ALBERT TAI HANG WEN v. PROGRESSIVE GROUP LTD.

HCMP4931/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.4931 OF 1998

----------------------

-----------------------

--------------------

J U D G M E N T

--------------------

1. This is a vendor and purchaser's summons concerning the property known as 3rd Floor, No.44C MacDonnell Road ("the Property"). The Property is situated in the remaining portion of Subsection 2 of Section B of Inland Lot No.1388.

2. By a letter dated 18 May 1998, the Defendant's solicitors for the Purchaser raised the following requisition, namely :-

"1. Assignment Memorial No.255503

We would refer to the rights of way mentioned on page 2 lines 2-6 of the said Assignment. A copy of the said Assignment is enclosed for your easy reference. As the said rights of way is not properly shown and incomplete on Plan No.1, please arrange to send us the relevant plans showing the said rights of way for our perusal and reference. Furthermore, please produce evidence for the creation of the said rights of way."

3. In other words, by the said letter, the Plaintiff was required to show :-

(a) that the said rights of way do exist; and

(b) the extent of the Plaintiff's interests thereunder.

4. The relevant part of the Assignment M/N 255503 provides as follows :-

"And Together with a full and free liberty for the Purchaser or his assigns and his or their agents and servants in common with others at all reasonable times hereafter to pass and repass over along and upon the piece of ground coloured Green on the plan annexed to an Indenture of Assignment Memorial No.69,642 which said piece of ground is partly shown and coloured Yellow on the plan no.1 annexed hereto ..." (emphasis added)

5. The problem in this case is that the plan annexed to Assignment M/N 69642 can no longer be found. The Assignment M/N 255503 only showed part of the Right of Way. The Defendant therefore requested the Plaintiff to prove good title to the remaining part of the Right of Way (i.e. that part which is to the west of what is shown in Plan No.1).

6. By a letter dated 21 September 1998, the then solicitors for the Vendor replied to this requisition as follows :-

1. The property subject of the sale and purchase between our respective clients ('the Property') is situated in the Remaining Portion of Subsection 2 of Section B of Inland Lot No.1388. Inland Lot No.1388 is hereinafter referred to as 'IL 1388' or 'the Lot'. Section B of IL1388 is hereinafter referred as 'Section B'.

2. By Assignment Memorial No.55083 dated 30th April 1914, the then owner of IL1388 had Section A of the Lot ('Section A') carved out and assigned to the Assignee mentioned in the Assignment. Annexed to the Assignment was a plan clearly showing that there was already a right of way ('the Right of Way') in existence at the time. The best part of the Right of Way was within the Lot itself but led to a piece of Crown Land adjoining Macdonnell Road.

3. That part of the Right of Way which fell within Crown Land was in fact referred to in the Crown Lease of IL1388. You will note from the Plan annexed to the Crown Lease of IL1388 that there was a clear reference of a right of way within the Crown Land mentioned above. Thus there can be no doubt that insofar as part of the Right of Way fell within Crown Land, this was acknowledged and recognised by the Crown and constituted a valid easement against the Crown.

4. Before Section A was carved out and assigned away, the Right of Way that was formed and used by the then owner of the Lot constituted what was sometimes called a 'quasi-easement'. It was not in law a true easement as there was then no separation of dominant and servient tenements. The Right of Way was used by the same owner who owned the whole of IL1388.

5. When Section A was carved out and sold away, the quasi-easement became a true easement. Even in the absence of an express grant, there would have been an implied grant of an easement over the Right of Way under the well-settled rule of Wheeldon v. Burrows (1876) 12 Ch. D.31. However, Assignment 55083 did expressly refer to the Right of Way and provided that the owner of Section A would have the right to pass and repass over the parcel of ground coloured green on the plan annexed thereto.

6. It is also important to note that under Assignment Memorial No.55083, the Vendor expressly reserved to itself and its tenants or occupiers for the time being of the messuage or dwelling house situate on the Remaining Portion of IL1388 on the East side ('R.P. Ease') the right to use that part of the Right of Way what fell within Section A (coloured yellow on the plan).

7. By Assignment Memorial No.69642 dated 31st October 1919, Section B was carved out from the Lot and assigned to the Assignee thereunder. Section B was the piece of land on the East side of Section A, namely R.P. East. Of course, by the time when this Assignment was made, the Right of Way mentioned above was already in existence. Under the rule of Wheeldon v. Burrows, the Right of Way, which constituted a 'continuous and apparent easement', was impliedly granted by the Assignor to the Assignee and its successors. We would pause to add in this connection that at the time of this Assignment; the Assignor had the benefit of the full stretch of the Right of Way including that part which fell within Section A, as the right thereto had been expressly reserved to the Assignor in Assignment Memorial No.55083. We believe that the rule of Wheeldon v. Burrows (and the much-quoted judgment of Thesiger L.J.) is well-settled and the principles squarely apply to the present case. The relevant principles could be found in all the standard textbooks on the subject.

8. Thus no express grant was required for the Assignee under Assignment Memorial No.69642 to acquire the benefit of the Right of Way. The Right of Way, as pointed out above, was clearly identified in the plan annexed to Assignment Memorial No.55083. The same was also clearly identified in the various subsequent Assignments relating to the sale and purchase of various parts of the Lot. For example, the 3 Assignments that we sent you under cover of our letter dated 30th June 1998 all contained plans clearly identifying the location of the Right of Way.

9. The Plan annexed to Assignment Memorial No.69642 can no longer be found. However, as pointed out above, the physical location of the Right of Way is not in doubt, as the same has been clearly identified in the plans annexed to the other Assignments. As no express grant was required for the owner of Section B to acquire the benefit of the Right of Way, the missing plan would not constitute any defect in our client's title. Even without an express grant, the owner of Section B had, under the rule of Wheeldon v. Burrows, acquired the benefit of the Right of Way by implied grant when the original owner assigned Section B away in October 1919.

10. We also rely on s.16 and s.17 of the Conveyancing and Property Ordinance. S.16 and s.17 are modelled under s.62 and s.63 of the Law of Property Act 1925 and the cases under the 2 sections of the English Act show that rights under easement (such as the Right of Way in the present case) enjoyed with, or belonging or appertaining to, the land assigned would pass from the Assignor to the Assignee even in the absence of an express grant. Thus we also submit that the benefit of the Right of Way had passed to the owner of Section B by reason of the statutory provisions mentioned above.

7. Extrinsic evidence is admissible to show what is the Right of Way referred to in Assignment M/N 69642 (see Scarfe v. Adams [1981] All ER 843). There is only one Right of Way as shown by all the relevant title documents. There is no suggestion of any other Right of Way other than the one which appears in the Plan annexed to Assignment M/N 55083. All the other relevant Assignments of the other sections of IL1388 referred to this Right of Way, namely :-

(a) Assignment M/N 239395 in relation to section A of IL1388

(b) Assignment M/N 85993 in relation to R.P. of IL1388

(c) Assignment M/N 79032 in relation to section C of IL1388

8. By reasons of the aforesaid matters, there is no doubt in my mind the existence of the Right of Way and its precise location. The plans annexed to the aforesaid various Assignments are unequivocal as to its existence and precise location. Thus the owners of section B are clearly entitled to enjoy the Right of Way, and the Plaintiff is thus entitled to enjoy the Right of Way and to pass his interests and rights thereto to a purchaser of the Property.

9. Accordingly, I order in terms of the originating summons as sought by the Plaintiff.