CHAMPION WEALTH INVESTMENT LTD. v. CHAN PING CHUEN t/a CHUEN KEE DECORATION CO.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Mr Andy Hung, instructed by Messrs Ng & Shum, for the plaintiff.

The defendant in person.

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JUDGMENT

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The Application.

1. The plaintiff applies for summary judgment under Order 14. It asks for an injunction restraining the defendant from affixing things to the external wall of certain premises and from obstructing the plaintiff from entering the side lane adjacent to the premises. He also asks for an order compelling the defendant to remove the things from the wall, for damages, interest on damages and costs.

The Pleadings.

2. The plaintiff issued a writ of summons on 14 March 1989 in respect of a claim endorsed thereon. That claim alleged that the plaintiff was registered owner in possession of premises known as the ground floor and cockloft erected on New Kowloon Inland Lot No. 4499, and that the defendant was the licence holder of a Fixed Pitch (Wall Stall) Hawker Licence. The plaintiff alleged that 'wrongfully and without the consent of the Plaintiff or its predecessor, the Defendant erected a pitch ("the pitch") at the external wall at the rear part of the premises.' By reason of this, the plaintiff says, it has been deprived of the use and enjoyment of the external wall. There is no mention here of the defendant affixing anything to the external wall, other than, possibly, in the relief claimed, which asked for an injunction restraining the defendant from 'using' the external wall and an order for the defendant to 'pull down and remove the pitch from the said external wall'.

3. In its amended statement of claim filed on 2 October 1989, the plaintiff claims to be a tenant in common of New Kowloon Inland Lot No. 4499 and the registered owner in possession of the premises, being the ground floor and cockloft of a building erected on that lot. It says that the defendant erected a pitch in the side lane adjacent to the premises, and, wrongfully and without the consent of the plaintiff, affixed the pitch to the external wall with screws and iron bars and affixed other things to the wall. Thereby, the plaintiff says, the defendant has committed a trespass.

4. The plaintiff goes on to allege that it intends to renovate the external wall and to use and enjoy it for commercial purposes. It says that it has an easement to enter the side lane and perform renovation work on the external wall, and that the defendant has, wrongfully and without justification, obstructed the plaintiff from entering the side lane to perform renovation work on the external wall. Thus, says the plaintiff, it has been deprived of the sue and enjoyment of the external wall and the value of the premises has diminished.

5. In his defence, the defendant puts the plaintiff to proof of his allegations of ownership and possession of rights in the premises; particularly, in regard to its allegation that it is the beneficial owner of the external wall. He says that the beneficial owners have, by their conduct, acquiesced to the pitch being attached to the external wall. The defendant admits the attachment of the pitch and the other things to the wall, but says this was not wrongful. He says that, since 25 April 1989, the pitch has been detached from the wall and maintained only on Crown land.

The Affirmations.

6. In support of its application for summary judgment, the plaintiff filed an affirmation by Mr Wan Kin Hung, one of its directors. Mr Wan affirms to facts supporting the plaintiff's allegations of ownership and possession. He says that, before the plaintiff entered into possession of the premises, the defendant was the licence holder of a Fixed Pitch (Wall Stall) Hawker Licence issued by the Urban Council. Mr Wan says the defendant wrongfully erected a pitch in the side lane; meaning, presumably - because he says that the defendant had a licence to have a pitch there - that it was wrongful because it was affixed to the external wall. To show that it was affixed to the external wall, Mr Wan produces some photographs. He does not say when these were taken, but Mr Hung, for the plaintiff, concedes that the pitch is no longer fixed to the wall. Mr Wan says that it was the intention of the plaintiff to renovate the wall and use it for advertisement purposes, but it cannot do so because of the defendant's conduct. He says that the plaintiff has been advised that it has a legal interest to enter the side lane and perform the renovation work, and, because the defendant is not the owner of the side lane, he 'should have' no legal justification to obstruct the plaintiff from entering the side lane to perform the work.

7. The defendant has filed an opposing affirmation. He says his name is Cham not Chan, and that his pitch is not attached to any part of the side wall. He exhibits photographs to demonstrate this. He does not say when these photographs were taken. He says that the plaintiff is the owner of only a shop space which is not adjacent to the external wall. Mr Cham alleges that the plaintiff wishes to open a void space adjacent to the wall so that it can sell it. He says that his pitch is on Crown land and he has a licence to maintain it.

The Course of these Proceedings.

8. This matter first appeared before me on 30 January 1990. At that time, the defendant had not filed an opposing affirmation. I adjourned the matter to give the defendant the opportunity to do this, and I made appropriate orders. I also sought to advise the parties how to settle the dispute, suggesting that the defendant could move the pitch temporarily to allow the plaintiff to do the renovation work. The defendant could then rebuild his pitch and the parties could enter into some arrangement to compensate the defendant for any expense incurred, or loss suffered, by him. I do not know what became of my suggestions, but the parties are now back before me. I understand from Mr Hung that the plaintiff has made no formal offer to the defendant to compensate him for any expense incurred, or loss suffered, by him in moving his pitch temporarily to allow the plaintiff to renovate the wall.

The Argument.

9. It is common cause that the defendant is no longer committing any trespass to the plaintiff's property by affixing anything to the external wall, and there is no reason to apprehend that a trespass will be repeated. It follows that there is no need for an injunction requiring the defendant to stop doing this. There is the question of damages and costs in this regard, but the damages would be small and the defendant would not be liable for costs on this basis after he ceased to trespass.

10. I am not prepared to deal with the matters of damages and costs of the action by way of summary judgment. Quite apart from the fact that the defendant raises a triable issue at least on the matter of acquiesence by conduct and it seems that the defendant had already removed the fixtures before there was any clear allegation that this was one of the plaintiff's complaints, it is clear that the original and major issue between the parties is the plaintiff's claim that it is entitled to require the defendant to conduct himself so that it may renovate the wall and use it for advertising purposes.

11. In this regard, I made clear to Mr Hung during the hearing that I had difficulty understanding just what it was the plaintiff expected me to do to allow it to exercise its alleged rights to renovate the external wall and use it for commercial purposes. I pointed out to Mr Hung that the defendant had a clear right to occupy the Crown land concerned. Mr Hung agreed with this. Also, Mr Hung did not dissent from the proposition that the defendant was in no different position from a person who had erected, under a licence or lease from the Crown, a building of brick and mortar on the land concerned so that this building prevented access to the exterior of the wall of the adjoining building. This situation is common in Hong Kong. In these circumstances, would the owner of the adjoining building have some right to require the owner of the other building to demolish it to allow access to, and the commercial use of, his external wall? Of course not, says Mr Hung; quite rightly. So what then did the plaintiff expect me or the defendant to do? Mr Hung says that the defendant should arrange with the Urban Council for the re-siting of his pitch to the other side of the lane. I asked Mr Hung what authority he had for such a startling proposition; the existence of some legal right to require the lawful occupant of adjoining property to move the structures on that property to land which he has no right to occupy, especially in the absence of any offer to that occupant to compensate him for any loss suffered as a consequence of that relocation. The only authority cited by Mr Hung in this regard was Ward v. Kirkland [1967] 1 Ch. 194. This case is, however, authority for a proposition entirely contrry to that contended for by Mr Hung. The case, and the case of Copeland v. Greenhalf [1952] Ch. 488 cited in it, make it quite clear that there cannot be an easement in law over property that is alleged to be servient where the exercise of the alleged easement would interfere so substantially with the use of that part of the 'servient' tenement over which it was to be exercised that it amounted to an exclusion from possession of that part. Here, the plaintiff suggests nothing short of complete removal of the defendant's pitch would enable it to exercise its 'rights' in respect of the external wall. It argues that the defendant must be entirely deprived of his rights to occupy the land licensed to him so that the plaintiff can enjoy its rights over its own property. That cannot be right, and I hold that it is not the law.

The Result.

12. It follows that I cannot make any order that would deprive the defendant entirely of his right to exercise beneficial enjoyment over the land lawfully occupied by, and licensed to, him. Accordingly, the application is refused.

The Costs.

13. On the face of it, there seems no reason why costs should not follow the event. Accordingly, I make an order nisi that the plaintiff pay the defendant's costs of the application.