YIK WAI PONG v. YICK PAK KIN

HCA 275/2015

[2019] HKCFI 21

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 275 OF 2015

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J U D G M E N T

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A. INTRODUCTION

A1.    Parties

1.  The relationship of the relevant parties pertaining to this action is summarized in the below diagram:

A2.    The Lands in Question

2.  The plaintiff is the registered owner of the alleged dominant land known as “The Remaining Portion of Sub-section 1 of Section A of Lot No 640 in DD 117” (the “Eastern Lot”).

3.  The defendant is the registered owner of the alleged servient lands known as “The Remaining Portion of Section A of Lot No 640 in DD 117” (the “Western Lot”) and “Section D of Sub-Section 1 of Section A of Lot No 669 in DD 117” (the “Roadside Lot”).

4.  There is an access road in the Western Lot (the “Access Road”) connecting the Eastern Lot (through the Roadside Lot) to the main road.

5.  The below plan is extracted from Appendix 1 to the Amended Statement of Claim:

Blue: Access Road

Pink: Roadside Lot

6.  The subject matter of this action is the easement, or right of way, over the Access Road and the Roadside Lot. 

A3.    Relevant History of the Ownership of the Lands in Question

7.  The Eastern Lot and the Western Lot were once in the single ownership under Yik Shiu Tong (易兆堂).  By way of deeds of gift, the Eastern Lot was assigned to the plaintiff on 2 July 1970, and the Western Lot was assigned to Yik Wai Yung (易維用) on 8 July 1970.

8.  Yik Wai Yung (易維用) assigned the Western Lot to his son, ie the defendant herein, on 7 January 1987.

9.  On 18 May 1996, the defendant acquired the legal title of the Roadside Lot.

A4.    Basis of the plaintiff’s claim

10.  It is the plaintiff’s position that the right of way over the Access Road and the Roadside Lot in favour of the Eastern Lot arose under different situations.

11.  In respect of the Access Road, the basis of the plaintiff’s claim is: –

(1)  There was a verbal agreement made by Yik Shiu Tong, Yik Wai Yung and the plaintiff, shortly before the assignment of the Eastern Lot and the Western Lot to the plaintiff and Yik Wai Yung respectively by Yik Shiu Tong (the “Oral Agreement”) for the joint use and contribution to the maintenance and improvement of the Access Road.  In reliance of the said agreement, the plaintiff built a 2-storey house on the Eastern Lot in about 1971.  He also contributed money to improve in Access Road in about 1976.  Yik Wai Yung, and his successors, was thereby estopped from denying such agreement.

(2)  The rule under Wheeldon v Burrows (1879) 12 Ch.D. 31 – The use of the Access Road as access by Yik Shiu Tong was continuous and apparent as at the time when both the Eastern Lot and the Western Lot were under his sole ownership.

(3)  Prescription under lost modern grant – the plaintiff and/or his family made use of the Access Road as access to and/or from the Eastern Lot, as of right, since, the latest, 1971.

12.  In respect of the Roadside Lot, the basis of the plaintiff’s claim is: –

(1)  A verbal assurance was made in about 1996 by Man Yuk Lan (“Madam Man”) (acting on the defendant’s behalf) to the plaintiff regarding the use of the Roadside Lot, which was then owned by others at that time, after its acquisition.  This assurance was an extension to the Oral Agreement reached in 1970.  In reliance of the said assurance, the plaintiff contributed $80,000 to the defendant’s family.  The defendant is thereby estopped from denying such assurance.

(2)  Implied easement by implication due to necessity.  The Roadside Lot is the only practical access through which the plaintiff can leave the Access Road to the main road.

(3)  Prescription under lost modern grant – the plaintiff and/or his family made use of the Roadside Lot as access to and/or from the Eastern Lot (through the Access Road), as of right, for at least 20 years prior to April 2014.

B.   AGREED LIST OF ISSUES

13.  The following is the list of issues agreed by the parties for the trial.

B1.    Regarding the Access Road (in the Western Lot)

14.  Issue 1 – Whether there existed the Oral Agreement between Yik Shiu Tong, the plaintiff and Yik Wai Yung in the terms pleaded in paragraph 13 of the Amended Statement of Claim.

15.  Issue 2 – If so, whether the Oral Agreement created an express easement in the terms pleaded in paragraph 14 of the Amended Statement of Claim: –

Sub-issues

(1)  The nature of the rights, if any, intended to be created by the Oral Agreement.

(2)  Whether the Oral Agreement is unenforceable:

(a) Having regard to Section 4 of the Statute of Frauds 1677, Laws of England and Wales (incorporated into Hong Kong law by the then Application of English Law Ordinance, Cap 88);

(b) By reason that it was not supported by any or any valid consideration; and/or

(c) By reason that it was a mere domestic arrangement not intending to be legally binding.

16.  Issue 3 – Whether the plaintiff had contributed to the improvement costs of the Access Road in 1976 as pleaded in paragraph 16 of the Amended Statement of Claim.  If so, whether Yik Wai Yung and/or the defendant is thereby estopped from denying the existence and/or validity of the Oral Agreement.

17.  Issue 4 – In respect of paragraph 17 of the Amended Statement of Claim: –

(1)  Whether, in or about 1996, Madam Man verbally represented to the plaintiff that her family (including Yik Wai Yung and the defendant) would like to carry out improvement works to the Access Road, which included the construction of concrete pavement and drains, and acquire or acquire the right of use of the Roadside Lot.

(2)  Whether Madam Man requested the plaintiff to contribute for the expenses involved pursuant to the Oral Agreement.

(3)  Whether Madam Man assured that the plaintiff and his issues can make use of the Access Road and the Roadside Lot as access to and/or from the Eastern Lot.

(4)  Whether the plaintiff’s cheque of $80,000 to Madam Man was give pursuant to the Oral Agreement and in reliance upon the assurance of Madam Man above.

(5)  Whether Madam Man acted (if at all) with the actual or ostensible authority of the defendant.

18.  Issue 5 – Whether, by reason of the matters above, the defendant is estopped from denying the existence and/or validity of the Oral Agreement.

19.  Issue 5A – In the event that the defendant is in fact estopped from denying the existence and/or validity of the Oral Agreement: –

(1)  Whether the defendant is no longer bound by the same by reason of the matters pleaded in paragraph 18 of the Re-Amended Defence; and

(2)  What remedies, if any, should be granted by the Court.

20.  Issue 6 –Whether an implied easement over the use of the Access Road by the Eastern Lot had been created by implication under the rule in Wheeldon v Burrows and/or section 16 of the Conveyancing and Property Ordinance, Cap 219 (“CPO”).

Sub-issues

(1)  Whether the Access Road was the only vehicular access to and/or from the Eastern Lot?

(2)  Whether the Access Road was the only practical access, through the Roadside Lot, leading to Kiu Hing Road?

(3)  Whether during the currency of the sole ownership of the Eastern Lot and the Western Lot, Yik Shiu Tong continuously and apparently used the Access Road and the Roadside Lot as the access to and/or from the Eastern Lot?

(4)  Whether the rule in Wheeldon v Burrows and/or section 16 of the CPO has any application in the circumstances of the present case.

21.  Issue 7 – Whether the plaintiff has acquired a right of way and easement over the part of the Access Road on the Western Lot by prescription, having regard to the matters pleaded, including in particular, paragraph 15 of the Amended Statement of Claim.

Sub-Issues

(1)  Whether at all materials times and up to about April 2014, the plaintiff, his late parents and/or his wife made use of the Access Road as access to and/or from the Eastern Lot, in the circumstances pleaded in paragraph 15 of the Amended Statement of Claim;

(2)  Whether the circumstances in (1) above entitled the plaintiff to acquire a right of way and easement by prescription.

B2.    Regarding the Roadside Lot

22.  Issue 8 – Whether, having regard to the matters pleaded in paragraph 17 of the Amended Statement of Claim (see paragraph 17 above): –

(1)  An express easement was thereby created under which the Eastern Lot has the right of way against the Roadside Lot.

(2)  Further or alternatively, the defendant is estopped from denying the assurance of Madam Man that the plaintiff and his issues can make use of the Roadside Lot as access to and/or from the Eastern Lot.

(3)  In the event that the defendant is so estopped, what remedies, if any, should be granted by the Court.

23.  Issue 9 – Whether an implied easement over the use of the Roadside Lot had been created by implication due to necessity because otherwise the plaintiff would have no means of leaving the Access Road.

24.  Issue 10 – Whether for more than 20 years prior to April 2014, the plaintiff and/or his family made use of the Roadside Lot to access to and/or from the Eastern Lot (through the Access Road).

25.  Issue 11 ‑– Whether, in the circumstances, the plaintiff and his family acquired a right of way and easement over the Roadside Lot by prescription.

C.      GENERAL OBSERVATION ON THE PLAINTIFF’S EVIDENCE

26.  This court will in turn discuss each of the issues in the Agreed List of Issues below.  However, before doing so, I would endorse the following preliminary observations made by the defendant on the evidence adduced on behalf of the plaintiff: –

(1)  As pointed out by the defendant, notwithstanding that the plaintiff himself had filed a detailed witness statement and supplemental witness statement in 2015 and 2016 respectively, by an application made at the Pre-trial Review on 21 March 2018, the plaintiff applied for leave to file and rely upon the witness statement of his wife, Madam Lo Lai Heung (“Madam Lo”) and for her to give evidence in his place at the trial.  The grounds for the application were that the plaintiff was unfit to give evidence at trial due to loss of memory, failing mental health and ill physical health.

(2)  In his application, the plaintiff relied upon:

(a) A hospital discharge report dated 24 February 2018 which made a brief reference to the plaintiff’s mental state as “昏亂”; and

(b) A brief note from a general practitioner (his family doctor) that concluded that he was “not fit to give evidence in court” due to various chronic ailments but made no reference to any loss of memory or deficiency in his mental health.

(3)  In paragraph 7 of her witness statement (dated 21 March 2018), Madam Lo also referred to the plaintiff’s “…marked deterioration in his memory” after his discharge from the hospital, a matter which she sought to embellish in her oral evidence by saying that the plaintiff could not even identify which door led to which room in their home.

(4)  However, Madam Lo’s evidence was flatly contradicted by the report of Dr Wong Ho Yan, Specialist in Psychiatry, dated 2 May 2018 (“Dr Wong’s Report”) (Exhibit D1) obtained by the plaintiff himself and enclosed under cover of a letter dated 23 May 2018 to the defendant’s solicitors.  The report had been produced by the plaintiff’s solicitors to show that the plaintiff had sufficient mental capacity to continue the action in his name and to give instructions to his legal representatives.

(5)  Not only does Dr Wong’s Report make it abundantly clear that the plaintiff is of full mental capacity and has no problems with his recollection, including specifically matters pertaining to this action, but also recorded that the plaintiff’s wife (Madam Lo) and son “did not notice any symptoms of memory or functional decline in his daily living”, and that the plaintiff “…did not report any subjective memory complaints”.

(6)  When Dr Wong’s Report was shown to Madam Lo in cross-examination, she was unable to explain the discrepancy between her evidence and Dr Wong’s Report.  Whilst accepting that she accompanied the plaintiff to see Dr Wong, she was also unable to explain why she never told Dr Wong of the plaintiff’s alleged mental issues now raised in her evidence.

(7)  Madam Lo, in answer to queries from the bench, was unable to explain why the plaintiff could not attend and give evidence at the trial even if he had difficulty walking, as now suggested by Madam Lo.  She was only able to say that the plaintiff did not like being in a wheelchair.

(8)  For the reasons above, I would reject in the entirety Madam Lo’s evidence that the plaintiff is suffering from any significant memory loss or is mentally or physically unfit to give evidence at the trial.  It is clear that the plaintiff or his legal representatives have decided that he should not be giving evidence at the trial for reasons best known to themselves.

(9)  The plaintiff’s evidence is obviously crucial to his case. Indeed, insofar as the alleged Oral Agreement is concerned, he is the only living person who was a party to that alleged agreement, since his father Yik Shiu Tong and brother Yik Wai Yung both died prior to the commencement of the action.  It is also plain from Madam Lo’s evidence in cross-examination that she was not a party and had no knowledge of the alleged discussion between Yik Shiu Tong and his two sons.

(10)  Moreover, in his pleadings and witness statement, the plaintiff claimed participation in and personal knowledge of the key and critical events pleaded in the Amended Statement of Claim: –

(a) Paragraph 16, concerning the alleged payment of GBP 3,000 cash in 1976 to Yik Wai Yung “…partially as gift and partially as contribution to the improvements costs of the Access Road pursuant to [the Oral Agreement]”.

In cross-examination, Madam Lo accepted that she was not part of any discussion with Yik Wai Yung concerning this matter.

(b) Paragraph 17, concerning the alleged events in 1996 where Madam Man was said to have orally represented to the plaintiff that her family wished to carry improvement works to the Access Road and to acquire or acquire the right to use what would eventually become the Roadside Lot and “…requested the Plaintiff to contribute to the expenses involved pursuant to the [Oral Agreement]”.  In his witness statement, the plaintiff referred to discussions in a gathering with Madam Man and Yik Bun Kin (“Bunsen”) when he returned to Hong Kong for Bunsen’s father’s funeral.

Again, in cross-examination, Madam Lo accepted that she was not part of any such discussion.

(11)  I agree that this is a case where the court should not only disregard the plaintiff’s witness statement, but should also draw an adverse inference against the plaintiff for choosing not to give evidence in court when he was plainly capable to do so.

(12)  Rather, the plaintiff’s legal representatives put forward Madam Lo as the plaintiff’s key witness in these proceedings and filed a witness statement on her behalf that was almost copied verbatim from the plaintiff’s statement and supplemental statements.  It is perhaps of little surprise then that at the beginning of cross-examination, Madam Lo frankly admitted that she had not read even her witness statement before and was unaware of its contents.

(13)  As pointed out by the defendant, witness statements must contain only such material facts as the witness is able to prove of his own knowledge and is the equivalent of the oral evidence that the witness will give, if called, in his or her evidence-in-chief at trial.  Statements should be in the witness’ own words and must not be massaged or crafted by lawyers (see, for example, Hong Kong Civil Procedure 2019, Practice Note 38/2A/7).  Whilst it might not be necessarily improper for a witness to adopt the evidence of another witness (albeit such circumstances must be rare), plainly this is not such a case;

(14)  Madam Lo’s evidence as adduced in cross-examination bore little resemblance to that in her witness statement, much of which she had no knowledge (whether personal or second hand) at all.  I agree that her evidence makes a mockery of Order 38, rule 2A of the Rules of the High Court, not to mention the underlying objectives enshrined in Order 1A.  

(15)  In the circumstances, including in particular the fact that she disclaimed her statement at the outset (albeit she sought to retract this later), I agree the court should reject wholesale or at least exercise extreme caution in respect of any of the assertions contained in Madam Lo’s witness statement which are in dispute, and consider only the evidence that she had given orally at the trial as being her evidence.

D.      DETERMINATION OF THE AGREED ISSUES

D1.    The Access Road on the Western Lot

Issues 1 & 2: Whether the Oral Agreement existed and whether enforceable

27.  Needless to say, the burden of proving the existence of the alleged Oral Agreement lies firmly on the plaintiff, who, as mentioned above, is the only person alive today who was a party to the alleged agreement.  There is no dispute that the alleged Oral Agreement was never recorded or evidenced in writing.

28.  In the absence of any evidence from the plaintiff, and in light of Madam Lo’s evidence that she was not a party to and had no knowledge of the discussions between the plaintiff, Yik Wai Yung and Yik Shiu Tong at the time, there is simply no evidence of any such agreement.

29.  For the reasons stated above, I find that the plaintiff has failed to prove the existence of the Oral Agreement.

30.  In the event, the issue of enforceability in Issue 2 simply does not arise for consideration.  

31.  The answer to the issues should therefore be “No” for Issue 1, and “Not applicable” for Issue 2.

Issue 3: Whether the plaintiff contributed to improvement costs of the Access Road and the defendant is therefore estopped from denying existence or validity of the Oral Agreement

32.  First of all, from the very wording of the issue itself, it is dependent upon the existence of the Oral Agreement.  As the plaintiff is unable to prove such an agreement existed, this issue does not arise for consideration.

33.  In any event, there is simply no evidence that the plaintiff contributed to any improvement costs of the Access Road:

(1)  Whilst it is not disputed that the plaintiff contributed, at the request of his father, Yik Shiu Tong, to the building costs of a one-storey village house for Yik Wai Yung on the Western Lot in 1976, there is simply no evidence that the money was also intended, or was in any way used, for any improvement works of the Access Road.

(2)  Despite what was stated in paragraph 27 of her statement, Madam Lo’s oral evidence was that she was only aware that her husband had remitted funds to Hong Kong at Yik Shiu Tong’s request to build the village house.  She was not a party to the discussions between the plaintiff and Yik Shiu Tong (or Yik Wai Yung) in relation to those funds.  In the absence of any evidence from the plaintiff, there is no evidence of any representation which can give rise to any estoppel.

(3)  In any event, there is no objective evidence of any visible or apparent improvements in the Access Road in or around 1976.  To the contrary:

(a) The plaintiff’s own expert report: paragraph 17: “From the correlated aerial photos of 1973, it was found there was no significant change of the ground features on the subject lots as well as the “Access Road” in dispute.” (emphasis added)

(b) The plaintiff’s own expert report: paragraph 19: “From the correlated aerial photos of 1977, a house was found erected on [the Western Lot] whilst there was no significant change on the paved “Access Road” in dispute on the subject lots.”(emphasis added)

(c) The defendant’s expert report: Section F, paragraph 17, showing that the state of the Access Road remained constant in the period between January 1974 and December 1977 (maps from the Survey and Mapping Office, Lands Department).

34.  The answer to Issue 3 must therefore be “No”.

Issue 4(1) - (4): The alleged events in 1996 as pleaded in paragraph 17 of the Amended Statement of Claim

35.  Despite what was stated in paragraphs 30 to 34 of her witness statement, Madam Lo’s oral evidence was that she did not participate in any discussions concerning the Access Road or the acquisition of the Access Road or rights to the Access Road when she came back to Hong Kong in 1996.

36.  Rather, her oral evidence was that: –

(1)  She received a brief telephone call from Madam Man shortly after she returned to the United Kingdom. In that telephone conversation, Madam Man raised the possibility of acquiring the Roadside Lot or rights to the Roadside Lot.  She said that she was amenable and asked Madam Man to look into the matter.  However, she accepted that the conversation was very preliminary at the time, as it remained unclear or to be decided whether the lot or a right of way over the lot could be acquired, the price to be paid or how the costs (if any) would be divided.

(2)  When she returned with the plaintiff to Hong Kong in 1999, she inquired with Madam Man on numerous occasions for the details of the acquisition of the Roadside Lot.  However, Madam Man rebuffed and refused to discuss the matter with her.

(3)  Madam Lo then worked out a sum of HK$80,000 being what she believed in her own mindto be her fair share of contribution, and without consulting Madam Man, arranged for a cheque for that amount to be deposited into Madam Man’s account through Madam Man’s son-in-law, who worked at Ka Wah Bank.

(4)  She then returned to the United Kingdom without any discussion of the matter whether with Madam Man or the defendant.

37.  Bunsen’s evidence in cross-examination on the alleged discussions in 1996 may be summarised as follows: –

(1)  In 1996, when the plaintiff and Madam Lo returned to Hong Kong for his father’s funeral, they had a number of informal gatherings over lunch or dinners.  In those gatherings, the prospect of acquiring the Roadside Lot or a right of way over the Roadside Lot was raised (as noted by the court at the trial, this was inconsistent with the evidence in his witness statement that there was one specific gathering where this issue was discussed).

(2)  However, he also accepted that the conversations were very preliminary at the time, and it remained unclear or to be decided whether the lot or a right of way over the lot could be acquired, whether the owner would even sell, the price to be paid (if any) or how the costs (if any) would be divided.

38.  It is not in dispute that the court may grant an equitable remedy relating to interests in land, where it would be just to do so.

39.  However, it is trite law that for any estoppel to arise (whether proprietary or otherwise), any representation sought to be relied upon must be sufficiently “clear and unequivocal”.  What is sufficient clear and unequivocal depends on the context.  See a convenient summary of the authorities in Szeto Chak Mei v Chan Lam Shan & Ors, HCMP 836/2012 (Judgment dated 1/03/16) at paragraphs 31 to 43.

40.  I agree that even if the oral evidence of Madam Lo and Bunsen were accepted at face value, there was no representation or assurance (not to mention a “sufficiently clear and unequivocal” representation) made to induce the payment of the $80,000 by Madam Lo to Madam Man: –

(1)  Although the plaintiff and Madam Lo on the one hand and Madam Man on the other are relatives, the present case is far removed from usual cases of proprietary estoppel in the domestic context, where a man promises or assures a partner with whom he is cohabiting that she is to have an interest in their dwelling house.

(2)  In none of the discussions, whether those at gatherings in Hong Kong (in which Madam Lo did not participate) or in the telephone conversation between Madam Lo and Madam Man, was there any clear representation or assurance that the plaintiff would acquire an interest in any property or right of way to be acquired.

(3)  As mentioned above, discussions concerning acquiring or acquiring rights to what was eventually the Roadside Lot were at best preliminary, with no details or particulars as to what was being acquired or what was the price known to either side, even by the time of the subsequent telephone conversation between Madam Lo and Madam Man. In fact, the Roadside Lot eventually acquired only formed a small part of the lot which connected the Western Lot to Kiu Hing Road.

41.  More importantly, however, the payment of the $80,000 simply cannot be said to be in reliance on any assurance or representation made by Madam Man (not to mention the defendant – see further below) even if Madam Lo’s oral evidence were to be accepted at face value: –

(1)  As mentioned above, when Madam Lo returned to Hong Kong in 1999, she said she inquired with Madam Man on numerous occasions to find out the amount that she should contribute, but on each occasion, she was rebuffed by Madam Man, who refused to discuss the matters with her.

(2)  She then on her own initiativeworked out the sum of $80,000 and arranged for the sum to be paid to Madam Man without consultation with her (or the defendant), either before or after the event.

(3)  Plainly, it cannot be said that the payment was in reliance upon any representation or assurance by Madam Man, the defendant or Yik Wai Yung.  On her own evidence, she said she made the payment because “…she did not want to owe anyone any money”.

42.  There is also no mention of any discussion concerning improvements to be made to the Access Road or the plaintiff’s alleged contribution to the costs of the same, whether pursuant to the alleged Oral Agreement or otherwise, either in Bunsen’s evidence (orally or in his witness statement), or in Madam Lo’s oral evidence.

43.  Thus, any case of estoppel must fail, even if the evidence of Bunsen and Madam Lo were to be accepted at face value.

44.  Further, I accept Madam Man’s evidence to the following effect in disputing Bunsen and Madam Lo’s evidence as to the events in 1996: –

(1)  She denied that she had any discussion with Madam Lo over the telephone concerning any sharing of costs in the acquisition of the Roadside Lot.

(2)  Rather, her evidence as to how the Roadside Lot came to be acquired was set out in the 2^nd supplemental witness statement of the defendant at paragraphs 5 to 7.

(3)  These paragraphs were shown to Bunsen, whose objection to those paragraphs was only that he did not say to the defendant’s sister what was stated in paragraph 7.

(4)  Further, as explained by Madam Man in paragraph 15 of her statement, she understood the $80,000 to be a gift to her for inter alia taking care of Yik Shiu Tong and his wife throughout the years, and for taking care of the plaintiff’s house whilst he was in the United Kingdom and installing wire fencing around it (the facts of which were unchallenged).

45.  Finally, as to Bunsen’s evidence in paragraph 13 of his statementthat “several years” after the gathering in 1996, he saw Madam Man and the plaintiff in a gathering, and in casual conversation, he came to know that the plaintiff had paid Madam Man a sum of several tens of thousands for the purchase of the Roadside Lot and the improvement of the Access Road, I agree that this should be rejected or not accorded any weight: –

(1)  The evidence is vague as to both time and place and as to the contents of such conversation.

(2)  Madam Lo’s evidence was that the discussion with Madam Man and payment of the $80,000 had been handled by her, rather than the plaintiff.  It is not alleged that she was part of the conversation with Bunsen.

(3)  Although Bunsen has no known interest in these proceedings, it is not in dispute that his relationship with the defendant and his family has soured as a result of the acquisition of the lots adjacent to the Roadside Lot connected to the Western Lot.  This is a matter that should be taken into account in considering the weight to be given to Bunsen’s evidence.

46.  For the reasons stated above, I agree that the answers to each of Issues 4(1) to (4) should be “No”.

Issues 4(5): Whether Madam Man acted (if at all) with the actual or ostensible authority of the defendant

47.  In paragraph 17 of the Amended Statement of Claim, the plaintiff makes the bare allegation that Madam Man “was acting with the actual or ostensible authority of the defendant.”  However, I agree that there is no evidence whatsoever to support these allegations. 

48.  Insofar as actual authority is concerned: –

(1)  There is nothing in either the witness statement or oral evidence of Madam Man to support the assertion that Madam Man was in fact authorised by the defendant to deal with or make representations on his behalf in relation to the acquisition of the Roadside Lot.

(2)  In paragraph 14 of his statement, Bunsen makes a vague and unparticularised assertion that Madam Man acted as agent or representative in relation to the facilities on the Western and Eastern Lots (collectively, the “Original Lots”), as Yik Wai Yung was not home for long periods and the defendant was young and worked abroad.

(3)  It should be borne in mind, however, that by 1996, the defendant was already some 31 years old, a licenced pharmacist, and the Western Lot had been transferred to him by his father Yik Wai Yung some 9 years earlier in 1987.  It is also the defendant’s unchallenged evidence that the Roadside Lot had been acquired by the defendant using his own funds.

(4)  Although Madam Man accepted that she performed day to day maintenance of the Western Lot and the house on it, including arranging for wire fences to be built around the Original Lots, there is no evidence at all, and Madam Man denied, that she had any authority in respect of such important matters as to the sale and purchase of the Western Lot or the Roadside Lot.  I agree this is only common sense and hardly surprising, since she was neither the registered or beneficial owner of the Western or Roadside Lots, but merely the mother of the owner (ie the defendant).

(5)  As the present case concerns interests in land, the court should be slow to infer any authority of third parties to deal with such interests or authority to bind the owner, in the absence of clear and cogent evidence, of which there is simply none in this case.

49.  As to ostensible authority: –

(1)  Ostensible authority arises where a person, by words or conduct, represents or permits it to be represented that another person has authority to act on his behalf, so that he is bound by the acts of that other person with respect to anyone dealing with him as an agent on the faith of any such representation, to the same extent as if such other person had the authority that he was represented to have, even though he had no such actual authority.

(2)  In Armagas Ltd v Mundogas SA [1986] AC 717 (HL) at page 777, Lord Keith of Kinkel said (with the concurrence of the other law lords):

“… Ostensible authority comes about where the principal, by words or conduct, has represented that the agent has the requisite actual authority, and the party dealing with the agent has entered into a contract with him in reliance on that representation. The principal in these circumstances is estopped from denying that actual authority existed. In the commonly encountered case, the ostensible authority is general in character, arising when the principal has placed the agent in a position which in the outside world is generally regarded as carrying authority to entered into transactions of the kind in question. Ostensible general authority may also arise where the agent has had a course of dealing with a particular contractor and the principal has acquiesced in this course of dealing and honoured transactions arising out of it. …”

          See also the speech of Lord Diplock in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 505.

50.  There is no plea in the Amended Statement of Claim or indeed any evidence that any representation had been made by the defendant, whether by words or conduct, that Madam Man had authority to make any representations or to make any assurances on his behalf in relation to the acquisition of the Roadside Lot.

51.  Even in Madam Lo’s witness statement (to which no weight should be attached, as held above) at paragraph 34, it is stated that although Yik Wai Yung was not present in the discussions (concerning the Access Road and the acquisition of what was to become the Roadside Lot), she and her husband later saw Yik Wai Yung, and he allegedly assured them that Madam Man represented the whole family including him and the defendant.

52.  First of all, as pointed out by the defendant, Madam Lo made no reference in her oral evidence to any such conversation with Yik Wai Yung during her visit to Hong Kong in 1996.  In any event, even if Yik Wai Yung had made such a representation to Madam Lo, this plainly could not clothe Madam Man with authority to act on behalf of the defendant.

53.  Madam Lo accepted in her oral evidence that she never even contacted or spoke with the defendant at all in relation to the Access Road or the acquisition of the Roadside Lot.  She simply believed that Madam Man (without any basis) that she could act and was acting on his behalf.

54.  Finally, it is noted that the cheque of $80,000 was not even made out to or given to the defendant, whom Madam Lo knew in 1999 was in fact the one who had acquired the Roadside Lot.

55.  For all the reasons stated above, the answer to Issue 4(5) must be “No”.

Issue 5: Whether by reason of the findings in Issue 4, the defendant is estopped from denying the existence or validity of the Oral Agreement

56.  By reason of the matters stated above, including in particular paragraph 42, the answer to this issue must be “No”.

Issue 5A: In the event that an estoppel is established, what if any remedies should be granted by the court

57.  For the reasons above, this issue does not arise for consideration, and the answer to this issue should be “Not applicable”.

58.  For the sake of completeness, it should be added here that in order for the plaintiff to be entitled to any remedy in this case, he must succeed in establishing a right of way (or other remedy to similar effect) for both the Access Road on the Western Lot as well as the Roadside Lot: –

(1)  It is important to note that what the plaintiff is claiming is merely a right of way over the two lots to access Kiu Hing Road, and not any right of occupation over any of the two lots (for instance, for use as parking space, etc).

(2)  A right of way over either of the lots is only of any practical value if access can be gained to Kiu Hing Road (no other purpose has been pleaded or suggested). If the plaintiff is entitled to a right of way over only one of the Lots, that would be meaningless, either because:

(a) In the event that there is no right of way over the Roadside Lot, the right of way over the Access Road over the Western Lot would go nowhere without trespassing over the Roadside Lot and then facing a locked gate to Kiu Hing Road; or

(b) In the event that there is no right of way over the Access Road on the Western Lot, there is no way of reaching the Roadside Lot from the Eastern Lot (without trespassing over the Western Lot).  Such a right of way could not therefore confer any benefit to the Eastern Lot, which is one of the defining characteristics of an easement.

(3)  The well-known maxim “equity does not act in vain” applies here.  There is no legal easement (which can only arise by deed), and hence, the remedies sought by the plaintiff are equitable, whether by way of proprietary estoppel and/or injunctive relief prayed for in paragraphs (2) and (3) of the prayer to the Amended Statement of Claim. There would be no purpose in granting any equitable relief when such relief is meaningless.

Issue 6: Whether an implied easement over the use of the Access Road had been created by implication under the rule in Wheeldon v Burrows or section 16 of the CPO

59.  The defendant does not dispute the rule in Wheeldon v Burrows, which was explained by the Court of Final Appeal in Kung Ming Tak Tong Co Ltd v Park Solid Enterprises Ltd (2008) 11 HKCFAR 403 at paragraphs 44 to 48:

(1)  Since a person cannot have an easement over his own land, the rights could only be quasi-easements and not real easements.  However, if and when the land is later divided into separate tenements in different occupation, such quasi-easements become full legal easements taking effect as interests in land for the benefit of one or other of the newly created tenements (paragraph 44).

(2)  The principle establishes the legal basis upon which such quasi-easements are recognised and implied into a grant which does not expressly deal with them.  It also establishes a stricter rule which requires the grantor expressly to reserve any rights he may seek to exercise in future over the land granted, subject to narrow exceptions (paragraph 45).

(3)  The doctrine would only pass to the grantee all those (i) continuous and apparent quasi-easements, (ii) which are necessary to the reasonable enjoyment of the property granted, and (iii) which have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted (paragraph 45).

(4)  The rule is a rule of intention, based on the proposition that a man may not derogate from his grant. He cannot grant or agree to grant land and at the same time deny to his grantee what is at the time of the grant obviously necessary for its reasonable enjoyment (paragraph 48).

60.  In summary, the doctrine would only pass to the grantee all those:

(1)  Continuous and apparent quasi-easements;

(2)  Which are necessary to the reasonable enjoyment of the property granted; and

(3)  Which have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted.

61.  The burden plainly lies on the plaintiff to establish each of the elements set out above. 

62.  In Loyal Luck Trading Ltd v Tam Chun Wah [2007] 4 HKLRD 917 (upheld on appeal in [2008] 4 HKLRD 681), Barma J, as he then was, explained at paragraphs 15 and 17 the meaning of “continuous and apparent”: –

“15.   Although, strictly speaking, a continuous easement is one which is enjoyed passively (such as a right to light, or a right to use drains or a watercourse), this requirement has never been rigidly insisted upon, and a right of way over a made road or well defined track will pass under the rule (see Megarry and Wade, The Law of Real Property (6^th ed., 2000) at para.18-105).  In practice, the term “continuous” appears to have been interpreted as meaning permanent in nature, so that what will pass are easements of a permanent sort, of which some sign is apparent on the retained land.

…

17.   In this case, the right of way claimed relates to the access road which was constructed over the defendant’s land.  The photographs of the parties land clearly show that the road in question is one which was constructed, consisting as it does of a well defined roadway the surface of which is made up, in that it is either concreted over, or gravelled. The right of way claimed is therefore both permanent in nature, and readily apparent on the defendant’s land, and I am therefore satisfied that it was continuous and apparent for the purposes of the rule in Wheeldon v Burrows (1879) LR 12Ch D 31.” (Emphasis added)

63.  In the present case, I agree there is far from sufficient evidence before the court that the Access Road was continuous and apparent at the time of the grant from Yik Shiu Tong to the plaintiff, ie 2 July 1970: –

(1)  From the maps and aerial photographs exhibited to the expert reports, it can be seen that:

(a) The Access Road did not exist as can be seen in aerial photographs taken in 1963 by the Lands Department (see: paragraphs 10 and 11 of the plaintiff’s expert report and paragraph 12 of the defendant’s expert report).

(b) The Access Road did not exist in the 1967 map of the Western and Eastern Lots of the Lands Department (see: paragraph 13 of the defendant’s expert report).

(c) The first time the Access Road appeared in the records of the Lands Department was in 1972 where aerial photos showed a “paved road” with an estimated width of 2.5 metres (see paragraphs 12-15 of the plaintiff’s expert report and paragraph 14 of the defendant’s expert report).

No aerial photographs had been taken or maps drawn up in the period between 1967 and 1972 to show when in that period the Access Road was paved.

(2)  Madam Lo was unable to provide any evidence on the Access Road during that period.  She returned to Hong Kong for the first time in 1970 after she left for the United Kingdom in 1962.  On her own evidence, she never even went down to see the Original Lots during her 1970 visit.

(3)  The only evidence adduced by the plaintiff on the state of the Access Road at the material time was that of Bunsen, whose evidence may be summarised as follows:

(a) Prior to 1971 (when Yik Shiu Tong and his wife moved into a village house built by the plaintiff on the Eastern Lot), Yik Shiu Tong resided in Pak Sha Village to the north east of the Original Lots.  Yik Shiu Tong’s mother resided in the ancestral home to the east of the Original Lots.

(b) Hence, when Yik Shiu Tong went to tend to his farming on the Original Lots, he would have taken the routes (footpaths) eastward from the lots, rather than going westward.

(c) Kiu Hing Road was built towards the end of the 1960s. After Kiu Hing Road was built, Bunsen’s father purchased and was the first person to own a motorcar in Pak Sha Village.  Bunsen and his father lived in lots to the east of the Original Lots, and Bunsen’s father would drive his motorcar westward across the Original Lots and what was to become the Roadside Lot to reach Kiu Hing Road.  Over time, the path on which the car drove became a dirt track as a result of wear from his father’s car.

(d) Sometime in the end of 1960s and beginning of the 1970s (he was unable to recall when), the plaintiff paved the Access Road.

(4)  Even if Bunsen’s evidence in this regard were to be accepted, there was no proper road until the Access Road was paved by the plaintiff sometime in the end of the 1960s and beginning of the 1970s.

(5)  Whilst a worn track may suffice as a quasi-easement under the rule (see, for example, Loyal Luck Trading,CA, at paragraph 37), there is no evidence to show that a worn or dirt track had been created prior to July 1970.  In any event, even if there was one, the period in which it could have existed would have been very short by the time of the assignment, namely, between the end of the 1960s and 2 July 1970.  Significantly, it was also not created by any act or use of the plaintiff (who was living in the United Kingdom with his family at the time) or his father, but rather by a third party, namely, Bunsen’s father.

(6)  As to the existence of a paved road, I agree that, on the balance of probabilities, it is more likely than not that the Access Road was paved only after 2 July 1970: –

(a) As pointed out to Bunsen in cross-examination, since the Access Road was on his own evidence paved by the plaintiff (as opposed to Yik Shiu Tong), this would likely have occurred only after the Eastern Lot had been assigned to him on 2 July 1970.

(b) Although Bunsen sought to explain that the transfer of the Eastern Lot to the plaintiff was merely a formality, the reality in this case was that the plaintiff was all along living in the United Kingdom in the 1960s, and had returned only for the first time to visit Hong Kong in 1970, when the transfer took place.

(c) It is highly unlikely therefore that the plaintiff would have paved the Access Road even prior to his visit to Hong Kong and the Eastern Lot being assigned to him during that visit;

(7)  The defendant explained in cross-examination that after Kiu Hing Road was built in the late 1960s: –

(a) Yik Shiu Tong would take his farm products during harvest time to Kiu Hing Road, where they would be collected by trucks which would then transport the products to the market.  However, harvest time was only a couple times a year.

(b) Further, Yik Shiu Tong would on occasion walk across Kiu Hing Road to purchase fertiliser from a chicken farm situated to the west of Kiu Hing Road. 

Such occasional uses, however, simply does not and could not constitute an “apparent and continuous” quasi-easement at or prior to the grant in July 1970.

(8)  For the reasons stated above, the plaintiff is unable to show that the Access Road was an “apparent and continuous” quasi-easement as at the time of the grant of the Eastern Lot to the plaintiff.

64.  Further, the plaintiff is unable to show that the Access Road was, at the time of the grant, necessary for the reasonable enjoyment of the part of the property granted and had been used by the owner of the entirety for the benefit of that part: –

(1)  In this regard, it is important to remember that at the time of the grant in July 1970, the Original Lots were solely farmland, and no one lived on the lots.

(2)  The fact that Bunsen’s father drove across the Original Lots to reach Kiu Hing Road is irrelevant: it was not for the reasonable enjoyment of the property granted, ie the Eastern Lot.

(3)  Although Yik Shiu Tong occasionally brought his farm products westward to Kiu Hing Road, and bought fertiliser from the chicken farm across Kiu Hing Road, neither of these circumstances was necessary to the reasonable enjoyment of the property at the time.

(4)  There is nothing to suggest, nor was it suggested to the defendant, that the farm products could not or cannot be transported along the eastbound routes or that fertiliser could not or cannot be brought in by bicycle (being the principal form of transportation at the time) from the routes east of the Original Lots.

(5)  Indeed, as Kiu Hing Road was only built in the late 1960s (and prior to that, the area was farmland belonging to others), and the Original Lots had on the plaintiff’s own case all along been used by Yik Shiu Tong for farming long before that, he must have used the eastern routes (as being the only routes available) for transporting his farmed products.

65.  Further, I agree that section 16 of the CPO does not take matters further for the plaintiff, as its operation is also dependent upon the quasi easement being “continuous and apparent”.  See: for example, Loyal Luck Trading,CFI,at paragraphs 27 to 29 and Loyal Luck Trading, CA, at paragraph 28.

66.  In the circumstances, the answer to Issue 6 must be “No”.

Issue 7: Whether the plaintiff has acquired a right of way and easement over the Access Road by prescription

67.  I shall discuss this issue together with Issues 10 and 11 below in relation to the Roadside Lot.  In short, the answer is “No”.

D2.    The Roadside Lot

Issue 8: Whether an express easement was created in the Roadside Lot or whether the defendant is estopped from denying Madam Man’s Representations

68.  There is no basis (pleaded or otherwise) for the creation of any express easement in the Roadside Lot.  There is no deed granting any legal easement, nor is there any plea of a contract for easement (in contrast to the plea of the alleged Oral Agreement in relation to the Access Road over the Western Lot).  The plaintiff’s case, rather, is solely one of alleged proprietary estoppel.

69.  However, for the reasons already set out above, any case of proprietary estoppel must fail, as there was (i) neither a clear and unequivocal representation nor assurance (if any at all) by the defendant; and/or (ii) the alleged detriment suffered by the plaintiff, namely, the payment of $80,000, was not in reliance upon any such assurance or representation.

70.  In the circumstances, the answer to Issue 8 must be “No”.

Issue 8A: In the event that the defendant is so estopped, what remedies, if any, should be granted by the court

71.  In the light of the above, this issue simply does not arise for consideration, and the answer should be “Not applicable”.

Issue 9: Whether an easement had arisen by implication due to necessity because the plaintiff would have no means of leaving the Access Road

72.  The plaintiff’s claim of easement by implication due to necessity has, quite properly, been conceded by the plaintiff’s Leading Counsel after the close of evidence.

Issues 7, 10 and 11: Whether the plaintiff and his family acquired a right of way and easement over the Access Road and the Roadside Lot by prescription

73.  The relevant principles concerning the acquisition of an easement by prescription or loss of modern grant can be summarised as follows: –

(1)  If the owner of land uses a road as a means of access to, and egress from, his land for more than 20 years “as of right”, then, at least in the absence of special circumstances, he will obtain a right of way over the land for the benefit of his land.

(2)  Whether the use is “as of right” depends on the claimant showing that it had been nec vi (without force), nec clam (without stealth) and nec precario (without permission from the owner).

See, for example, London Tara Hotel Ltd v Kensington Close Hotel Ltd [2012] 2 All ER 554, CA; Regina (Beresford) v Sunderland City Council [2004] 1 AC 889, HL; Regina (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70.

74.  In Beresford, Lord Bingham at paragraph 6 cited with approval the proposition that “[t]he true approach is to determine the character of the acts of user or enjoyment relied on” and that those acts have to be “sufficient to amount to an assertion of a continuous right, continue for the requisite period, [and] are actually or presumptively known to the owner of the servient tenement” (as stated by Parker LJ in Mills v Silver [1991] Ch 271 at 290). (emphasis added)

75.  First of all, as pointed out by the defendant, the plaintiff and Madam Lo only returned to live in Hong Kong in 2002:

(1)  In White v Taylor (No 2) [1969] 1 Ch 160 at 192, Buckley LJ said that although it is not necessary for a user to show that the use was continuous in the sense of 24 hours a day, it must be shown to have been “…of such a character, degree and frequency as to indicate an assertion by the claimant of a continuous right, and of a right of the measure of the right claimed”.

(2)  Prior to 2002, on Madam Lo’s own evidence, she and the plaintiff returned to visit only for short periods (a week or so) at most every “good several” years.  No immigration records of the plaintiff and Madam Lo have been produced, although it is not in dispute that they returned to Hong Kong in 1970 and 1996.  Even if the plaintiff and Madam Lo might have used the Access Road and/or the Roadside Lot on these occasional visits, plainly such sporadic use cannot give rise to prescription.

(3)  In the circumstances, the 20-year period can only begin to be counted from 2002, in which case, the requisite period had obviously not elapsed.  On this ground alone, the claim of prescription in respect of the Access Road and/or Roadside Lot must fail.

(4)  For the sake of completeness, again whether or not Bunsen’s father and his family used the Access Road and/or the Roadside Lot prior to 2002 is irrelevant to the question of whether the plaintiff acquired any private right of way by prescription.

76.  Further, I agree that even if the occupation of Yik Shiu Tong and his wife (the plaintiff’s parents) of the plaintiff’s house on the Eastern Lot were taken into account (and it is at least unclear why they should be), this does not and cannot assist the plaintiff’s case: –

(1)  As pleaded in paragraph 15 of the Amended Statement of Claim, Yik Shiu Tong and his wife died in 1987 and 1989 respectively.  It is not in dispute that no one lived in the house thereafter until the plaintiff and Madam Lo moved back to Hong Kong in 2002 (some 13 years later).

(2)  In the period from 1989 to 2002, there is some dispute as to the extent to which Yik Wai Yung had used it as storage (see paragraph 10 of the Re-Amended Defence).  Nothing turns on this.

(3)  There can be no serious dispute that, in the 13-year period from 1989 to 2002, the Eastern Lot was unoccupied and hence, there could have been no use, or continuous use, of the Access Road and/or the Roadside Lot by the plaintiff.

(4)  It follows that there could have been no continuous use of the Access Road and/or the Roadside Lot for the requisite period of 20 years, whether it be in the period from:

(a) July 1970 (the date of the division and assignments of the Eastern and Western Lots) and 1989 (the death of Yik Shiu Tong’s wife) – ie only 19 years; or

(b) 2002 (the year the plaintiff and his wife returned to Hong Kong) and 2014 (when, on the plaintiff’s own case, access through the Access Road and the Roadside Lot was denied) – ie only 12 years.

There is in any event no or scant evidence of any use by Yik Shiu Tong and/or his wife of the Access Road and/or the Roadside Lot in the period from 1970 to 1989.

77.  In any event, it is crucial to understand and appreciate that the plaintiff and Madam Lo were all members of the defendant’s extended family, and indeed his elders.  It is in this context that the use of the Access Road and/or the Roadside Lot (after the defendant’s acquisition in 1996) by the plaintiff and his family must be viewed.  Indeed, it was accepted by both Madam Lo and Bunsen in cross-examination that they were permitted to use the Access Road and/or the Roadside Lot (after 1996) not because of any legal right, but rather for their convenience because, “大家都係一家人”.

78.  In his re-examination of the plaintiff’s witnesses and cross-examination of the defendant’s witnesses, the plaintiff’s counsel sought to make the point that on each occasion the Access Road and/or the Roadside Lot was used by the plaintiff, Bunsen or their families, it was unnecessary to seek the defendant’s permission.

79.  However, I agree that this misses the point: –

(1)  The fact that the defendant permitted the plaintiff and Madam Lo to use the Access Road and/or the Roadside Lot (after 1996) as members of the family does not mean that on each occasion they wished to use the Access Road, they had to ask for permission.

(2)  Rather, the point is that they were permitted generally to use the Access Road as a courtesy to them and for their convenience as members of the same family.

(3)  It has been held that for the purposes of showing licence, mere acquiescence of the servient landowner is not enough, there must be some overt act from which permission can be implied.  In London Tara Hotel Ltd v Kensington Close Hotel Ltd [2012] 2 All ER 554, Lord Neuberger MR (as he then was) summarised the position as follows at paragraphs 25 and 27:

“Beresford’s case is also important because Lord Rodger and Lord Walker both emphasised that toleration on the part of the owner of the putative servient land, in the sense of knowing about the use and bearing it in silence, would not be sufficient to found an argument that the use was precario: to found such an argument the toleration would have to amount to a communicated permission (…at [65] and [77], [2004] 1 AC 889). When describing what constituted permission, Lord Rodger said at [57], that ‘the paradigm case is of a grant in response to a request’ and that such an ‘arrangement lasts for only so long as the grantor allows’. At [75], Lord Walker explained that, while consent could be given ‘by non-verbal means, what was required was ‘a communication by some overt act which is intended to be understood, and is understood, as permission to do something which would otherwise be an act of trespass”.

(4)  However, it is important to note that cases such as Beresford, Redcar or London Tara Hotel, Supra,concerned commercial parties or strangers rather than family members, and one can readily appreciate the distinction between the two situations.

(5)  In any event, the resolution of this issue is unnecessary in the present case, as there is in fact a clear overt act of permission or licence.  It is not in dispute that:

(a) After the acquisition of the Roadside Lot, the defendant erected a locked gate on the Roadside Lot leading to Kiu Hing Road (the “Gate”), such that without a key to open the Gate, there could be no passage to Kiu Hing Road.

(b) In 2002, after the defendant and Madam Lo returned to live on the Eastern Lot, they were given a key to the locked Gate for their use.

(6)  Although the locked Gate was not situated on the Access Road, this is of little moment, as passage to Kiu Hing Road is and was always dependent upon there being no obstacle between the Eastern Lot and Kiu Hing Road, whether such obstacle was situated on the Access Road itself or the Roadside Lot.  The erection of the locked Gate meant that access could only be had with the express permission of the defendant, and such permission was granted through the provision of a key to the Gate to the plaintiff and Madam Lo.

(7)  Hence, the defendant’s act of erecting the locked Gate was a clear exercise and assertion of the defendant’s rights as owner of the passage to Kiu Hing Road, and the provision of keys to the Gate to the plaintiff and Madam Lo were unequivocal and overt acts implying the granting of licence to cross over both the Access Road and the Roadside Lot to reach Kiu Hing Road.  There is nothing to suggest that the plaintiff ever objected to the Gate being built by the defendant.  In the circumstances, I agree there is simply no arguable case that the plaintiff’s use was an assertion of any continuous right of way;

(8)  In any event, the erection of the locked Gate undeniably constituted an exercise of ownership rights in respect of passage through the Roadside Lot on which the Gate was located.  That is sufficient to dispose of any claim of easement by prescription in respect of the Roadside Lot, with the result that (assuming the other claims in relation to the Roadside Lot are unsuccessful for the reasons above) the action must be dismissed altogether.

80.  It is also important to note from paragraph 23 of the Amended Statement of Claim that the only material period relied upon in respect of the Roadside Lot as being the relevant period of use from which an implied easement by prescription is said to have arisen is the “20 years prior to April 2014”.

81.  Hence, unless the plaintiff is able to establish and prove the elements which would give rise to an implied easement by prescription, in particular nec precario (without permission or licence from the owner), for the entirety of the period from at least 1994 to 2014, the claim must be dismissed.  For the reasons above, the plaintiff has plainly failed to do so.

82.  For the reasons stated above, the answer to Issues 7, 10 and 11 must be “No”.

E.   CONCLUSION

83.  For the reasons set out above, the plaintiff’s claims in this action are dismissed.

84.  I see no reason why costs should not follow the event.  Accordingly, I order that the costs of these proceedings be paid by the plaintiff to the defendant, such costs are to be taxed if not agreed with a certificate for 2 counsel.

85.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

86.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.