WAN YUK WING v. WONG KWOK HING PATRICK AND ANOTHER

HCA 1713/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1713 OF 2007

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BETWEEN

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D E C I S I O N

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Background

1.  Plaintiff is and was at all material times registered owner of a property known as all those pieces or parcels of land registered in the Tai Po New Territories Land Registry as subsection 1 of Section A of Lot No. 1323 in Demarcation District No. 8, Tai Po, New Territories (“the Plaintiff’s Lot”), also known as No. 89, San Tong Village, Kam Tsuen, Tai Po, New Territories, Hong Kong. (“Plaintiff’s Property”)

2.  Defendants are and were at all material times the registered owner of all that piece or parcel of land registered in the Land Registry as Subsection 3 of Section A of Lot No. 1322 in Demarcation District No. 8, Tai Po, New Territories (“the Defendants’ Lot”) which is adjacent to the Plaintiff’s Lot.

3.  According to the Plaintiff, there is a footpath leading from the Plaintiff’s Lot running over and across the Defendants’ Lot to the Lam Kam Road (“the Disputed Way”).

4.  It is Plaintiff’s case that he and his predecessors in title of the Plaintiff’s Lot have continuously for the period of about 60 years or more before commencement of this action enjoyed and use the Disputed Way as of right and without interruption for the purpose of passing and repassing by himself, his licencees, servants at all times and for all purposes. The Plaintiff claimed the right to use the Disputed Way by prescription. Plaintiff said further that the Disputed Way was the only access to Lam Kam Road from the Plaintiff’s Lot and the Plaintiff claimed the right to use the Disputed Way at all times and for all purposes as a way of necessity.

5.  On 11 May 2007, the Defendants stopped the Plaintiff from using the Disputed Way.  They did so by erecting a fence around their land thus denying the Plaintiff access to the Disputed Way which was then a concrete path of 1 metre wide and running across the Defendants’ Lot.  They also removed the concrete layer from the path.

6.  On 10 August 2007, by way of inter partes summons, the Plaintiff applied for interlocutory injunction to compel the Defendants to remove the fence obstructing access to the concrete path and an injunction to compel the Defendants to reinstate the concrete path over the land.

7.  By consent order dated 31 August 2007, the Defendants agreed before trial, to reinstate the concrete path and to allow Plaintiff access to the Disputed Way over the concrete path by demolishing the wire fence.

8.  It was said the concrete path over the Disputed Way was completed by 7 September 2007 but the Plaintiff complained that said the same was not of the same dimension as before.  The Defendants therefore, at request of the Plaintiff, again reinstated the concrete path in manner prescribed by the Plaintiff.  Plaintiff made use of the concrete path in about November 2007.

9.  The case was later tried before Recorder A. Chan who ruled on 21 August 2009 that the Plaintiff was not entitled to use the Disputed Way for residential purposes.  The Plaintiff said his licences, servants and agents was further restrained from entering or using the Disputed Way without the Defendants’ permission.  There was also a mandatory injunction against the Plaintiff to remove the concrete surface over the Disputed Way.

10.  Plaintiff appealed and the same was allowed on 17 August 2010.  An injunction to restrain the Plaintiff from using the Disputed Way otherwise than for pedestrian access was granted.

11.  The Court of Appeal also issued a declaration that the Plaintiff, his licensee or servants are entitled to use the Disputed Way for pedestrian access and that the Plaintiff was entitled to an easement over the Disputed Way in the form of 1-2 feet wide soil, mud path only.  They confirmed the learned Recorder’s reasoning that the Plaintiff was never entitled to a concrete pathway over the Disputed Way.

12.  The Court of Appeal also ordered an enquiry as to what loss and damages, if any, has been suffered by the Plaintiff as a result of the denial of pedestrian access over the Disputed Way.

13.  They also held that there be an enquiry as to what loss and damages, if any, has been suffered by the Defendants, as a result of their compliance with the Consent Order dated 31 August 2007.  They also granted an order for payment of any sums found due on the taking of the enquiry.

14.  Costs of the appeal were awarded to the Plaintiff.

15.  Parties through their solicitors agree by way of Consent Summons that the respective enquiry as to loss and damages be conducted by filing and serving affirmation verifying the account on loss and damages with copies of relevant documents exhibited followed by the other parties also filing and serving their affirmation setting out their contention/objections on the said account in form of a Scott Schedule.  They same was endorsed by an order of this Court on 14 September 2010.

Enquiry as to loss and damages, if any, suffered by the Plaintiffas a result of denial of pedestrian access over the Disputed Way

16.  We first deal with the enquiry as to loss and damages, if any, suffered by the Plaintiff as a result of the denial of pedestrian access over the Disputed Way.

17.  It is undisputed that as from 11 May 2007, the fence erected by the Defendants denied Plaintiff access to the Disputed Way.

18.  It is a fact that as from early September 2007, as found by Recorder A. Chan, the Defendants had already removed the fence and the Plaintiff was not denied access to the Disputed Way.

19.  The Defendants argued that Plaintiff had always insisted on only using the Disputed Way in the same concreted way as before 11 May 2007.  In fact, Plaintiff told the Court the same when the case was heard before Recorder A. Chan.  They, therefore, should not be entitled to any loss and damages even though the Defendants had erected the wired fence as the Plaintiff would, in any event, not used the Disputed Way (then a muddy path as the concrete layer was removed by the Defendants).

20.  I am not persuaded by this argument.  Once the wired fence is erected, the Plaintiff was deprived of the chance to use the Disputed Way.

21.  According to the evidence of the Plaintiff, the Defendants had broken the concrete layer of the Disputed Way on 16 May 2011.  Had they also removed the wired fence at that stage, then this Court agrees that the Plaintiff is not entitled to any loss and damages since 16 May 2011.  This however is not the case here.

22.  This Court will therefore conduct the enquiry on the basis that the Plaintiff was denied access from 11 May 2007 to early September 2007 i.e. the time when according to the finding of Recorder A. Chan, the wired fence was removed.

23.  In the affirmation of the Plaintiff filed on 27 October 2010 the Plaintiff claimed: -

Cost for purchase of documents/plans

24.  When the case was heard before Recorder A. Chan, Plaintiff had not pursued this claim.  This Court takes the view therefore the claim is not alive anymore.

25.  In any event, Plaintiff said after he was denied access to the Disputed Way, he bought land registry documents, maps and plans, records, etc. and had incurred costs. 

26.  In support of this claim, he exhibited receipts as “AW-6” (page 39 to page 55 of Bundle of Exhibits). 

27.  This Court examined these receipts and found some were in fact expenses paid for plans/photos from Land Registry, expenses for purchasing photocopying papers, receipts issued by bookstore without any description, cash payment receipts without even the name of the issuing company or description of goods/service purchased, receipts from Wellcome Supermarket for purchase of toilet rolls, etc.  There were even receipts issued by bookstore for purchase of Economic books, stationery, receipts from computer shop for purchase of a transformer, certificate of purchase issued by Hong Kong Post for purchase of stamp.  Further, a number of these receipts are produced more than once.

28.  This Court does not find any of these expenses to be loss suffered by the Plaintiff resulting from denial of access to the Disputed Way. At most, one can argue source of these expenses may be counted as costs of the action.  That is a matter for taxation, not for the present enquiry.

29.  Accordingly, no award is made under this head.

Claim for daily necessities (such as food, clothing, spectacles, computer and items for schooling)

30.  Plaintiff said they used $22,500 to purchase clothing and personal items as Plaintiff and his wife, 3 children and his mother had access to their necessities denied.

31.  Receipts were exhibited as “AW-7” (page 56 to page 107 of Bundle of Exhibits) to his affirmation.

32.  Again, much of these receipts were duplicated, such as those on P. 60, P.63, P. 66, P. 69, P. 72, P. 75, P. 78, P. 84, P. 87, P. 90, P. 93, P. 96, P. 99, P. 102, P. 112, P. 115, P. 118 and P.121 of bundle of exhibit.

33.  Though the Plaintiff was denied access since 11 May 2007, only 1 receipt disclosed was dated May 2007 and 4 receipts dated June 2007. One could not therefore see how these expenses, supported the allegation that they were used to purchase daily necessities as a result of denial of access.

34.  This Court is of the view that in the absence of good reasons, any expenses incurred after early July, i.e. 2 months after the denial of access could not be for the aforesaid purpose.

35.  Accordingly, I have disallowed all claimed expenses not proved to be expended before early July 2007 and related to the denial of access event.

36.  The following are my decision: -

Page no in exhibit bundle	Date expenses incurred	Amount claimed ($)	Amount allowed ($)	Reason
57	Unknown	299	0	Receipt illegible and item disallowed
57	12/5/2007	20	20	Purchase of shoe, necessity and allowed
57	26/6/2007	130	130	Men’s shirts, necessity and related and allowed
58	3/7/2007	179	179	Sportswear necessity and allowed
58	2/7/2007	715	0	Nature of expenses unknown and disallowed
58	3/7/2007	137	0	Nature of expenses unknown and disallowed
59	Unknown	593.45	0	Nature of expenses unknown and disallowed
59	3/7/2007	439	439	Shirt, expenses proved to be related, necessity and allowed
60 (duplicate of p. 59)
61	6/7/2007	79	79	Shoes company receipt, presumably for purchase of shoe, proved to be related, necessity and allowed
62	7/7/2007	2,320	0	Nature of expenses unknown and disallowed
62	7/7/2007	395	0	Good described as “bag” and “ball”, no explanation given as to why they need be purchased, not proved to be related to incident and/or necessity and disallowed
63 (duplicate of p. 62)
64	23/7/2007	1,024	0	Women clothing purchased, too long after denial of access, not proved to be related to incident and/or necessity and disallowed
64	20/7/2007	190	0	Women clothing purchased, too long after denial of access, not proved to be related to incident and/or necessity and disallowed
65	23/7/2007	1,041.7	0	3 blouses purchased, too long after denial of access, not proved to be related to incident or necessity and disallowed
65	26/7/2007	470	0	Clothing expenses, too long after denial of access, not proved to be related to incident and/or necessity and disallowed
66 (duplicate of p. 65)
67	26/7/2007	532	0	No explanation as to why cash memo issued in favour of “nature direction” and disallowed
68	26/7/2007	408	0	Nature of expenses unknown and disallowed
69 (duplicate of p. 68)
70	28/7/2007	481.4	0	Receipt illegible, nature of expenses unknown and disallowed
71	7/8/2007	250	0	Spectacles ordered nearly 3 months after access denied, expenses not proved to be related to incident and/or not necessary and disallowed
71	30/7/2007	165	0	Swim caps ordered nearly 3 months after access denied, expenses not proved to be related to the denial of access and/or not necessary and disallowed
72 (duplicate of p. 71)
73	17/8/2007	390	0	Expenses incurred nearly 3 months later, nature of expenses unknown and disallowed
73	8/8/2007	813	0	Expenses incurred nearly 3 months later, nature of expenses unknown and disallowed
74	14/8/2007	45	0	Expenses incurred nearly 3 months later, nature of expenses unknown and disallowed
74	8/8/2007	2,191	0	Clothing brought nearly 3 months later, not proved to be related to incident and/or necessity for daily living and disallowed
75 (duplicate of p. 74)
76	17/8/2007	628	0	Clothing and shoulder bag brought more than 3 months later, not proved to be related to  incident and/or necessity and disallowed
77	18/8/2007	1,208	0	Clothing brought more than 3 months later, not proved to be related to incident and/or necessity and disallowed
78 (duplicate of p. 77)
79	18/8/2007	380	0	Spectacles ordered more than 3 months later, not proved to be related to incident and/or necessity and disallowed
79	18/8/2007	620	0	Spectacles ordered more than 3 months later, not proved to be related to incident and/or necessity and disallowed
80 & 81	Not receipts
82	20/8/2007	160	0	Spectacles ordered more than 3 months later, not proved to be related to incident and/or necessity and disallowed
82	20/8/2007	664	0	Spectacles ordered more than 3 months later, not proved to be related to incident and/or necessity and disallowed
83	27/8/2007	260	0	Spectacles ordered more than 3 months later, not proved to be related to incident and/or necessity and disallowed
83	25/8/2007	60	60	Sunglasses purchased more than 3 months later, not proved to be related to incident and/or necessity and disallowed
83	25/8/2007	260	0	Spectacles ordered more than 3 months later, not proved to be related to incident and/or necessity and disallowed
83	24/8/2007	160	0	Nature of expenses unknown and disallowed
84 (duplicate of p. 83)
85	Date illegible on receipt	358	0	Nature of expenses unknown and disallowed
85	28/8/2007	200	0	Bags purchased 3 months later, not proved to be related to incident and/or necessity and disallowed
85	28/8/2007	209.3	0	Wear purchased 3 months later, not proved to be related to incident and/or necessity and disallowed
86	Date illegible on receipt	38	0	Nature of expenses unknown and disallowed
87 (duplicate of p. 86)
88	27/8/2007	160	0	Nature of expenses unknown and disallowed
89	Date illegible on receipt	70	0	Not proved why expenses for DVD is related to incident and/or necessary and disallowed
90 (duplicate of p. 89)
91	5/6/2007	46.4	46.4	Purchase of Goggles necessary and reasonable for swim and allowed
92	5/6/2007	10	10	Purchase of CD box shell and CD box reasonable and allowed
93 (duplicate of p. 92)
94	16/6/2007	15	0	No explanation why purchase of 沙咀 necessary or reasonable, disallowed
95	Receipt illegible			Claim disallowed
96 (duplicate of p. 95)
97	27/8/2007	18	0	Electric socket purchased 3½ months later, reason not explained, in any event, not proved to be related to incident and disallowed
98	9/7/2007	89	0	Nature of expenses unknown and disallowed
99 (duplicate of 98)
100	22/7/2007	545.4	0	Receipts partly legible, they appear to be receipts for literary works.  Expenses not proved to be related to the incident or reasonable and disallowed
101	22/7/2007	249	0	They are expenses for literary works and are not proved to be related to the incident, expenses not necessary or reasonable and disallowed
102 (duplicate of p. 101)
103	Receipt illegible			Claim disallowed
104	5/8/2007	95	0	Nature of expenses unknown and disallowed
105 (duplicate of p. 104)
106	Date unknown	279	0	Dates of voucher not shown.  Expenses not proved to be related to the incident and disallowed
106	Date unknown	285	0	Dates of voucher not shown.  Expenses not proved to be related to the incident and disallowed
106	Date unknown	135	0	Dates of voucher not shown.  Expenses not proved to be related to the incident and disallowed
106	Date unknown	279	0	Dates of voucher not shown.  Expenses not proved to be related to the incident and disallowed
107	5/8/2007	87	0	Receipt partly illegible. Nature of expenses unknown and disallowed

37.  The total amount allowed under this head is $963.4.

38.  Plaintiff also exhibited receipts “AW-8” (page 108 to page 121 of Bundle of Exhibits), allegedly relating to payment for purchasing books, computer, computer accessories and household items replaced due to denial of access of the Disputed Way.

Page no in exhibit bundle	Date expenses incurred	Amount claimed ($)	Amount allowed ($)	Reason
108	Not receipts
109	5/8/2007	87	0	Nature of goods purchased unknown as description of goods illegible and disallowed
110	5/8/2007	670	0	Computer accessories purchased 2½ months later, not proved to be related to the incident and/or necessity and disallowed
111	20/8/2007	2,780	0	Computer accessories purchased 2½ months later, not proved to be related to the incident and/or necessity and disallowed
112 (duplicate of p. 111)
113	Date in July 2007	Amount illegible		Receipt illegible and nature of goods unknown and disallowed
114	5/8/2007	11,880	0	No invoice or receipt produced (only credit card signing chit), nature of goods bought unknown, item disallowed
115 (duplicate of p. 114)
116	23/8/2007	1,602	0	Nature of goods purchased described as Phone Package.  Reason why this good is related to the event and/or necessary or reasonable replacement in this case is not given, item disallowed
117	11/8/2007	89.90	89.90	This household item purchased 3 months after the event, not proved to be related to the event and disallowed
118 (duplicate of p. 117)
119	22/10/2007	613.10	0	Expenses incurred after access to Disputed Way restored and disallowed
120	6/11/2007	228	0	Expenses incurred after access to Disputed Way restored and disallowed
121 (duplicate of p. 120)
275	5/11/2007	2660	0	Fridge allegedly bought as replacement for want of repair during denial of access period not accepted and disallowed
275	5/11/2007	348	0	Rice cooker allegedly bought as replacement for want of repair during denial of access period not accepted and disallowed

39.  The total amount allowed under this head is therefore $89.9.

Claim for loss of business

40.  In paragraph 18 of the affirmation of the Plaintiff, Plaintiff said he spent a lot of time looking after his mother who was not feeling well after access to the Plaintiff’s Property was denied.  He also had to spend time dealing with the denial of Disputed Way matter.

41.  He also said as he was the managing director and major shareholder of Infomaster Holdings Ltd. (“IHL”), he derived his income mainly from the company.  He said he kept a lot of confidential data and software and numbered lock “key” to the computer system of the company at the Plaintiff’s Property.  He said also that during that time, IHL lost a lot of business opportunities and therefore suffered substantial loss.

42.  In support of this contention, he set out the profits figure of IHL for the year starting from 2003/2004, 2004/2005, 2005/2006, 2006/2007 and 2007/2008. 

43.  One can see clearly that there was a sharp drop of profits between year 2004/2005 and year 2005/2006, i.e. from $1,533,527 to $504,716, a reduction of approximately $1 million or 60% of the profit and similarly from year 2005/2006 to year 2006/2007, there is drop in profits from $504,716 to $31,502, a reduction of 90% profits, another drop of $0.5 million profit.  I take the view therefore that when profit further drop to ($388,413), i.e. loss of $0.41 million in the year 2007/2008, it just accords with the trend.  This Court does not find it proved that the denial of access has anything to do with the drop in profits.  In any event, the Plaintiff did not disclose how the drop in profits of IHL will affect him personally, albeit that he is a major shareholder of IHL.

44.  The claim under this head clearly must fail.  No award is made under this head.

Medical fees

45.  Again, the Plaintiff has chosen not to pursue this claim before Recorder A. Chan, it is therefore not open for the Plaintiff now to claim this item.

46.  Even if the claim is alive, which this Court does not agree, for the Plaintiff to say the medical fees spent on his mother actually result from her fall occurring after inspecting the Plaintiff’s Property after access to Disputed Way was denied is very remote.

47.  In my view, the Plaintiff has clearly failed to prove any casual link between the denial of access incident and the medical fee. It is noted that the date of incident was 3 June 2007, i.e. 23 days after access to the Disputed Way was denied and that at time of the slip/fall, the mother was already in her eighties.

48.  This claim is far too remote to be related to the incident.  No award is made for this claim.

Claim for loss due to failure to inspect and maintain the Plaintiff’s Property during denial of access

49.  Plaintiff said during May to November 2007, he and his family were denied access and as it was then the typhoon season.  He said when he returned to the Plaintiff’s Property, the drainage of the roof was blocked by leaves and rubbish and some of the tiling on the flooring on the roof were raised exposing the concrete.  There was also water seepage/leakage to the floor underneath. 

50.  He said in his affirmation dated 27 October 2010 that the computer, clothes, rice cooker, water heater and telephone were damaged as a result of this want of repair/maintenance. 

51.  Later, in a further affirmation dated 30 November 2010, he claimed also that the refrigerator was damaged and need to be and was replaced as a result.

52.  The photos appearing in exhibit AW-3 to the affirmation of the Plaintiff dated 27 October 2010 showed the state of the Plaintiff’s Property when they reentered on 20 October 2007. There were dead cockroaches and insects in the house.  It does not show how the alleged items in the house were damaged. 

53.  It also showed some of the floor tiles of the roof was in need of repair as some were raised.  The photos also show signs of water seepage on ceiling within the Plaintiff’s Property.

54.  Plaintiff said he spent $98,000 to repair and refurnish the Plaintiff’s Property.  He exhibited a document described in his affirmation as a receipt but this Court notes actually that the same was only an unsigned quotation from Sky Field Construction Ltd bearing the sum of $98,000 and exhibited as “AW-11” (page 217 to page 220 of Bundle of Exhibits).

55.  This Court agrees as said by the Defendants, that there is no receipt produced and there is no evidence of payment.

56.  There are also no photos produced showing the state of Plaintiff’s Property after repair.

57.  More importantly, apart from evidence of the Plaintiff, there is no further evidence as to how the roof condition or the alleged signs of water seepage came about.

58.  Further, according to the findings of Recorder A. Chan, the Defendants had removed the wired fence in early September 2007 and therefore it is the Defendants who chose not to enter their property then and waited till 20 October 2007.

59.  It is also interesting to note that the unsigned quotation was dated 20 July 2009, i.e. nearly 2 years after access to the Disputed Way was restored.  Is the need of repair related wholly/partly to the denial of access which was less than 4 months?

60.  It is noted by this Court that the Plaintiff’s Property was a house built in 1996.

61.  I do not find it proved in the circumstances that the alleged repair to the Plaintiff’s Property was due to the denial of access. 

62.  The claim of $98,000 is not proved.

63.  Plaintiff also claimed replacement cost for refrigerator and cooker.  This Court could not see how staying away for few months from the property could lead to the alleged loss/damages to the electrical appliances and other items as the Plaintiff suggested.

64.  No award is made under this head.

Claim for loss of rental income and loss of enjoyment of the Plaintiff’s Property

65.  In the affidavit filed for the present enquiry, Plaintiff said the ground floor of the Plaintiff’s Property is sufficient for the use of his family and he had prior to the denial of access intended to rent the 1/F, 2/F and roof and garden of the Plaintiff’s Property to others to derive rental income.  He said he needed some income particularly when access to the property was denied and he had to incur further rental for accommodation of his family.

66.  He said because of the condition of the muddy soil path of the Disputed Way and the proceedings, no one was interested to rent his house until the issue of the judgment of the Court of Appeal.

67.  He claimed in his Affirmation dated 27 October 2010 total loss of rental from 11 May 2007 to 21 April 2010 at $810,400.  This sum, he said has included loss of rental for the whole of the Plaintiff’s Property from 11 May 2007 to 10 November 2007 (when he had to rent alternate accommodation) and loss of rental for the Plaintiff’s Property (less the ground floor) for the period from 11 November 2007 to 21 April 2010.

68.  Plaintiff however did not produce any supporting evidence that he had the intention to rent out his property at or prior to 11 May 2007, i.e. before access to the Disputed Way was denied or indeed at any time prior to the issue of the Court of Appeal judgment.

69.  In fact, when the Plaintiff filed the Statement of Claim on 28 September2007, he claimed loss of enjoyment of his property for period from May to November 2007.  He also claimed loss and damages as a result of having to rent another house from May to November 2007 at $15,000 per month.  There was no mention of loss of rental income.

70.  It is noted by this Court that in his witness statement dated 31 July 2009, the Plaintiff again claimed rental of $105,000 i.e. 7 months rental at $15,000 incurred during the said period from May to November 2007 and also for another $60,000 for loss of enjoyment of his property. There was never any mention of his intention to rent out Plaintiff’s Property.  In this witness statement, however, the Plaintiff has not included his claim of $60,000 in the claim summary of loss appearing at the end of the witness statement.  In this claim summary, Plaintiff also claimed hotel room fee for 11 May 2007 in sum of $960.50.

71.  This Court does not accept, therefore, as a fact, that the Plaintiff had, prior to issue of Court of Appeal judgment, intention to rent out any part of the Plaintiff’s Property.  In fact, he only rented out a floor of the Plaintiff’s Property as late as 21 August 2010. 

72.  I made no award under loss of rental income for the period 11 May 2007 to 21 April 2010 as claimed or at all.

73.  Although the Plaintiff in this Affirmation claimed “claim for loss of rental income and enjoyment over my House 89”, he did not actually make any claim for loss of enjoyment in all the paragraphs under this heading (paragraph 27, 28, 29 and 30 of the Affirmation). Further, under paragraph 31 “summary of loss and damages claim’, item 6 “claim for loss of rental incurred enjoyment over my House 89 (paragraph 27-30)”, the Plaintiff only claimed $810,400, his alleged loss of rental income.  He did not claim anything towards loss of enjoyment.

74.  It is strange that all along Plaintiff says he suffered loss as he has to rent alternate accommodation between May to November 2007, yet in the present affirmation (filed for the purpose of the enquiry), he did not make this claim.

75.  In fact, during trial, the learned Recorder has accepted the Defendants’ evidence that the fence was removed in early September 2007 (paragraph 65 of Judgment).  I consider it unjustifiable for the Plaintiff to claim for rental expenses for alternate accommodation/loss of enjoyment after early September 2007.

76.  As the Plaintiff no longer makes such claim now, there is no award under this head.  Had he made his claims for rental expenses for alternate accommodation for period from 11 May 2007 to early September 2007, this Court would have awarded him 4 months rental i.e. from 11 May 2007 to early September 2007 at $15,000 per month, totalling $60,000.

77.  I would also have awarded him the hotel charges for the 11 May 2007 had that been claimed.

78.  Plaintiff in this affirmation also did not make any claim for loss of enjoyment of the Plaintiff’s Property, accordingly, no award is made under this head.  If he had, I would probably have made an award in his favor for period 11 May 2007 to early September 2007.

79.  Accordingly, the loss and damages of the Plaintiff proved as a result of the denial of access to the Disputed Way is $963.4 + $89.9 = $1,053.3.

Enquiry as to loss and damages, if any, suffered by the Defendants as a result of their compliance with the Consent Order dated 31^st August 2007

80.  2^nd Defendant in his affirmation dated 26^th October 2010 said that pursuant to the Consent Order dated 31^st August 2007, they had reinstated the concrete layer over the Disputed Way on or about 7^th September 2007.  The contractor Mr Liu charged him $5,000 costs.  He produced the receipt at exhibit “WPK-1”.

81.  He said further that on 14^th September 2007, his former solicitors Messrs. Chan & Associates received a letter from the former solicitors of the Plaintiff Messrs. Lawrence K. Y. Lo & Co. alleging the Defendants had failed to comply with the undertakings given to the Court under the Consent Order as the concrete layer over the Disputed Way was not of the same thickness nor in the same width as before.  The Plaintiff requested the Defendants to perform remedial works.

82.  2^nd Defendant said as a result, the Defendants through the said contractor Liu demolished the existing concrete layer over the Disputed Way and constructed another concrete layers over the Disputed Way.  They defrayed an extra $6,500 costs.  2^nd Defendant again exhibited the receipt as “WPK-2” to the said Affirmation.

83.  Defendants now claim total sum of $11,500.

84.  Plaintiff objected to any claim for loss and damages as a result of the concreting of the Disputed Way.  They said the same existed way back since year 1997 to 1998 and there was no complaint from the Defendants or their predecessor.

85.  He said the concrete layer over the Disputed Way was destroyed in May 2007 and that the Defendants entered into Consent Order relaying the concrete.  They should not be entitled to damages.  He said also that had the Defendants given correct instructions to the contractor, there would be no need to lay the concrete again.

86.  Plaintiff also claimed that on the receipts, the contractor’s full name and address were not shown.  He criticized that the amount of concrete used or working hours used in doing the work was not described by the Defendants.

87.  Plaintiff also said the sum of $11,500 was excessive and unreasonable.  He did not suggest any figure as being reasonable fee for such works.

88.  He asked the claim of the Defendants be dismissed.

89.  It is settled both by the Court of First Instance and confirmed by the Court of Appeal that the Plaintiff is not entitled to concreting the Disputed Way.  Hon Rogers VP in paragraph 13 of his judgment (P. 23 of the Trial Bundle) says:-

“13. In my view, in this case, the recorder was justified in regarding the concreting of the Disputed Way as going beyond any right appurtenant to the easement.”

90.  He said the Plaintiff was entitled to a soil path with a width of 1 to 2 feet.

91.  Later, he granted an injunction restraining the Plaintiff from using the Disputed Way otherwise than for pedestrian access.

92.  The view of Rogers VP was shared by all justices of appeal hearing the case.

93.  It follows therefore that once the Defendants had chosen to exercise their right and remove the concrete layer over the Disputed Way, the Plaintiff is not entitled to insist on concrete over the Disputed Way.

94.  In any event, the order of the Court of Appeal directed that there be an enquiry as to loss and damages suffered by the Defendants as a result of their compliance with the Consent Order dated 31 August 2007.

95.  It is not disputed that the concreting and reconcreting of the Disputed Way were done by the Defendants pursuant to the Consent Order.

96.  There was the need to concrete and reconcrete the Disputed Way only because the Plaintiff unreasonably insisted on the concreting and the dimension and thickness of the concreting before 11 May 2007.

97.  The receipts exhibited by the Defendants showed the full name, though not the address of the contractor.  It is unnecessary and unusual that, there is description of the amount of concrete used or the number of working hours deployed in such simple job involving such a modest sum.

98.  Moreover, the Plaintiff knew exactly the nature and description of work done by the contractor anyway, otherwise, why would they lodge the complaint as to the dimension and thickness of the concreting. The criticism is without merit.

99.  Although the Plaintiff objected to the sum of $11,500, they did not offer any “reasonable” figure for the same.  The claim of $11,500 as loss is proved by the Defendants.

Conclusion

100.  Accordingly, I order that the Plaintiff shall pay the Defendants

a)  a sum of $11,500 - $1,053.3 = $10,446.7;

b)  Interests thereon from date of writ to date of judgment at 8% per annum and thereafter until date of payment at judgment rate;

Costs

101.  The Plaintiff in the present enquiry claimed a total sum of $1,565,069 and is awarded only the sum of $1,053.3.  Most of costs of enquiry hearing is spent on considering Plaintiff’s claim in the enquiry.

102.  On the other hand, Defendants claimed $11,500 and is awarded in full.

103.  In the circumstances, it is only fair that 90% costs of the entire enquiry hearing be paid by the Plaintiff to the Defendants.

104.  Accordingly, I make an order nisi that the Plaintiff shall pay 90% of the costs of the entire enquiry hearing to the Defendants, the same is summarily assessed at $57,563.1.  This order nisi is to be made absolute on the expiration of 14 days.