LEE YUM SANG v. YEUNG FOOK HONG AND ANOTHER

HCA 638/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 638 OF 2009

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BETWEEN

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REASONS FOR DECISION

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Application

1.  I have before me an application taken out by the defendants by summons dated 7 December 2011 (the “Summons”) seeking various orders or directions arising out of a Consent Order previously made by Deputy High Court Judge L Chan on 1 June 2011 (the “Consent Order”).  The basis of the application, as appears from the Summons, is said to be the Consent Order and the inherent jurisdiction of the court.

Background

2.  The plaintiff and the defendants are the owners of three neighbouring lots of land in the New Territories, namely, (i) Section D and (ii) Section C and the Remaining Portion of Lot 397 in Demarcation District 94 respectively (hereinafter referred to as “Lot 397D”, “Lot 397C” and “Lot 397RP” respectively).  The present action was commenced by the plaintiff by Writ on 6 March 2009.

3.  The background facts and the nature of the disputes between the parties are set out in a written Judgment on Costs by Deputy High Court Judge L Chan dated 3 June 2011 and I shall not repeat them in this decision.

4.  The trial of this action was scheduled to commence on 1 June 2011.  On the first day of the trial, the parties reached a settlement of their disputes the terms of which were embodied in the Consent Order.  The only outstanding matter was the issue of costs, which was resolved by the learned Deputy Judge in his Judgment on Costs.

5.  The Consent Order provides for various acts to be done by the parties.  For the present purpose, the following parts of the Consent Order are material:

“1. In respect of the Partitioning Wall between Lot 397C and Lot 397D and the Slope within 397C,

(a) The Plaintiff shall at his own costs and expenses demolish the Slope (as defined in the Amended Reply and Defence to Counterclaim) on the [Protruded] Area (as defined in the Amended Reply and Defence to Counterclaim) within Lot 397C forthwith but no later than 1 August 2011.

2. Further,

……

(b) The current slope built by the Plaintiff within 397C shall be removed at the Plaintiff’s expenses, and no slope is allowed to be built on the Protruded Area.

(c) The 1^st and 2^nd Defendants shall continue to maintain and repair the Public Way for public use at the 1^st and 2^nd Defendants’ own costs and expenses in accordance with the Building Licences in respect of Lot 397C and Lot 397RP.

(d) The 1^st and 2^nd Defendants shall grant (free of consideration) a right to the Plaintiff, his successors and assigns to discharge rain water (and rain water only) to the rain drainage channel in and underneath Lot 397C.

(e) For the avoidance of doubt, no sewage water (such as flushing water and greasy water from kitchen) shall be discharged to the rain drainage in and underneath Lot 397C.

4. Liberty to [apply].”

6.  There are disputes between the parties as regards what either party may or may not do, or is or is not required to do, under the Consent Order, or the implementation of the Consent Order. Accordingly, the defendants have taken out the Summons to seek the Court’s directions or orders as set out therein.

Paragraphs 1 and 3 of the Summons

7.  These two paragraphs relate to the defendants’ allegation that the plaintiff has, notwithstanding the Consent Order, continued to discharge sewage water to the rain drainage in and underneath Lot 397C. This allegation is disputed by the plaintiff.

8.  By paragraph 1 of the Summons, the defendants seek an order that the plaintiff shall be restrained from discharging anything other than rain water to the rain drainage in and underneath Lot 397C, in accordance with paragraph 2(e) of the Consent Order, and by paragraph 3 of the Summons, the defendants seek an order that the plaintiff shall not, whether directly or indirectly through some other routes, discharge any sewage water to the rain drainage in and underneath Lot 397C.

9.  In my view, it is perfectly plain, from paragraphs 2(d) and (e) of the Consent Order, that the plaintiff has no right to discharge anything other than rain water to the rain drainage in and underneath Lot 397C.  In particular, the plaintiff has no right to discharge sewage water (whether filtered or not) to such drainage.  Miss Yanky Lam for the plaintiff does not dispute this proposition.

10.  However, if it is the defendants’ position that the plaintiff has in fact discharged sewage water to the rain drainage in and underneath Lot 397C contrary to the terms of the Consent Order (which is disputed by the plaintiff), the defendants’ proper remedy is to apply to cite the plaintiff for contempt of court, and not to seek any injunction against the plaintiff.

11.  Once an action has been settled and the settlement has resulted in the making of a consent judgment or order of the Court, the original causes of action of the parties are merged in the judgment or order.  I am not satisfied that the Court has any further jurisdiction to grant an injunction against the plaintiff in the current circumstances.

12.  I should make it clear, however, that I am not making any determination as to whether the plaintiff would be liable for contempt of court should it be proved that the plaintiff has discharged sewage water to the rain drainage in and underneath Lot 397C after the making of the Consent Order.  That is not a matter before me and will have to be determined as and when an application (if any) is made by the defendants to cite the plaintiff for contempt of court.  I merely rule that I do not consider that the defendants are entitled to the relief sought in paragraphs 1 and 3 of the Summons.

Paragraphs 2 and 4 of the Summons

13.  By paragraph 2 of the Summons, the defendants seek the following direction or order:

“(1) The Plaintiff has no right under the [Consent Order] to construct any channel, drainage or manhole in the Protruded Area ...;

(2) The Plaintiff do within 14 days remove or fill up any channel, drainage or manhole constructed in the Protruded Area”.

14.  By paragraph 4 of the Summons, the defendants seek the following direction or order:

“(1) The Plaintiff has no right under the [Consent Order] to install any metal plate in or underneath the Protruded Area.

(2) The Plaintiff do within 14 days remove any metal plate in and underneath the Protruded Area and carry out all the necessary works to cover the surface of the Protruded Area.”

15.  There is a dispute of fact as to whether the plaintiff has constructed any channel or drainage in the Protruded Area, although the plaintiff admits that he has constructed a manhole on, and installed metal plates in or underneath, the Protruded Area.  The plaintiff says that the channel or drainage complained of by the defendants is part of a pre-existing public drainage or channel embedded in the ground of Lot 397C. In so far as the manhole and metal plates are concerned, the plaintiff’s case is that the construction or installation of the manhole and metal plates form part and parcel of the necessary works for the removal of the Slope by the plaintiff under the Consent Order and for the restoration of the road surface of the Protruded Area to a reasonably safe state and condition as impliedly required by the Consent Order.  The plaintiff further says that the Consent Order is silent on the restoration of the road surface after the removal of the Slope on the Protruded Area but it is common sense and implied in the Consent Order that the plaintiff should do so at his own costs and expenses.

16.  The Consent Order requires the plaintiff to remove the Slope but does not make provision for the restoration of the road surface or what may or may not be done by the plaintiff to restore the road surface.  In my view, the making good of the road surface should be regarded as something reasonably incidental to the requirement to remove the Slope on the Protruded Area by the plaintiff and is to be implied.  However, details of what may or may not be done by the plaintiff in the carrying out of the restoration works are not defined or set out in the Consent Order.

17.  The Consent Order represented and embodied the terms of settlement reached by the parties and was, as I have been told and would expect in any event, carefully drafted by counsel for the parties.  It is not for this Court to re-write, or add to, the terms of the settlement reached by the parties.  The Consent Order does not authorise the plaintiff to construct or install the manhole or the metal plates, but neither does it prohibit the plaintiff from doing so.

18.  In my view, if the construction or installation of the manhole and the metal plates are to be treated as part of the works reasonably necessary for the restoration of the road surface of the Protruded Area, the defendants have no cause for complaint.  On the other hand, if the construction or installation of the manhole or the metal plates cannot be justified as being works reasonably necessary for the restoration of the road surface of the Protruded Area, the defendants may have a separate cause of action against the plaintiff, on the basis that works have been carried out by the plaintiff in or on the defendants’ land without their consent.  I say nothing about the viability of such cause of action.  The defendants are clearly not entitled to obtain any relief under the current Summons in respect of such possible cause of action, but would have to pursue it (if so advised) in a separate action against the plaintiff.

Paragraph 5 of the Summons

19.  By paragraph 5 of the Summons, the defendants seek the following direction or order:-

“The relocation of the Plaintiff’s metal gate and the 2 concrete columns for the anchoring of the metal gate pursuant to paragraph 1(d) of the [Consent Order] be carried out such that both the metal gate and the 2 concrete columns be within Lot 397D as shown in Annex IV to the Defence and Counterclaim, being a surveyor’s plan in scale and relied on by this Court in paragraph 1(c) of the [Consent Order]”.

20.  Miss Yanky Lam does not dispute that this should be so, and I do not think any order or direction is required to be made.  There are, I understand, other disputes between the parties, including a suggestion by the plaintiff that the defendant has proposed to install their own gate at the Protruded Area which would adversely affect the plaintiff’s right of way as provided for in paragraph 2(a) of the Consent Order.  However, there is no application before me on those other disputes and it would not be appropriate for me to make any comment on them.

Paragraph 6 of the Summons

21.  By paragraph 6 of the Summons, the defendants seek the following direction or order:

“The Plaintiff shall properly level the Protruded Area so that no water puddles be formed”.

22.  It is not in dispute that the plaintiff has levelled the Protruded Area.  The defendants complain that the works have not been done properly and as a result water puddles are formed when there is rain.  This allegation is disputed by the plaintiff.  I have seen photographs of the current state of the Protruded Area, including photographs taken by the defendants on 29 September 2011 which show the existence of a relatively minor water puddle at the boundary between Lot 397C and Lot 397D, which appears to be a low point between the grounds on either side.  Judging from the photographs, it seems to me that the levelling of the ground has been carried out to a standard which can reasonably be expected in the circumstances.  I also note that under paragraph 2(c) of the Consent Order, the obligation to maintain and repair the Public Way for public use falls on the defendants.

23.  I am not satisfied that the defendants have made out their complaint which would justify relief being granted under paragraph 6 of the Summons.

Conclusion

24.  In all, I would dismiss the Summons and I shall now hear the parties on the question of costs.