CHINA MERCHANTS KIN SWISS TRANSPORTATION CO LTD AND ANOTHER v. TREASURE WISE LTD AND OTHERS

HCA 344/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 344 OF 2007

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J U D G M E N T

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Introduction

1.  The plaintiffs commenced this action in February 2007 alleging that the defendants interfered with their lawful enjoyment of a right of way by express grant.

2.  The 2^nd and 3^rd defendants indicated they had no objection to the plaintiffs’ enjoyment of the said right of way and the claim against them was discontinued.  The trial of this action therefore only concerns the plaintiffs and the 1^st defendant (“D1”).

Background

3.  The trial of this action was split into two parts.  At the end of the first part of trial, I ruled that certain parts of the expert evidence sought to be adduced by D1 were inadmissible.

4.  In the court of appeal’s judgment (handed down in relation to the appeal against the said ruling), the background leading to this action has been helpfully summarized:-

“2.  The action concerns a claim by the plaintiffs as owner/occupier of the dominant tenement (Lot 43B4) against the first defendant for wrongful interference with the right of way over the Fourth Property obtained by express grant under clause 4 of a Deed of Partition dated 14 November 1988 (“the Deed”).  The first, second and third defendants are the co-owners of the Fourth Property.  The action against the second and third defendants was discontinued in April 2007 since they had not interfered with the plaintiffs’ use of the right of way and did not deny their right as asserted” (emphasis supplied);

“6.  The salient facts may be summarised as follows.  On 14 November 1988, three transportation companies (“the original co-owners”) who were tenants in common of a relatively large piece of land consisting principally of fishponds and farmland situated close to Castle Peak Road entered into the Deed, partitioning the properties amongst themselves but leaving of a strip of land (“the Fourth Property”) in co-ownership.

7.  By clause 4, they covenanted with and granted to

“each others a full and uninterrupted right of way for each others and the owners and occupiers for the time being of ALL THAT the Fourth Property his or their tenants visitors workmen and other persons authorised … for all purposes in connection with the proper use and enjoyment of the [partitioned land] at all times to go pass and repass with or without vehicles over along and upon the Fourth Property …”

As the judge observed, this covenant forms the backbone of the plaintiffs’ claim.

8.  The Fourth Property is a strip of land on the western and southern boundary of the plaintiff’s property and continues in a southeasterly direction towards the government road that runs parallel to Castle Peak Road.  The government road and Castle Peak Road lie to the southeast of the strip and at that point both roads run from the southwest to the northeast.  As it approaches the government road the strip widens into and becomes Lot 1318RP which is part of the Fourth Property but lies at right angles to the rest of the strip of land.  The southeastern boundary of Lot 1318RP abuts and runs parallel to the government road.

9.  Within a month or so after the Deed was executed, the first plaintiff agreed to purchase part of the partitioned property (the dominant tenement) from one of the original co-owners.  The agreement required the vendor to reclaim the land sold with soil such that it would after reclamation level with that part of the Fourth Property that adjoined it and the vendor undertook at its own costs to construct or procure the construction of a two-way carriageway of not less than 22 feet wide leading from Castle Peak Road to the dominant tenement.  The purchase was completed in August 1989 and the first plaintiff assigned the dominant tenement with the benefit of the right of way to the second plaintiff in December 1997.

10.  From 1989, most of the partitioned land as well as part of Fourth Property were used as container yards, a road having been formed on Lot 43B1 being part of the Fourth Property.  However as it approached closer to Castle Peak Road, the road did not continue to proceed through the rest of Lot 43B1 and then through Lots 1271A, 1270A, 1312A and 1318RP (all of which formed part of the Fourth Property and which would have been the most direct route) to the government road to and from which access could be gained to Castle Peak Road.  For reasons unknown, to reach Castle Peak Road, it diverted in a north easterly direction through land that did not form part of the Fourth Property.

11.  In May 1997 the first defendant acquired part of the partitioned land that had belonged to the same original co-owner from whom the first plaintiff had acquired its property and also became one of the co-owners of the Fourth Property.

12.  In the third quarter of 2006 the first defendant filled in Lot 1318RP so that part of it came to be raised to the level of the adjoining government land and built an access on Lot 1318 RP and Lot 1312A (“the New Access”) rendering vehicular access possible from the adjoining government road to the road already formed on the Fourth Property before it diverged outside the Fourth Property.  Although the first defendant had erected hoardings along parts of the boundaries of the Fourth Property including the part where it adjoins the government road, it left and created an opening or entrance between Lot 1318RP and the adjoining government land to allow vehicular access.

13.  The first defendant caused a container to be placed on Lot 1318RP near the opening between the lot and the adjoining government land for personnel it employed to implement traffic control measures it imposed to regulate usage of the New Access.  In particular, container lorries and other long or heavy vehicles are denied access” (emphasis supplied).

5.  Clause 4 referred to in the quote above will be called “clause 4” below for convenience.

The Plaintiffs’ Claim

6.  The judgment of the court of appeal also summarized the gist of the plaintiffs’ claim:-

“18.  The right of way the plaintiffs are claiming is not along the whole of what has been described as the New Access which opens onto the adjoining government road through an opening created by the first defendant.  It is over the section that forms the continuation of the road formed on Lot 43B1 running in a southeasterly direction and in use since 1989 and then more or less in a straight line through Lots 1271A, 1270A, 1312 before making a slight right turn after it reaches 1318RP.  Instead of progressing along the rest of the so called New Access, the plaintiffs wish to continue through what is currently an obstruction, namely, the blue hoarding dividing Lot 1318RP from the adjoining government road onto that road.  The way claimed (which is over property forming part of the Fourth Property) would not involve having to make the sharp 90º turn to the right when it reaches Lot 1318RP and along 1318RP to reach the opening created by the first defendant” (emphasis supplied).

The Defence

7.  The lines of defence raised are in short:-

(a) the purported grant of right of way is invalid in law because a land owner cannot grant such a right to himself over his own land;

(b) the right of way granted did (and does) not cover the use of container trucks or heavy vehicles, especially those exceeding 5.5 tonnes in weight and 7 metres in length;

(c) even if the right of way granted should cover such use, conditions should be imposed when granting an injunction in the plaintiffs’ favour to cater for road safety and the like.

Validity of Grant

(a) General Law

8.  This part of the defence finds support on the proposition that the respective owner of the dominant and servient tenements must be different persons.  Gale on Easements (2002) 17^th Ed. says:-

“The meaning is that the owner and occupier of land cannot subject it to an easement in favour of other land also owned and occupied by himself” (para. 1-30).

9.  The rationale is relatively simple.  Any use by an owner of part of his land in connection with another part is referable to his ownership rights, and not a diminution of, or accretion to, the rights of others: Gale, para. 1-30, text to nn. 7 and 8.  Gale further explains :-

“… an easement is a charge imposed upon the servient tenement for the advantage of the dominant tenement, when these are united in the same owner, the easement is extinguished; the special kind of property which the right to the easement conferred, so long as the tenements belonged to different owners, is now merged in the general rights of property” (emphasis supplied) (para. 12-02).

10.  But Gale also says that the above usages sometimes create “quasi-easements”: Gale, para. 1-30, text to n. 11.

11.  The plaintiffs’ case based on easement is built principally on the Canadian decisions in McDonald v. McDougall (1897) 30 NSR 298 and Re Lonegren and Rueben (1987) 37 DLR (4d) 491.  Those two cases appeared in Gale in support of the following propositions:-

“It seems that A and B as co-owners of the servient tenement can grant an easement to A, the sole owner of the dominant tenement, and that A and B as co-owners of the servient tenement can grant an easement to A and C as co-owners of the dominant tenement” (para. 1-34).

The reasons for such a conclusion have been given in Re Lonegren:-

“… the authors [of Gale] state that an easement is only extinguished where the estates in the two tenements are of an equally high and perdurable character.  Where these qualities of estate are not held, the effect on the easement is merely suspension …

Thus the nature of the estate held in the dominant and servient tenements by the common owner must be considered …

As tenants in common, the nature of their estates may be unequal in title, interest, and time of vesting.  Each tenant holds a distinct and separate share of the (as yet) undivided property.  Each has the ability to alienate his or her share independently, and each has a right of possession … ” (emphasis supplied) (at p. 496).

12.  The legal principle summarized in the judgment of Re Lonegren above can still be found in the current edition of Gale:-

“The doctrine of the extinction of easements by unity of ownership proceeds on the ground that the loss of an easement is a permanent injury to the inheritance.  [Therefore, in order] that the easement should be entirely extinguished, it is essential that the owner of the two tenements should have an estate in fee simple in both of them of an equally perdurable nature” (emphasis supplied) (para. 12-02).

But the authors of Gale continue:-

“Unless this be the case, the easement, of whatever species it be, is suspended only so long as the unity of ownership continues, and revives again upon the separation of the tenements” (emphasis supplied) (para. 12-02).

Re Lonegren also cited Gale for the legal proposition that an easement will be suspended where the qualities of estate are not equal (at p. 496 (quoted above)).

13.  In Re Lonegren, the court was merely asked to cancel the registration of two easements (pursuant to the Canadian Property Law Act).  Having concluded that differences in the qualities of estate did not extinguish an easement (it was only suspended), the court’s refusal to cancel the registration is entirely understandable.

14.  The court in McDonald decided the easement was extinguished.  The factual basis for the decision was:-

“[By July 1883], … the … heirs of [the owner of the servient tenement] conveyed their interest respectively … to [the owner of the dominant tenement].  By the latter date, [the owner of the dominant tenement] had acquired the full right, title and interest in [the subject property] in fee simple” (emphasis supplied) (p. 4 of the transcript of judgment).

It is true the judgment in McDonald made no mention of the suspension of an easement where the qualities of estate are different.  But that does not imply the legal proposition set out in para. 11 to 12 above is wrong.

15.  In this action, the legal consequence of an easement being suspended (as opposed to being extinguished) during a period of common ownership (of the dominant and servient tenements) means this.

16.  It is common ground the plaintiffs’ predecessor-in-title, who owned a piece of the partitioned land, was also one of the co-owners of the Fourth Property.  Likewise, D1’s predecessor-in-title was in a similar position.  Since 1989, the plaintiffs became the owner of a portion of the partitioned land, but they never own any part of the Fourth Property.  On the other hand, since May 1997, D1 became one of the common owners of both a portion of the partitioned land and the Fourth Property.

17.  Thus, as between their predecessors-in-title, the easement was suspended by reason of the legal principles set out above.  But it is incorrect to say that the easement has never been validly created, or has been extinguished.  Further, because the plaintiffs have never been an owner of the Fourth Property, the easement is not suspended so far as they are concerned.

18.  To adopt the language used by the authors of Gale, since the conveyance of a portion of the partitioned land to the plaintiffs (and as against them), there was no longer:-

“…the unity of ownership …, and [the easement revives] again upon the separation of the tenements” (see Gale, para. 12-02 quoted at para. 9 and 12 above).

19.  Hence, I agree with the plaintiffs that, as between them and D1, the easement conferred by clause 4 is legally valid, and can be relied upon by them in this action.

(b) The CFA’s Decision in Kung Ming Tak Tong

20.  The above principles (regarding easements and “quasi-easements”) were very recently considered by the Court of Final Appeal in Kung Ming Tak Tong Co. Ltd. v. Park Solid Enterprises Ltd. and Another, FACV 1/2008 (8 September 2008), para. 21, 22, 39 and 40 to 51.  In fact, that decision was pronounced after the parties have lodged their written final submissions.  An opportunity was given to them to submit on the relevance of that decision and they did.

21.  As will be demonstrated below, the Kung Ming Tak Tong decision may be relevant to this action.  For this reason, more than a few words should be spent on it.

22.  Besides reaffirming the general principle set out in para. 8 above (see para. 21 and 39 thereof), the decision in Kung Ming Tak Tong also reaffirmed the legal proposition set out in para. 10 above (namely, the use by an owner of part of his land in connection with another part sometimes creates a “quasi-easement”): see para. 41 to 51 thereof.

23.  The Court of Final Appeal stated that the word “quasi-easement” was used in two senses:-

(a) a contractual sense: para. 40 to 42 thereof;

(b) the Wheeldon v. Burrows sense: para. 43 to 48 thereof (which is founded on the principle against derogation from grant: para. 48 thereof).

24.  A “quasi-easement” in the contractual sense involves simply a question of construction: Kung Ming Tak Tong, para. 50.  For example, the rights of co-owners over the common parts of a building are often governed by the terms of a deed of mutual covenant and those rights function for all practical purposes as if they were easements (Kung Ming Tak Tong, para. 41 and 42);

25.  Construing the terms of the contract (such as a deed of mutual covenant, or other conveyancing documents) to ascertain if a “quasi-easement” has been created can be based on the same facts needed to found a cause of action in easement: see para. 50 below.

26.  On the other hand, a “quasi-easement” in the Wheeldon v. Burrows sense involves different rules:-

“The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.  The second [rule] is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant … ” (emphasis supplied) (Kung Ming Tak Tong, para. 45 citing Wheeldon v. Burrows (1879) 12 Ch D 31, 49).

27.  An illustration of how the rules are to be applied was given in Borman v. Griffith [1930] 1 Ch 493, 499:-

“… where … two properties belonging to a single owner and about to be granted are separated by a common road … and that road is necessary for the reasonable enjoyment of the property, a right to use the road will pass with the quasi-dominant tenement … ” (emphasis supplied) (quoted in Kung Ming Tak Tong, para. 46).

The Court of Final Appeal observed that the above decision:-

“… involves taking into account the purpose for which the land granted is to be used … ” (emphasis supplied) (at para. 47).

28.  There is a limit to what can be granted by implication:-

“… But it is essential for this purpose that the parties should intend that the subject of the grant or the land retained … should be used in some definite and particular manner.  It is not enough that [they] should be intended to be used in a manner which may or may not involve this definite and particular use” (emphasis supplied) (Pwllbach Colliery Co. Ltd. v. Woodman [1915] AC 634, 646-7 quoted in Kung Ming Tak Tong).

(c) Is the Kung Ming Tak Tong Decision Relevant?

29.  The plaintiffs argue that Kung Ming Tak Tong is factually distinguishable.  They say that decision was concerned with the rights and obligations among co-owners of a multi-storey building (that is, where the so-called “dominant” and “servient” tenements are both co-owned and located on the same piece of land).

30.  It is correct the decision in Kung Ming Tak Tong involved very different facts.  But the Court of Final Appeal has in effect reaffirmed the general principles set out under the sub-heading “General Law” above (especially para. 8 to 10 above).  Those general principles are equally applicable to this action.

31.  D1 contends that the effect of the decision in Kung Ming Tak Tong is, in short, this action must be dismissed for want of a reasonable cause of action.

32.  I do not agree that decision has that effect.  Because of the different facts involved, the Court of Final Appeal has not been asked to, and did not, determine the other legal principles concerning the suspension of an easement: see para. 11 and 12 above.  Consequently, what has been said in Kung Ming Tak Tong does not cast any doubt concerning the correctness of those principles.

(d) Quasi-Easement

33.  I have concluded that this action is governed by the general principles set out under the sub-heading “(a) General Law” above, and that the cause of action in easement can be relied upon by the plaintiffs.

34.  Having so decided, it is strictly unnecessary to consider whether a “quasi-easement” has been created.  I shall do so for completeness.

35.  Assuming, for the sake of discussion, that the plaintiffs should somehow need to rely on an alternative case of a “quasi-easement”, three issues need to be addressed:-

(1) whether the alternative case is a point of law which can be raised on the facts already pleaded;

(2) if not, whether the court should exercise its discretion conferred by RHC Ord. 20 r. 8 in the plaintiffs’ favour despite their failure to rely on such alternative case up to now;

(3) in connection with sub-para. (2) above, whether the alternative case falls within Ord. 20 r. 5(5).

36.  As regards para. 35(1) above, Ord. 18 r. 11 provides:-

“A party may by his pleading raise any point of law”.

There is thus no legal requirement to plead a point of law: Hong Kong Civil Procedure 2008, para. 18/11/1 citing Independent Automatic Sales Ltd. v. Knowles & Foster [1962] 3 All ER 27.  But it will be a convenient course to do so.

37.  I already observed that a “quasi-easement” in the contractual sense only involves a construction of the terms of a contract (such as a deed of mutual covenant, or other conveyancing documents), and that it can be founded on the same facts needed to found a cause of action in easement.

38.  In the context of this action, I am satisfied the above observation is applicable here (that is, a case based on “quasi-easement” in the contractual sense can be founded on the facts already pleaded by the plaintiffs).  This action therefore should fall within Ord. 18 r. 11 (and hence an amendment to the pleading is unnecessary).

39.  The only other matter of importance is to make sure the parties have a reasonable opportunity to meet the alternative case.  I am also satisfied that D1 has a reasonable opportunity to address the issue (because the arguments which can be raised are the same as those raised in relation to the original case of easement).

40.  Ord. 20 r. 8(1) provides:-

“For the purpose of determining the real question in controversy between the parties to any proceedings, … the Court may at any stage of the proceedings and … of its own motion … order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct” (emphasis supplied).

It is said the power is very rarely exercised because the court’s function is not inquisitorial, but is to act as a kind of umpire: Hong Kong Civil Procedure 2008, para. 20/8/3.  On the other hand, the paramount consideration of the court is still to achieve a just result as far as it is possible to do so, without causing undue prejudice to any of the litigants: Hong Kong Civil Procedure 2008, para. 20/8/6.

41.  I have already stated above that no amendment is needed for raising a case of “quasi-easement” in the contractual sense.

42.  In any event, in this action, no irreparable prejudice is caused to D1.  The facts and arguments in support of the alternative case should remain unchanged.  On the other hand, if a technical approach were adopted to restrict the cause of action here to a pure easement, the substantive merits of the parties’ respective case cannot be examined properly.

(e) Derogation from Grant

43.  As regards an alternative case of “quasi-easement” in the Wheeldon v. Burrows sense, the consideration is more complicated.

44.  One of D1’s arguments here is that any “quasi-easement” in the Wheeldon v. Burrows sense involves an inquiry into whether there were:-

“continuous and apparent easements … which have been and are at the time of the grant used … for the benefit of the part granted” (Kung Ming Tak Tong, para. 45).

In other words, an investigation into this aspect may involve a consideration of post-grant events.

45.  I agree with D1’s above argument.  Ord. 20 r. 5(5) stipulates:-

“An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment” (emphasis supplied).

46.  Because of the possible need to consider post-grant events, a cause of action in “quasi-easement” may necessitate an examination of facts further to those disclosed by the evidence adduced at trial.  For this reason, it is inappropriate at this late stage to exercise the power conferred by Ord. 20 r. 5(5) to facilitate arguing this alternative case in this action.

(f)  Conclusion on Easement and Quasi-Easement

47.  By reason of the above matters, I conclude in the plaintiffs’ favour as regards the legal validity of the easement conferred by clause 4.

48.  Insofar as it may be necessary to do so, the plaintiffs should be permitted to pursue an alternative case of “quasi-easement” in the contractual sense.

49.  In addition, I am also satisfied that, on the facts pleaded and proved at trial, there is sufficient factual basis for the court to conclude the alternative case has been established.

50.  The paragraphs below are to be understood in the context of the above conclusions set out under this sub-heading.

Scope of Grant

51.  The parties do not dispute the proper approach of construction to be as follows:-

“In the case of an express grant the language of the instrument must be referred to. … It is for the court to construe that language in the light of the circumstances.  These may include … the physical characteristics of the land at the date of the grant which may help determine both the physical extent of the servient land and the mode of user intended.  It has been said that the question of construction must always be approached by reading the text of the grant in a practical way, looking at the geographical and commercial realities … ” (emphasis supplied) (Gale on Easements (2002) 17^th Ed., para. 9-14);

“It seems that, subject to any qualifying words … the authorized mode or quality of user … is as general as the physical capacity of the locus in quo at the time of the grant will admit, unless in any particular case (which must be rare) some limitation on mode of user can be gathered from the surrounding circumstances … ” (emphasis supplied) (Gale, para. 9-15).

52.  D1’s arguments here are in essence these:-

(a) because clause 4 is a multilateral grant, the general rule that a grant must be construed most strongly against the grantor does not apply: Jumbo King Ltd. v. Faithful Properties Ltd. and Others (1999) 2 HKCFAR 279, 296;

(b) clause 4 also confers rights in favour of parties other than the plaintiffs;

(c) the language of clause 4 makes no reference to access outside of the Fourth Property (such as access to and from Castle Peak Road);

(d) clause 4 should be construed in the context of the physical limitations existing at the time of the grant;

(e) post-grant events are irrelevant to the construction of clause 4.

53.  The arguments summarized in para. 52(a) to (c) and (e) above will be dealt with under the sub-heading “(b) The Language Used” below whereas that summarized in para. 52(d) above will be dealt with under the sub-heading “(c) Physical Characteristics”.

54.  Although the topic is discussed under separate sub-headings, I have borne in mind the observations in St. Edmundsbury v. Clark (No. 2) [1975] 1 WLR 468 (adopted in White v. Richards (1993) 68 C & PR 105) to the effect that, in this exercise, the instrument in question and the surrounding circumstances have to be considered together (at p. 477).

(a) Conveyancing Background and Design

55.  The conveyancing background leading to a grant is relevant to construing the true meaning of the grant: para. 51 above and Kung Ming Tak Tong, para. 7 to 16 and 17 to 21.

56.  Here, I agree with the plaintiffs that the conveyancing history (summarized by the court of appeal quoted in para. 4 above, and in my Ruling on Admissibility handed down on 11 January 2008) shows that clause 4 must have intended the right of way to be used by long and/or heavy vehicles for the purpose of using the plaintiffs’ property as a container storage yard.

57.  For ease of reference, the relevant facts are:-

(1) the 1980’s saw a boom in the container trade in Hong Kong (see remarks to similar effect in Niceboard Development Ltd. v. China Light and Power Co. Ltd. [1994] HKDCLR 69,83);

(2) as a result, there was a great demand for storage space for containers and parking space for the related vehicles;

(3) the decision in Attorney General v. Melhado Investment Ltd. [1983] HKLR 327, which concluded that the descriptions in the Block Crown Lease were not user covenants, resulted in a lot of New Territories land (formerly used for agriculture) being used for such purposes;

(4) it was in such context that 3 transportation companies executed the conveyancing documents referred to in the court of appeal’s judgment (para. 6 thereof quoted in para. 4 above);

(5) the total price for such acquisition, according to the documents, was over $12.7 million ($10.99 million + 836,352 + 224,880 + 705,672) (which must have been quite a substantial sum in 1988);

(6) concurrent with the acquisition of the relatively large piece of land, the said 3 companies partitioned it among themselves.  In addition, the Fourth Property was carved out to be a piece of co-owned land, with a specific provision (that is, clause 4) that it be used as a

“… full and uninterrupted right of way … for all purposes in connection with the proper use and enjoyment of the [partitioned land] … to go pass and repass with or without vehicles … ”;

(7) immediately before the conveyancing, that large piece of land was mostly farmland or fish ponds.  The Fourth Property, which has been designated as a “right of way … to go pass and repass without or without vehicles”, was not physically in existence at the time.

58.  Besides the above, as has been noted in my ruling handed down on 11 January 2008:-

“[Castle Peak Road] in those days was a major trunk road linking the areas in the West New Territories to Hong Kong’s border with the mainland and to the urban areas in Hong Kong”.

So far D1 has made no submission against the above.

59.  In view of the above background:-

(a) it is quite improbable the large piece of land was acquired to be kept as farmland and fish ponds;

(b) among the various possible uses to which the large piece of land could have been put, the only reasonable inference is that the 3 purchasers acquired the large piece of land for the purposes of using it for container storage and/or container truck/ trailer parking;

(c) further, and for the purpose of (or in connection with) the usage referred to in sub-para. (b) above, the Fourth Property must have been intended to be a private access road for the common use of the 3 purchasers;

(d) the overall scheme of the conveyancing transaction is consistent with the usage referred to in sub-para. (b) and (c) above.

60.  The relevant background includes the then prevalent practice of turning agricultural land in the New Territories into container yards and the like; the business of the 3 purchasers being in transportation; the proximity of the land acquired to a major trunk road; and a substantial price being paid for the acquisition.

61.  In relation to the design of the conveyancing transaction, the concurrent partitioning of the large piece of land and the “reservation” of a strip of land specifically designated as a “right of way” are important.  This shows that the 3 purchasers must have preconceived how the large piece of land was to be shared (and utilized) among them.

(b) The Language Used

62.  As D1 (correctly) accepts, the use of the word “vehicles” in clause 4 is a word of wide import: para. 11, D1’s closing submissions.  But it argues that

“… given the physical limitations and configuration of the right of way … (it cannot be assumed) that [the Fourth Property] was to provide access, for all manner of vehicles, to Castle Peak Road/Government land … ” (para. 9, D1’s closing submissions).

63.  Discussion with regard to D1’s arguments relating to the physical limitations and configuration of the Fourth Property (and the access between it and Castle Peak Road) can be found under the next sub-heading “(c) Physical Characteristics”.

64.  The general rule referred to in para. 52(a) above does not need to be considered if the language used is unambiguous (as in the case of the wording of clause 4).

65.  In relation to para. 52(b) above, D1 has not made clear what it considers to be the meaning of the word “others” in the phrase “others also possessed rights in or over the Fourth Property”.  There is no doubt the word “rights” in clause 4 means:-

“a full and uninterrupted right of way … in connection with the proper use and enjoyment of the [partitioned land] … to pass and repass with or without vehicles … ”.

In view of the background leading to the conveyancing transaction in November 1988 (see para. 57 to 61 above), the word “others”, at the time of grant, must mean any of the 3 transportation companies which became the co-owners of the partitioned land (before they were partitioned) and the Fourth Property: Gale, para. 9-52.

66.  Para. 52(c) above cannot assist D1’s case.  It is true clause 4 makes no reference to access beyond the Fourth Property itself.  But when considering whether this should affect the meaning of the words in clause 4, it is important to remember that clause 4 appeared in one of the title documents in a conveyancing transaction (the focus of which was naturally the transfer of title (both as against the whole world and among the 3 purchasers themselves)).  The absence of any reference to access beyond the property to be conveyed is therefore at most neutral, and incapable of either expanding or limiting the ordinary meaning of the words in clause 4.

67.  Para. 52(e) concerns the sale and purchase agreement dated 21 December 1988 between the plaintiffs and their predecessor-in-title.  This was executed after the partition of the land among the 3 purchasers (and the execution of other related conveyancing documents among them).  The sale and purchase agreement provided that the plaintiffs’ land be reclaimed and a 2-way carriageway of not less than 22 feet wide be built.  Further, the plaintiffs’ land was in fact reclaimed afterwards.  I agree with D1 and have not taken these matters into account.

(c) Physical Characteristics

68.  The relevant physical characteristics have been summed up by Gale (para. 9-14 and 9-15, referred to in D1’s opening submissions, para. 42):-

(1) they must be those present at the time of the grant;

(2) the locus in quo over which the way is granted;

(3) the nature of the terminus ad quem;

(4) the purpose for which the way is to be used.

69.  D1 has referred to quite a few court decisions where a word of apparently wide import was given a restricted meaning because of the physical characteristics of the right of way granted. 

70.  Examples of such decisions are St. Edmundsbury v. Clark (No. 2) (a path between narrow gateposts was held to be limited to pedestrian (and not vehicular) access), Charles v. Beach [1993] EGGS 124 (a small flower-bed which was held to be of a “transient” character), White v. Richards (2.7-metre track formed of crushed stone embedded in the topsoil held to be restricted to vehicles of certain dimensions and weight) and Keefe v. Amor [1965] 1 QB 334.

71.  Without disrespect to counsels’ industry, and at the risk of over-simplification, those decisions were determined based on the facts placed before the courts.  Their usefulness to this action is nothing much more than reaffirmations of the legal propositions in Gale (quoted in para. 51 above).

72.  I also agree with the plaintiffs’ argument that those were decisions where both the physical limitations and the right of way were already in existence at the times of grant.  Judging from the way in which this part of its case is advanced, D1 must have accepted that the relevant physical characteristics must be those existing at the time of grant (see particularly D1’s opening submissions, para. 45).

73.  Insofar as this aspect of D1’s case is premised on similar basis (that is, a pre-existing right of way), I reject it as being misconceived.  This is because, as has been noted by the court of appeal (see the quote at para. 4 above) and para. 57(7) above, what has been delineated as the Fourth Property in the conveyancing documents was mostly farmland or fish ponds.  Thus, if the right of way were intended to be granted over such kind of landscape, it would not have been fit for any vehicular access (except perhaps special vehicles designed for use over rough terrain).  That simply could not have been what the 3 purchasers intended at the time.

74.  In fact, leaving aside the physical limitations relied upon by D1 (which will be discussed further below), the background surrounding the grant of the right of way is consistent with the use of the Fourth Property by container trucks and/or vehicles the dimensions of which are much larger than those contended for by D1: para. 57 to 61 above.

75.  To better understand the nature of the physical limitations relied upon by D1, the Fourth Property should be briefly described.  In terms of the land delineations adopted by the Government, the Fourth Property falls on Lots 43SB ss 1, 1271SA, 1270SA, 1312SA and 1318RP (following a generally north west to south east direction).

76.  Lot 1318RP, the land lot closest to the piece of Government land running parallel to Castle Peak Road, lies somewhat at right angles to the neighbouring Lot 1312SA (as well as the other lots).  Lot 1318RP itself runs parallel to the Government land.

77.  This part of D1’s case is focused on the physical environment around Lot 1318RP.  The gist of the relevant averments in the Amended Defence (amended in March 2008) are:-

(a) at the time of grant, there was a slope about 3 metres high in existence on the Government land: para. 3(3) thereof.  That slope is called “the 1^st Slope” in the Amended Defence (and was delineated in blue in “Annexure 1” thereof (which itself was a Government survey plan));

(b) in about 1995 or 1996, apart from an opening in the middle of the 1^st Slope, another slope of about 3 metres high was created near to the said opening (“the 2^nd Slope” in the Amended Defence) (the 2^nd Slope was delineated in red in “Annexure 3” (which is also a Government survey plan)): para. 3(6) thereof;

(c) by reason of the existence of the 1^st Slope and/or the 2^nd Slope, vehicular access, in particular vehicular access of container trucks 11 metres long, was totally impossible: para. 3(8) thereof.

In gist, it is said that the topography was too narrow and/or too steep for a vehicle (especially a long vehicle) to emerge from (or enter) Lot 1318RP.

78.  D1’s expert reports also refer to two “bottlenecks” along the Fourth Property.  The first was found in Lot 1312SA (which measures 6 metres to 6.2 metres wide from boundary to boundary).  The second was found in Lot 1271SA (which measures 6.4 metres to 6.9 metres wide).

(1) Delineation of the Fourth Property

79.  In White v. Richards, the English court of appeal rejected the submissions of the defendant (the owner of the dominant tenement):-

“… [the right of way] was capable of fluctuating in width depending on the season, the axle width of the vehicles that had most recently used it and the decree to which the driver kept his vehicle to the centre of the existing route … ”

(In short, a submission that the right of way was not rigidly delineated).  There, the right of way was delineated by a plan described as “for the purpose of identification only”.  The land lots involved were agricultural land.  The parties’ dispute was what kind of traffic (accepted to be “for all agricultural purposes” only) was permitted by the express grant.

80.  In this action, there is no contention that clause 4 or the annexed plan intended that the Fourth Property needs only follow a general route which is capable of fluctuation.

(2) Ability of Lengthy Vehicles to Turn

81.  The relevance of “Route 1” is said to be:-

“… as at the date of the Deed of Partition [and until about 1995 or 1996], Lot 1318RP could not be used for access … The route actually used for access to the adjoining Government Land/Castle Peak Road was … “Route 1” … ” (para. 3(4), Amended Defence).

Location-wise, instead of going through the whole of the Fourth Property, “Route 1” deviated south from about half way through Lot 43SB ss 1, then wandered along other land lots before going out to Castle Peak Road, through an opening at the 1^st Slope.

82.  The relevance of “Route 2” is said to be:-

“[sometime in around 1995 or 1996] … a second slope … of … around 3 metres was created between Lot 1318RP and the adjoining Government Land … ” (para. 3(6)(b), Amended Defence);

“The 2^nd Slope was again a physical barrier which rendered access … between (a) Lot 1318RP and (b) the adjoining Government Land and Castle Peak Road impossible.  The route actually used for access to the adjoining Government Land/ Castle Peak Road … to late 2006 was via … [“Route 2”] … ” (para. 3(7), Amended Defence).

Location-wise, “Route 2” deviated north at around the boundary of Lots 43SB ss 1 and 1271SA, then roughly followed Lot 1312RP (instead of Lots 1271SA, 1270SA or 1312SA) before going out to Castle Peak Road.

83.  Maunsell Consultants Asia Ltd. (“Maunsell”), the plaintiffs’ expert, observed the land lots partitioned and respectively held by the 3 purchasers were reclaimed in about September 1989.  Container trucks and containers were seen placed thereon since then.  This is consistent with the parties’ intention found under the sub-heading “(a) Conveyancing Background and Design”.

84.  “Route 1” is clearly visible in the aerial photographs taken from 8 September 1989 onwards.  There might have been various reasons why that route was used instead of the Fourth Property.  But ultimately it would either be a matter of necessity (because access through the Fourth Property was impossible) or of convenience.

85.  D1’s expert, Ho Wang SPB Ltd. (“Ho Wang”), opined that “Route 1” was used because:-

“… [the] attached swept path analysis Figure 22 shows that if container vehicles were to travel to the north from Lot 43 SB ss4 via Lot 1318 RP … they would have to either intrude into private land or run into [the] 1^st Slope which is physically not feasible” (para. 3.2, Ho Wang’s supplemental report dated 17 November 2007).

Figure 22 is a swept path analysis superimposed on an aerial photograph taken in November 2007.  Maunsell disapproved the use of an aerial photograph for swept path analysis on several grounds, including distortion which affects accuracy (para. 4.1.2, supplemental report No. 3 dated 15 February 2008).

86.  Besides methodology, Maunsell’s conclusion is also different from Ho Wang’s.  Maunsell says in its preliminary technical report:-

“[shown] on [drawings] Nos. 1 (Sheets 1 to 4) are the swept path analysis of a feasible access layout involving the entrance or exit of a container truck to either traffic lane of Castle Peak Road … ” (para. 3.6 thereof).

The drawings were based on the topographic survey data appearing on a drawing of KELand Surveying, Planning & GIS Co. Ltd. (“KELand”), D1’s surveyor dated 6 November 2007.

87.  But the above difference in opinion does not assist the determination of this action; the difference is the result of different parameters.  Figure 22 relied on by Ho Wang shows that when a container-truck goes north after coming out from Lot 1318RP, it needs to take a 90-degree left turn in order to do so.  On the other hand, the drawings from Maunsell show swept path analyses which were based on vehicular traffic going south after leaving Lot 1318RP instead (which does not involve a vehicle making a 90-degree turn).

88.  However, Maunsell carried out another set of swept path analysis showing the feasibility of container traffic in and out through Lot 1318RP for both north- and south-bound directions (para. 4.1.3 to 4.1.4 and 5.1 to 5.2, supplemental report No. 3).  This set of analysis is more helpful to resolving this aspect of the parties’ dispute.

89.  The divergence in the respective opinion of the parties’ experts stemmed ultimately from whether there was a physical impediment at the time of grant, namely, whether the 1^st Slope was such as would render container truck traffic out of (or into) Lot 1318RP impossible (para. 3(3) and (4), Amended Defence (see also para. 77(a) and 81 above)).

90.  The present day situation is relatively clear.  As the court of appeal observed in its judgment:-

“Looking at [the topographic survey plan produced by KELand], it would appear that at the proposed point of access, the level at the boundary between the government road and 1318RP is marked 6.18 and the middle of the government road at that point is marked 6.21, a difference of a mere 3 cm.  It is also evident from that plan that the middle of the northwestern edge of Lot 1318RP (at or just after the so-called access ramp constructed on Lot 1312A) is marked 5.49 and rises as the New Access crosses Lot 1318RP to 6.08 at approximately 1 m from the boundary with the government road.  There is thus but a difference of roughly 13 cm in level between that point (6.08) and the middle of the government road” (para. 26).

91.  Conversely, whether it is established the 1^st Slope and/or the 2^nd Slope existed in November 1988 and about 1995 or 1996 respectively, depends on the expert evidence adduced at trial.

92.  In short, I am not satisfied there is reliable evidence (whether from the expert witnesses or otherwise) that the so-called 1^st Slope or the 2^nd Slope existed, or, if they did, they were such an obstacle as would render traffic in and out of Lot 1318RP by container trucks to be impossible:-

(1) I am not satisfied that any of D1’s expert has given reliable evidence regarding the height difference created by the 1^st Slope (or the 2^nd Slope) at the time of grant (that is, a height difference of about 3 metres);

(2) even if the height of the 1^st Slope or the 2^nd Slope were as claimed in the Amended Defence, I am not satisfied that they could not be removed (or lowered, as appropriate) at reasonable costs.  To that extent, the 1^st Slope and the 2^nd Slope were not “a physical barrier of sufficient permanence and substantiality to negative” the intention earlier found under the sub-heading “Conveyancing Background and Design”: see Charles v. Beach, at pp. 3 and 7.

93.  The reasons for reaching the conclusion set out in para. 92(1) above include the following.

94.  First, I agree with the plaintiffs that superimposing a swept path analysis on an aerial photograph is not an acceptable (or at least reliable) method.

95.  Secondly, I do not accept Ho Wang’s opinion that the dark colour patch seen in the aerial photography taken in November 2007 represents the 1^st Slope (para. 4.5, supplemental report).  The basis on which the opinion was founded has not been explained.  Further, quite a few other objects in the photograph must have been vegetation as well; and their colour is very similar to (if not the same as) the dark colour patch identified by Ho Wang to be the 1^st Slope.  I therefore find the plaintiffs’ expert witness opinion that the dark colour patch was in fact vegetation, and not a slope, to be more reliable.

96.  Thirdly, Ho Wang’s testimony at trial referred to another slope, the location of which is different from either the 1^st Slope or the 2^nd Slope pleaded in the Amended Defence.  There is no satisfactory reason given for the change of opinion.

97.  For similar reasons, I am not satisfied that “Route 2” was used because of the impossibility of heavy vehicle traffic caused by physical obstacles.

98.  To sum up, as between the expert evidence adduced by the plaintiffs and D1, I prefer that adduced by the plaintiffs.

99.  For that reason, I accept the expert opinion of the plaintiffs’ expert to the effect that the width of the Government land which was available for container-truck traffic (particularly that part immediately outside Lot 1318RP) was about 8.5 metres, and I do not accept that of D1’s experts to the effect that the width was only 3.4 to 4 metres.

100.  Consequently, I do not consider the alleged physical characteristics to have significance in relation to the construction of clause 4.

(3) Bottlenecks

101.  The fact that there were two bottlenecks along the Fourth Property is undisputed (para. 78 above).

102.  But I am not satisfied there is reliable evidence the bottlenecks by themselves constitute any substantial impediment to container-truck traffic.

(4) Conclusion on Physical Characteristics

103.  I do not find that the physical characteristics at the time of grant show that the easement by express grant was intended to have a restricted meaning despite the use of the word “vehicles” (which D1 accepts is a word of wide import (para. 62 above)).

Conclusion on Liability

104.  To sum up, I am satisfied that clause 4 was intended to confer a right of way in favour of the plaintiffs for access by container-trucks and/or other heavy vehicles for the purpose of (or in connection with) using the plaintiffs’ land as a container or container-truck yard.

105.  It is again undisputed that D1:-

(a) erected hoardings along the Fourth Property;

(b) constructed a new access on Lots 1318RP and 1312A (“the New Access”);

(c) placed a container or booth at an opening built at between Lot 1318RP and the Government land which controls traffic through Lot 1318RP.

Further, a ramp was constructed on the New Access.  It is D1’s case the ramp was not constructed (nor is it suitable) for use by heavy vehicles.

106.  Irrespective of the details of the construction, D1 has frankly admitted that it is not prepared to permit container-trucks or other heavy vehicles to go through or over the Fourth Property.  The purpose of the above constructions is and was to achieve such aim: D1’s opening submissions, especially para. 38.

107.  As regards the ramp it constructed earlier, D1 argues that there is no legal duty on the part of the owner of the servient tenement to:-

(1) ensure the road surface of a right of way is suitable for the use of the owner of the dominant tenement;

(2) repair the right of way.

108.  As a general proposition, the above statements are correct.

109.  But that does not mean the owner of the servient tenement can somehow render a right of way unsuitable for the purpose for which the right of way was granted.

110.  In view of the findings as to the scope of the grant, and D1’s actions summarized above, I am satisfied that D1 has acted in breach of clause 4.

(a) Plaintiffs’ Claim

111.  By reason of the above matters, judgment should be entered in the plaintiffs’ favour.

(b) D1’s Counterclaim

112.  On the other hand, D1’s counterclaim should be dismissed.

Injunctive Relief

113.  Among other things, the plaintiffs seek injunctive relief against D1.  It is undisputed the court is exercising its discretionary powers when granting such relief.

114.  D1 claims that conditions ought to be imposed when the court is considering whether to grant the injunction sought.  Alternatively, the court should at least give directions as regards the matters set out in para. 115 below.

115.  Two matters are put forth: one, road safety concerns and, two, the potential danger created by the ramp constructed by D1: para. 30, D1’s closing submissions.

116.  Before turning to the merits of the argument, I will say a few words on jurisdiction.  As stated above, certain parts of the parties’ expert evidence have been excluded.  Essentially these related to the physical features surrounding the Fourth Property after November 1988.  The court of appeal upheld the ruling, but said in its judgment:-

“Plainly once the scope of the right of way granted has been determined it will lead to a more focused approach when it comes to the question of relief.  If the judge considered it necessary at that stage to have some assistance from the experts on specific aspects of the right of way, it would be open to him to give the necessary directions” (emphasis supplied) (para. 27 thereof).

117.  I have no doubt when the court’s discretion is engaged, all relevant matters should be taken into account.  The court of appeal’s above observation only reinforces that conclusion.  The crucial question therefore is: what matters are relevant?

118.  Some guidance can be found in the decision in Kung Ming Tak Tong in this regard:-

“…it is sometimes thought that the grant of a right of way in respect of every part of a defined area involves the proposition that the grantee can object to anything on any part of the area which would obstruct passage over that part.  This is a wrong understanding of the law.  Assuming a right of way of a particular quality over an area of land, it will extend to every part of that area, as a matter, at least, of theory.  But a right of way is not a right absolutely to restrict user of the area by the owner thereof.  The grantee of the right could only object to such activities of the owner of the land, including retention of obstruction, as substantially interfered with the use of the land in such exercise of the defined right as for the time being is reasonably required” (Keefe v. Amor at p. 347, cited in Kung Ming Tak Tong, para. 54).

119.  As stated above, whether to grant an injunction is ultimately a matter of discretion, which has to be exercised judicially and not arbitrarily. 

120.  Further, the exercise of a discretion often involves considering potentially conflicting (or at least competing) factors; in other words, it is often a balancing exercise.  From such premise, there are at least two problems with regard to this part of D1’s case.

121.  The “particular quality [of the right of way] over [the Fourth Property]” has already been found above (para. 104 above).  What other matters the court needs to take into account when exercising its discretion will depend on the circumstances.  But one thing is certain, having made such a finding, the discretion should not be exercised in a manner which (in the words of the Court of Final Appeal):-

“substantially [interferes] with the use of the land in such exercise of the defined right as for the time being is reasonably required”.

I do not at present completely rule out rare and exceptional cases where such a proposition may be departed from.  But no circumstance in this action shows this to be one of those cases.

122.  Moreover, there must be admissible evidence relating to matters relevant to such an exercise.  The exercise cannot be based on conjecture as to what those matters may be.

123.  D1 states in its closing submissions that:-

“The factual basis for [road safety and slope stability] concerns is provided in the evidence of Ms. Christina Lam and also that of [Ho Wang] and would have been further explained and explored had not parts of the expert evidence … been excluded” (para. 31 thereof).

This statement is in effect a complaint that expert evidence relevant to this aspect has wrongly been excluded.

124.  The evidence in question having been ruled inadmissible by this court, and the appeal therefrom having been dismissed, it is not open to D1 make such complaint.

125.  But, more importantly, the complaint is without substance.  The matter has in fact been dealt with in the ruling handed down on 11 January 2008:-

“The plaintiffs’ case in this application is that the disputed expert evidence is irrelevant and therefore inadmissible.  D1 contends otherwise and submits that it is relevant to … the suitability of the road since [the date of the deed of partition] up to today.

Suitability was assessed by the experts from the right of way’s dimensions, routing (or layout) as well as the physical construction (and strength) of the road surface” (emphasis supplied) (para. 18 thereof);

“D1 argues that the disputed expert evidence concerning the post-1988 physical conditions of the right of way is relevant to the following issues:-

(a) it must have been the reasonably contemplation of the parties to the deed of partition that the authorized user must be proper and lawful and accords with the requisite standards applicable from time to time.  Expert evidence is relevant to this aspect;

(b) whether there has been excessive user which results in nuisance to and interference with the plaintiffs’ neighbours;

(c) the injunction sought by the plaintiffs is a discretionary relief.  Expert evidence is also relevant to this aspect” (emphasis supplied) (para. 23 thereof);

Having rejected D1’s argument set out in para. 23(a) and (b) thereof, I continued:-

“That leaves the argument set out in para. 23(c) above.  …  The argument is that, even if the court should grant the relief, it should be subject to various conditions” (para. 28 thereof);

“…as the plaintiffs correctly point out, the portion of the land originally conveyed to D1 is not yet put to actual residential use.  There is simply no information regarding the extent to which the Fourth Property (or, more precisely, the route which the plaintiffs have been using since about 1988) may also be used by D1 and/or its successors-in-title.  The expert reports do not contain any such facts.  The reasonableness of D1’s traffic control measures cannot be assessed from such perspective” (emphasis supplied) (para. 31 thereof).

126.  As stated above, the ruling on admissibility was handed down in January 2008.  The second part of the trial commenced on 4 August 2008.  Up to the end of the trial, D1 has not adduced any evidence relating to how the court’s discretion can be exercised which will not:-

“substantially [interfere] with the [plaintiffs’] use of the land in such exercise of the defined right as for the time being is reasonably required”.

127.  As regards road safety, the general tenure of D1’s expert evidence leads to the almost inevitable conclusion that the plaintiffs’ use of the right of way will have to cease (or, at the very least, will have to be severely curtailed).

128.  An example of this can be found in Ho Wang’s supplementary report:-

“I strongly consider that 2-way operation of container vehicles is not feasible on the Fourth Property which is 6.0m-6.2m in width at its narrowest part and 6.7-6.9 at the wider part.  That fact that the Fourth Property will also need to serve pedestrians, bicycle and other two-ways vehicle traffic make one-way operation of container traffic unsafe and impracticable” (emphasis supplied) (para. 4.3 (which has not been excluded by the ruling)).

Further examples can be found at para. 37, 38, 56, 57(2) to (5) and (7) to (12) and 69, D1’s opening submissions; para. 2 and 37 (adding “footpath or some other measures [for] … pedestrian safety”), D1’s closing submissions; para. 22, 25(a), 26(1) to (3), affirmation of Ms Christina Lam (“Ms Lam”) dated 20 March 2007 (adopted as part of her testimony at trial).

129.  D1’s stance as regards the ramp can be summarized as this: because of the unsuitability of the ramp for container truck traffic, such traffic should not be permitted unless the potential hazard has been sufficiently dealt with in some way: para. 59 to 62, D1’s opening submissions; para. 2 and 39, D1’s closing submissions.  It is not D1’s case that the ramp should be removed.

130.  D1’s case regarding excessive user is at best ambiguous.  In its opening submissions, D1 referred to Jelbert v. Davis [1968] 1 WLR 589 for the proposition that an authorized use can still be validly objected to if the frequency of use is excessive: para. 50 to 55 thereof.  It is unclear if such argument is still pursued at the end of the trial.  The testimony of Ho Wang’s expert witness regarding the level of container-truck traffic is simply unreliable.  What he in effect did was to project the volume of container-truck traffic, using as the base of calculation the number of vehicles captured in one aerial photography (out of quite a number of aerial photographs).  There is thus no basis in support of any excessive use.

131.  By reason of the matters aforesaid, I consider that it is appropriate to grant the injunction sought by the plaintiffs in the Amended Statement of Claim, without the need for further directions.  The plaintiffs have helpfully submitted a draft minutes of order (para. (1) to (3) thereof) with their closing submissions dated 8 September 2008.  D1 has not raised any objection to the terms of the draft.  I am satisfied an order in those terms should be made.

132.  For the avoidance of doubt, I have taken into account the testimony of Ms Lam when determining this action (see also para. 139 to 141 below).  Ms Lam is the only factual witness for D1.  She is a director of D1.

Damages

133.  The plaintiffs also seek the following damages:-

(a) $126,000 being fees paid to Chuen Kee Trailers for obtaining permission to use an alternative access at $18,000 per month from January to July 2007;

(b) $168,000 being fees paid to Golden Phoenix Management Ltd. for obtaining permission to use an alternative access at $12,000 per month from August to September 2008;

(c) $4,000 being the reduction of the rental income payable by their tenant for January 2007 because of the interference with the use of the Fourth Property;

(d) $28,000 being the reduction of the rental income payable by another tenant from January to July 2007 for the same reason;

(e) $1,350 being expenses paid to remedy the broken surface of the entrance to the plaintiffs’ land caused by D1’s erection of fencing/hoardings.

134.  No contradictory evidence has been adduced; nor has argument against the claims been raised.  I am satisfied about the claims both as regards causation and quantum.  Judgment will be entered in the plaintiffs’ favour accordingly.

Other Matters

135.  When the expert witness from Hyder testified at trial, he was asked to adopt a report relating to the ground profile across Lot 1318RP.  This was opposed by the plaintiffs.  Having heard the parties, I refused to give leave for this to be adduced into evidence.

136.  The purpose of adducing the report was in short to establish a slope which is in addition to the embankment (over which a stair has been built).  The embankment is undisputed, but this slope is.  It was first expressly referred to at trial in the cross-examination of Maunsell, and in the testimony of Ho Wang (but without the pre-trial discovery of expert reports).

137.  The testimony of Ho Wang regarding this aspect has been dealt with in para. 95 and 96 above.

138.  D1 first sought the introduction of this piece of evidence on 7 August 2008 (the 3^rd day of the second part of trial).  The plaintiffs were prejudiced in that they have not had an earlier opportunity to meet it through their own experts.  Any adjournment would have further delayed the matter unduly.

139.  D1 also took out a summons dated 2 August 2008 which seeks leave in effect to adduce further evidence from Ms Lam.  The further evidence in gist concerns visible signs of physical instability of the ramp.  It is said that the metal hoarding abutting the ramp had bulged out showing that the ramp had exerted excessive load onto the hoarding.  Ms Lam concluded therein the ramp was meant to serve light traffic only.

140.  I consider leave should be given for Ms Lam to adduce such evidence.  The matter has been taken into account under the heading “Injunctive Relief” above and will not be repeated.

141.  There was also an attempt to adduce expert evidence from Ms Lam regarding the interpretation of aerial photographs.  This attempt was vexed with several problems: there is no proper evidential basis of her expertise; to permit her to be treated as an expert only in the course of her testimony will likely to cause prejudice to the plaintiffs (similar to that set out in para. 138 above).

142.  The strict legal position of the plaintiffs differ.  But the trial has proceeded as if there was no difference between them.  For convenience, this judgment also draws no distinction between their strict legal position.

Costs Order Nisi

143.  There is no apparent reason for departing from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this action be paid by D1 to the plaintiffs to be taxed if not agreed.