KWOK PING v. KWOK CHAU WING

DCCJ2000/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2000 OF 2007

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DECISION

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1.  The defendant applies for leave to appeal my judgment in this case and applies for a stay of execution pending appeal.

2.  The grounds of appeal are:-

(1)     The findings and admissibility of the evidence of the second oral agreement and its effect in the context of construction of the deed poll;

(2)     The findings on the discrepancies in the two sub-division plans and its binding effect; and

(3)     The findings on the expert evidence.

3.  On the findings of the second oral agreement being not pleaded in the statement of claim as part of the background factual matrix in the context of which the deed poll was to be construed, the defendant submitted that it amounted to varying the deed poll.

4.  This action as pleaded by the plaintiff is an action on the construction of the deed poll where the boundaries between the plaintiff’s and the defendant’s land has to be determined. 

5.  The defendant on his own accord, because of the dispute between the plaintiff and himself, unilaterally instructed a surveyor in 2006 and erected a boundary wall and fence between Sections E and F, ie the plaintiff’s and the defendant’s land.  It is this unilateral decision of the defendant on the boundary lines that the plaintiff raised objections to and in the end, he decided to come to court for a resolution of their dispute.

6.  In the process of the preparation for trial, two original deed polls were produced, each with a plan attached, and there are discrepancies found between the two sub-division plans which had been found when scaled out, the size of the lots differed from the description of the sub-lots on the deed poll and this has become one of the important factual background of this case.

7.  The defendant objected to certain matters not being pleaded in the statement of claim.  I have in my judgment relied on the authority of the dictum of Lord Hoffman in the case of Investor Compensation Scheme Ltd v Bromwich Building Society and Another [1998] 1 WLR 896 at page 912 to 913 where Lord Hoffman referred to the phrase “matrix of fact” used by Lord Wilberforce in the case of Prenn v Simmonds [1971] 1 WLR 1381 in the construction of contractual documents.

8.  I have also referred to Mr Justice Hunter (as he then was) in his judgment in Lintock Co Ltd v Attorney General [1985] 2 HKC 555, where he held he has to go outside and look at the surrounding circumstances when in the circumstances of the case it seems impossible to extract the parties’ intention from the documents themselves.  He also said it is opened to the parties to put the surrounding evidence in their pleadings, but it is not a required practice.

9.  It was on those bases that I looked at the two plans with their discrepancies and the discrepancies over the boundaries of the lot and their respective sizes as the background information, and I have also taken into account the evidence of the second agreement from the plaintiff.

10.  As mentioned above, my finding on the two sub-division plans is part of the construction of the deed poll.  In this case there are two original deed polls which are supposed to be identical and both of them were signed by the same parties.  They are identical except for the two attached plans where the areas and boundaries of the sub-lots are slightly different.

11.  Under section 26A of the Land Registration Ordinance, Cap.128, both documents are presumed to be correct.

12.  I have found in my judgment that both sub-division plans should be treated equally.  As both are authentic and genuine, one should not ignore one over the other.  One has also to try to find an explanation or solution in the construction of the deed poll.

13.  The court has to look at the surveyors’ expert reports and the findings for assistance in the construction.  In turn, the plaintiff’s expert based his findings on the Land Registry’s survey plans, aerial photographs over the years and the historical background of the use of the land.  His conclusions tallied with the area description of the sub-lots and the deed poll.

14.  It was my finding that one cannot just look at the registration in the old Registry Office in this case, in particular when there are two deed polls with two sub-divided lot plans attached.  Although one was registered, the other was not, when both are authentic documents, one should not choose one over the other.

15.  As to the pleadings point, I also accept that the notes in Hong Kong Civil Procedure 2013 at Order 18 at page 397, 18/38/3, stated:-

“Where the version of events as pleaded or advanced by a party was found not to be accurate or true and another version was held to be true, a court must be careful when asked to make a finding of liability based on that other version and, before doing so, it must be satisfied that the other party was fully aware of the case it had to meet, usually by the matter being made clear in the pleadings, and had been given the full opportunity to deal with it. However, provided that it did so in a fair manner, the court was entitled to decide in favour of a plaintiff on the basis of a scenario which although different from the one pleaded and advanced by the plaintiff was one pleaded and advanced by the defendant. In disputes about terms agreed in a contract the parties generally advance their cases with surrounding relevant facts leading up to the agreement. Taking all this into account, the court decides what terms the parties agreed and these may not be the same as those advanced by either party. Unless the court moves outside the evidence and makes unwarranted findings, this is normally not unfair on either party but an attempt to do justice between them according to law. In the absence of exceptional circumstances, no person who has concluded a contract can be said to have been taken by surprise by the terms he has agreed. This is so regardless of whether the other party has precisely pleaded those terms.”

16.  In reaching my judgment, I have taken into account that the defendant had in open court heard the evidence of the plaintiff before calling the defendant’s witnesses.  There was no application to call any other witnesses in addition and there was also an opportunity for the counsel representing the defendant to cross-examine the plaintiff on the second oral agreement, his evidence formed the basis of the plaintiff’s case, and the defendant did in the closing submission deal with the evidence of the plaintiff on the second oral agreement.  The defendant had an ample opportunity to deal with this so-call second oral agreement, particularly when the defendant’s father was one of the two parties to the agreement.

17.  In conclusion, for reasons I have set out, I am not convinced the defendant’s appeal has any reasonable prospect of success.  I therefore dismiss the defendant’s application.

18.  On the application for a stay of execution, the brick wall and fence was erected unilaterally by the defendant without the consent or consultation with the plaintiff.  Removing them would merely be restoring the previous status quo.  In any event, none of the parties resided at those premises.  It is only a piece of farmland, and does not affect the daily living of either of the parties, since the land is no longer farmed, it affects the parties even less.  In any event, I agree the plaintiff should not be deprived of the fruits of his success, so the application to stay execution is refused.

19.  Costs of today’s application to be borne by the defendant, to be taxed if not agreed, with certificate for counsel.