DIREK MAHADUMRONGKUL v. LAU CHUN KEUNG AND OTHERS

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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The Appeal

1. This is an appeal against the decision made by Master Chung on 20^th February 1998 dismissing the Plaintiff's application under Order 113 for an order for possession of the portion of The Remaining Portion of Sub-section 1 of Section A of Sub-section 9 of Section A of Kowloon Inland Lot No.2657 ("the disputed land") shown coloured green on the Plan attached to the Amended Originating Summons dated 26^th November 1997.

The Disputed Land

2. Standing on The Remaining Portion of Sub-section 1 of Section A of Sub-section 9 of Section A of Kowloon Inland Lot No.2657 ("Lot A") is the garden and the front block of No.34A Braga Circuit ("the Front Block"). The rear block of No.34A Braga Circuit ("the Rear Block") is erected on The Remaining Portion of Section A of Sub-section 9 of Section A of Kowloon Inland Lot No.2657 ("Lot B") which adjoins Lot A.

Initial Alienations of Lots A and B

3. Lot A and Lot B were originally owned by Mr Lee Kwai Cheuk ("the First Owner").

4. By an Assignment dated 10^th February 1955, the First Owner assigned to Madam Chan Yuen Wah Subsection 1 of Section A of Subsection 9 of Section A of Kowloon Inland Lot No.2657 (which then included Lot A) but subject to, inter alia, the following:

5. By an Assignment dated 16^th May 1955, the First Owner assigned to Madam Fung Lai Lin one equal undivided fourth share of Lot B with exclusive rights to the Ground Floor of the rear block and a "right of way to use go pass and repass over along and upon [the disputed land]".

6. By an Assignment dated 1^st April 1955, the First Owner assigned to Madam Ho Lau Wan one equal undivided fourth share of Lot B with a "right of way to use go pass and repass over along and upon [the disputed land]".

7. By an Assignment dated 28^th March 1956, the First Owner assigned to Mr Francis Chi Man Chan one equal undivided fourth share of Lot B with "a full and free uninterrupted right of way over [the disputed land]".

Subsequent Alienations of Lots A and B to the Parties

The Plaintiff

8. By an Assignment dated 24^th May 1968, Madam Chan Yuen Wah assigned to the Plaintiff, Mr Direk Mahadumrongkul, one equal undivided half share of Lot A with exclusive rights to the ground floor and garden of the Front Block subject to, inter alia, the following:

The 1^st Defendant

9. By an Assignment dated 5^th July 1984, Madam Ho Lau Wan assigned to Mr Lau Chun Keung, the 1^st Defendant, and Madam Lee Mei Wah Gloria, his wife, one equal undivided fourth share of Lot B with exclusive rights to the First Floor of the Rear Block together with "such rights and rights of way as are more particularly described in [the Assignment from the First Owner to Madam Ho] and all rights rights of way (if any) privilege easements and appurtenances thereto belonging or appertaining or therewith at any time used held occupied or enjoyed."

The 4^th Defendant

10. By an Assignment dated 26^th May 1986, Madam Fung Lai Lin assigned to Mr Wong Chak Kuen and the 4^th Defendant, Madam Chan Po Chu, one equal undivided fourth share of Lot B with exclusive rights to the Ground Floor of the Rear Block together with "such rights of way as set out in [the Assignment from the First Owner to Madam Fung] and all other rights rights of way (if any) privilege easements and appurtenances thereto". Then by an Assignment dated 19^th August 1986, the 4^th Defendant acquired the entire interest in the Ground Floor of the Rear Block.

The 5^th Defendant

11. By an Assignment dated 16^th June 1969, Mr Francis Chi Man Chan assigned to Madam Lee Cheung Kwan Wai, the 5^th Defendant, one equal undivided fourth share of Lot B with exclusive rights to the Third Floor of the Rear Block and "a full free and uninterrupted right of way over the [disputed land]" and "all other rights of way (if any) and other rights and all privileges easements and appurtenances thereto belonging or appertaining or therewith at any time used held occupied or enjoyed".

Events Giving Rise to these Proceedings

12. The 1^st Defendant is the registered owner of a private car displaying registration mark EX2236.

13. Tonekind Investment Limited, the 2^nd Defendant, of which the 4^th Defendant is a director, is the registered owner of a private car displaying registration mark DL809.

14. The 3^rd Defendant, Sam Hoo Investment Limited, of which the 5^th Defendant is a shareholder and director, is the registered owner of a private car displaying registration mark EN819.

15. According to the 1^st, 4^th and 5^th Defendants, they have since their respective acquisitions of the First, Ground and Third Floors of the Rear Block been driving their and/or their companies' cars on the disputed land. They have also been parking such vehicles at three parking spaces at the end of the disputed land away from Braga Circuit.

16. The Plaintiff complains that the Defendants park their cars on the disputed land without his consent and knowledge. According to the Plaintiff, Leung Tsang Company Limited who owns the other one equal undivided half share of Lot A, has also confirmed that it has not known of or consented to the parking of cars on the disputed land. Solicitors' letters were sent on behalf of the Plaintiff to the 1^st to 3^rd Defendants on 31^st October 1994 to request them to remove their vehicles from the disputed land.

17. Leung Tsang Company Limited agreed to the Plaintiff taking action in his own name to recover possession of the disputed land. By the Order made by Mr Registrar Betts on 31^st July 1997 in High Court Miscellaneous Proceedings No.1393 of 1997, the Plaintiff was allowed to bring legal proceedings in his own name to recover vacant possession of the disputed land without joining Leung Tsang Company Limited.

The Defences

18. In defence, the 1^st, 4^th and 5^th Defendants raise the following:

Approach

19. I refer to The Supreme Court Practice 1997, Vol.1, paragraphs 113/1-8/1-

"On the other hand, like the default and summary procedures under Orders 13 and 14, Order 113 would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation of the land without licence or consent and without any right, title or interest thereto."

20. I also bear in mind what Godfrey J. (as he then was) said in Vipac Engineers & Scientists Ltd. v. Karpovich [1989] 2 HKC 358 at 359I-360B,

"The right test, in my view, is whether the issue between the parties is one which the defendant is entitled to have sent to a trial - whether it be an issue of fact or law. If the issue is seen on analysis to be capable of determination in only one way, in favour of the plaintiff, then, as it seems to me, it is proper for the court to exercise the power conferred on it by O113 and determine the matter, however vigorous the contest may have been."

Issue or Reason for Trial?

Express grant

21. Mr Nigel Kat's argument for the 1^st, 4^th and 5^th Defendants under this heading was premised primarily on these Defendant having acquired "a right of way to use pass and repass" over the disputed land by their predecessors-in-title.

22. Firstly, only the Assignments dated 5^th July 1984 and 26^th May 1986 by Madam Ho Lau Wan and Madam Fung Lai Lin to the 1^st and 4^th Defendants could have purported to convey to these present owners of Lot B "a right of way to use go pass and repass over along and upon [the disputed land]". In the case of the 5^th Defendant, the Assignment dated 16^th June 1969 only gave her "a full free and uninterrupted right of way over the [disputed land]". The additional words "all other rights of way (if any) and other rights and all privileges easements and appurtenances thereto belonging or appertaining or therewith at any time used held occupied or enjoyed" do not assist her either because by the Assignment dated 28^th March 1956, the First Owner passed to the 5^th Defendant's immediate predecessor-in-title only "a full and free uninterrupted right of way over [the disputed land]".

23. Secondly, I agree with Mr Anselmo Reyes for the Plaintiff that the Plaintiff, the 1^st, 4^th and 5^th Defendants derive title to their respective shares of Lots A and B from the First Owner. When the First Owner granted Lot A (including the disputed land) to the Plaintiff's predecessor-in-title, Madam Chan Yuen Wah, he did not expressly except to himself as vendor and the owner of Lot B a right to "use" the disputed land. All that the First Owner had excepted to his benefit as far as the disputed land was concerned was a "full free and uninterrupted right of way for the owners and occupiers for the time being of [Lot B]". The First Owner could not subsequently have granted a right to "use" the disputed land to Madam Ho Lau Wan or Madam Fung Lai Lin, the 1^st and 4^th Defendants' predecessors-in-title. Insofar as the assignments by the First Owner to these two ladies purported to grant rights to "use" the disputed land, such grants were invalid and ineffective.

24. The question arising here is whether the Lot B owners' "full free and uninterrupted right of way" over the disputed land, on a proper construction, implies a right to park on it.

25. The grant of a right to "pass and repass" does not per se include a right to park: per Sir Robert Megarry V-C in Newman v. Jones (unreported, 22^nd March 1982) cited in Handel v. St. Stephens Close Ltd. [1994] 1 EGLR 70 at 71G-H.

26. In this regard, I was referred by Mr Kat to Graham v. Philcox [1984] 1 QB 747 in which Godfrey J.A. appeared as defence counsel and conceded that if the court held that the plaintiffs were entitled to the right of way claimed, he would not contend that they were not also entitled to the right to park upon the area in issue in that case. As said earlier, the question arising here is one of construction of the particular grant in favour of the 1^st, 4^th and 5^th Defendants. In construing the extent of a right of way, regard must be had to the conveyance by which such right is excepted as a whole. As summarised in Gale On Easements, 16^th Edition, page 327, "[in] particular in construing a grant the court will consider (1) the locus in quo over which the way is granted; (2) the nature of the terminus ad-quem; and (3) the purpose for which the way is to be used" These are essentially facts. That being the case, I doubt if one can derive much assistance from decided cases on the facts. In particular, I have not been shown the precise basis (instructions or facts of the case) upon which such concession was made by counsel in Graham v. Philcox.

27. The problem for the 1^st, 4^th and 5^th Defendants is that none of them is suggesting (whether having regard to the physical characteristics of the disputed land or the purpose for which the right of way is intended to be used) that it is necessary for them to be able to park their vehicles on the disputed land in order to enjoy their right of way over it (cf. Bulstrode v. Lambert [1953] 1 WLR 1065 and McIlraith v. Grady [1968] 1 QB 468).

28. In short, there is no evidence before me upon which I can conclude that an issue has been raised as to the true extent of the 1^st, 4^th and 5^th Defendants' "full free and uninterrupted right of way" over the disputed land.

Easement by prescription

29. It is at least arguable that the English common law on the acquisition of an easement by lost modern grant and the Prescription Act 1832 apply to Hong Kong with modifications so that a limited owner (as all but one owners in Hong Kong are) can prescribe for an easement against another limited owner: Chung Yeung Hung v. Lam Man Nga [1997] HKLRD 1022.

30. The three parking spaces in question are delineated by lines painted on the concrete hardstanding, covered and fitted with posts and chains.

31. The 5^th Defendant recalls in paragraph 6 of her Affirmation that such lines were painted, covers erected and posts and chains fitted more than 20 years ago. The Plaintiff allegedly saw and knew of this. The 5^th Defendant further claims to have parked on the disputed land with the Plaintiff and his co-owner's full knowledge ever since she became the owner and occupier of the Third Floor of the Rear Block and has never received any complaint or objection from them until late 1994. The 5^th Defendant ignored the Plaintiff's solicitors' letter dated 31^st October 1994 and continued to park on the disputed land. She received no further complaint or objection until shortly before these proceedings. The Plaintiff has allegedly not used or carried out any maintenance or repair to the disputed land since 1969. Sometime in the 1980's, the Plaintiff built a wall to enclose the garden of the Front Block in place of an existing fence thereby segregating the disputed land from his property.

32. According to the 1^st and 4^th Defendants, the three parking spaces (in their present state and condition) and the Plaintiff's garden wall were already there when they bought the First and Ground Floors of the Rear Block. They were both told by their vendors that one of the parking spaces on the disputed land was his/hers. They have since parked in such spaces with the Plaintiff and his co-owner's full knowledge without complaint or objection from them until late 1994. In particular, the 1^st Defendant deposes that he had not responded to the Plaintiff's solicitors' letter dated 31^st October 1994 because he believed he had the right to park on the disputed land. He heard nothing about the matter until the Plaintiff commenced these proceedings.

33. The Defendants have also sought help from Mr Hon Sui Wai who has been living in a garage next to No.34 Braga Circuit since 1965. According to paragraph 5 of the Affirmation of Mr Lai Tat Cheung Reuden, solicitor for the Defendants, Mr Hon informed Mr Lai that the hardstanding and covers for the parking spaces at the end of the disputed land were already there in 1965.

34. On the other hand, the Plaintiff says that he has only lived in the garden and the Ground Floor of the Front Block for about one month per year since he acquired the same in 1968. He had no notice of part of the disputed land being used for parking until he was alerted by his son-in-law when the latter stayed at his premises for a short while from November 1993 to January 1994.

35. It is clear from the above summary of the evidence that there are issues as to the length of time before this action for which the disputed land had been enjoyed without interruption also for the purpose of parking by the 1^st, 4^th and 5^th Defendants and their predecessors-in-title, whether such user was as of right and whether the Plaintiff or his co-owner had known about and acquiesced in such user.

36. However, Mr Reyes referred me to Staffordshire Canal Co. v. Birmingham Canal Co. (1866) LR 1 HL 254 at 278 for the principle that a right, even though enjoyed for 20 years, could be defeated if it was one prohibited by the law, e.g. because the grant would have have ultra vires the grantor. Counsel submitted that having granted "a full free and uninterrupted right of way for the owners and occupiers for the time being of [Lot B] over the [disputed land]", the Plaintiff was not competent to grant an easement to park over the disputed land which would reduce the "full free and uninterrupted right of way" which the Plaintiff was bound to allow. I do not think the provision of a few parking spaces at the far end of the disputed land would necessarily cut down the right of way over it. Whether it would have that effect or not must be a question of fact having regard to the size and layout of the disputed land and the location of the parking spaces. I note that it has not been suggested that the presence of the 1^st, 4^th and 5^th Defendants' cars at where they are interferes with passage over the disputed land.

Adverse possession

37. I can deal with this very quickly.

38. The burden is on the 1^st, 4^th and 5^th Defendants to establish their intention to exclude the whole world including the owner of the disputed land, i.e. the Plaintiff and his co-owner (Wong Tak Yue v. Kung Kwok Wai [1998] HKLRD 241).

39. Having deposed to parking on the disputed land in the belief that they have the right to do so, I do not see how these Defendants can, as a fall back position, then characterise their possession of those parts of the disputed land on which their respective parking spaces are situate as "possession as of wrong". They cannot have an alternative case as to fact.

Proprietary estoppel

40. Again, I can deal with this shortly.

41. Putting the 1^st, 4^th and 5^th Defendants' case at its highest on the evidence adduced and assuming that their evidence is preferred, the Plaintiff with knowledge of their user of the inner end of the disputed land for parking purpose has arguably by his inaction allowed or encouraged their belief that there is a right to park.

42. What these Defendants have not shown is that they have acted to their prejudice in that belief (Halsbury's Laws of England, 4^th Edition Reissue, Vol.16, para.1072). None of them has deposed to any different course of action which they would have taken had they not assumed a right to park on the disputed land. There is simply no evidence from the 1^st, 4^th and 5^th Defendants to suggest the existence of this element of proprietary estoppel to raise a triable issue unlike, e.g. Handel v. St. Stephens Close Ltd.

The Order

43. The learned Master dismissed the Amended Originating Summons with costs to the Defendants.

44. However, I refer to The Supreme Court Practice 1997, Vol.1, para.113/1-8/9 -

"Moreover, if the Court should hold that there is some issue or question to be tried, or that for some reason there ought to be a trial (cf. O.14, r.3(1)) it may give directions as to the further conduct of the proceedings under O.28, r.4, or may order the proceedings to continue as if begun by writ under O.28, r.8. This note was approved in Eyles v. Wells [1991] C.A. transcript 376."

45. I am minded to allow these proceedings to be carried on. I order that the proceedings continue as if begun by writ and I make the following directions-

Costs

46. The Defendants put the Plaintiff on notice by their solicitors' letter dated 15^th September 1997 that they would be relying on the defences which they have argued in this appeal and they asked the Plaintiff to withdraw the Order 113 proceedings. Subsequently, the Defendants filed their respective affidavits in opposition to the Order 113 proceedings where these defences were gone into in some detail. The Plaintiff continued with the Order 113 proceedings. In the circumstances, I award the costs of this appeal both before the Master and in this Court to the Defendants to be taxed if not agreed.