to remove the debris.  It is well noted that the steel grids were wide enough to allow the debris to be removed from the building foundation.  Even the building debris were buried in the foundation of Lot 435, Philip So did not come with tests results that could sufficiently prove structural defects.  As depicted in the photo, the amount of building derbis was insubstantial.  The soft spot, if ever existed, might not be a determinative factor that tilting or settlement.

115.  I accept, Cheung Hoi Keung’s opinion, only a relatively small area in Lot 435 was seen to contain suspected uneven soil/construction debris, the impact over the foundation was limited.

116.  Philip So has only inspected the site at a stage when the construction works were in progress, he was uncertain of the entire building exercise, neither am I satisfied with the opinion that Alex Chan (appointed by the 1^st defendant as both T2 and RPE) had failed to discharge his burden properly and was in breach of the building guidelines.  Such allegation could not be proved.

117.  A further point, both experts gave different opinion of the load bearing capacity of the foundation.  Philip So stated the such capacity would be low whereas Cheung Hoi Keung gave a thorough explanation on the load bearing capacity of different kinds of soil.  I accept it must be the case that load bearing capacity differs with different kinds of soil.  Without identifying the kind or combination of soil in Lot 435, it is unfair for Philip So to comment the type of soil that the building foundation in Lot 435 could not attain a safe and satisfactory load bearing capacity.

118.  A blinding layer is known to be a good practice in construction works.  As a blinding layer itself would not count as part of the thickness of the foundation, it is a good practice to have one, the existence of a blinding layer is not crucial in determining the standard of construction.  I accept Cheung Hoi Keung’s comment that it is not a must.  He concluded, there was no evidence that the construction was unsafe in absence of a blinding layer.  He explained, unless relevant tests have been carried out, the occurrence of settlement is unrealistic.

119.  On balance, Philip So’s explanation was not preferred.  His conclusion was reached with the aid of one photograph, he agreed the conclusion of the possibility of settlement and tilting was premised on his personal experience and expertise in the profession, without carrying out average load intensity tests. 

120.  I find Cheung Hoi Keung’s evidence solid and unshaken.  His came to conclusions with detailed analysis.  On balance, I accept his expert opinion.

The abutting wall issue (Issue VIII)

121.  Both Philip So and Cheung Hoi Keung pointed out it was a common practice for builders to construct an abutting wall to the external wall of the adjacent building.  The lateral load, or concrete pressure on the existing wall is insignificant because it will diminish to nil pressure after the concrete hardened.

122.  Cheung Hoi Keung observed, no written consent is necessary if he chose to construct her house within her boundary.  Yet usually in cases where abutting walls to be built, the owners of two lots of land usually will come to a consensus.  He further clarified, the 1^st defendant, out of courtesy, should have notified the plaintiff of building an abutting wall.

123.  The plaintiff complains the external wall of Lot 436 is structurally inadequate to allow the wall on Lot 435 to be built abutting to it.  Philip So opined the “lateral load arising from the casting of Lot 435 wall may damage the exiting Lot 436 wall”.  Nevertheless, Philip So failed to demonstrate with test results whether the plaintiff’s external can bear the load of the abutting wall.  His agreed his opinion is not derived from tests results.  

124.  On this issue, Cheung Hoi Keung explained in his evidence that the construction of the abutting wall will be done in a single arrangement, ie floor by floor.  The concrete pressure is relatively low because limited concrete was being casted on the plaintiff’s wall at a particular time.  The pressure will drop to zero when the concrete was set and hardened.

125.  Both experts agreed that it is a common practice, not only in Ting Kok Village, that houses were built with abutting walls.  There are of course, situations where owners of both lots of land did not build their house abutting with each other, in that case, the owners will allow a pathway between the two houses.  As suggested by both experts, it would only be plausible when the two owners agreed to such arrangement.  If no consensus existed, there is nothing to prevent either owner to make full use of his land within the boundary of his lot of land.

126.  Sandy Wan further complained, should the 1^st defendant be allowed to build an abutting wall to the plaintiff’s external wall, she would have lost the enjoyment of using the window on the plaintiff’s external wall because the abutting wall will obstruct the window.  In fact, as revealed in a letter the District Lands Office in their letter dated 6 December 2012, the construction of a window on the external of the plaintiff’s building has never been approved.  It goes without saying that the plaintiff’s complaint that the abutting wall of the 1^st defendant’s house would obstruct the window is unfounded.

127.  As I have found the Brick Wall was built within the boundary of Lot 435, not a party wall to both structures of Lot 435 and Lot 436 but remnants of the building of the original house in Lot 435, the 1^st defendant is entitled to make full use of her land by building a small house within the boundary of Lot 435 with an abutting wall onto the plaintiff’s external wall.

Water seepage issue (Issue IX)

128.  Sandy Wan raised the alleged water seepage because she had experienced the same thing in her house when the owner of the Lot 437 built an abutting wall on to the external wall of the plaintiff’s house on the opposite side.  In her evidence, she admitted she has no knowledge of the origin of water seepage.  In this regard, both factual and expert evidence do not support the plaintiff’s allegation.

129.  Philip So carried out a site inspection on 20 August 2012 and had come up with an observation that there were “minor spalling of plaster and plaster found in damp condition at the internal face of side wall at G/F to 1/F abutting [Lot 435]”.  Neither did Philip So carry out further site inspection nor did he conduct tests on the damp patches on the interior wall of the plaintiff’s house to prove water seepage caused by the grout holes.  He has no idea of whether a water proofing layer existed inside the plaintiff’s external wall.

130.  Philip So failed to discharge his burden as an expert, to say the plaintiff’s house suffered from water seepage because of the construction of the 1^st defendant’s house in Lot 435.  In water seepage cases, it is almost inevitable to rely on tests results to prove the origin of water seepage.  In absence of tests results or other adequate reasons, I could not come to a finding that the alleged water seepage in the plaintiff’s house is caused by the construction of the 1^st defendant’s house in Lot 435.

131.  In fact, both Philip So and Cheung Hoi Kuen agreed, should there be any water seepage in the plaintiff’s house, it might have happened because the construction works in Lot 435 is still on-going.  Both of them agreed the method of construction of abutting walls, where foam board would be inserted to the interface of two walls and the top of the new wall which will be sealed off with water proofing material.  Water seepage problem, if any, would disappear.  I am driven to the conclusion that no water seepage exited as alleged by the plaintiff; and the construction of the house on Lot 435 by erecting an abutting wall onto the plaintiff’s external would not cause water seepage to the plaintiff’s house.

The relief issue (Issue X)

132.  The plaintiff’s claim for damages or mense profit has been abandoned.  As I have found the plaintiff is unable to prove the issues raised above, no declaratory reliefs and/or injunction should follow.  

Conclusion

133.  I make the following orders:-

(i) The plaintiff’s claim be dismissed.

(ii) The 1^st and 2^nd defendants be discharged from the undertakings as set out in schedule 1 of the Order dated 12 November 2013.

(iii) A costs order nisi that the costs of this action, including the plaintiff’s summons filed on 13 June 2012 and the 1^st and 2^nd defendants’ summons filed on 12 November 2012, be payable by the plaintiff to the 1^st and 2^nd defendants, with certificates for counsel, to be taxed if not agreed.

(iv) The costs order nisi be made absolute in absence of application to vary by way of summons within 14 days from the date of judgment.