YEUNG CHI WANG v. YEUNG CHI WING

DCCJ 4798/2017

[2021] HKDC 17

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4798 OF 2017

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JUDGMENT

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INTRODUCTION & OVERVIEW

1.  The plaintiff and the defendant are the registered owners of adjoining plots of land in Yuen Long.  By the present proceedings, the plaintiff seeks declaratory and injunctive reliefs concerning an alleged right of way.

2.  As apparent from the Re-Amended Statement of Claim dated 30 July 2019, the plaintiff relies on 3 bases as giving rise to a right of way, namely:-

(a)  A right of way of fixed duration up to 27 July 2026 arising through contract, by the Settlement Agreement between the parties dated 28 January 2016 (“Contractual Argument”) (at §§6-8A);

(b)  A permanent right of way arising by necessity (“Necessity Argument”) (at §3A); and/or

(c)  A permanent right of way arising by prescription (“Prescription Argument”) (at §3).

3.  The plaintiff previously applied for summary judgment, which was substantively argued before HH Deputy Judge Vincent Lung, who handed down a Judgment dated 31 August 2018 ([2020] HKDC 1047) (the “Aug 2018 Judgment”).  I gratefully adopt the learned Judge’s summary of background in the Aug 2018 Judgment.

4.  By the Aug 2018 Judgment, the learned Judge:-

(a)  Granted summary judgment to the plaintiff on the Contractual Argument (at §46(a));

(b)  Granted unconditional leave to defend to the defendant on the Necessity Argument, holding that on the evidence before the court the plaintiff was unable to show that the plaintiff’s land was landlocked in 1973 for a right of way to arise by necessity, and there was therefore an arguable issue to be resolved at trial (at §§43, 46(b)).

(c)  Held in relation to the Prescription Argument (at that time not properly pleaded but substantively advanced by the plaintiff before the Learned Judge nonetheless) that on its face it appeared to be an arguable issue that whatever right of way by prescription the plaintiff might have obtained, it might have been extinguished by the Settlement Agreement between the parties (at §40).

5.  Subsequent to the Aug 2018 Judgment:-

(a)  The plaintiff filed his Re-Amended Statement of Claim on 30 July 2019; and

(b)  The defendant, at that time acting in person, filed a single page Defence on 11 December 2019.

6.  There are now 2 summonses before the court:-

(a)  The defendant’s application for leave to amend the Defence by summons dated 14 October 2020 (“Amendment Summons”); and

(b)  The plaintiff’s renewed application for summary judgment (and alternatively striking-out of the Defence) by summons dated 3 June 2020 (“Renewed O.14 Summons”).

7.  I will deal with each of these summonses in turn below.

AMENDMENT SUMMONS

8.  As the single-page Defence arguably contains admissions on the part of the defendant (on which it is unnecessary for this court to make any finding), this court drew the parties’ attention to the commentary at §27/3/10 of Hong Kong Civil Procedure 2021 concerning resiling from admissions.

9.  The plaintiff has made clear to the court that it has no substantive objection to the Amendment Summons, save as to costs.

10.  In the premises, I allow the Amendment Summons in terms of paragraphs 1 to 3.  Costs of and occasioned by the Amended Defence shall be to the plaintiff in any event, to be taxed if not agreed.

RENEWED O.14 SUMMONS

11.  By the Renewed O.14 Summons, the plaintiff is seeking summary judgment for a permanent right of way on the Necessity Argument and Prescription Argument.

12.  The plaintiff accepts that the Amended Defence raises triable issues on the Necessity Argument and Prescription Argument, and therefore no longer pursues its renewed application for summary judgment upon the Amendment Summons being allowed.

13.  However, the plaintiff insists on costs of the Renewed O.14 Summons, and it is this issue of costs which is the primary dispute before the court today.

14.  The plaintiff’s position is premised on the contention that he was fully entitled to take out the Renewed O.14 Summons in light of apparent admissions made in the Defence (whether directly or implicitly), and would have obtained summary judgment but for the Amendment Summons subsequently taken out by the defendant.

15.  In this regard:-

(a)  The Renewed O.14 Summons is supported by the 4^th Affirmation of the plaintiff (the “4^th Affirmation”).

(b)  The plaintiff confirmed to the court in oral submissions that the 4^th Affirmation does not address the observations of the learned Judge on the Necessity Argument at §43 of the Aug 2018 Judgment.

(c)  The plaintiff confirmed to the court in oral submissions that the 4^th Affirmation does not address the observations of the learned Judge on the Prescription Argument at §40 of the Aug 2018 Judgment.  Whilst the plaintiff does plead at §8B of the Re-Amended Statement of Claim that the Settlement Agreement did not release or substitute any pre-existing right of way, there is nothing in the 4^th Affirmation specifically addressing the Settlement Agreement.

16.  In light of the above, I disagree with the plaintiff’s position.  I am of the view of that, even if the Amendment Summons had not been taken out by the defendant, had the Renewed O.14 Summons proceeded to substantive argument it would have been dismissed. In particular:-

(a)  It is well-established that on an application for summary judgment, it is incumbent upon the plaintiff to raise a prima facie sustainable case in the first place, before the burden is placed on the defendant to show an arguable defence: see §14/4/1 of Hong Kong Civil Procedure 2021; Ju Yan Di Emperory Genesisy v Yau Wai Han [2015] 1 HKLRD 822 at 827-828 per Cheung JA.

(b)  It is also well-established that an application for summary judgment seeks to obtain judgment on the plaintiff’s own case, whereas a judgment on admission seeks to obtain judgment on the defendant’s admission: see §27/3/9 of Hong Kong Civil Procedure 2021.

(c)  The plaintiff, legally represented at all material times, took out a renewed application for summary judgment under RDC O.14, rather than an application for summary judgment under RDC O.27.

(d)  The plaintiff’s renewed application for summary judgment relies on substantially the same evidence placed before HH Deputy Judge Vincent Lung, and wholly fails to address the observations of the learned Judge in the Aug 2018 Judgment as to fundamental flaws and triable issues on the face of the plaintiff’s evidence on both the Necessity Argument and Prescription Argument. 

(e)  Even assuming that the Defence contains admissions (which it is not necessary for me to decide for present purposes), the probative value and weight of such admissions is insufficient to overcome the fundamental deficiencies in the evidence which the plaintiff has placed before this Court.

(f)  In the premises, on the Necessity Argument and the Prescription Argument, the plaintiff has failed to raise a prima facie sustainable case.  The Renewed O.14 Summons as supported by the 4^th Affirmation would therefore have been dismissed it in any event, regardless of whether the Amendment Summons was taken out by the defendant.

(g)  For completeness, even if the plaintiff had taken out an application for judgment on admission relying on the same affirmation evidence, I would also have declined to enter a judgment on admission against the defendant, regardless of whether the Amendment Summons was taken out by the defendant:-

(i)  It is well-established that whether to enter a judgment on admission is at the discretion of the court.

(ii)  In the present case, fundamental deficiencies in the plaintiff’s evidence previously identified by the court in an earlier summary judgment application, set out in the Aug 2018 Judgment, remain completely unaddressed.

(iii)  In such particular circumstances, I would not have exercised my discretion to enter judgment on admission: see by way comparison on broadly similar circumstances, Louis Dreyfus Trading Ltd v Bonarich International (Group) Ltd [1997] HKC 597 at 604I-605E per Waung J, referred to at §27/3/10 of Hong Kong Civil Procedure 2021.

17.  The plaintiff is not assisted by his argument that he was faced with such a difficult position in light of the original single-page Defence that he had no choice but to take out the Renewed O.14 Summons.  First, the plaintiff could have continued to progress the matter towards trial.  Secondly and more importantly, the plaintiff could have taken out the Renewed O.14 Summons (or apply for judgment on admission) with supporting evidence going towards properly addressing the fundamental deficiencies identified by the Aug 2018 Judgment.

18.  In my view, given that the Renewed O.14 Summons as supported by the 4^th Affirmation would have been dismissed in any event, the proper costs order to make is for the plaintiff to bear the defendant’s costs.  Having considered the defendant’s Statement of Costs, on a broad-brush approach, I summarily assess such costs to be HK$47,000.  The aforesaid costs order shall be on a nisi basis, to be made absolute within 7 days unless either party applies for variation.