CHARTER NATIONAL INTERNATIONAL LTD v. KWOK TAK SUN AND ANOTHER

HCA3628/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3628 OF 2002

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J U D G M E N T

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1.  By summons filed on 17 November 2004, the 1^st defendant applies under Order 14A rule 1 of Rules of the High Court for a determination of the following point of law, namely:

“Whether the plaintiff:

(1)	Having purchased Sections B, C, D and E of Hung Hom Inland Lot No.235 (“H.H.I.L. 235”) and Section I, sub-sections 1, 2 and 3 of H.H.I.L. 235 (“the Lands”) in which a right of way was granted to the predecessor of Section I of H.H.I.L.235 to pass and repass over the adjacent lot, viz. Section M of H.H.I.L. 235;
	and
(2)	By building a building known as Bakerview on the Lands with its main entrance located in Section E,
has acquired a right of access from its main entrance in Section E to Section M where the 1st defendant’s shop is located.”

2.  The 1^st defendant also asks that the action against him be dismissed with costs in the event the point of law is determined in his favour.

The Facts

3.  The facts relevant to the present application are not in dispute. 

4.  The plaintiff is the registered owner of the Lands.  It had developed on the Lands a multi-storey building called Bakerview comprising residential and commercial units and a carport.  The main and side entrances of Bakerview are situated on Section E of H.H.I.L. 235.

5.  The registered owner of Section M of H.H.I.L. 235 is one Etek Co. Ltd. 

6.  The 1^st defendant operates a flower shop on part of Section M.  It is his case that he has since 1974 constructed a structure there and occupied it for various businesses.   The structure consisted of a covered structure and a wire fence structure without cover for storage.

7.  By an amended judgment dated 28 May 2003 in HCMP 756/2003, the 1^st defendant obtained possessory title of the part of Section M occupied by him.

8.  The exact area of Section M occupied by the 1^st defendant and the extent of his possessory title are in issue.  For the present purpose, it is not necessary to resolve the issues as they are not material to the determination of the application.  

9.  By an assignment dated 25 June 1953, the predecessor-in-title of Section M assigned to the predecessor-in-title of Section I a right of way to go pass and repass Section M in these terms:

“a free and uninterrupted right of way for the purchasers or the owners and occupiers for the time being of the said [Section I] and all other persons authorized by him or them to go pass and repass over and along that piece of land [known as Section M].”

10.  By an indenture dated the same day, the predecessor-in-title of Section G of H.H.I.L. 235 granted a right of way to the predecessor-in-title of Section I for access from Section G to Section I.

11.  It is common ground that the plaintiff by acquiring subsections 1, 2 and 3 of Section I, has obtained and is entitled to the benefits and enjoyment of the two said rights of way.

12.  It follows that the possessory title of the 1^st defendant over Section M is subject to the right of way in favour of Section I.

13.  On 24 September 2002, the plaintiff issued the Writ herein.  The plaintiff’s case against the 1^st defendant is that he had erected metal poles and extended the coverage of the canopy of his flower shop thereby blocking the access to and egress from the entrances of Bakerview through Section M.  The plaintiff says the 1^st defendant has interfered with its reasonable enjoyment of the right of way over Section M.

14.  The plaintiff had obtained ex parte an injunction against the 1^st defendant compelling him to remove the structure which the plaintiff complained of obstructing the access to the building and restraining him from interfering with the plaintiff’s right of way over Section M.  Subsequently, the prohibitory injunction was substituted by an undertaking given by the 1^st defendant.

15.  In the Defence filed, the 1^st defendant raises, inter alia, the point that the plaintiff’s rights of way are only for access from Sections G and M to Section I and not to other parcels of land in H.H.I.L. 235, particularly Section E.  The 1^st defendant says that the plaintiff has no right to gain direct access to the entrances of Bakerview (situated on Section E) from Section M and is therefore not entitled to claim against him.  It is this aspect of the defence that gives rise to the present application.

Relevant principles governing Order 14A applications

16.  There is no disagreement between counsel that the approach to an application for an Order 14A determination is as stated by the Court of Final Appeal in Shell Hong Kong Limited v. Yeung Wai Man Kiu Yip & Others (2003) 6HKCFAR 222, 230 at paras.22-25.  They are that:

(1)        The question of law must be suitable for determination without a full trial.

(2)        The determination must be able to finally determine the whole action or an issue in the action.

(3)        The court retains a discretion to decide whether to entertain an application under Order 14A rule 1.

The question of law

17.  In the present case, the question formulated in the 1^st defendant’s summons effectively boils down to this:

Can the plaintiff, being the owner of Section I, use the right of way over Section M for access to and from Bakerview, which is situated on both Sections I and E, when Section E (though also owned by the plaintiff) is not a dominant tenement under the right of way? 

18.  In my view, this is a short point of law suitable for determination without a full trial.  I also do not understand the plaintiff to be arguing that the determination of the question is in any way fact sensitive.

19.  The English authority on the point goes back to Harris v. Flower and Sons (1904) 91LT 816, a case in which the dominant owner erected a building on the dominant tenement and also the adjoining land, which he also owned.  The Court of Appeal held that the dominant owner was not entitled to use the right of way for access to and from the part of the building that was on the adjoining land.  In his much quoted judgment, Romer LJ said (at 819): “If a right of way be granted for the enjoyment of close A, the grantee, because he owns or acquires close B, cannot use the way in substance for passing over close A to close B.”

20.  Harris v. Flower and Sons was applied in Bracewell v. Appleby [1975] Ch 408.  In that case, the owner of a house to which there was a right of way “of the fullest description”, brought an adjoining plot of land and built another house that stood on both the dominant tenement and the adjoining plot.  It was held that he had no right to extend the grant of easement to the adjoining plot.

21.  It was said by Graham J that (at 417H-418A):

“… So far as that grant is concerned the dominant tenement was, and continued to be, no.3, and the defendant has never had any right of way giving him access to any land other than no.3 as it was at the date of grant.

            Mr Jackson’s sheet-anchor, Harris v. Flower 76 L.J. Ch 127 justifies his assertion that the grant of access to no.3 does not enable the defendant to establish that he has a right to extend his right of way to the blue land to which it is not appurtenant, thereby in practice doubling the burden on the servient tenements of the plaintiffs because there are now two houses and families using Hill Road from no.3 instead of one as before.”  

After referring to the judgment of Romer LJ quoted above, Graham J concluded that (at 418G):

“It follows that the defendant was not granted a right of way which entitled him to pass over Hill Road to and from his new home, no.2A.  This right of way was limited and appurtenant to no.3 only.”

22.  The English authorities are therefore well settled on the point.  Where the owner of the dominant tenement purchases another land adjacent to his existing land, he cannot use a right of way granted for the benefit he originally owned as a means of access to the new land, even if he gains access to the new land via his existing land.  This rule applies even if the building is partly on the dominant land and partly on the other land: Sara, Boundaries and Easements (2002) para. 10.13 at p.190.

23.  Mr Lam accepts these legal propositions represent the law in England, Scotland and also in Canada.  He however argues that in other jurisdictions such as Australia and Singapore, Harris v. Flower & Sons is not regarded as laying down a strict rule or doctrine: Gray v. Spliet [1991] NSW Lexis 9914, Owners Corp-Strata Plan No.846 v. Owners Corp-Strata Plan No. 54547 [2002] NSW Lexis 312 and Lee Tat Development Pte Ltd v. Management Corporation of Grange Heights Strata Title No.301 [1992] 2 SLR 865.

24.  In the authorities cited by Mr Lam, the court took the view that the legal principle in Harris v. Flower and Sons was founded upon excessive user.  In Gray v. Spliet, for instance, the Supreme Court of New South Wales held that where a claim of excessive user was not made out on the evidence, no relief should be granted.  In Owners Corp-Strata Plan No.846 v. Owners Corp-Strata Plan No. 54547, Bergin J held that much should depend on the facts of each case, and in particular the terms of the grant, the surrounding circumstances at the time of the grant and the intention of the parties.

25.  In my view, the authorities Mr Lam referred to do not assist the plaintiff.  As Mr Fung points out, in all these cases, the original right of way continued to be used, hence the question of excessive user by reason of increase in density or in the size of the dominant tenement.  The present case is however different.  What has happened is that Bakerview was designed in such a way that its entrances are situated on Section E and the plaintiff is seeking to exercise the right of way over Section M for access to and from Section E. 

26.  Further, even if one were to look at the intention of the parties, the terms of the grant and the circumstances of the grant as suggested by those cases, it will not advance the plaintiff’s case.  There is nothing in the terms of the original grant to suggest, and there is also no objective basis for construing, the parties’ intention to be to extend the grant and enjoyment of the right of way to land other than Section I, the dominant tenement.   On the contrary, it could not have been the intention of owner of Section M, when he granted the right of way to the owner of Section I that the owner of Section E could also use the right of way.  It has to be noted that at the time of the grant, Sections E and I were under different ownership.

27.  In short, I am of the view that the plaintiff is not entitled under the law to use the right of way over Section M for access to and from Section E, on which the entrances of Bakerview stand.  The question of law for determination in this application should therefore be determined in favour of the 1^st defendant.  That being the case, the plaintiff has no right to seek the relief, including the injunctive relief, claimed against the 1^st defendant.  The determination of the question would therefore have the effect of disposing of the plaintiff’s claim in favour of the 1^st defendant.

The Court’s discretion

28.  Mr Lam however argues that the court should exercise its residual discretion and should not dismiss the plaintiff’s claim against the 1^st defendant.  It is submitted that the court should have regard to the practical reality and the serious consequences the determination may have on the residents of Bakerview.  The occupation permit had been issued and the plaintiff had already sold the residential flats (but not the shops and the carport that stands on Section I) in the building.  The owners have also commenced occupation of the building.  It is Mr Lam’s submission that the residents would be greatly inconvenienced and subject to hazards and risks if they could only use the side door on Section I which was only one meter wide.

29.  Reference was made to Bracewell v. Appleby in which Graham J declined to grant an injunction to the servient owner and instead awarded damages to him that approximated the price for the acquisition of the right of way.  Mr Lam invited me to grant the relief claimed by the plaintiff but on the condition that the plaintiff pays to the 1^st defendant a sum that represents the price for acquiring the right of way over Section M.

30.  I do not find the invitation attractive.  Nor am I persuaded that this is a course open to the court to take.  What the plaintiff is effectively asking me to do is to sanction a compulsory acquisition by the plaintiff from the 1^st defendant of a right of way over Section M in favour of Section E.  A plaintiff can only obtain relief from a court of law if he has a claim properly founded in law.  Given the determination on the point of law, the plaintiff simply has no right to claim against the 1^st defendant.  It follows that the plaintiff has no entitlement to seek relief from the court under its claim herein.  Whatever practical implications and however serious the consequences may be on the plaintiff, who developed Bakerview, and on the residents of the building, who are not before the court, as a result of the dismissal of the plaintiff’s claim against the 1^st defendant, it will not empower the court to grant the relief suggested on behalf the plaintiff.  If the plaintiff wishes to acquire a right of way over Section M in favour Section E to enable the occupants and users of Bakerview to access the building through Section M, that is a matter for negotiation between the plaintiff and the 1^st defendant. 

31.  I would also observe that the 1^st defendant had been operating his flower shop, and the plaintiff was aware of the existence of 1^st defendant and his business, before the construction of Bakerview.  As the 1^st defendant put it in his defence and affirmations, the presence of the 1^st defendant and his flower shop should have been within the contemplation of the plaintiff when Bakerview was designed and constructed.

32.  I do not accept that there are circumstances calling for the court’s exercise of the residual discretion not to entertain the 1^st defendant’s present application.

Conclusion

33.  For the reasons indicated above, the question formulated in the 1^st defendant’s summons is determined in the negative.   Consequent upon the determination, the plaintiff’s claim against the 1^st defendant is dismissed.

34.  Costs should follow event.  Accordingly, there is an order nisi that the plaintiff pays the 1^st defendant the costs of the action, including costs reserved and the costs of this application, to be taxed if not agreed.