FONG E FONG, CANDY v. SIU KAM TONG AND ANOTHER

HCA 2467/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2467 OF 2016

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DECISION ON COSTS

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1.  The plaintiff is the owner of House 8 and the defendants the owner of House 10 in Yucca Villa, Shatin, New Territories.

2.  The plaintiff’s summons dated 23 September 2016 came on for hearing on 11 November 2016 before me as the Summons Judge.  That summons sought an injunction against the 1^st and 2^nd defendants:

(1)   to restrain them from preventing the plaintiff, her agents and employees from entering on to a strip of land between the parties’ respective houses (the “disputed land”);

(2)   to require them to remove all things on the disputed land; and

(3)   to restrain them from preventing the plaintiff, her agents and employees from removing the potted plants and other things on the disputed land.

3.  At the hearing on 11 November 2016, however, the plaintiff decided to abandon her application for any injunction and not to proceed with it save as to costs.  Accordingly I heard the parties on the question of costs only and reserved my decision, which I now give.

4.  The two houses are several metres apart and the disputed land is part of the area between them, being an approximately 1-metre wide strip of land immediately next to the exterior wall of House 8.  It can be seen from the plans and photographs that the disputed land falls physically within the curtilage of the defendants’ house (ie House 10) as it was built and has been used and occupied. 

5.  The plaintiff claims, however, that the disputed land falls within her lot of land ie Lot 606C rather than the defendants’ lot ie Lot 606E (both of DD 171)[1], and that she is entitled to enter on the disputed land and erect scaffolding there for the purpose of carrying out repairs to her house, even though the disputed land is within the gated garden area of House 10 and is accessible only by entering that gate. 

6.  According to the record of WeChat messages (FEF-5), on 23 August 2016, the plaintiff first approached the 1^st defendant asking him to allow the plaintiff’s workmen to erect scaffolding in order to carry out repairs to House 8.  In the course of the dialogue by messages, the 1^st defendant asked the plaintiff to trim the tree branches that protruded over House 10.  Later, apparently because of an incident of previous damage to his floor tiles by fallen debris from House 8, and his view that the plaintiff could not be trusted, the 1^st defendant asked the plaintiff to provide a written undertaking to indemnify the defendants for any damage caused by the intended works, and also to deposit $5,000 with a District Councillor as security.  The plaintiff emailed a written undertaking to the 1^st defendant on 14 September 2016 (FEF-4).  Meanwhile, the plaintiff also asked the defendants for a written undertaking that they would not disturb her workers (see the plaintiff’s 1^st affirmation §36).  On about 19 September 2016, the plaintiff deposited a cheque for $5,000 with Ms Lam, a clerk to the Shatin District Councillor office.

7.  On 23 September 2016, the plaintiff, acting in person, made an urgent application to Au J, the Duty Judge of the week.  His Lordship was not satisfied that there were circumstances of such urgency to warrant a departure from the usual procedure of applying by summons returnable after at least 2 clear days.  The ex parte on notice application was therefore dismissed.

8.  On the same day the plaintiff took out a summons returnable on 30 September 2016 for the injunctions referred to above.  Her 2^nd affirmation was also filed.

9.  On 29 September 2016, the plaintiff filed her 3^rd affirmation.

10.  On 30 September 2016, the summons came before Chung J.  The plaintiff appeared but the defendants were absent, thought they had written to the court to say they were overseas and would not be in Hong Kong until later.  As explained in his Lordship’s reasons handed down on 5 October 2016, at that hearing Chung J refused to grant an interim injunction and adjourned the summons to 11 November 2016.  He gave directions that the defendants should file and serve their affirmation in opposition within 21 days and that the plaintiff should file and serve her affirmation in reply within 14 days thereafter.

11.  In the event, the defendants only filed their affirmations (dated 4 November 2016) on 7 November 2016.  The plaintiff said she had not received them until after she had made her 4^th affirmation on 8 November 2016.

12.  In the 2^nd defendant’s affirmation, at §6, it was stated that without admitting the plaintiff’s allegations, the defendants had been prepared to allow the plaintiff and her workmen to enter the disputed land on licence and carry out the desired works to House 8 during business hours on Monday to Saturday for the period of 6 months, provided that there is proof of insurance covering all risks and the workmen could offer proper identification documents.

13.  In the afternoon of 10 November 2016, the plaintiff lodged a skeleton argument, which, inter alia, adopted her earlier skeleton used for the hearing on 30 September 2016, which asked for an injunction. 

14.  In §14 of the plaintiff’s skeleton, it was stated that the defendants had by conduct, after 26 September 2016, agreed to allow access to the disputed land, though no agreement had been reached on the question of costs, damages and whether the action should be discontinued.

15.  It was not however until the hearing itself that the court was informed expressly that the plaintiff would no longer seek an injunction.

16.  In these circumstances, where the substantive dispute did not require determination, leaving the question of costs to be determined, the applicable approach may be found in the authorities such as R (Boxall) v Waltham Forest London BC [2000] 4 CCLR 258 at §22:

“(i) The court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs. … (iii) The overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost. (iv) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties. (v) In the absence of a good reason to make any other order the fall back is to make no order as to costs. …”

See also Famous Marvel Co Ltd v Conversant Group Ltd (HCA 2153/2009; 29 October 2012).

17.  I bear in mind that these principles have to be taken broadly rather than mechanically applied, costs being a matter in the general discretion of the court.

18.  In the present case I take account of the fact that the defendants eventually stated in their affirmation that they were prepared to grant a licence to the plaintiff to enter upon the disputed land. They had since late August 2016 demanded the trimming of tree branches which seemed to me to be unconnected with the question of access to the disputed land for repair purposes. 

19.  However, the plaintiff’s claim is not without problems.  For her claim that the disputed land lies within Lot 606C rather than Lot 606E, the plaintiff in her 1^st affirmation relied on a Lot Index Plan prepared by the Lands Department (FEF-2).  As Chung J observed, that was not a usual kind of evidence in this sort of dispute.  The plan stated it showed only “the approximate location of lot boundaries” and that the information shown on it “MUST be verified by field survey”.  Despite that criticism, the plaintiff did not produce any proper survey evidence or even the relevant deeds of assignments until, in her 4^th affirmation, she produced a plan signed by a surveyor, but had still not produced any proper report.  Neither the methodology used nor the basis of the plan was apparent.  Nor did the defendants have an opportunity of responding to it.

20.  Moreover, the Deed of Mutual Covenants (“DMC”) relating to Yucca Villa (FEF-3) was prepared on the basis that the owners of each house were entitled to possession of their lots.  There was a plan or plans attached to the DMC (see clauses 2, 3, 27-37) but inexplicably no plan was included in the plaintiff’s exhibit.  It seems to me that questions might arise as to whether the plaintiff was precluded by estoppel by deed or estoppel by convention from contending that the disputed land fell within Lot 606C and her exclusive possession.

21.  If there is any dispute about the plans attached to the DMC or its effect, then clause 24 would become relevant, which provides that all disputes and question between the parties to the DMC “touching these presents or the construction or adjudication thereof … or as to any act deed or omission by any of the parties hereto or as to any other matter in any way relating to these presents …” shall be referred to arbitration.  The plaintiff argued that she was not suing on the DMC, but that is beside the point.

22.  Further, Yucca Villa was built in around 1981. The defendants and their predecessors-in-title had been in exclusive possession of House 10 since.  There was a gate at the front enclosing the curtilage of House 10 including the disputed land.  No one could gain access to the disputed land except by entering the gate and, on the defendants’ case, with their permission.  There may therefore be a question of adverse possession of the disputed land extinguishing the plaintiff’s title even if the disputed land fell within Lot 606C.  The only point raised by the plaintiff against this so far was that the defendants only purchased House 10 in 2005, but it is trite that successive periods of dispossession by consecutive squatters could be added up: see Megarry & Wade, The Law of Real Property (8^th ed), §35-021.

23.  Further, the relief sought by the plaintiff by summons was at least in part a mandatory injunction.  The injunctive order, whether mandatory or prohibitory, if granted, would largely be dispositive of at least part of the underlying dispute.

24.  In these circumstances, if the plaintiff had proceeded with the application in full at the hearing on 11 November, it is by no means clear on the available evidence that she would have obtained the injunctions sought on an interlocutory basis.

25.  It seems to me entirely sensible for the parties, who are neighbours, to resolve the matter amicably upon reasonable conditions.  Otherwise, if a party chose to stand firm on the strict legal position he or she contended for, a great deal of avoidable time and costs would have to be incurred, not to mention the risk of that party ultimately being proved to be wrong in his or her legal contention.

26.  In these circumstances it seems to me that the proper and fair course is to make no order as to costs, and I so decide.

27.  After the hearing was concluded, on Saturday, 12 November 2016, the plaintiff emailed a letter to my clerk (apparently without copying it to the defendants), purporting to set out certain incidents that had occurred after the hearing and to ask for certain orders.  That was, as the plaintiff should know, most improper.