IP WAN FAT AND OTHERS v. KING UNION INTERNATIONAL INVESTMENTS LTD AND ANOTHER

CACV 542/2018

[2019] HKCA 226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 542 OF 2018

(ON APPEAL FROM HCA 240/2016)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 22 November 2018, the 1^st and 2^nd defendants took out a summons seeking leave to appeal under Section 14AA of the High Court Ordinance.  The appeal was initially brought without leave (by a Notice of Appeal dated 2 November 2018) against the decision of Deputy High Court Judge Dawes SC (“the Judge”) given on 19 October 2018 ([2018] HKCFI 2332; “the Main Decision”) dismissing their summons under Order 14A of the Rules of the High Court (Cap 4A) (“the O14A Summons”).

2.  As stated in the Main Decision, the Judge was of the view that the matter was not suitable for determination under the Order 14A procedure. As such, the dismissal of the summons is clearly an interlocutory judgment: see Messrs.Bruno Arboit and Ian Robinson v Hu Yan [2018] HKCA 507.

3.  Notwithstanding this, solicitors for the defendants saw fit to serve a Notice of Appeal on 2 November 2018 without first seeking leave. It was only after an unless order of 15 November 2018 that the present summons was issued seeking leave to appeal.

4.  Having considered the bundle of documents lodged with the summons, together with the written statements lodged by both parties, we consider it appropriate to determine the application on paper without any oral hearing. 

Background

5.  In the present case, the parties are the owners of neighbouring plots of land.  They had a boundary dispute in respect of the boundary between the two plots.  The two plots of land were designated as Section X and Section W respectively.  The plaintiffs own Section X, and the defendants Section W.  The plaintiffs claimed against the defendants for trespass; and the defendants counterclaimed for trespass, nuisance and negligence. 

6.  The factual background of this case was succinctly summarized by the Judge in [3] of the Main Decision.

7.  On 19 September 2017, the defendants took out the O14A Summons.  The O14A Summons first came before Madam Recorder Yvonne Cheng SC ([2018] HKCFI 906; “the Directions Decision”). After hearing counsel’s submissions, the learned Recorder framed the question to be determined as follows:

“ whether, on the true construction of the assignment of 10 March 1992 to Sum Yuk Ming, the boundary of the land in section X, at the location where section X was adjacent to section W, was that as marked boundary ‘J-A’ in the plan attached to the sale and purchase agreement dated 14 March 1992 to Yuen Chak Construction Company Limited, the predecessors in title of the defendants.” (“the Question”)

8.  The Judge heard the O14A Summons on 3 October 2018.  He took the view that the Question could not be resolved without hearing expert evidence from land surveyors.  The Judge’s attention was drawn to the existence of a memorial registered against the Lot in 1973, where a plan (“the 1973 Plan”) was registered against the Lot setting out the relevant positions of and the boundary between sections X and W. 

9.  In other words, it is at least reasonably arguable that sections X and W had been delineated as early as 1973. The delineation could have been achieved by the 1973 Plan or other method when the instrument under the 1973 memorial was prepared.

10.  The 1973 Plan had been taken into account when the 1999 Plan was prepared for the deed poll for division of Section X in 1999. However, it was not referred to in the 1992 Plan annexed to the sale and purchase agreement of Section W in 1992. 

11.  As the Judge observed, the boundary dispute emerged from the discrepancies between the 1992 Plan and the 1999 Plan.

12.  The 1992 Plan was prepared for the sale of Section W which took place subsequent to the sale of Section X. No plan had been annexed to the instrument of sale of Section X. At the time of the sale of Section X, the 1973 Plan was already in place.

13.  The Judge considered that the accuracy of the plans (ie, the 1973 Plan, the 1992 Plan, and the 1999 Plan) was relevant in the determination of the boundary between sections X and W and that the matter cannot be determined summarily.  The Judge dismissed the O14A Summons accordingly.

Lack of Merits in the Grounds of Appeal

14.  In the amended notice of appeal filed on 26 November 2018, the defendants intended to rely on the following grounds of appeal:

(1)  The Judge erred in considering both the 1973 Plan and the 1999 Plan as relevant;

(2)  The Question was wrongly framed and the real question should be whether the boundary of Section X could be ascertained with reference to the conveyancing documents passing Section X through various predecessors in title to the plaintiffs;

(3)  Had the Judge perused the conveyancing documents, he should have held that the boundary could not be ascertained and hence the plaintiffs’ cause of action could not be maintained;

(4)  Had the Judge perused the conveyancing documents passing Section W through Yuen Chak Construction Company Ltd to the defendants, he should have concluded that the boundary was fixed with reference to the 1992 Plan;

(5)  Had the Judge perused the conveyancing documents passing Section W to the defendants, he should have held that, by implied covenant, the defendants were entitled to peaceful possession of Section W as conveyed under the relevant assignment and designated by the 1992 Plan; and

(6)  Both the plaintiffs and the defendants were bound by the covenants made by Messrs Leung, Chan and Tang.

15.  It is clear to us that the intended grounds of appeal are devoid of merits. 

16.  The Question for determination in the O14A summons was settled by Recorder Cheng SC in light of the submissions advanced before her. There was no appeal against the Direction Decision and the defendants cannot seek to argue that the wrong question had been addressed.

17.  In any event, the Judge had correctly identified the real issue as the boundary dispute, which emerged from the discrepancies between the 1992 Plan and 1999 Plan.

18.  In our judgment, the resolution of such dispute depends on an inquiry into the subject matter of sale in 1992 when Section X was sold to the predecessor of the plaintiffs. Given that no further plan was attached to that instrument of sale, the earlier 1973 instrument which delineated Sections X and W must be relevant for ascertaining the boundary of Section X sold in 1992.

19.  As the 1992 Plan was not annexed to the 1992 instrument of sale for Section X, prima facie it could not affect the delineation under the 1973 instrument as far as Section X is concerned. If there were other matters in the factual matrix surrounding the sale of Section X in 1992 which may shed light on the relevance of the 1992 Plan for the sale of Section X, these are matters that have to be canvassed at the trial by way of viva voce evidence. 

20.  Whilst the 1992 Plan is relevant for the sale of Section W in 1992, since the sale of Section X took place earlier than the sale of Section W, the vendor could not pass a title over the land which had already been sold as Section X under the subsequent sale in respect of Section W. Thus, whatever the position might be between the vendor and purchaser of Section W, one cannot simply extrapolate from that sale anything which impinged upon the earlier sale in respect of Section X.

21.  In light of the above analysis, Grounds 1 and 2 have no reasonable prospect of success.

22.  The other grounds of appeal raised questions outside the scope of the Question as formulated for the O14A summons. Further, they are not issues suitable for summary determination since, as explained above, in light of the materials before the court the inquiry as to the subject matter of sale in 1992 in respect of Section X cannot be a matter for summary determination simply by reference to the conveyancing documents.

23.  Further, based on arguments presently before us, we fail to see how the plaintiffs should be bound by the covenants made between the defendants’ predecessors-in-title and Messrs Leung, Chan and Tang.   

24.  In our view, the defendants’ grounds of appeal are totally devoid of merits.  Accordingly, we refuse to grant leave for the defendants to appeal against the Decision.  We dismiss the defendants’ summons dated 22 November 2018.

25.  We are also of the view that the application for leave is totally without merit. Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes.

26.  By reason of the lack of leave to appeal, the present appeal is incompetent.  We strike out the amended notice of appeal for want of leave and dismiss the appeal accordingly.

27.  Costs should follow the event.  Having considered the plaintiffs’ statement of costs and the defendants’ statement of objection, as well as the fact that the notice of appeal should not have been filed in the first place, we fix the plaintiffs’ costs at $79,120.