MAK YU SUN v. CHUNG SIU HUNG t/a HUNG TAT TRADING CO.

1987 No. A5753

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is not at all a very pleasant case. It is unpleasant because none of the parties to the action, the plaintiff, 1st, 2nd and 3rd defendants, seems to be at fault, and yet this case is to be won or lost at their personal expense.

2. The plaintiff and the 3rd defendant are owners of adjoining properties on a floor of the building in question. It transpired that the predecessor-in-title of the plaintiff and the 3rd defendant both received an assignment of their respective premises from the same developer, the Ping Yip Development Company Limited. They were both given the usual type of assignment with a usual type of block plan or sketch attached to it. On taking their respective assignments, the existing partition wall was in situ.

3. The plaintiff complains that the partition wall between these two adjoining premises has been so errected that it now encroaches upon his property. He would like the partition wall to be demolished and reinstated at the proper boundary. The plaintiff relies on the assignment and the block plan, and he maintains that the 3rd defendant's assignment together with the block plan reflects no inconsistency with his documents of title.

4. The 3rd defendant who appears by his attorney. Madam Lam, has taken his assignment and now sublet his premises to the 1st and the 2nd defendants with that partition wall. Understandably, the 3rd defendant feels aggrieved and resists the application of the plaintiff against the 1st, 2nd and 3rd defendants for final judgment under Order 19, rule 7 and Order 14, rule 1 of Rule of Supreme Court.

5. The 1st and the 2nd defendants have taken no part in these proceedings and they are not present today. The 3rd defendant appears by Counsel and raises staunch opposition to the plaintiff's application.

6. Miss Chu, Counsel for the 3rd defendant, has tried her very best in a virtually hopeless case. I make that observation for the following reasons, first, it is conceded that the assingment, together with the block plan to the plaintiff, as well as that together with the respective block plan to the 3rd defendant, are not obscure or imprecise. The block plans to both assignments clearly delineate the dimensions of the respective premises of the plaintiff and the 3rd defendant. Counsel for the rd defendant submits that the matter is to be tested not by an examination of the block plans in question which are consistent one with the other, but by a scrutiny of the oral description in the parcel clause of the operative part of the respective assignment.

7. Counsel seeks to illustrate her point by referring to the parcel clause in the assignment to the plaintiff. It reads : to "FIRST ALL THOSE 6 equal undivided 364th parts or shares of and in ALL THAT the said niece of parcel of ground situate lying and being at Kowloon aforesaid and registered in the Land Office as KOWLOON INLAND LOT NO. 8549, AND SECONDLY ALL THAT the estate right title benefit and the interest of the Vendor of and in ALL THOSE 6 equal undivided 364th parts or shares of and in ALL THAT the said piece or parcel of ground situate lying and being at Kowloon aforesaid and known and registered in the Land Office as KOWLOON INLAND LOT NO. 9869".

8. Counsel maintains that the plans are not to be conclusively relied upon in the light of the existing location of the partition wall. These block plans could possibly be, so Miss Chu argues, erroneous in the demarcation of the boundary between the premises of the plaintiff and the premises of the 3rd defendant. Counsel concedes, however, that the partition wall could also possibly be wrongly placed. Counsel contends that it is for the plaintiff on his instant application to satisfy the court that he is entitled to the relief sought. All other possibilities unfavourable to the plaintiff must be properly eliminated.

9. In order to do so, Counsel suggests, one must necessarily turn to the oral description in the parcel clause in the operative part of each assignment. Counsel claims to derive no assistance from the reading alone of the portion I have quoted without viva voce competent expert evidence as to what precisely the dimensions of the respective premises are. That part of the parcel clause I have quoted is classical, has been used for more years than I can remember and has stood the test of time. I cannot, for myself, see how any clarification is needed or could be obtained from the suggested oral evidence of Miss Chu.

10. It is impossible for anyone to specify and locate precisely where the 6 equal undivided 364th parts or shares are in the building. Parcel clause defines legal estate in common ownership and exclusive user is generally, as in this case, delineated by the attached block plan. I see no ambiguity in the parcel clause in conjunction with the block plan respectively attached to each assignment. The first contention of Miss Chu therefore fails.

11. It is argued, secondly, that the 3rd defendant has acquired a legal right to maintain the existing partition wall by the alleged acquiescence on the part of the plaintiff. Extent of the plaintiff's awareness of the mistake has not been specified, nor is the time of which given. For sheer inaction, standing on its own, in the circumstances of this case, it is indeed noval a proposition to make that any legal right could have arisen from it. In my view, the 3rd defendant has failed to establish the creation of any such legal right which is not even pleaded. Acquiescence, as alleged, is also relied upon by the 3rd defendant in his claim of estoppel to which I will now turn.

12. In substance, the 3rd defendant claims that decorations done to the premises with the existing partition wall area matter which should estop the plaintiff from claiming his present relief. The 3rd defendant also relies on the tenancies granted to the 1st and the 2nd defendants. It is evident that estoppel has not been pleaded. The point is, therefore, not even open to the 3rd defendant. Paragraph 5 and 6 of the defence cannot found estoppel and in no way can they be read as raising estoppel in any form or shape.

13. Description of the alleged decorations has been telescoped into one small passage at the end of paragraph 9 of the affirmation of the lawful attorney of the 3rd defendant, Madam Lam : "The 3rd defendant has occupied the same since about August 1979, spent money in decoration and fitting electric wiring inside the said premises". We know not what these decorations are, how they are affixed, in what way they are said to be irremovable, if at all, and how the realignment of the fixtures and the shifting of furniture, including office dealt, etc., would cause any great inconvenience to the 3rd defendant and the other two defendants, 1st and 2nd, let alone irreparable damage.

14. The Court has not been told how the aid and the other defendants have been put in any irreversible situation by these alleged decorations. The assertion raised in the quoted passage lacks particularity to support an estoppel even if it has been pleaded.

15. The Court is told that the 3rd defendant relies equally heavily on tenancies granted to the 1st and the 2nd defendant. It is not alleged when the plaintiff became aware of the existence of this tenancy, what role, in action or inaction, the plaintiff played at the time these respective tenancies were granted. Again, none of this is pleaded.

16. The Court is not supplied with particulars as to what stance or objection the 1st and the 2nd defendant have taken and what real harm, apart from vague speculation, could be caused by the relocation of the partition wall. The 3rd defendant also relies on the alleged acquiscence of the plaintiff for the unpleaded estoppel point. Inaction aside, no other facts are given. Despite Counsel's perseverance, I am completely at a loss as to how this aspect can be substantiated. The facts in support of alleged but unpleaded estoppel in all its ramifications are scanty and totally incomplete. The 3rd defendant cannot succeed on these other grounds.

17. I invite Counsel to address the Court on the terms of the summons. Miss Chu suggests that in relation in paragraph (a)(3), perhaps the entitlement of the plaintiff, if confirmed, should not be permitted to be taken advantage of before the expiration of a period of 6 months. That purports to be a prayer for a stay. The plaintiff must obviously be granted the relief claimed in his summons and I so order in his favour. I would now hear Counsel's submissions on the suggested period of 6 months.

                (Submissions entertained)

18. The 1st and the 2nd defendants have taken no steps in these proceedings. They do not appear to be very interested in the outcome. The plaintiff offers 3 months from today. No hardship has been suggested for extending the offered period. Three months should be sufficient but the stay obviously was only for the 3rd defendant. The 1st and 2nd defendants have made no application. So I grant final judgment in terms of paragraph a(1), a(2) and a(3) with a Stay of execution for a(3) in favour of the 3rd defendant for a period of 3 months from today. The plaintiff is to have interlocutory judgment for damages/mesne profits from the date of the writ to the date of relocation of the partition wall provided the plaintiff exercises due diligence in the implementation of a(3), such damages to be assessed by the Registrar. Costs of the action is to go to the plaintiff and to be taxed if not agreed.