TLC TRADE LAND CO LTD v. SAMUEL N & CO LTD

HCA 1861/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1861 OF 2004

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J U D G M E N T

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I.  Introduction

1.  Nos. 12 and 14 Oxford Road in North Kowloon adjoin each other.  No. 14 is bounded by Oxford Road on the west and No. 12 on the east.  To enter No. 12 from Oxford Road, one must pass over a 3.15m wide, 25.06m long strip of land (the strip) at the southern side of No. 14.  The strip is made of concrete.  It is suitable for vehicles.  Except for a rear scavenging lane to the east of No. 12, the only means of leaving No. 12 is through the strip.  A plan of Nos. 12 and 14 is in Annex 1 to this Judgment.

2.  No. 12 enjoys an express right of way over the strip.  The main issue before this Court is the past and present extent of that easement.

3.  TLC is controlled by Mr Tong Veng and his wife.  It became the owner of No. 12 on 18 February 2004.  It claims the right to drive vehicles over the right of way. 

4.  Samuel is controlled by Mr Peter Ngan’s family.  Mr Ngan and his wife have been living in No. 14 since 1957.  On 29 July 1969 Mr Ngan assigned No. 14 to Samuel.  While accepting that TLC has rights of pedestrian access over the strip, Samuel denies that TLC can drive cars over it.  Samuel also contends (and TLC disputes) that Samuel has the right to park cars on the strip.

5.  The following specific issues thus arise:

(1)	Whether TLC can drive vehicles over the right of way as a result of an express grant.
(2)	Whether any right of vehicular access was abandoned by TLC’s predecessor in title.
(3)	Whether Samuel can park cars on the strip.
(4)	Whether TLC is estopped from asserting any right to drive vehicles over the strip.
(5)	Whether TLC is entitled to damages from Samuel for being prevented from driving vehicles along the strip.

II.  Background

6.  In the early 1950s, Nos. 12 and 14 formed part of Site No. 59 (the Site) within Kowloon Inland Lot No. 3784.

7.  Mr Ngan agreed to purchase the Site from Hong Kong Home-Building & Investment Company Ltd. (HKHBICL) in about 1952.

8.  In 1955, lacking the funds to build an entire house at the time, Mr Ngan invited Mr Tse Lau Fong (Mr Tse) to join him in constructing a 2-storey building at the Site.  Mr Tse agreed.  He became a owner of the Site in September 1955.

9.  Mr Ngan and Mr Tse considered several designs for the Site.  They eventually settled on one whereby some 6,925 sq. ft. at the front of the Site (that part closest to Oxford Road) would be occupied by Mr Ngan, and the remaining 5,915 sq. ft. to the rear would be held by Mr Tse.

10.  Under the chosen design, a building was to be erected on the Site comprising 2 houses, each attached to the other, each with ground and 1^st floor units.  Mr Ngan intended to live on the ground floor and lease the 1^st floor of his side of the building; while Mr Tse planned to lease both floors of his portion.

11.  The architect commissioned by Mr Ngan and Mr Tse initially proposed a driveway running along the entire southern edge of the Site, from the front to rear.  But Mr Tse asked that the passage in front of his part of the building be turned into garden instead.  Mr Ngan did not mind as the change did not affect him.

12.  The result was that the strip was built, running along the southern edge of the Site, from a front metal gate opening onto Oxford Road, and running to about the middle of the Site.  At the strip’s end, the architect designed a hammerhead area.  From this hammerhead, one can enter the common hall and staircase leading into the units of the building.  Beyond the strip’s end, to the east, lay Mr Tse’s garden.

13.  The building was completed in April 1957. 

14.  Since then access to the strip has been through the front metal gate.  The metal gate cannot be opened from the outside except with a key.  For vehicles to enter the strip, both leaves of the metal gate have to be opened.

15.  One leaf of the metal gate has a smaller wicket gate.  The wicket gate is opened with another key.  The wicket gate allows pedestrian access over the strip, from Oxford Road to the hammerhead area and the common entrance hall of the building.  But the wicket gate is too small to permit the passage of cars.

16.  By an Agreement (the Partition Agreement) dated 24 October 1957 Mr Ngan and Mr Tse divided the Site into 2 parts, corresponding with the present Nos. 12 and 14.

17.  Among the terms of the Partition Agreement was the following:

“

3.

All rights of way and other rights in connection with the said premises as is shown on the said plan and coloured Yellow [the 3.15 m strip (including the hammerhead)] shall be used and enjoyed in common by the First Co-Owner [Mr. Ngan] and the Second Co-Owner [Mr. Tse] and their or his respective tenants servants and workmen and other persons authorised by them to go pass and repass over and upon those portions of the said premises and it is hereby agreed between the parties that no any obstacles shall be allowed to be placed on the said right of way nor shall any car be parked thereupon except with the consent of the First Co-Owner.”

18.  By Assignments dated 2 and 30 December 1959, HKHBICL assigned No. 14 to Mr Ngan and No. 12 to Mr Tse.  The Assignments explicitly reserved to Mr Tse the right “to go pass and repass over and along” the 3.5m strip (including hammerhead) on Mr Ngan’s land.

19.  By a Deed of Covenant (the Deed of Covenant) dated 23 March 1960 Mr Ngan and Mr Tse confirmed the partition of the Site.

20.  The Deed included a covenant, similar to cl. 3 of the Partition Agreement, that:

“

no obstacle or impediment to passage shall be placed on such portions of land as aforesaid and that no car shall be parked on that portion of the First Owner's premises which is shown on the said plan and coloured Yellow [the strip (including hammerhead)] except with the consent of the First Owner first had and obtained.”

21.  Both the Partition Agreement and Deed of Covenant were prepared at Mr Ngan’s instruction by Messrs Brutton & Co., solicitors.

22.  On 25 July 1984 Tse assigned No. 12 to his sons Mr Tse Ka Keung and Mr Tse Ka Ching by Deed of Gift.  Mr Tse has since passed away.  It was Mr Tse’s sons who sold No. 12 to TLC.

III.  Discussion

A.  Issue 1: Was there an express grant of vehicular access to Tse?

23.  This question necessitates construction of cl. 3 of the Partition Agreement.

24.  Gale on Easements (17^th ed.), §§9-14 and 9-15 (pp. 328-9) gives the following guidance on construing the language of an express grant:

“	(1)	Construction of the grant and physical extent
		....  It is for the court to construe that language in the light of the circumstances....
		The circumstances may also 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....
		In the absence of any clear indication of the intention of the parties, the maxim that a grant must be construed most strongly against a grantor must be applied.  But a question of construction is a question of law in respect of which no burden of proof lies on either side.  In particular in construing a grant the court will consider (1) the locus in quo over which the way is granted; (2) the nature of the terminus ad quem; and (3) the purpose for which the way is to be used.
	(2)	Mode of user: the relevance of the locus in quo
	The basic principle
	It seems that, subject to any qualifying words in the grant, the authorised mode or quality of user (with or without vehicles, etc.) 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....”

25.  Applying the principles in Gale, I find that cl. 3 is clear in its effect.

26.  The locus in quo is obviously the strip.  The terminus ad quem is the common entrance hall next to the hammerhead area.

27.  The clause grants “all rights of way” over the strip to Mr Tse, his tenants, servants, workmen and other authorised persons.  There is no warrant for reading the word “all rights” as restricted to pedestrian access, especially since the paved strip has all along been suitable for use by vehicles.

28.  This reading of cl. 3 is reinforced by the description of the permitted user as a right “to go pass and repass over and upon those portions of the said premises”.  No words of limitation have been inserted to cut down the generality of the right of passage and re-passage granted.  Instead, “no obstacles shall be allowed to be placed on the said right of way”.  The injunction makes it plain that the length and breadth of the strip is to be available for the passage of Mr Tse and his representatives at all times.

29.  The 3.15m width of the strip is far wider than would be needed, if pedestrian access alone was contemplated.  If walking was all that the parties to the Partition Agreement had in mind, the stricture against putting any obstacles whatsoever on the strip would be otiose.

30.  I do not find ambiguity in cl. 3.  Even if there were ambiguity, such should be read against Mr Ngan as grantor of an easement over his own land.

31.  Mr Warren Chan SC (for Samuel) suggests that I should construe cl. 3 in light of the following background facts and matters:

(1)	The chosen design of the building envisaged that there would be a metal gate from the start.  Mr Ngan gave Mr Tse a key to the wicket gate.  But Mr Ngan never gave Mr Tse a key to the metal gate.  Mr Tse never asked Mr Ngan for such a key. Unless Mr Ngan or his agent opened the metal gate, vehicles belonging to Mr Tse or his tenants could not enter or leave the strip.
(2)	Whereas previous designs used the word “driveway” to describe the passage now occupied by the strip, the actual plan chosen designated the strip as a “path”.
(3)	The strip is short.  Walking, an adult traverses it in 25 seconds.
(4)	The strip is wide enough for a single vehicle to pass over at any given time.  The strip cannot have 2-way traffic.
(5)	Footpaths can be paved.  The fact that the strip is concreted over, is not a conclusive indicator No. 12 was meant to have vehicular access.
(6)	The strip is near the living area of No. 14.
(7)	There is no car parking space on the Site.

32.  I am not persuaded that the factors just identified affect my reading of cl. 3.  I briefly explain my reasons below.

33.  First, Mr Chan emphasised that the metal gate evidenced Mr Ngan’s intention to deny Mr Tse vehicular access to No. 12 from the start.  For this reason (Mr Chan says) Mr Ngan never gave Mr Tse a key to the metal gate, but instead only provided Mr Tse with a key to the smaller wicket gate.

34.  But then why did Mr Ngan enter into cl. 3 in October 1957, seemingly granting an unrestricted right of passage over the strip, some 6 months after the building (along with metal gate) was completed? 

35.  The Partition Agreement was drafted by solicitors at Mr Ngan’s instruction.  Solicitors may be expected to draft with precision.  If Mr Ngan’s intention had truly been as Mr Chan suggests, one would have expected cl. 3 to have reflected that by clear words.  Clause 3 does not do so.  It appears to do the reverse, since it expressly gives Mr Tse “all rights of way”.

36.  Further, if Mr Chan is right, why was the Deed of Covenant executed in similar terms to cl. 3 in March 1960, nearly 3 years after erection of the gate on the Site?  Again, the Deed of Covenant was prepared by solicitors.  If Mr Ngan truly intended as is now suggested, why does the Deed of Covenant nowhere reflect this?  On the contrary, why does it say the opposite and purport to grant Mr Tse access to No. 12 in the widest of terms?

37.  Accordingly, I do not think that the metal gate coupled with the withholding of its key evinces any intention for which Mr Chan contends.

38.  Second, I cannot draw any inference from the mere use of the word “path” instead of “driveway” on the design for the Site. A “path” can be used (and intended for use) as a “driveway”.

39.  It seems that from the beginning Mr Ngan himself actually used the strip as a “driveway” for his cars.  In fact, an early photo of No. 14 show a “drop curb” immediately outside the metal gate, to facilitate the driving of cars from Oxford Road directly onto the strip when the metal gate is open.  Thus, all along, however the relevant design may have identified it, the strip appears to have been envisaged as a driveway, not just a footpath.

40.  Third, Mr Chan’s 3^rd, 4^th and 5^th factors can be considered together.  None of them can be conclusive, one way or another.  Thus, I do not see how they can modify the plain meaning of cl. 3 which I have discerned.  If anything, the fact that the strip is paved reinforces a reading that vehicular access was contemplated within cl. 3.

41.  There was some discussion on whether it was possible for normal cars to make a 3-point turn at the hammerhead.  A medium-sized car having entered the Site, it was awkward (Mr Chan contended) for such car to turn around at the hammerhead and leave.  If most vehicles would have to effect a multi-point turn at the hammerhead to leave, it could not be said as a matter of commonsense (Mr Chan concluded) that vehicular access for No. 12 was contemplated.

42.  I find the argument unconvincing.

43.  In Hong Kong, living space is at a premium.  It is common for cars to have to go in and reverse out of narrow driveways or garages onto the street. 

44.  The strip allows for a car to take its passengers up to the hammerhead and then reverse onto the street, the passengers having been unloaded near.  Or, a car might reverse into the strip from Oxford Road and then, the car’s passengers having been loaded or unloaded as need be, to drive straight out.  There is nothing impractical about that type of maneuver.

45.  Fourth, Mr Ngan mentioned in evidence that he was concerned about the traffic up and down the strip when his children were growing up and likely to play on the strip.  He also says that he was worried about any nuisance that might be caused to him and his family in their ground floor unit from the commotion of cars entering and leaving the strip.  Mr Chan submits that, in light of Mr Ngan’s anxieties, cl. 3 should be construed as only allowing restricted access.

46.   Again I find the argument unconvincing. 

47.  In cross-examination, Mr Whitehead SC (for TLC) observed that cars could not enter the strip from outside unannounced.  The metal gate would have to be opened.  The opening of the gate would give sufficient warning to children playing on the strip to move away, while the car outside drove in and out.

48.  As for possible nuisance, there was no evidence of the degree to which cars belonging to occupants of No. 12 would in the course of any given day cause serious discomfort over some substantial interval of time. 

49.  Further, even if Mr Ngan is right, I do not see how his concerns can by themselves modify the plain meaning of the wide terms of cl. 3. to which he agreed.

50.  Fifth, Mr Chan points to the absence of car parking space or garages on the Site.  Mr Chan reads this fact alongside the restriction in cl. 3 against Mr Tse parking on the strip without Mr Ngan’s consent.  Mr Chan then infers that Mr Tse was only meant to have pedestrian access.

51.  Mr Chan’s syllogism runs thus:

(1)	Mr Ngan must have at least contemplated that he could park his cars on the strip.
(2)	The restriction in cl. 3 is not symmetrical.  Mr Tse needs Mr Ngan’s permission to park on the strip.  But Mr Ngan does not need Mr Tse’s permission.  There would be no point in seeking Mr Tse’s permission, because the strip forms part of Mr Ngan’s land.
(3)	But, if there is no limitation on Mr Ngan’s right to park on the strip, Mr Tse could not have been granted more than pedestrian access by cl. 3.
(4)	This is because the strip is only wide enough for one vehicle to pass through at a time.  It would not be possible to drive down the strip if any part were occupied by a parked car belonging to Mr Ngan.  If a car is parked, one can only walk through the strip.

52.  I think that the fallacy in Mr Chan’s reasoning lies in the assertion that Mr Ngan’s right to park is unrestricted.

53.  Mr Ngan’s right to park must be qualified by his covenant in cl. 3 not to place any obstacle on the strip.  As Mr Whitehead put it, Mr Ngan is entitled to park, but only so long as he does not cause obstruction.

54.  Mr Chan says that such a reading of cl. 3 would render Mr Ngan’s right to park illusory.  I do not think so. 

55.  Whenever Mr Tse or his representative needs to use the strip for vehicular access, any parked car belonging to Mr Ngan obstructing passage would have to be driven out.  Once Mr Tse or his agent has passed through for access, Mr Ngan would then be able to re-park his car on the strip. 

56.  I note that Mr Tse would be subject to a similar regime, even where Mr Ngan consented to his parking on the strip.  By cl. 3 Mr Tse likewise covenanted to keep the strip free from any obstruction which would hinder Mr Ngan’s vehicular access.

57.  However, assume that Mr Chan is right when he suggests that Mr Whitehead’s construction of cl. 3 would render Mr Ngan’s right to park illusory.  Even then, I do not believe that such outcome could constrain me to read cl. 3 in some other fashion than I have.

58.  If by the plain words of cl. 3 Mr Ngan covenanted to render his right to park illusory, the Court cannot re-write the bargain struck so as to be more favourable to Mr Ngan.  There may be inconvenience to Mr Ngan and his successors in title as a result of cl. 3.  That would nevertheless be inconvenience which Mr Ngan agreed to shoulder.

59.  For the above reasons, in my judgment there was a grant of vehicular access over the strip to Mr Tse.

B.  Issue 2: Was the vehicular easement over the strip impliedly abandoned by Mr Tse?

60.  Mr Chan submits that the right of access by vehicle was abandoned by Mr Tse.  Mr Chan points to the long period, over 40 years, during which Mr Tse neither asked for a key to the metal gate, nor objected to Mr Ngan’s use of the strip for parking.  Mr Chan says that this demonstrates an intention to abandon on the balance of probability.

61.  With 2 exceptions, none of the tenants of No. 12 have ever asked for vehicular access over the strip.  The exceptions occurred at some time between 1978 and 1980 in the first case and around 2003 in the other.  Mr Ngan rejected both requests without demur from the tenants. 

62.  One must suppose (Mr Chan submits) that the 2 tenants would each have apprised Mr Tse of their need for vehicular access.  Had Mr Tse believed that the tenants were entitled to their requests, he would have complained to Mr Ngan upon hearing of the rejections.  One can therefore assume (Mr Chan reasons) that Mr Tse consciously decided not to pursue any right of vehicular access with Mr Ngan.

63.  I am not persuaded by Mr Chan’s argument.

64.  Evidence of non-user is not enough to show abandonment of a right of way.  I cannot infer an intention to abandon a right of vehicular access from the mere fact that Mr Tse never asked for any key to the metal gate.  As the Privy Council stated in James v. Stevenson [1893] AC 162 (at 168), “it is one thing not to assert an intention to use a way, and another thing to assert an intention to abandon it”. 

65.  Gale on Easements §12-45 (pp.456-7) helpfully states:

“

The true rule would appear to be that mere non-user [of a discontinuous easement, such as a right of way] without more, however long, cannot amount to abandonment.  Such non-user is evidence from which abandonment may be inferred but must be regarded in the context of the circumstances as a whole.  The non-user may be explained by the fact that the dominant owner had no need to use the easement, in which case it will not be enough to establish abandonment....  It has been said that abandonment is not to be lightly inferred: owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it.  Further, if the dominant owner does not have any present need to exercise his right and does not object to conduct of the servient owner which temporarily renders the exercise of those rights difficult or impossible, it would be undesirable if such general and good neighbourly conduct could not be indulged in for fear of losing those rights for all time.”

66.  Here Mr Tse had no interest in living in No. 12.  He acquired No. 12 solely for rental income.  It follows that, as far as Mr Tse was personally concerned, he did not need vehicular access over the strip.  This may be a simple explanation why Mr Tse never bothered to ask for a key to the metal gate.

67.  As a matter of general principle, it cannot be relevant to infer Mr Tse’s intentions by reference to whether his tenants ever sought vehicular access over the strip.  The thought processes of tenants are not normally to be attributed to their landlords.

68.  It may well be that 2 tenants asked Mr Ngan for vehicular access on separate occasions.  Their failure to complain about Mr Ngan’s refusal of such access cannot somehow be taken as showing an intention to abandon on Mr Tse’s part as landlord.

69.  Mr Chan says that the 2 tenants would likely have reported the refusals to Mr Tse who would consequently have complained if anything was amiss.  But that is speculation.  No attempt was made by Samuel to adduce evidence from any former tenant of No. 12 as to what (if anything) Mr Tse or his sons may or may not have said about a right of vehicular access.

70.  Mr Chan essentially relies on a “long course of dealing” where neither Mr Tse nor his tenants insisted on having a key to the metal gate.  The “negative acts” of the owners and occupants of No. 12 is said to found a case of abandonment.  But the mere fact that persons act as good neighbours and do not assert strict rights, is not enough by itself to mean a right of way is forever abandoned.

71.  Consequently, there has been no implied abandonment of the right to vehicle access.

C.  Issue 3: Can Samuel park cars on the strip?

72.  I have already dealt with this issue in the course of discussing Issue 1. 

73.  Samuel can park its cars.  But it must move its cars out of the strip when TLC’s vehicles need to pass.

74.  In April 1957, when the building was completed, there was no need for Mr Ngan or Mr Tse to have car parking space within the Site.  Space to park cars was freely available outside on Oxford Road itself. 

75.  It was not until the civil turmoil and protest of the 1960s that Mr Ngan thought it prudent to park at least one of his 2 cars within the Site for security. 

76.  In 1975, with the advent of a Wellcome supermarket on Oxford Road, it became illegal to park on Oxford Road.  Mr Ngan then parked all his cars on the strip. 

77.  Between 1974 and 1985, there would have been up to 4 cars (including vehicles belonging to Mr Ngan’s grown up children) parked on the strip.  Since that heyday, most of Mr Ngan’s children have moved out of No. 14.  Presently, Mr Ngan’s 2 cars park on the strip.

78.  There was a suggestion by Mr Chan that an arrangement whereby Mr Ngan had to move his parked cars out of the strip to allow TLC vehicular access was impractical.  What (it was asked) would happen if Mr Ngan were on holiday?  Or what if Mr Tong Veng is an early bird or a late night owl?  Mr Ngan would then be prone to disturbance too early in the morning or too late at night, just to get his cars out of TLC’s way.

79.  In the course of the hearing, TLC attempted to assuage Mr Ngan’s concerns by undertaking to give Samuel reasonable advance notice of any intention to use the strip for vehicular access. 

80.  Such undertaking may go some way towards minimising inconvenience to Mr Ngan.  I doubt it will eliminate all problems completely. 

81.  For example, Mr Tong Veng and his wife will live on the ground floor of No. 12.  TLC has leased out the 1^st floor of No. 12.  Whatever may be the position in respect of Mr Tong Veng, It is unclear to whether TLC will always be able to give advance notice of the future movements of its tenants, present or future, in the 1^st floor unit.

82.  Further, Mr Ngan does not himself drive.  Thus, if his cars are to be parked on the strip, some person able to drive will have to be around to move Mr Ngan’s cars out in response to any notice from TLC.

83.  Despite the inconvenience involved, the point is that by cl.3 Mr Ngan bound himself to allow vehicular passage to the owners of No. 12 and their representatives.  At law, Mr Ngan cannot resile from that contract, merely because the consequences cause him difficulty.

D.  Issue 4: Is TLC estopped from asserting a right of vehicular access?

84.  Mr Chan submits that, by a course of dealing between the parties spanning over 40 years, a “convention” developed between Mr Ngan and Mr Tse whereby the latter would not use the strip for vehicular access.  This convention stemmed from a mistaken assumption (Mr Chan says) that cl. 3 only allowed pedestrian access to No. 12.

85.  As a result, Mr Tse (Mr Chan says) became estopped from contravening the established convention.  That convention is binding (Mr Chan asserts) on Mr Tse’s successors in title, whether or not they had notice of it.

86.  Mr Chan’s contention effectively restates the argument of implied abandonment as an estoppel by convention.

87.  The elements of an estoppel by convention are as follows:

(1)	The parties must have been under a common, but mistaken assumption as to a state of affairs or point of law.
(2)	The mistaken assumption must have been communicated by the parties to each other.
(3)	The parties must have regulated their dealings with each other on the basis of their mistaken assumption.
(4)	It would be unconscionable to allow one party subsequently to resile from that mistaken assumption.

88.  To what extent are those elements present in this case?

89.  I think that Mr Chan’s submission suffers from 5 problems.

90.  First, there is no evidence of a shared common assumption. 

91.  Although Mr Ngan says that he has all along believed that the right of No. 12 to use the strip was confined to pedestrian access, there is no evidence of Mr Tse’s views.  Just as I cannot infer abandonment from mere non-user of the strip by Mr Tse for vehicular access, so I cannot deduce a mistaken belief in Mr Tse that the strip was only for pedestrian use. The fact that Mr Tse did not ask for a key to the metal gate does not mean he believed that he was not entitled to a key.

92.  Second, I am unable to fund that Mr Ngan’s mistaken assumption was communicated to Mr Tse at any time. 

93.  Mr Chan has suggested that the erection of the metal gate was a positive act of communication.  The gate (Mr Chan says) evinced an intention to exclude Mr Tse’s cars.  But, as already discussed, seen in the context of the Partition Agreement and the Deed of Covenant, I do not think that much can be inferred from the sole presence of the metal gate. 

94.  Nor can I deduce anything from Mr Ngan’s parking of his cars on the strip.  He can do so, provided he does not interfere with such vehicular passage (if any) which Mr Tse or his authorised persons might require.

95.  Third, I am prepared to assume that Mr Ngan acted on a mistaken reading of cl. 3 by parking his cars on the strip and by refusing vehicular access to 2 tenants.  But there is no evidence that Mr Tse acted on any similar mistaken assumption.

96.  Fourth, I cannot see how Samuel can suffer any detriment if the correct legal position is now followed.

97.  Assume in Samuel’s favour that any detriment to Mr Ngan is a detriment to Samuel.  The question is what detriment, financial or otherwise, can Mr Ngan be said to face by adherence to the letter of cl. 3.

98.  Mr Chan suggests that detriment would manifest itself in 3 forms:

(1)	Mr Ngan will no longer be able to park on the strip, but will have to buy or rent parking space elsewhere.
(2)	Mr Ngan will be disturbed by cars passing over the strip to and from the hammerhead.
(3)	The status quo of over 40 years will be disturbed.

99.  I cannot see that any of the forms of detriment alleged could make it inequitable for TLC to insist on its strict rights.

100.  On finding other parking, Mr Ngan has been fortunate thus far to have enjoyed undisturbed use of the strip for parking over 40 years.  This has been because his neighbours have not insisted on driving cars over the strip.  They have been accommodating.  Why should it now be unfair to Mr Ngan because he is less lucky in his new neighbour, who wishes to have vehicular access over the strip?

101.  In any event, as already mentioned, Mr Ngan can still park on the strip.  He must simply move his cars out when vehicular access is required by TLC or its tenants.

102.  On potential nuisance, Mr Ngan agreed to accept such situation when he signed the Partition Agreement. 

103.  Further, noise and other disturbance from cars is an ordinary incident of life in crowded Hong Kong.  In particular, when neighbours share a common driveway, there is bound to be some inconvenience in their daily lives.  That inconvenience would not render strict adherence to cl. 3 unconscionable.

104.  As to passage of time, that the status quo of 40 years will now admittedly be changed, begs the question.  What is the detriment said to arise as a result of the change?  In my judgment, no real detriment has been articulated.

105.  Fifth, I doubt that the convention, if there was one, would have been binding on TLC.

106.  The convention would have been between Mr Ngan and Mr Tse.  The case of PW & Co. v. Milton Gate Investment Ltd. [2004] Ch 142 might be authority for saying that the convention would have bound Mr Tse’s tenants.  But I do not think that PW & Co. goes so far as to hold that a mistaken assumption between Mr Ngan and Mr Tse should be treated without more as running with the land and binding Mr Tse’s successors in title, especially when they have no notice.

107.  Mr Chan contends that Mr Tong Veng had constructive notice of the convention, when he visited the Site prior to purchasing No. 12.  In particular, Mr Chan says that the following ought to have put Mr Tong Veng on inquiry:

(1)	That Oxford Road was a busy street with no free parking.
(2)	That there were no parking spaces on the Site.
(3)	That Mr Ngan’s 2 cars were parked on the strip.
(4)	That there was only enough room for one-way traffic on the strip.
(5)	That the hammerhead did not have enough space for a medium-sized car to make a 3-point turn.
(6)	That there was a locked metal gate.

108.  Mr Tong Veng visited the Site on 3 occasions before buying No. 12.  But I do not think that anything that he saw at the time could have alerted him to the existence of any convention of pedestrian access over the strip.  In my judgment, none of the matters raised by Mr Chan could conceivably have triggered alarm bells and questions in Mr Tong Veng’s minds.

109.  For the above reasons, I conclude that TLC is not estopped.

E.  Issue 5: What damages is TLC entitled to receive?

110.  TLC claims 2 heads of damage.

111.  First, there is prolongation cost.

112.  TLC’s workmen were unable to use the strip to drive in construction equipment and materials or drive out rubbish and other items.  Thus, it took longer (it is said) to renovate No. 12 for use by Mr Tong Veng and his tenants.  TLC estimates that renovation was protracted by 20 days.  TLC claims to have been charged $100,000 by its contractors for that prolongation.

113.  Second, TLC claims lost rental.  This has 2 components.

114.  Component 1 involves TLC’s tenant. 

115.  The 1^st floor unit of No. 12 was originally let to a tenant for 2 years, starting on 10 November 2004, at $53,000 per month. The tenant refused to accept a clause (cl. 11) in the tenancy agreement bringing his attention to this action.  The tenancy was then avoided by mutual agreement. 

116.  Later, the same tenant entered into a new tenancy, also for 2 years, but starting on 10 December 2004.  This time the tenant accepted cl. 11.  The rent was the same as before.  TLC claims for 20 days’ lost rent from the 1^st floor unit.

117.  Component 2 involves Mr Tong Veng and his wife.

118.  They intended to move into the ground floor of No. 12.  Because of the prolonged renovation caused by Samuel’s refusal to allow TLC vehicular access, it is alleged that Mr Tong Veng could not occupy his flat until some 20 days later than scheduled.  20 days’ lost rent is claimed.  The ground floor having a garden, its rent is said to be higher than the $53,000 rent of the 1^st floor.

119.  Components 1 and 2 of the 2^nd head of damages are said to amount to some $70,000.

120.  Renovation work to No. 12 was completed in late November or early December 2004.

121.  As to the 1^st head, I am not satisfied that Samuel’s refusal of vehicular access to TLC caused a prolongation of 20 days.  

122.  My reasons are as follows:

(1)	The figure of 20 days is said to be an estimate by TLC’s contractor.  No evidence was led on how the 20 days was calculated.
(2)	Mr Tong Veng mentioned that there had been variations to the renovation works.  The extent to which delay was caused by variation, as opposed to denial of vehicular access is unclear to me.
(3)	TLC’s contractor initially quoted $100,000 for the delay from being unable to use its van over the strip.  But on the evidence it is not apparent whether TLC has paid (or been charged for) such amount.

123.  As to the 1^st component of the 2^nd head, I am not satisfied that the refusal of vehicle access was the cause of the tenant’s initial refusal of cl. 11.  Nor can I be certain that the previous tenancy was abortive because of the denial of vehicular access.

124.  My reasons are as follows:

(1)	The tenant subsequently accepted cl. 11.  I note that the tenant could not deny knowledge of this litigation once it had been pointed out to him, even if cl.11 did not appear in any tenancy agreement.
(2)	It is unclear whether the 1st floor of No. 12 would have been ready for the tenant’s occupation in early November 2004.  Renovation of No. 12 was not completed until late November 2004 at the earliest.
(3)	Although the 1st floor unit may have been ready before the ground floor, it is not apparent how much earlier the 1st floor unit was finished.  Nor is it self-evident that the tenant would have been prepared to move into the 1st floor unit, while works were proceeding on the ground floor.
(4)	The delay in completion may have been due to denial of vehicular access, but it could also have been the result in whole or part of variation works.  No evidence was led on this point, despite the burden being on TLC.

125.  The 2^nd component of the 2^nd head also fails.  My reasons are as follows:

(1)	I am not satisfied on the evidence that the delay to Mr Tong Veng moving into the ground floor was due to Mr Ngan’s refusal of vehicular access.  The delay may have been wholly or partly due to variation works.  This 2nd component in effect depends on evidence of the 20 days’ prolongation claimed under the 1st head.  The 1st head having failed, this component must also fail.
(2)	I doubt that lost rental is the correct measure of damages.  There is no evidence that Mr Tong Veng was ever expected to pay rent to TLC, his alter ego.  On the contrary, in formal terms, the flat was to be provided to Mr Tong Veng as a TLC director’s perquisite.  The true measure of damages must therefore be the additional cost to TLC of providing alternative accommodation to Mr Tong Veng, pending completion of the ground floor of No. 14.  No such evidence was adduced.

126.  For the foregoing reasons, TLC has failed to prove its damages and its claim for a total of $170,000 fails.

IV.  Conclusion

127.  There will be a Declaration that TLC and its authorised persons are entitled to vehicular access over the strip.

128.  There will be a permanent injunction restraining Samuel, its servants or agents or howsoever otherwise from restricting TLC’s right of vehicular access over the strip.

129.  TLC’s claim for damages of $170,000 is dismissed.

130.  Samuel’s Counterclaim is dismissed.

131.  There had originally been a dispute between the parties over the following other matters:

(1)	Samuel had erected a canopy over part of the strip. TLC said that the canopy was illegal and a fire hazard.
(2)	Samuel had put up a makeshift storeroom on part of landing falling within No. 12’s side of the building.  TLC said the storeroom was not only illegal, but also an act of trespass.
(3)	Not all of the hammerhead is within the confines of No. 14.  A small part lies within No. 12.  Samuel had placed some garbage bins on that part of the hammerhead within No. 12.  Samuel had also caused cars to be parked over that part of the hammerhead within No. 12.  TLC objected to both acts.

132.  On Day 1 of the trial, Samuel undertook the following:

(1)	To demolish the canopy within 6 weeks.
(2)	To demolish the storeroom within 6 weeks.
(3)	Not to park vehicles or place its garbage on that portion of the hammerhead within No. 12.

133.  As a result of Samuel’s undertakings, the issues in this action were significantly reduced.  The undertakings should be recorded in any Order drawn up pursuant to this Judgment.

134.  As mentioned above, in the course of trial, TLC undertook to give Samuel reasonable notice of any intended use of the strip for vehicular passage.  I understand such undertaking to include reasonable notice of any intended use by TLC’s servants, agents, tenants or other authorised persons. 

135.  I appreciate that sometimes “reasonable notice” may have to be very short.  Inevitably, it will not be possible to anticipate every future movement of vehicles over the strip between Oxford Road and No. 12.  Nonetheless, a suitable form of wording for the undertaking should also be recorded in any Order under this Judgment.

136.  I shall hear the parties on costs and other consequential orders.