YEUNG YU CHUNG AND ANOTHER v. BASE KEEN INVESTMENTS LTD AND OTHERS

CACV 204/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 204 OF 2008

(ON APPEAL FROM HCA NO. 90 OF 2008)

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.  This was an appeal by the first and second defendants from an order of Fung J dated 20 February 2008, amended on 4 June 2008 pursuant to another order made by Fung J on 22 May 2008 (“the February order”).  At the conclusion of the hearing, the appeal was allowed with indemnity costs with reasons in writing to be handed down which we now do.

Background

2.  On 15 January 2008, the plaintiff issued a writ seeking declarations of an entitlement to a vehicular and pedestrian right of way arising by way of necessity and/or implied grant and/or by implication of the law or statute over property owned by the first defendant for the purpose of vehicular access between the plaintiffs’ properties at Lot 2159 over the Second Road and injunctions restraining the first and second defendants “from restricting, preventing or otherwise interfering with the Plaintiffs’ reasonable enjoyment of such right of way …or distracting the vehicular access to the Plaintiffs’ buildings at Lot 2159”.

3.  By summons filed on 16 January 2008, the plaintiffs applied for an interlocutory injunction pending trial.  The matter came before Reyes J on 18 January 2008.  Directions were given for the filing of evidence and for the matter to be restored before the summons judge on 7 March 2008.  The judge made no order on the application, encouraging the parties to reach a practical solution.

4.  The matter came before Fung J on 20 February 2008, ostensibly because the plaintiffs needed to add more defendants and for a holding injunction to maintain the status quo until 7 March 2008.  For reasons that are not immediately apparent, save that the parties had not succeeded in finding a practical solution, the hearing became one for interim relief, culminating in the February order (part of which is the subject matter of this appeal) to the following effect:

(1)  Paragraph 1 of the February order restrained the first and second defendants until after judgment in the action or until further order “from interfering by construction or otherwise on part of the Second Road (marked in pink in the Location Plan annexed to the first and second plaintiffs’ Summons dated the 16th of January 2008) within the boundaries of Section D of Lot 2306 of D.D. 104 New Territories”.

(2)  Paragraph 2 restrained the first and second defendants, whether by themselves, their agents or workers or otherwise howsoever “from interfering with the reinstatement of the 18 access over the Second Road” by the plaintiffs pending the determination of their claims.

(3)  The hearing date of 7 March 2008 was vacated and a speedy trial ordered.

5.  Thereafter, the proceedings took a rather unusual turn.

6.  On 10 March 2008, the third defendant obtained leave to be joined as a defendant.  On 14 March 2008, Yam J, on the third defendant’s summons, made an order which, inter alia, discharged paragraph 2 of the February order.

7.  The first and second defendants obtained an extension of time to appeal paragraphs 1 and 5 of the February order from Rogers VP on 18 July 2008.

8.  Upon the first plaintiff admitting and conceding that the alleged easement of vehicular and pedestrian right of way over the alleged First Road and Second Road does not exist, on 26 August 2008, I made an order, by consent, that (1) so far as concerns the first plaintiff, paragraphs 1 and 4 of the February order be set aside; (2) the first plaintiff’s application for an interlocutory injunction by summons dated 16 January 2008 be dismissed; and (3) the first plaintiff do pay the costs of the first and second defendants on an indemnity basis (“the August order”).

9.  On the application of Messrs Huen and Partners, the solicitors for the second plaintiff, I made an order on 10 November 2008 declaring that, upon compliance with the requirements of Order 67, rule 6(1) of the Rules of the High Court, they cease to be the solicitors acting for the second plaintiff.

10.  Following that order, on 24 November 2008, Ms Yu, a director of the second plaintiff, unsuccessfully applied to the master for leave to represent the second plaintiff and for leave to be represented by Ms Chan, a secretary.  Prior to the appeal hearing, the court received written submissions in Chinese from Ms Yu on behalf of the second plaintiff.

This appeal

11.  The first plaintiff acquired Lot 2159 in 1982.  It was open land with no buildings on it.  In 1988, he subdivided the land into Section A and the Remaining Portion.  In 1989 the first plaintiff obtained building licences to erect a house on each of Section A and the Remaining Portion.  Certificates of compliance were issued in respect of the houses so constructed in 1991.  The first plaintiff remains the registered owner of Section A.

12.  The second plaintiff became the registered owner of the Remaining Portion in May 2000.

13.  The plaintiffs’ case as pleaded in the Amended Statement of Claim is that at least from the time when the first plaintiff acquired Lot 2159, the Second Road has been in existence, that it is an unpaved road leading “from the entrance of Lot 2159 on to San Tam Road”, that it “has been used continuously by the residents at Lot 2159 as a footpath over the surrounding lots to San Tam Road” and it is “wide enough to accommodate vehicles”; that Lot 2159 is “landlocked on all four sides of its boundary” by other lots.  The plaintiffs’ claimed that they had acquired an easement over the Second Road by (1) prescription; (2) the rule in Wheeldon v Burrows; (3) by necessity; and (4) public dedication and acceptance.

14.  The Second Road passes through land owned by a number of different owners including the first defendant.  The second defendant is the building contractor of the development that is taking place around Lot 2159.

15.  Ms Tsui who appeared for the first and second defendants submitted that the incontrovertible evidence is that the plaintiffs’ factual case is false:

(1)  No buildings existed on Lot 2159 until 1990/91.  Until then, Lot 2159 consisted of open fields with no buildings on it and hence no residents.  Being surrounded by open fields, it was not landlocked.

(2)  San Tam Road was not constructed until the early 1990s and only gazetted in December 1993.

(3)  It is evident from aerial photographs taken in 1987 and 1988 that the Second Road did not then exist.

(4)  While a track appeared in the aerial photographs of 1990 and subsequent years, it ran north of where the Second Road would be located but had no access to San Tam Road because of two nullahs that ran along the side of San Tam Road.

(5)  While the Second Road appeared to take shape in 2004 and vehicular access to San Tam Road became possible, concrete blocks across the Second Road located just before a vehicular bridge over the nullahs prevented such access in 2005 and 2006.

16.  Having been shown the relevant plans as well as aerial photographs from the Survey & Mapping Office taken in various years between 1982 and 2004, there is no question but that the Second Road did not exist during that period.  In particular, the photographs taken in June 1987 and November 1988 show very clearly that no track, much less a road suitable for vehicular traffic existed or could have existed at that time.  Importantly, while photographs taken in the 1990s might suggest the existence of a track, when juxtaposed against the earlier photographs, it becomes apparent that the track is not the Second Road.  It is also the plaintiffs’ own case that user of the Second Road for vehicular access only commenced in October 2007.  I therefore agree that the second plaintiff's factual premise for its claim is demonstrably false. 

17.  There is no basis for the interim injunction granted unless the plaintiffs can show that there is a serious issue to be tried:

(1)  As regards the claim to an easement of vehicular access over the Second Road, user as of right for the 20-year period prior to the issue of the writ on 15 January 2008, namely, user since 15 January 1988 must be shown, but having regard to the matters set out in §§ 15(1)-(3) and 16above, no such easement could arise.

(2)  No easement could arise under the rule of Wheeldon v Burrows because no evidence has been adduced to show that Lot 2159 and the lots comprising the Second Road were once in common ownership.

(3)  Since public dedication of the Second Road requires, inter alia, long user by the public, I do not consider the matter arguable in view of §§ 15(4)-(5) and 16above.

18.  In so far as the second plaintiff seeks to rely on any representation made by the first defendant, even on the assumption that it had been made, estoppel could not arise because the first defendant is only one of several owners of land forming the Second Road.  It is therefore clear that there is no serious issue to be tried in this matter.  The injunction must be discharged and the order granting the injunction set aside.

19.  Indemnity costs against the second plaintiff are warranted in the present case.  The allegations of user could not have come about as a result of an honest mistake.  Rather, they were deliberately made when it was known that they were false.  Further, the defendants did not produce the aerial photographs taken in the 1980s, particularly those taken in June 1987 and November 1988 but chose only to produce those from 1990 onwards.  The relevance of the earlier photographs is that they would have shown conclusively that the Second Road did not exist and so could not have been used as from 15 January 1988 which is crucial to the second plaintiff’s easement claim.

20.  Finally, I note that there is an appointment scheduled for 30 January 2009 before the listing clerk.  In view of recent developments and the matters set out above, the second plaintiff would be well-advised to reconsider whether or not to continue with its litigation.

Hon Chu J:

21.  I agree.