XCHRX SHING WAI ON AND ANOTHER v. WONG YUEN CHI AND ANOTHER

HCA 13518/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 13518 OF 1999

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REASONS FOR DECISION

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1. This is an application by the Plaintiffs against the Defendants for summary judgment in respect of a claim for a mandatory injunction ordering the Defendants to demolish a boundary wall and to rebuild it in its original position and for damages to be assessed.

2. The Plaintiffs are the registered owners of the land known as the Remaining Portion of Lot No. 3255, in Demarcation District 120 Tai Tong, Yuen Long in the New Territorries (the Plaintiffs' land) and the Defendants are the owners and the occupiers of the land adjoining to the Plaintiffs' land, namely Section A of Lot No. 4765 in Demarcation District 116 (the Defendants' land).

3. There has been a boundary wall separating the Plaintiffs' land and the Defendants' land erected by the Plaintiffs in 1994.

4. It is the Plaintiffs' case that the Plaintiffs' land completely blocks any access of the Defendants' land to the major road, namely the Tai Tong Road through Lot No. 3254, in Remaining Portion in Demarcation District No. 120 which piece of the land is unoccupied.

5. In order to enable the Defendants' land to have access to Tai Tong Road through Lot No. 3254, Remaining Portion in Demarcation District 120, the boundary wall was erected by the Plaintiffs 3 feet into the Plaintiffs' land at one point, leaving an opening to serve as an access path to the Defendants' land.

6. The Plaintiffs discovered in May of 1999 that the Defendants had further shifted the boundary wall into the Plaintiffs' land in order to widen the entrance to the Defendants land. Hence, the present claim by the Plaintiffs against the Defendants for a mandatory injunction ordering the Defendant to reinstate the boundary wall to its original position.

7. The Plaintiffs' case is that while the original wall was only 3 feet into the Plaintiffs' land, the new boundary wall at the point in question was in fact 6 feet into the Plaintiffs' land.

8. In support of the application, in addition to the surveyor's report which suggests that the boundary wall is in fact 6 feet into the Plaintiffs' land, the Plaintiffs also adduce photographs depicting the boundary wall in question which photographs support the suggestion that the boundary wall has been shifted inward up to 6 feet into the Plaintiffs' land.

9. The Defendants, on the other hand, deny having shifted the boundary wall in question. The suggestion is that the boundary wall is where it has always been and what the Defendants did was just to re-surface the foot path leading to the Defendants' land after it was damaged by flooding sometime in 1996.

10. And that explains, so the Defendants claim the difference in the colouring of the concrete surface of the path leading to the entrance of the Defendants' land. The Defendants further suggest that even if the Defendant had encroached upon the Plaintiffs' land to the extent as suggested by the Plaintiffs, there have been acquiescence or waiver on the part of the Plaintiffs, when the Plaintiffs failed to take earlier action and hence the suggestion of an inordinate delay.

11. I have considered carefully the factual background of this matter and the evidence adduced by the parties as well as counsel's submission. I agree that in so far as the suggestion that the present boundary wall has in fact encroached upon the Plaintiffs' land to the extent of 6 feet, the Plaintiffs' allegation is well supported by evidence and the case can be said to be so strong. Those evidence also, in my view, supports the suggestion that sometime after the Plaintiff had erected the original wall, the position of the wall at the entrance to the Defendants' premises had been altered. The entrance to the Defendants' land had been enlarged to enable vehicles to have access into the Defendants' land.

12. But mandatory injunction is not the sort of relief that should be easily granted at the interlocutory stage.

13. In so far as this case is concerned and as the court has observed in the course of counsel's argument, it is important to enquire as to when the Plaintiffs become aware of the alleged demolition of the original wall and the erection of the existing wall. The Plaintiffs had not adduced any evidence as to when the original wall was demolished and when the existing wall came to be erected other than the evidence to the effect that they were only aware of the existing wall sometime in May 1999.

14. There are, of course, possible explanation for the Plaintiffs not to be aware earlier of the demolition of the old wall and the erection of the new wall but the evidence did not demonstrate this aspect as clear as one expects.

15. If the Plaintiffs had been aware of the demolition of the old wall and the erection of the new one and chose not to take any action, then of course, this may be a factor defeating any claim for the equitable relief of a mandatory injunction.

16. I accept Ms. Courbet's observation that while the Plaintiffs may not have offered detailed explanation, there is also no evidence from the Defendants to demonstrate that the Plaintiffs should be aware of the alteration in question earlier.

17. It will not be always possible for the Defendants to adduce evidence as to the knowledge of the Plaintiffs and it is not always possible to have direct evidence on the question of the knowledge of a particular party on the matters in issue. Very often it may be necessary to draw the necessary inference. If the alteration of the wall in question took place 3 or 4 years ago, it will be, in my view, reasonable to infer that as the owner of land, the Plaintiffs should have been aware of such alteration either when it took place or shortly thereafter. But as I said, there is no evidence on this aspect.

18. I am persuaded that so far as the dispute between the parties is concerned, the Defendant ought to be allowed to present the Defence as to the alleged inordinate delay and as to whether there have been acquiescence or waiver on the part of the Plaintiffs in failing to take prompt and proper action to prevent the trespass or the continuous trespass of the Plaintiffs' land.

19. In any event, against as I have observed in the course of the counsel's argument, the mandatory injunction order sought by the Plaintiffs is a discretionary relief. In deciding whether the court should exercise the discretion in favour of the Plaintiffs or whether the court is of the view that despite the clear case of trespass, damages may be an adequate relief, it is necessary for the court to, go through all the relevant consideration pertaining to the parties position and the circumstances leading to the dispute.

20. In my view, those matters can only be properly dealt with by the court at the trial. In my view the matter ought to proceed to trial, perhaps not so much on the question of liability but more on the question of the proper relief that should be granted in favour of the Plaintiffs.

21. The order I make therefore is the Defendants should be granted leave to defend the matter. The Defence and Counterclaim should be filed within 14 days, and the Reply and the Defence to counterclaim if any should be filed within a further 21 days.