DIREK MAHADUMRONGKUL v. LAU CHUN KEUNG and Others

Civil Appeal No. 133 of 1998

Headnote

Summary order for possession of land - when O113 RHC procedure is appropriate.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

(Civil Appeal No. 133 of 1998)

BETWEEN

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

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

REASONS FOR JUDGMENT

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

Nazareth V-P:

Introduction

Having heard counsel we dismissed the appeal with costs to the respondents. We now give our reasons.

1. This is an appeal against the order of Nguyen J dismissing the appeal of the plaintiff. That appeal itself was against Master Chung's earlier order dismissing the plaintiff's application under O113 of the High Court Rules for possession of land used as three parking spaces ("the disputed land").

The facts

2. The facts are disproportionately involved given the relative simplicity of the questions that have to be addressed in this appeal. Nonetheless they have to be stated and can conveniently be taken from the judgment of Nguyen J.

The disputed land

3. This was shown coloured green on the plan attached to the amended originating summons in the proceedings below. It formed part of the remaining portion of sub-section 1 of Sub-section 9 of Section A of Kowloon Inland Lot No.2657. ("Lot A") is the garden and the front block of No.34A Braga Circuit ("the Front Block"). The rear block of No.34A Braga Circuit ("the Rear Block") is erected on the remaining portion of Section A of Sub-section 9 of Section A of Kowloon Inland Lot No.2657 ("Lot B") which adjoins Lot A.

Initial alienations of Lots A and B

4. Lot A and Lot B were originally owned by Mr Lee Kwai Cheuk ("the First Owner").

5. By an assignment dated 10th February 1955, the First Owner assigned to Madam Chan Yuen Wah Subsection 1 of Section A of Subsection 9 of Section A of Kowloon Inland Lot No.2657 (which then included Lot A) but subject to, inter alia, the following :

6. By an assignment dated 16th May 1955, the First Owner assigned to Madam Fung Lai Lin one equal undivided fourth share of Lot B with exclusive rights to the Ground Floor of the rear block and a "right of way to use go pass and repass over along and upon [the disputed land]".

7. By an assignment dated 1st April 1955, the First Owner assigned to Madam Ho Lau Wan one equal undivided fourth share of Lot B with a "right of way to use go pass and repass over along and upon [the disputed land]".

8. By an assignment dated 28th March 1956, the First Owner assigned to Mr Francis Chi Man Chan one equal undivided fourth share of Lot B with "a full and free uninterrupted right of way over [the disputed land]".

Subsequent alienations of Lots A and B to the parties

The plaintiff

9. By an assignment dated 24th May 1968, Madam Chan Yuen Wah assigned to the plaintiff, Mr Direk Mahadumrongkul, one equal undivided half share of Lot A with exclusive rights to the ground floor and garden of the Front Block subject to, inter alia, the following :

The 1st defendant

10. By an assignment dated 5th July 1984, Madam Ho Lau Wan assigned to Mr Lau Chun Keung, the 1st defendant, and Madam Lee Mei Wah Gloria, his wife, one equal undivided fourth share of Lot B with exclusive rights to the First Floor of the Rear Block together with "such rights and rights of way as are more particularly described in [the assignment from the First Owner to Madam Ho] and all rights rights of way (if any) privilege easements and appurtenances thereto belonging or appertaining or therewith at any time used held occupied or enjoyed."

The 4th defendant

11. By an assignment dated 26th May 1986, Madam Fung Lai Lin assigned to Mr Wong Chak Kuen and the 4th defendant, Madam Chan Po Chu, one equal undivided fourth share of Lot B with exclusive rights to the Ground Floor of the Rear Block together with "such rights of way as set out in [the assignment from the First Owner to Madam Fung] and all other rights rights of way (if any) privilege easements and appurtenances thereto". Then by an assignment dated 19th August 1986, the 4th defendant acquired the entire interest in the Ground Floor of the Rear Block.

The 5th defendant

12. By an assignment dated 16th June 1969, Mr Francis Chi Man Chan assigned to Madam Lee Cheung Kwan Wai, the 5th defendant, one equal undivided fourth share of Lot B with exclusive rights to the Third Floor of the Rear Block and "a full free and uninterrupted right of way over the [disputed land]" and "all other rights of way (if any) and other rights and all privileges easements and appurtenances thereto belonging or appertaining or therewith at any time used held occupied or enjoyed".

The 2nd and 3rd defendants

13. The 2nd and 3rd defendants reached a settlement with the plaintiff and are accordingly no longer parties in this appeal.

Events that give rise to the proceedings

14. The 1st defendant is the registered owner of a private car, registration number EX2236.

15. Tonekind Investment Limited, the 2nd defendant, of which the 4th defendant is a director, is the registered owner of a private car, registration number DL809.

16. The 3rd defendant, Sam Hoo Investment Limited, of which the 5th defendant is a shareholder and director, is the registered owner of a private car, registration number EN819.

17. According to the 1st, 4th and 5th defendants, they have since their respective acquisitions of the First, Ground and Third Floors of the Rear Block been driving their and/or their companies' cars on the disputed land. They have also been parking such vehicles at three parking spaces.

18. The plaintiff complains that the defendants park their cars on the disputed land without his consent and knowledge. According to the plaintiff, Leung Tsang Company Limited which owns the other one equal undivided half share of Lot A, has also confirmed that it has not known of or consented to the parking of cars on the disputed land. Solicitors' letters were sent on behalf of the plaintiff to the 1st to 3rd defendants on 31st October 1994 to request them to remove their vehicles from the disputed land.

19. Leung Tsang Company Limited agreed to the plaintiff taking action in his own name to recover possession of the disputed land. By the order made by Mr Registrar Betts on 31st July 1997 in High Court Miscellaneous Proceedings No.1393 of 1997, the plaintiff was allowed to bring legal proceedings in his own name to recover vacant possession of the disputed land without joining Leung Tsang Company Limited.

The defences

20. In defence, the 1st, 4th and 5th defendants raise the following points:

The judgment

21. The judge dismissed all the points in the defence with the exception of prescription. He then said this:

The appeal

22. For the plaintiff, Mr A.T. Reyes submits that none of the points in the defence has any merit in it and that the appeal should be allowed and the appellant granted possession under his originating summons.

Whether O.113 procedure appropriate

23. Order 113 r.1 is in the following terms:

24. The order provides a summary procedure which enables the court in a proper case to deal more quickly with a claim for possession than it would otherwise be able to do.

25. In earlier editions of the annual practice it was stated that this summary procedure was intended for uncontested and clear cases. The latter statement has been omitted from the latest two editions. However, that is said to have been the result of the increased material that has had to be included in the White Book rather than because of any authority to the contrary. Certainly, counsel have not been able to find such authority. In that context Godfrey J (as he then was) in Vipac Engineers & Scientists Ltd v Karpovich & anor [1989] 2 HKC 358 at 359H said this:

That seems to me to be obviously right and not to be significantly different from the approach under O.14.

26. On the face of O.113 the plaintiff would only be entitled to apply under it if he is able to allege that the land is occupied solely by the three defendants as stated in the judgment at p.9N:

27. In those circumstances it seems to me that, prima facie, the three defendants must be regarded as being in sole occupation. However, I recognise that there may be some scope for the view that other persons who have rights of way and exercise them, might also be in occupation or possession in a sense that has been adopted in some of the authorities cited to us. In those circumstances I am not disposed to dissent from the views of Liu and Leong JJA that the defendants and owners or occupants of other flats may also be in sole occupation in pursuance of their rights of way. At any rate, the matter can be seen to be unclear and on its face not susceptible to resolution otherwise by serious legal argument and analysis.

28. Of course, the requirement that the occupiers from whom possession is sought to be recovered are in sole occupation is plainly not a formality. Upon securing possession under O113, a possessor would then appear to acquire a right in rem to the detriment of the other persons who might also be in occupation of the land of which the right to possession is disputed. That position does not appear to be entirely clear and may constitute yet another reason why the O.113 procedure is not appropriate for this case.

29. Finally, even if regard is not had to the other defences, that concerned with prescription clearly raises questions of fact which, it seems to me, are not of a nature suitable for resolution only upon affidavit evidence.

Judge's discretion - intervention on appeal

30. The judge had a discretion whether or not to make the order that the proceedings continue as if begun by writ. It is well established that appellate courts will not interfere with a trial judge's exercise of discretion except for well established grounds, e.g. mistake of law or principle or where the judge has got it plainly wrong. No such reason has been demonstrated or even suggested. On the contrary, it seems to me that the judge was plainly right in the order he made.

Conclusion

31. For those reasons, I had no hesitation in concluding that the appeal had to be dismissed, and after hearing counsel, also that the defendants should have their costs of the appeal.

Liu JA:

32. I gratefully adopt the facts set out in the judgment of the Vice-President. The plaintiff caused to be issued an Originating Summons under O. 113 RHC against the 1st to 5th defendants for an order of possession of the Remaining Portion of Sub-section 1 of Section A of Sub-section 9 of Section A of Kowloon Lot No. 2657 (the Remaining Portion) on the ground "that the defendants (and perhaps others) are in occupation without licence or consent".

33. The plaintiff is a co-owner of the Remaining Portion and the other co-owner is a limited company. It is alleged that the 1st, 4th and 5th defendants wrongfully parked their vehicles over parts of the Remaining Portion. It is claimed that these defendants had no right so to park their vehicles. It is common ground that none of these defendants had any authority, consent or licence directly from the owners of the Remaining Portion to park their vehicles.

34. The 1st defendant is a co-owner and occupier of the 1st floor rear block of 34A Braga Circuit erected on the Remaining Portion. The 4th defendant is the owner/occupier of the ground floor of the rear block. The 5th defendant is the owner/occupier of the 3rd floor. The 2nd defendant is the registered owner of a private car used by the 4th defendant. The 3rd defendant is the registered owner of a private car used by the 5th defendant. Therefore the users of the cars (1st, 4th and 5th defendants) and the registered owners of these cars (1st, 2nd and 3rd defendants) were all named as defendants. When the Originating Summons was heard by Master Chung, it was dismissed with costs. On appeal to Nguyen, J, of the allegations of the defendants, only a right to park by prescription was held arguable and the Originating Summons proceedings were ordered to continue as if it had begun by writ with directions given for pleadings. The plaintiff is dissatisfied with the decision of the judge; hence, he appeals. The defendants ask for the appeal to be dismissed or alternatively they seek to reverse the judge's adverse holdings on their other unsuccessful contentions.

35. The 3rd and the 5th defendants have reached settlement with the plaintiff and their appeals are dismissed with no order as to costs. The other defendants maintain that they have a clear right to park cars on the true interpretation of the conveyancing documents, or otherwise they enjoy the same right by reason of implied easements, adverse possession, estoppel, waiver and prescription under the fiction of a lost modern grant or the Prescription Act 1832. On their alleged clear right so to park vehicles, these defendants pray for a dismissal of the appeal or alternatively that the Originating Summons be struck out.

36. At the hearing of this appeal, it was ordered that the appeal be dismissed with costs to the 1st, 2nd and 4th defendants. The parties were told that reasons would be given later and these, I now do.

37. Order 113 rule 1 enables a person who has an interest in land to claim possession thereof against persons occupying that land, who can be and cannot be named in the Originating Summons. The land of which he claims possession must be allegedly "occupied solely by a person or persons ...... who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his". The 1st and the 4th defendants admittedly enjoy a right of way over the Remaining Portion. The 2nd defendant is the registered owner of a car used by the 4th defendant. If the plaintiff had instituted proceedings by an Order 113 Originating Summons against the 1st and the 4th (hence the 2nd) defendants on the ground that they had no right whatsoever, including any right of way or any right to park on the disputed areas in the Remaining Portion, the plaintiff's claim would have been maintainable because the Remaining Portion and the disputed areas on which vehicles were said to have been unlawfully parked would have been "solely" occupied by the defendants without any pretence of a right and without the plaintiff's licence or consent or that of his predecessors in title for parking. However, for the purposes of this appeal, the Remaining Portion and the disputed areas therein cannot be aptly said to have been occupied solely by these defendants without the plaintiff's licence or consent or that of his predecessors in title "and without any right, title or interest thereto" within the meaning of O.113 r.1 (see 1997 Annual Practice, Vol.1, para.113/1-8/1 at p.1664), because in addition to being in alleged wrongful occupation for parking their vehicles, the Remaining Portion and the disputed areas therein were also occupied solely by the defendants "who entered into or remained in occupation (of the same)" in the exercise of their right of way. These defendants would not require any such consent or licence for entering into or remaining in occupation of the same for the purpose of exercising their right of way. Licence or consent of the plaintiff or any of his predecessors in title to park has no bearing on the enjoyment by these defendants of their right of way in, so to speak, sole occupation. In this case, O.113 could not be invoked for the sole occupation of the Remaining Portion and the disputed areas by these defendants for merely one of the dual purposes. Not only were the Remaining Portion and the disputed areas occupied solely by the defendants for the purposes of the alleged unlawful parking, they were also "solely" occupied by the same defendants in the exercise of their right of way. By reference to sole occupation, the language of O.113 r.1 is inapposite to the parking activities alone. Order 113 is exclusively devised for the remedy particularised in rule 1. There seems to be an apparent serious dispute in this case to prevent the plaintiff from engaging this procedure. See Filemart Ltd. v. Avery, [1989] EG 92.

38. This is not merely a procedural flaw. The objection to the use of an O.113 Originating Summons in this case is substantial and fundamental, which would, if the plaintiff should succeed, lead to the defeat of these defendants' undisputed right of way by the order for possession granted thereunder.

39. In their Amended Respondents' Notice, the 1st, 2nd and 4th defendants claim that this appeal be dismissed or alternatively (not, be it noted, further or alternatively) that the Originating Summons be dismissed on additional grounds, but they have not independently sought a dismissal of the Originating Summons; nor is their alternative prayer for dismissal founded on the clearly erroneous adoption of the O.113 procedure. The existing additional grounds for their alternative prayer for dismissal may not be altogether uncontroversial. The Respondents do not seek leave to further amend the alternative claim for striking out the Originating Summons so as to allow them to proceed with it as a "further" claim for the same relief, perhaps on the further ground upon which this appeal is now dismissed. The parties seem undecided as to whether the core objections could be overcome by claiming injunctive and declaratory relief in the pleadings ordered to be filed. For these reasons, there would seem to be insufficient justification for this court to peremptorily strike out the Originating Summons.

40. These proceedings by Originating Summons under Order 113 are clearly misconceived. The appeal must be dismissed. The decision of this court tends to lend support to restoring the Master's decision, but this line of action was not pressed upon us and the parties are, therefore, left with the Order of the judge and the directions he gave.

Leong JA:

41. In this appeal, the plaintiff seeks to set aside the judgment of Nguyen J. where he ordered the plaintiff's application under Order 113 of the Rules of Supreme for possession ordered to continue as if begun by writ. The plaintiff also seeks to recover possession of the disputed land.

42. It is not disputed that when the plaintiff acquired his land of which the disputed land forms part, the assignment was subject to a right of way. The defendants had by express grant acquired a right of way over the disputed land. The full term of the grant is this:

43. The defendants claim that the right of way entitles them to use the disputed land for parking and they have parked their cars there since. The plaintiff disputes this and contends that the defendants' right of way is a right for passing and repassing which may arguably include vehicular traffic and stopping of vehicles for loading and unloading which is incidental to the traffic, but the right of way certainly does not include the right to park. The plaintiff wanted to stop the defendants from parking their cars there and he sought to summarily recover possession of the disputed land under Order 113 of the Rules of High Court on the ground that the defendants occupied the disputed land by parking their cars there without the plaintiff's licence or consent.

44. Order 113 rule 1 states as follows:

45. The note to this Order in the 1997 Edition of the White Book (at p. 1653) states that an application under this Order "is narrowly confined to the particular circumstances described in rule 1 i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or any predecessor of his" and later (at p. 1654) it states " ... like the default and summary procedures under O.13 and O.14, this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation of the land without licence or consent and without any right, title or interest thereto."

46. Thus to successfully invoke Order 113, the plaintiff must show first that the disputed land is solely occupied by the defendants and secondly that there is no issue to be tried.

47. The undisputed fact is that the disputed land is an access way forming part of a private road for access to the premises to the rear of the plaintiff's land not only by the defendants but also by other persons. The words of the grant are to the effect that the owners and occupiers for the time being of the defendants' premises and those authorised by them all enjoy this right of way. Apart from the fact that the plaintiff had erected a wall separating his land from the disputed land and the defendants had installed covers with supporting poles to protect their cars, the disputed land is not enclosed. With cars parked, it may not lose its attributes of an access way. Although the right is for free and uninterrupted passage, arguably it need not be free from all obstructions. Thus, the use by the defendants of the disputed land for parking does not prevent nor could the defendants by parking there prevent, those entitled to enjoy their right to pass and repass over it. What the defendants have done is that they have asserted a right to park as an ancillary right necessary for their enjoyment of the right of passage. Whether they may do so is arguably another matter for construction. For the defendants' alleged right, the proper remedy would seem to be a claim for a declaration and injunctive relief. But in the circumstances, the defendants certainly are not the sole occupiers of the disputed land by reason only of parking their cars there.

48. The use of the Order 113 procedure in these circumstances is misconceived.

49. In my view, the appeal must fail. I, too, would dismiss it.

Representation: