TAI MO PIU AND OTHERS v. LAM KA YEE EMMA

DCCJ 3848/2020

[2025] HKDC 1067

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3848 OF 2020

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JUDGMENT

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1.  This is the trial of an action where the Plaintiffs claim for an easement of right of way and related reliefs.

Introduction

2.  The Plaintiffs (“Ps”) and the Defendant (“D”) are owners of two adjacent pieces of land known as Lot No 3325 and Lot No 3326 in DD 116 respectively, each erected thereon a 3-storey small house. These two plots of land with the corresponding small house erected thereon are hereinafter referred to as “Lot 3325” and “Lot 3326” respectively.

3.  Lot 3326 is at the direct north of Lot 3325. There is another relevant plot of land, Lot No 3319RP, also with a small house erected thereon (hereinafter referred to as “Lot 3319RP”), which is at the west of and separated from Lot 3325 and Lot 3326 by a narrow strip of government footpath (“the Footpath”), as shown on a plan under Appendix 2 to the Amended Statement of Claim ("ASOC"), which is reproduced in this Judgment as Annex 1.

4.  Ps mainly rely on an express grant of right of way under a Deed of Grant dated 6/11/1995 (“the Deed of Grant") to base their claim against D. Initially, Ps also pleaded an alternative claim for easement by prescription. But, during the adjournment of the trial for oral closing submissions, Ps indicated to the Court through their solicitors’ letter dated 16/7/2024 that they would no longer proceed with such claim. This is taken as Ps’ abandonment of this alternative claim.

5.  Essentially, the Deed expressly granted a right of way over a specified portion of Lot 3326 in favour of the owners of Lot 3319RP and the owner(s) for the time being of the Neighbouring Property as so defined in the Deed of Grant (ie Lot 3325), their successors-in-title and assigns, and other relevant persons as related to the latter two plots of land as specified therein, at all times, to go pass repass over along through and upon the said specified portion for the purpose of going to and from Lot 3319RP and Lot 3325, with or without carriages motor or other vehicles (“RoW”).

6.  The operative clause for the grant (i.e. clause 1 of the Deed) given its importance for resolving the parties’ dispute is quoted verbatim below:-

“1. In pursuance of the said agreement and in consideration of the premises, the Grantors, in the course of administration of the estate of the said deceased, as Executors and Personal Representative as aforesaid DO hereby grant unto the Grantees, the Co-owners and the Owner(s) for the time being of the Neighbouring Property a FULL FREE and UNINTERRUPTED right and liberty for their respective tenants servants visitors workmen licensees and other persons authorised by them (in common with the Grantors and the successors in title and assigns of the said premises and all other persons having the like right) at all times hereafter by day or by night with or without carriages motor or other vehicles of any description and with or without animal or animals to go pass repass over along through and upon the said Portion for the purpose of going to and from the Grantees' premises and the Neighbouring Property or any of them of any part of parts thereof to HOLD the said right and liberty herebefore granted unto the Grantees, the Co-owners and the Owner(s) for the time being of the Neighbouring Property and their respective successors in title and assigns for the residue of the term of years (being extended until 30^th June, 2047 under Section 6 of the New Territories Leases (Extension) Ordinance (Cap,150)) created by the Crown Lease thereof as a right of way and an easement appurtenant to the Grantees’ premises and the Neighbouring Property of any of them of any part or parts thereof.” (emphasis supplied)

7.  In the Deed of Grant, "the Grantees" are defined as (1) Li Kiu Cheung ("LKC") and Jim Man Chu, i.e. LKC's wife ("Jim") of G/F of Lot 3319RP (the 1^st Grantee), and (2) Wong Yin Ling, who was one of the two registered tenants-in-common holding half share of 1/F of Lot 3319RP under the Assignment dated 13/3/1990[1] (the 2^nd Grantee), whereas "the Co-owners" are named as Yung Chun Ka and Au Yu Bing[2], who were the then registered joint tenants of 2/F of Lot 3319RP, according to the land search.

8.  The Neighbouring Property mentioned in the above clause of grant refers to Lot 3325, which is more precisely defined earlier in the Deed of Grant as “... ALL THAT piece or parcel of ground registered in the said Land Registry as LOT NO.3325 IN DEMARCATION DISTRICT NO.116 TOGETHER with the messuages erections and building thereon (hereinafter called “the Neighbouring Property”)”

9.  On 1/8/2007, D became the owner of Lot 3326, taking up an Assignment thereof from Madam Lam Chi Wing (“LCW”), who was the owner of Lot 3326 at the time of the grant.

10.  The 1^st Plaintiff ("P1") and the 2^nd Plaintiff ("P2") are husband and wife, and the Plaintiff ("P3") is their son. On 28/2/2013, Ps became the owners of Lot 3325. The owner of Lot 3325 at the time of grant was one Lapereau Fashion Limited[3] ("Lapereau"). On 10/8/2010, Lapereau assigned Lot 3325 to V-Power IT Limited ("V-Power"), from whom the property's title was subsequently conveyed to Ps.

Ps’ case

11.  According to Ps’ case, in about February 2019, D began to wrongfully interfere with and obstruct the RoW by building a fence wall of bricks to enclose the boundary of Lot 3326 ("the fence wall"). In about June 2019, the construction of the fence wall was completed. Thereafter, D entered into a deed of cancellation dated 18/6/2019 with the current owners of G/F of Lot 3319RP (i.e. also LKC and Jim) and 1/F of Lot 3319RP (i.e. Li Chung Man and Li Yee Cheung[4]) with the intent and purport to cancel the Deed of Grant ("the Deed of Cancellation"), without obtaining Ps’ consent. Nor was the owner of 2/F of Lot 3319RP a party to such deed. On the evidence before this Court, the current owner of 2/F of Lot 3319RP is one Chan Ling Nga, who does not appear to have any particular relationship with the owners of G/F or 1/F of Lot 3319RP, apart from the fact that they are being neighbours.

12.  Despite Ps’ repeated demands, D refused to cease her wrongful interference and obstruction to their use and enjoyment of the RoW.

13.  In this trial, Ps essentially claim for:-

(1)  a declaration that Ps (qua owners of Lot 3325) have acquired the benefit of easement of the RoW as granted under the Deed of Grant;

(2)  A mandatory injunction that D do dismantle the fence wall erected by her on the Pathway (ie the RoW combined with the Footpath as defined in the ASOC);

(3)  A prohibitory injunction to effectively restrain D from obstructing the RoW and part of the Footpath in future;

(4)  An order that the Deed of Cancellation be vacated from the Land Registry.

14.  Although Ps initially claimed damages for wrongful interference and obstruction with the easement of RoW and the Pathway against D, Mr Stanley C.K. Siu, counsel appearing for Ps, indicated in his closing submissions that Ps are content to seek nominal damages only.

D’s case

15.  In response to the above reliefs sought, Mr Vincent Chiu, counsel appearing for D, basically advanced in his closing submissions four main points of contention on D's behalf to defend Ps' claims:-

(1)  The owner(s) for the time being of Lot 3325, as non-party to the Deed of Grant, cannot take benefit thereunder without proper justification (“Point 1”);

(2)  The portion of Lot 3326 being subject to the Deed of Grant was confined to the “portion” as delineated in the plan as annexed to the Deed of Grant[5] (“Point 2”);

(3)  The Deed of Grant is a conditional grant, in that the relevant covenants must be observed before a Grantee, a Co-owner, or the Owners for the time being of the Neighbouring Property (ie Lot 3325), could be treated as having been granted the ROW under the Deed of Grant and being entitled to exercise the ROW (“Point 3”);

(4)  Ps failed to comply with the covenants (as referred to in Point 3), they should not be treated as having been granted the ROW at all, and their consent would not be required for the purpose of the Deed of Cancellation (“Point 4”);

Analysis

16.  In the analysis below, this Court would first set out the factual background (which is largely undisputed) leading to the grant of the RoW and then deal with the relevant surrounding landscape features, before going into the crux of the issues in dispute.

Background for the grant

17.  On about 30/11/1982, Lee Wai Kwong became the registered owner of Lot 3326.

18.  On about 30/10/1991, Lee Wai Kwong as vendor entered into a Conditional Agreement for the sale and purchase of Lot 3326 with LCW as purchaser at a consideration of HK$2.38 million (“the Conditional Agreement”). The agreement specifically provided that upon completion, the vendor would execute a Deed of Grant to grant a right of way in respect of a specified portion of Lot 3326 to the owners of Lot 3325 and Lot 3319 RP, which portion is coloured red on a building licence plan annexed to that agreement for identification purpose ("the Plan"). Clause 23 thereof provides thus:-

“23. The Purchaser is fully aware and agrees that the Vendor shall upon completion of the sale and purchase of the said premises at his own costs and expenses execute a Deed of Grant of Right of Way in order to grant a right of way in respect of portion of the said Land as shown coloured red on the Plan hereto annexed for identification purpose to the owner(s) of All Those Lots Nos. 3325 and 3319RP in D.D.116.” (emphasis supplied)

19.  On about 23/2/1993, Lee Wai Kwong passed away.

20.  On about 10/6/1993, the premium for removal of the non-alienation clause of the Building Licence No 3303 regarding Lot 3326 was paid by Lee Kwok Ching and Lee Kwok Chi, the executors of the estate of Lee Wai Kwong, deceased (“the said deceased”).

21.  On about 6/11/1995, the two executors as vendor executed the Assignment of Lot 3326 in favour of LCW. On the same date, pursuant to the Conditional Agreement as evidenced by the paragraphs (3) and (4) of the recital of the Deed of Grant (as quoted below), the executors (qua grantors) ("the Grantors") also entered into the Deed of Grant to grant the RoW in such terms as cited in paragraph 6 above:-

“(3) Prior to the death of the said deceased, the said deceased had agreed to grant a right of way over portion of the said premises hereinafter described (hereinafter called “the said Portion”) to the owners and occupiers of the Grantees' premises and ALL THAT piece or parcel of ground registered in the said Land Registry as LOT NO.3325 IN DEMARCATION DISTRICT NO.116 TOGETHER with the messuages erections and building thereon hereinafter called “the Neighbouring Property”) after the premium (“the said premium”) for removal of the non-assignment clause contained in the said Building Licence having been paid, which was evidenced by Clause 23 of a Conditional Agreement for Sale and Purchase in respect of the said premises dated the 30^th day of October 1991 made between the said deceased as the Vendor of the one part and Lam Chi Wing as the Purchaser of the other part (copies of pages 1, 2, 12, 14 and the plan showing the said Portion mentioned in the said Clause 23 thereof are enclosed for reference purposes).

(4) The said premium was paid on the 10^th day of June 1993, after the death of the said deceased, who died on the 23^rd day of February 1992 and the Grantors in the course of administration of the estate of the said deceased, have agreed to grant unto the Grantees, the Co-owners and the Owner(s) for the time being of the Neighbouring Property a right of way over the said Portion on the terms and in manner hereinafter expressed and contained.”

22.  Clause 2(b), (c) and (d), clause 3 and clause 4(a) and (e) of the Deed of Grant (as quoted below) are those clauses that D have referred at trial to contend that Ps and their predecessors were in breach, thereby preventing Ps from enforcing the covenant of the RoW thereunder. Pausing here, this Court wish to point out early that nothing really turns on clause 3 in this case, and no submissions can really be made by Mr. Chiu to show how Ps or their predecessors in title would be in breach of such clause, and I find such contention wholly misplaced after considering all the evidence in particular light of this Court's observations and findings under the discussion of Point 3 below.

Clause 2(b), (c) and (d)

"2. The parties hereto and their respective successors in title and assigns hereby jointly and severally covenant with each other that they will at all times hereinafter:-

...

(b) repair and keep in good repair and condition of the said right of way;

(c) pay a due proportion of all Crown rent, costs charges and expenses in connection therewith (if any); and

(d) not install erect build or construct or permit or suffer to be installed erected built or constructed any erection affixion installation fitting, structure or thing whatsoever or obstruct or cause any obstruction in any manner whatever at or upon or over the said right of way."

Clause 3

"3. The Grantees and their respective successors in title and assigns hereby jointly and severally covenant with the Grantors that they will at all times hereinafter keep the Grantors, the estate of the said deceased and the successors in title and assigns of the said premises indemnified from and against all costs actions claims and demands that may be awarded brought or made against him or then arising out of this Deed or anything done or omitted to be done under or in pursuance hereof."



Clause 4(a) and (e)

"4. IT IS HEREBY AGREED AND DECLARED as follows:-

(a) that the parties hereto shall pay all legal charges and expenses incurred in connection with this Deed equally;

...

(e) that if any of the 1^st Grantee, the and 2^nd Grantee, the Co-owners and the Owner(s) for the time being of the Neighbouring Property or any of them and/or their respective successors in title and assigns will be in breach of the covenants mentioned in Clauses 2 & and 3 above notwithstanding this Deed has not been executed by all of them, the right of way hereby granted shall not be exercisable or be granted to such defaulting party or parties for any period during which there shall be any breach of the aforesaid covenants.” (emphasis supplied)

23.  On 13/12/1995, the Deed of Grant was registered against Lot 3326 with the Land Registry.

24.  On 1/8/2007, when LCW assigned Lot 3326 to D, the Assignment was expressly made, amongst others, subject to and with the benefit of the Deed of Grant of the RoW as registered in the Land Registry[6]. A similar clause is also contained in the Assignment of Lot 3326 in favour LCW dated 6/11/1995[7].

Surrounding landscape features

The Footpath

25.  The Footpath (coloured yellow on Annex 1 plan) was paved with concrete serving as a pathway for the pubic, immediately adjacent to the western boundary of Lot 3325 and Lot 3326, and the eastern boundary Lot 3319SA and 3319 RP.

26.  According to a field survey conducted by D's expert on 23/12/2021[8], the Footpath would lead from a man-gate (which was erected next to a vehicular gate) going all along in south-east direction with the adjacent Lot 3319 SA[9], Lot 3319RP, Lot 3320, Lot 3322 on its west, and the adjacent Lot 3326, Lot 3325, Lot 3324SA and Lot 3324SB on its east. An index plan showing the various location of these lots was produced at Trial Bundle, p.293.

The Pathway

27.  According to the evidence as produced at the trial, it appears that before the boundary of Lot 3326 was sealed off by fence wall, the RoW have been used together with the Footpath (which is defined as "the Pathway" in the ASOC) for vehicular passage leading Lot 3326, Lot 3325 and Lot 3319 RP to a public road in the north of the man-gate and the vehicular gate (as mentioned in paragraph 26 above) at the entrance of the Pathway ("the northern public road").

28.  According to the aerial photos as annexed to Ps' surveyor expert's report, both experts agreed that the Pathway (including the RoW) was unoccupied between 1990-2018.

29.  Both experts are in consensus about the boundaries of the RoW, and Ps' expert agreed to adopt D's expert's measurements of the RoW as shown in the two plans annexed to D's expert report under Annex 1A and Annex 1A-1[10]. These two plans are now reproduced in this Judgement as Annex 2. Since there is no indication (in terms of measurements) regarding the extent of the RoW on the Plan (ie the one initially annexed to the Conditional Agreement and subsequently incorporated in the Deed of Grant by reference[11]), the extent was therefore graphically deduced from the Plan based on the scale by the two surveyor experts.

Vehicular gate and man gate at the entrance of the Pathway

30.  As per her own pleaded case[12], D admits that in about 1990, a big metal gate fit for vehicular passage, and another small metal gate (next to the said big gate) for human access were installed at the entrance of the Pathway leading to Lot 3326, Lot 3319 and Lot 3325. Both gates were installed by the same developer, and they were never locked, but accessible by anyone.

31.  In about 2015, the original metal gate was replaced with a metal gate by D bearing the same measurements and erected on the same location (“the 2015 metal gate”) because the original gate was damaged as a result of a collision by a stolen vehicle in the same year. Such metal gate was not locked and was likewise accessible by anyone.

32.  In 2019, when D and Mr Lee sealed off the boundaries of their respective lands, D built a new small metal gate[13] in the fence wall facing the Footpath under her lock and key. After the Deed of Cancellation was entered into, D further replaced the 2015 metal gate with a gate that was also under D's lock and key (“D’s metal gate”).

Flower bed

33.  According to an aerial photo taken on 11/10/1994, there was already a flower bed outside the G/F of the small house erected on Lot 3326, When one takes an aerial view of Lot 3326, the flower bed was like a reverse-L shape with its longitudinal side facing north, near the vehicular metal gate, and its lateral side facing west, directly adjacent to the east front of the RoW.[14]

34.  In fact, the experts agreed to the extent of physical structures within the Pathway including the RoW as shown in Plan No.6138/03 attached to D's expert report as Annex 3A-1A[15]. This plan also shows, amongst others, the reverse-L shaped flower bed (coloured blue thereon). The two experts are also in agreement of the historical measurements of the tiled platforms of Lot 3325 and Lot 3326 set out in para 4.2 of D's expert report[16] stating, amongst others, that the distance of the flower bed from the RoW is just "0m to 0.11m".

Tiled platform

35.  As said, it is common ground between the parties that the three-storey small houses erected on Lot 3325, Lot 3326 and Lot 3319RP were constructed by the same developer. As can be seen from screen captures of the Google map street views of the site in the past, these small houses showed similar outward appearance with balconies built of the same style, and tiled platform paved outside the G/F of each small house[17].

36.  The tiled platform at Lot 3326 remained there until 2019[18], and that for Lot 3325 up to the date of trial. The tilted platforms on Lot 3326 and Lot 3325 are slightly raised from the asphalt on Lot 3325 and 3326, as can be seen from a photo produced by Ps showing the kerb of Lot 3325 platform.[19] As can be seen from the aerial photos at the material times, the western limit of the tiled platform of Lot 3326 extended in a straight line till it reached the lot's southern boundary.

Side door at the east of Lot 3325 site

37.  Before the closure of the boundaries of Lot 3326 and Lot 3319RP, apart from gaining vehicular access to Lot 3325 through the Pathway (including the RoW), vehicles can also reach Lot 3325 by a "road" at the east of Lot 3325 and Lot 3326, where a rather uniform boundary wall (of the same height) can be seen to have fully enclosed the eastern physical boundaries of both plots of land.[20] There is a side door[21] erected at the boundary wall of Lot 3325 at its north-east, giving exit to this "road" ("the Side Door").

38.  However, if one looks at the aerial photo taken in 1990 to 1994[22], the government land at the east of Lot 3325 and 3326 were covered by vegetation. On the totality of evidence before me, the "road" as mentioned in the preceding paragraph does not appear to be a public road (at least there is no or no sufficient evidence to convince this Court to that effect). In other words, having a benefit of vehicular access connecting the public road at the north of Lot 3326 leading to Lot 3325 by virtue of the RoW (as combined with the Footpath according to Ps' pleaded case), if subsisting, would appear to be convenient and valuable to the owners of Lot 3325, for the better and enhanced enjoyment of their land.

Issues in dispute

39.  After carefully considering the parties’ submissions and the evidence in this case, it would appear to this Court that the issues in dispute would boil down to whether Ps (being successors-in-title to the owner of Lot 3325 at the time of grant, i.e. Lapereau) despite neither Lapereau nor Ps are party to the Deed of Grant can nonetheless take benefit of the easement of RoW created thereunder or not. If not, this is the end of the matter. If yes, this Court would further need to determine the extent of the RoW so granted, and the related contentions from each side flowing therefrom.

40.  This Court would focus on the testimonies given by the witnesses revolving around these issues/contentions, though being mindful at the same time of the totality of evidence in this case, before arriving at its findings for resolving the disputes between the parties.

41.  Bearing the crux of the matter in mind, I would now deal with Mr Chiu's four points of submissions in turn.

Point 1

42.  To begin with, by construing the Deed of Grant as a whole against the relevant background circumstances of this case, it appears to this Court that Lot 3325 and Lot 3319RP are plainly dominant tenements, for which the portion of land of Lot 3326 specified under the Deed of Grant as the RoW is serving as the servient tenement for the benefit and use by the owners of the two dominant tenements, and their respective successors-in-title and assigns. In my judgment, an easement of right of way as so defined under the Deed of Grant was validly and effectively created after having regard to the whole circumstances of this case.

43.  Further, the term "the owners(s) for the time being of the Neighbouring Property" as defined in the Deed of Grant, in my view, means the owner(s) of Lot 3325 existing at the time when the Deed of Grant was executed. By that time, the construction of the three small houses on the subject three plots of lands had been well completed, and in fact the small house at Lot 3325 had already been assigned to its 1^st owner, Lapereau, back in 1990. LKC and Jim became the registered owners of G/F of Lot 3319RP on 30/8/1991, Wong Yin Ling and Yip Yau Tai became the registered owners of 1/F of Lot 3319RP on 13/3/1990. Whereas, the first owner of 2/F of Lot 3319RP seems to be one Ching Chun Shing who became the registered owner thereof on 13/3/1990.

44.  This historical background is to a certain extent reflected by recital (3) of the Deed of Grant stating that “the said deceased had agreed to grant a right of way over portion of the said premises hereinafter described (hereinafter called “the said Portion”) to the owners and occupiers of the Grantees’ premises and ALL THAT piece or parcel of ground registered in the said Land Registry as LOT NO. 3325 IN DEMARCATION DISTRICT NO. 116 TOGETHER with the messuages erections and building thereon hereinafter called “the Neighbouring Property”)”

45.  As said, Lapereau or as the Deed of Grant puts it with a more generic phrase - owner(s) for the time being of the Neighbouring Property - was however not a signing party to the Deed of Grant.

Section 26 of CPO

46.  On the date of hearing the parties' oral closing submissions, this Court directed counsel to provide further written closing submissions on the legal question (as raised by this Court) as to whether section 26 of the Conveyancing and Property Ordinance (Cap 219) (“CPO”) is engaged in the present case, in particular, whether Ps (as non-signing party to the Deed of Grant) can claim or take the benefit of the RoW/easement as granted thereunder.

47.  Section 26 states thus:-

“26. A person may take an immediate or other interest granted to him in land or the benefit of any condition, right of entry, covenant or agreement granted to him over or in respect of land, although he may not be named as a party to the instrument.” (emphasis supplied)

A preliminary question

48.  When addressing the question of applicability of section 26, Mr Chiu raised a fundamental point by submitting that the term “the owner(s) for the time being of the Neighbouring Property” as contained in the Deed of Grant actually refers to the future owners of Lot 3325, so that Lapereau would not enjoy the RoW anyway in the first place, and as such, no easement could pass down the chains of title to Ps.

49.  If Mr Chiu’s submission is right, then no question of section 26 would arise. His argument effectively runs like this: there was no mention of Lapereau’s name in the Deed of Grant, whereas in contrast, the name of the Co-owners (ie the owner of 2/F of Lot 3319RP - Yung Chun Ka and Au Yu Bing - who were also non-parties to the deed at the time of grant) were specifically named in the Deed of Grant. Also, the Co-owners of the Grantees' premises, was only defined as "Co-owners" but not "Co-owners for the time being" in the Deed of Grant. So, Mr Chiu urged this Court to interpret "the owner(s) for the time of being of Neighbouring Property", to mean the future owners of Lot 3325 only, thereby excluding the owner of Lot 3325 who was existing at the time of grant, i.e. Lapereau.

50.  Having carefully construed the Deed of Grant as a whole against the relevant background circumstances and reviewing the authorities, I cannot accept Mr Chiu’s interpretation. This Court has no doubt that the subject phrase refers to the owner(s) of Lot 3325 existing at the time of grant, i.e. Lapereau (as shown to be the case by the evidence produced in this trial, in particular, by the relevant land search).

51.  First, as pointed out above, clause 23 of the Conditional Agreement made reference to the fact that the said deceased had agreed to grant the right of way in question to the owners and occupiers of Lot 3319RP and Lot 3325 (see : paragraph 44 above), and the RoW was subsequently granted pursuant to this Conditional Agreement (see : recital (3) of the Deed of Grant). Prima facie, the term "owners" in both instruments should consistently be accorded with the same meaning, unless there is clear wording in the context to the suggest the contrary. The natural and ordinary meaning of the term "owner(s) for the time being" can certainly mean the owner(s) of Lot 3325 existing at the time of grant. Though, in some other special contexts, according to the authorities cited by Mr. Chiu, the phrase "for the time being" is capable of interpretation to encompass a changing state of affairs. I have considered those authorities as submitted by Mr Chiu, they are not directly on the point like the one as arisen in this case. I do not find them applicable to our present context, for reasons as shall be further explained below. In any event, be that as it may, even if the phrase "owner(s) for the time being of the Neighbouring Property" does carry with it the connotation of 'a changing state of affairs', it should in that case still cover Lapereau at the time of grant as well as the future owners of Lot 3325. This Court sees no sound reason at all to exclude Lapereau according to the background of and the reasonable interpretation of the grant.

52.  And Mr Chiu cannot proffer any reasonable basis to explain why the Grantors would rather intend to grant an interest of easement in favour of the future owners of Lot 3325 as contended (who had not yet existed at the time of grant), but single out Lapereau so as not to allow it being the then existing owner of Lot 3325 from benefitting the RoW in the first place. Viewed thus, with respect, the interpretation as submitted by Mr. Chiu is most arbitrary and contrived.

53.  Second, the interpretation as submitted by Mr Chiu cannot sit well with operative clause of the Deed of Grant (i.e. clause 1) providing, amongst others, that the Grantors would grant unto the Grantees, the Co-owner(s) and the Owner(s) for the time being of the Neighbouring Property the RoW and to hold “the right and liberty herebefore granted unto the Grantees, the Co-owners and the Owner(s) for the time being of the Neighbouring Property and their respective successors in title and assigns” for the residue of the terms of years as created by the Crown Lease thereof being extended till 30/6/2047 under section 6 of the New Territories Leases (Extension) Ordinance (Cap 150).

54.  With respect, if the phrase “the Owner(s) for the time being of the Neighbouring Property” as quoted above does not refer to the owner(s) of Lot 3325 existing at the time of grant (ie Lapereau) but refers instead to its future owners only (who were not yet in existence), one would rhetorically ask : these "successors-in-title and assigns" in respect of Lot 3325 as referred to in the italicised phrase quoted above would be the "successors-in-title and assigns" of whom? On the other hand, if the phrase "the owner(s) for the time being" is construed in its natural and ordinary sense to mean the existing owner(s) at the time of grant (i.e. Lapereau as shown by the land search), then the word "respective" can be used in its proper and ordinary sense to match with the three prior correlated terms - "the Grantees", "the Co-owners" and "the Owner(s) for the time being of the Neighbouring Property" consistently and in good sense.

55.  In light of the aforesaid, this Court needs not speculate into the exact reason behind why Lapereau’s name was not expressly mentioned in the Deed, there can a myriad of possibilities.

56.  Amongst others, since Lapareau was not a signing party to the Deed, it might be owing to their then available information, the Grantors could not be sure if there were other owner(s) of Lot 3325 existing at the time of grant apart from Lapereau, so that their lawyer doing the drafting work would prefer to put the term - the owner(s) of Lot 3325 - in a generic sense, to cover Lapereau as well as the other owner(s) for the time being of Lot 3325, just in case these other owner(s) really existed at the time of the grant. Whereas, concerning the actual ownership of 2/F of Lot 3319RP, the Grantors might have ascertained from Yung Chun Ka and Au Yu Bing themselves or from any other sources as the Grantors felt confident to rely on to put down their specific names in the Deed of Grant. Being so, this would also save the need of using the phrase "for the time being" (in the sense of existing at the time of grant) to gloss the term "the Co-owner(s)" as defined in the Deed of Grant to refer to "Yung Chun Ka and Au Yu Bing", for it would otherwise be stating the obvious.

57.  Yet, irrespective of whatever the reason behind might be (which, as said, this Court is strictly speaking not required to speculate into), on the available evidence before me, I have no doubts that "the owner(s) for the time being of the Neighbouring Property (i.e. Lot 3325)" upon the reasonable and objective construction of the Deed of Grant as whole, would mean the owner(s) of Lot 3325 existing at the time of grant, which includes Lapareau, given the above analysis.

The relevant person must be identifiable and in existence at the time of grant to invoke s.26 CPO

58.  Mr Chiu’s submits that there is authority saying that section 26 of the CPO only applies to a person who is identifiable and in existence when the relevant instrument was created. I agree this is a legal rule that the invocation of section 26 is so subject to. In Chitty on Contracts, 35^th ed, vol 1, para 21-138 states thus:-

“... The scope of section 56(1)[23] is further limited by a rule which it was not necessary to consider in Beswick v Beswick, namely, that a person cannot take the benefit of a covenant under the subsection unless he, or his predecessor in title, was in existence and identifiable in accordance with the terms of the instrument at the time when it was made."

59.  Section 56(1) in the above commentary refers to section 56(1) of the Law of Property Act 1925, which is the English equivalent to section 26 of the CPO, and it states thus:-

“56 Persons taking who are not parties and as to indentures.

(1) A person may take an immediate or other interest in land or other property, or the benefit of any condition, right of entry, covenant or agreement over or respecting land or other property, although he may not be named as a party to the conveyance or other instrument."

60.  The wordings of s.56(1) of LPA 1925 and s.26 of the CPO are similar but not identical, but their differences are not material for the present purposes. I would think that those English authorities on s.56(1) of LPA 1925 as discussed herein would remain helpful to assist this Court to construe the legal parameters of section 26 of the CPO, as relevant for this Court's determination in the present case.

61.  But the above legal requirement as pointed out by Mr. Chiu would not be a hurdle for Ps, for this Court has already made a finding over the construction of the term “the Owner(s) for the time being of the Neighbouring Property” to mean or otherwise include Lapereau, which was both existing and identifiable at the time of grant, who was caught by section 26, as opposed to Ps who are future purchasers (speaking from the point of reference at the time of grant), whom section 26 is not directly applicable to.

62.  That notwithstanding, I think Ps can indirectly apply section 26 of the CPO, by first invoking its application to Lapereau as the covenantee of RoW which easement was granted to it by the Grantors under the Deed of Grant, and then to pray in aid of either section 16 or section 41 of the CPO to enforce such covenant against D.

63.  In my view, the editors of Land Law in Hong Kong, 5^th ed, elucidate the viability of these two legal routes by their commentary at paras 8-21 and 8-23, and paras 12-46 and 12-47 respectively: -

On CPO, s.41

“8.20 However, those who are generically described as covenantees may only claim under section 26 if they are existing and identifiable individuals at the date of the covenant as the extract from Re Ecclesiastical Commissioners for England's Conveyance shows. Thus the covenantor cannot covenant with future purchasers under section 26. Future purchasers may benefit as assignees under the rules relating to the passing of benefit but not under section 26. So if A covenants with B and his successors in title, B’s successor in title being a non-existing person at the time of the covenant cannot rely on section 26. As will be seen, he may of course claim the benefit through B.

...

8.22 If either or both of the original parties to the original covenant drop out of the picture, in order to enforce the covenant against the successor in title of the original covenantor, the covenantee has to show that the latter has the burden of the covenant. For the successor in title of the original covenantee to enforce against the original covenantor, he has to show that he has the benefit of the covenant. For the successor in title of the original covenantee to enforce against the successor in title of the original covenantor, he has to show that he has the benefit and the successor in title of the covenantor the burden. The rules relating to the passing of benefit and burden at common law and equity are complicated. But the position in most cases has been simplified by section 41 of the Conveyancing and Property Ordinance. Where, however, the covenant is not governed by section 41, it may well be necessary to refer to the rules of common law and equity.” (emphasis supplied)

On CPO, s.16

12.44 There are a number of ways in which an easement may be acquired in the absence of an express grant or reservation. The first is through section 16 of the Conveyancing and Property Ordinance, which is similar to section 62 of the Law of Property Act 1925 (UK).

12.45 Under section 16, once an easement, legal or equitable, is properly created, it passes to the successors of the dominant owners without the need of repeating it in the assignment. Section 16 provides that an assignment of land shall operate to convey with the land all rights, interests, privileges, easements, appurtenances whatsoever, appertaining to the land, or at the time of the assignment occupied or enjoyed with the land unless a contrary intention appears." (emphasis supplied)

64.  Meanwhile, I would continue to address section 26 of the CPO concerning another fundamental legal requirement for invoking its application (as raised by Mr. Chiu), before I shall return to deal with sections 16 and 41 of the CPO in more detail.

The Deed of Grant is not merely for the benefit of Lapereau as the third party but purports to contain a grant to or covenant with them

65.  Mr Chiu further submits that section 26 applies only to the grantee or covenantee with whom the covenant or agreement was purported to be made. The fact that the covenant, if enforced, is for the benefit of a third party does not entitle such a third party to rely on section 26. He refers this Court to Incorporated Owners of Mirador Mansion v Tecowin Development Ltd [1999] 4 HKC 113; Fantastic State Ltd v Tien’s Organic Farm & Ors [2019] 3 HKLRD 438; Amsprop Trading Ltd v Harris Distribution Ltd [1997] 1 WLR 1025, at 1031E.

66.  In my judgment, the relevant legal proposition as distilled from the previous authorities is nonetheless more aptly put by the learned editors of Chitty on Contracts, vol 1, 35^th ed, at para 21-138 commenting on section 56(1) of the Law of Property Act 1925 (UK) as follows:-

“... Section 56(1) therefore does not apply to a bare promise in writing by A to B to pay a sum of money to C; and the correctness of a number of previous decisions to this effect is reaffirmed by the House of Lords in Beswick v Beswick. But it remains difficult to determine to what other cases the subsection does apply. There is support in the speeches in Beswick v Beswick for the following limitations on the scope of s.56(1): namely, that it applies only (1) to real property (2) to covenants running with the land; (3) to cases where the instrument is not merely for the benefit of the third party but purports to contain a grant to or covenant with them; and (4) to deeds strictly inter partes. But there is no clear majority in the speeches in favour of the imposition of all ...” (emphasis supplied)

67.  It would appear to this Court that the present situation came within the precise words of section 26 where the Deed of Grant has in my view plainly the purport of granting the interest of the easement to the “owner(s) for the time being of the Neighbouring Property, ie including Lapereau. Or, to put it another way, such grant as made under the instrument would also mean that it purports to contain the easement covenant with such owner(s). In particular, the terms of grant/easement covenant contained in the operative clause are uniform in the treatment of the Grantees, the Co-owners, as well as the Owner(s) for the time being of the Neighbouring Property (which is shown to be Lapereau at the time of grant on the evidence before this Court).

68.  In Megarry & Wade on The Law of Real Property (8^th ed), para 28-006, the learned editors comment on the creation of express grant of easement thus:-

“1. Grant. The simplest way to create an easement or profit is by an express grant by deed. No special words are needed for a grant, so that a covenant or agreement, if contained in a deed, will have the effect...” (emphasis supplied)

69.  The aforesaid observation is further reinforced by the following salient features as noted from the Deed of Grant:-

(1)  It is expressly mentioned in paragraph (3) of the Recital that prior to the death of the said deceased, he had agreed to grant a right of way over such portion of Lot 3326 to not only the owners and occupiers of Lot 3319RP, but also those of Lot 3325. As such, it would prima facie be reasonable to construe that the grant of RoW be made to, apart from the Grantees (i.e. the signing party to the Deed), the owners of 2/F of Lot 3319RP and owners of Lot 3325 (notwithstanding they are non-signing parties), in order for the Grantors to honour the promise as earlier made by the said deceased as they saw it appropriate to do so by way of the Deed of Grant.

(2)  On this basis, notwithstanding the owners of 2/F of Lot 3319RP and the Owner(s) for the time being of Lot 3325 are not signing parties to the Deed of Grant, they would nonetheless be taken by the Grantors as in "breach" of the covenants provided under clauses 2 and 3 of the Deed of Grant through the mechanism laid down under clause 5 thereof wherein the Grantors required the Grantees (i.e. the owners of the G/F and 1/F of Lot 3319RP at the time of grant) and their successors in title and assigns to use their best endeavour to procure these "non-signing party" owners and their successors in title and assigns to observe and perform the covenants on the part of the Grantees to be observed and performed. As to how such mechanism should reasonably operate as intended under the grant, I shall return to this point later under the discussion of Point 3;

(3)  The Grantors of the RoW chose to engage themselves with the owners of 2/F of Lot 3319RP and owners of Lot 3325 (i.e. the non-signing parties to the Deed of Grant) even to such an extent that if any of them or their successors-in-title or assigns failed to comply with the covenants, the RoW so granted shall not be exercised by any such defaulting party or parties during the default period. In other words, it can be reasonably construed that these non-signing parties at the time of grant were nonetheless intended and treated by the Grantors (for the purpose of making a grant of RoW in their favour) to be parties to the covenants with whom the Grantors entered into for all practical purposes. Had the Grantors not intended that these non-signing parties to take the benefit of the RoW, or that the covenant of easement of RoW was enforceable by any of them, it would appear to be redundant to make such kind of provision under clause 4(e) of the Deed of Grant, even underscoring therein the fact that "notwithstanding this Deed has not been executed by all of them[24]" in the first place.

70.  I am not aware of any authority that has been drawn to my attention that would prevent this Court from coming to the legal conclusion as mentioned in paragraph 67 above. On the contrary, I think what was said by Mr. Recorder Robert Tang SC (as he then was) in Incorporated Owners of Mirador Mansion v Tecowin Development Ltd [1999] 4 HKC 113 at pp.123I-124E concerning the legal parameters of section 26 of the CPO would tend to support the aforesaid views of this Court:-

“... If the covenant is intended to benefit a third party and his land, neither he nor his successor can enforce the covenant unless s.26 or s.41(2)(c) CAPO is satisfied.

59. According to Sir Wilfred Greene M.R. in White v Bijou Mansions Limited 1938 1 Ch.351 at 365

"... whatever else s.56 may mean, it is, I think confined to cases where the person seeking to take advantage of it is a person within the benefit of the covenant in question, if I may use that phrase. The mere fact that somebody comes along and says: It would be useful to me if I could enforce that 'covenant' does not make him a person entitled to enforce it under s.56. Before he can enforce it he must be a person who falls within the scope and benefit of the covenant according to the true construction of the document in question"

60. However, as Beswick v Beswick [1968] AC 58 shows, although perhaps in a different context, s.56 LPA is a difficult provision.

61. There is a highly illuminating discussion on the true scope and ambit of s.56 in Megarry and Wade at pp.764 - 767.

62. According to the learned authors, the better view is that:

"if A covenants with B that A will convey land to C, B can enforce the covenant but C cannot; for B is a covenantee, but C is merely a third party. But if A's covenant is expressed to be made with B and C, C can enforce it as well as B, even though B was a party to the deed and C was not. This interpretation follows the sound principle that a promisor should be liable only to those to whom he chooses to engage himself...” (emphasis supplied)

71.  Regarding the case of Amsprop as cited by Mr Chiu, it is distinguishable from the present case. In that authority, Neuberger J (as he then was) construed the legal effect of a mere covenant under a sublease, and took the view that it was agreed between the sub-leasee and his direct landlord (i.e. the leasee) to allow the superior landlord (i.e. the headlessor) to enter into the premises to carry out repairs under the certain circumstances. His lordship came to the view that the relevant covenant was only meant to be for the benefit of the superior landlord, but not was not intended to be enforced by the superior landlord (when read alongside with other clauses under the sub-lease). In stark contrast, the wordings of the Deed of Grant in the present case are crystal clear in saying that the Grantors granted the RoW unto the owners of Lot 3319RP and Lot 3325, irrespective of whether they are signing parties to the Deed (like the 1^st and 2^nd Grantees) or non-signing parties (like the Co-owners and the Owner(s) for the time being of the Neighbouring Property, ie Lot 3325) and held unto them and their respective successors-in-title and assigns such RoW on "equal footing".

72.  Further, in this case, there is a grant of interest of easement of RoW to the Grantees (ie of the G/F and 1/F of Lot 3319RP), the Co-owners (ie of 2/F of Lot 3319RP), and the Owner(s) for the time being of the Neighbouring Property (ie Lot 3325), as opposed to a mere repairing covenant (which although was entered for the benefit of the superior landlord, and yet was not intended to be made with or enforced by it) as considered by the court in Amsprop.

73.  Neuberger J made reference to two cases cited by the plaintiff’s counsel in that case, namely, Stromdale & Ball Ltd v Burden [1952] Ch 223 and Wiles v Banks (1984) 50 P & CR 80 and sought to distinguish them. Yet, this lordship never queried these two cases are good law (see Amsprop, p.1032B-D) And his lordship further pointed out that each authority concerned with whether a purported grant to a person who was not a party to the deed could be enforced by that person. In both authorities, the courts found that the non-party could indeed do so.

74.  In Stromdale & Ball Ltd v Burden, the defendant landlord, who was the under-lessee of a three-storey house, granted a licence by deed inter partes to two tenants, allowing them to assign their term of years in the ground floor of the property to a named assignee (i.e. the plaintiff) who was not a party to the deed. The licence included an option for the plaintiff assignee to purchase the landlord's leasehold interest in the entire house during the term at a stated price. After the assignment was executed, the plaintiff exercised the option during the term. It was held that, under section 56(1) of the Law of Property Act 1925, the "land" referred to the landlord's house, and the option to purchase the leasehold interest constituted an interest in the land and an agreement concerning the land. Therefore, the plaintiff, despite not being a party to the licence, was held to be entitled to specific performance of the option.

75.  At pp.234-235, Danckwert J had the following to say, which reasoning I respectfully agree and consider it pertinent and can be applied with equal force in the present case:-

“... It seems to me that those statements of the limited effect of section 56 of the Law of Property Act, 1925, do none the less exactly cover the situation of the plaintiff company in the present case. I have not overlooked the decision of Crossman J. in In re Foster expressly declining to treat section 56 as creating such an enormous change in the law as to enable an agreement by A with B to pay money to C to be enforced by C. But it seems to me that in the present case the intention of clause 4 of the deed of licence is to enable the person therein named, the plaintiff company, and no one else, to obtain the leasehold interest of the defendant in No. 40 Romford Road. In the language of Simonds J. the plaintiff company is a person to whom the instrument purports to grant some thing or with which some agreement or covenant is purported to be made. Section 56 provides that a person may take an immediate or other interest in land or the benefit of any covenant or agreement over or respecting land, although he may not be named as a party to the instrument. It is difficult to see what the intention of clause 4 of the deed of licence was if it was not to confer on the plaintiff company an interest in No. 40 Romford Road and to give to the plaintiff company the benefit of the covenant or agreement conferring an option to acquire the defendant's leasehold interest. The question decided in Woodall v. Clifton, namely, whether an option to acquire the reversion in fee simple on a leasehold term ran with the leasehold term in the hands of an assignee of the reversion or of the term, seems to me to be a different matter. In the present case, for the purposes of section 56, the "land" is No.40 Romford Road, and an option to purchase a leasehold interest in this land seems to me to create an interest in that land and to be an agreement respecting that land, and so to be within the precise words of the section. I do not understand why the words '' agreement respecting land '' should not be given their plain meaning. An option to purchase land is an agreement respecting land. Accordingly, I reach the conclusion that the provisions of section 56 of the Law of Property Act, 1925, enable the plaintiff company to enforce the option in the present case."(emphasis supplied)

76.  In Amsprop, Neuberger J also cited a passage from Megarry and Wade stating that it accurately summarised the ambit of section 56 of the Law of Property Act 1925 (ie the English counterpart of s 26 of CPO). At p 1032D-E, Neuberger J said:-

“I consider that the ambit of section 56 is accurately summarised in Megarry and Wade, p. 763:

“The true aim of section 56 seems to be not to allow the third party to sue on a contract merely because it is made for his benefit; the contract must purport to be made with him. Just as, under the first part of the section, a person cannot benefit by conveyance unless it purports to be made to him (as grantee), so he cannot benefit by a covenant which does not purport to be made with him (as covenantee).” (emphasis supplied)

77.  Again, this passage just echoes with the commentary as cited from Chitty in paragraph 66 above, and I have explained above why that legal parameter for section 56 of LPA 1925 (as ought to be similarly applied to section 26 of the CPO) is met with in the circumstances of this case.

CPO, section 41

78.  I now turn to s 41(1), (2) and (3) of the CPO, which I think that Ps are entitled to rely on for enforcing the express covenant of RoW granted under the Deed of Grant in relation to Lot 3325. In my judgment, the legal requirements provided thereunder are likewise satisfied in this case.

“41 Enforcement of covenants

(1) This section applies to an express covenant and a covenant implied by or under this Ordinance or any other law.

(2) This section applies to any covenant, whether positive or restrictive in effect—

(a) which relates to the land of the covenantor;

(b) the burden of which is expressed or intended to run with the land of the covenantor; and

(c) which is expressed and intended to benefit the land of the covenantee and his successors in title or persons deriving title to that land under or through him or them.

(3) Notwithstanding any rule of law or equity but subject to subsection (5), a covenant shall run with the land and, in addition to being enforceable between the parties, shall be enforceable against the occupiers of the land and the covenantor and his successors in title and persons deriving title under or through him or them by the covenantee and his successors in title and persons deriving title under or through him or them.” (emphasis supplied)

79.  After carefully construing the Deed of Grant as a whole against its relevant background circumstances and reviewing the evidence, this Court holds that:-

(1)  the covenant of easement of RoW plainly touches and concerns the covenantor’s land (i.e. Lot 3326) as a dominant tenement, enhancing the value of the covenantee's land (i.e. Lot 3325), as opposed to a personal benefit to the covenantee;

(2)  the respective burden of the easement covenant created under the Deed of Grant, was clearly intended to run with the servient land of the covenantor, ie the Grantors of the RoW, noting, in particular, that it was clearly agreed and declared under clause 4(d) of the Deed of Grant “that this Deed is binding on its successors in title and assigns of the said premises[25] or any person(s) or corporation(s) deriving title thereof from the Grantors and their respective executors and administrators, as the Executors of the estate of the said deceased” (emphasis supplied);

(3)  the covenant of easement was also expressed and intended to benefit the dominant land of the covenantee (ie Lapereau as so found by this Court to be the owner of Lot 3325 at the time of grant) and his successors-in-title and assigns by virtue of the wordings of the operative clause of the Deed of Grant (see paragraph 6 above);

80.  In these circumstances, this Court is satisfied that section 41(3) of the Conveyancing and Property Ordinance (Cap 219) (“CPO”) is also engaged in this case, by virtue of which, Ps when becoming the owner of Lot 3325 (through the chains of title as traced back to Lapereau) can enforce the covenant of RoW against D.

CPO, section 16

81.  As pointed out in paragraph 63 above, given the applicability of section 26 to this case as found by this Court, apart from section 41 of CPO, Ps can also resort to section 16(1) of the CPO to acquire the benefit and enforce the covenant of RoW against D.

82.  Section 16(1) of the CPO provides thus:-

“(1) Unless the contrary intention is expressed in the assignment, an assignment shall operate to assign, with the land, all rights, interests, privileges, easements or appurtenances in, over, belonging or appertaining to that land or at the time of the assignment used, held, occupied or enjoyed with that land and things attached to the land or permanently fastened to anything attached to the land." (emphasis supplied)

83.  Despite there is no mention of any express grant of RoW in the Assignment from Lapereau to V-Power, nor in the one from V-Power to Ps, I think that once the easement was created and granted to Lapereau as owner of Lot 3325 in such way as discussed above, the easement would become an interest appurtenant to Lot 3325, and it can be and was effectively passed on to Ps under section 16(1) of the CPO under the circumstances of this case.

84.  At the flip side of the coin, the burden of the easement was also expressed to be imposed on the two respective owners succeeding the Grantors of the RoW, first in the Assignment of Lot 3326 from the Grantors to LCW, and then in the following Assignment from LCW to D. (see paragraph 24 above). In passing, it also goes without saying the interest of easement as validly created/granted under the Deed of Grant (which was registered against Lot 3326 with the Land Registry) would also bind D as a subsequent purchaser of the legal estate with notice.

Point 2

85.  On this point, this Court agrees with Mr Chiu’s submission that as a matter of reasonable construction of the Deed of Grant, the subject of the grant thereunder was clearly confined to the coloured area in the Plan annexed to the Deed of Grant (as produced in Trial Bundle at p.318) (see : paragraph 18 above), notwithstanding that the RoW so granted is being described therein as “... with or without carriages motor or other vehicles of any description”. These words do not have the effect of “enlarging” the RoW as delineated by the Plan in the Deed of Grant, and yet Ps were contending to that effect at the trial.

A material unpleaded RoW issue

86.  In the course of the trial, Mr Siu on Ps’ behalf raised a material unpleaded issue in respect of the extent of the RoW for the first time. In gist, Ps now assert a right of way beyond that as delineated on the Plan, and that Ps should have a right of way over an additional portion over the former tiled platform area of Lot 3326, which contended extent was indicated by Ps’ counsel on a photo (now marked as Court Exhibit ‘P2’) [26] (“the Additional Portion”).

87.  After carefully reviewing the evidence and the pleadings and submissions from both sides, I agree with Mr Chiu’s submission that the point on the Additional Portion is indeed a newly contended point, which is beyond Ps’ pleaded case.

88.  For, it is plain and obvious that even according to P’s own pleaded case, it is the RoW which is combined with the Footpath that form a wide concrete pathway, which is defined as “the Pathway” under paragraph 18 of the ASOC, that was fit for serving as a vehicular passage leading Lot 3319RP and Lot 3325 to the northern public road (see paragraph 27 above). The Additional Portion now sought to be demolished by Ps is erected on the tiled platform area at Lot 3326, but not on the concrete Pathway as pleaded. See: Court Exhibit P2.

89.  Mr. Siu seeks to argue that the plan under Appendix 2 to the ASOC ("the ASOC plan")[27] (which clearly does not cover the Additional Portion) that Ps have relied on to claim the RoW is "for identification purpose only" (as so pleaded under paragraph 19 of the ASOC). And as such, Ps' pleaded case would not preclude them from contending that the actual extent of the RoW as intended under the Deed of Grant is beyond the extent which is shown in stippled violet on the ASOC plan[28] (see : ASOC, para 19(a))

90.  With respect, I disagree. For, it is clear to this Court that the Pathway, which is unmistakenly pleaded as a concrete pathway, can in no way include the platform outside the small house of Lot 3326, which was paved with tiles (as opposed to concrete) at all material times. Also, it can be clearly seen from the ASOC plan that the RoW as pleaded does not cover any part of the tiled platform of Lot 3326 which was aligned with the eastern limit of the RoW (drawn in a straight line on such plan). This Court's observation is fully supported by the expert evidence from both sides.

91.  The two surveyor experts were expressly instructed to measure the extent of the RoW pursuant to paragraph 2(a) of the expert directions given by Master B Mak on 3/9/2021, which states thus:

“2. The issues to which the expert evidence will relate are to identify by undertaking a land boundary survey, identification plans, and interpreting historical aerial photographs, lot index plans and survey records for the periods from 1990 to present for:-

(a) the exact measurements of the Right of Way granted in the Deed of Right of Way dated 6^th November 1995 which is located on Lot No.3326 in Demarcation District No.116;” (emphasis supplied)

92.  And according the plan (marked Annex 3A-1A) annexed to D’s expert report, which was reproduced (with magnification) from the survey record plan of Lot 3326 dated 18/5/2010 with mark up of RoW dimensions[29] (to which P’s expert also agrees[30]), the eastern limit of the RoW (as measured and delineated thereon) is directly adjacent to (but plainly with no part thereof overlapping with) the tiled platform area of Lot 3326 (which is coloured yellow on that plan)[31].

93.  It is well settled that unpleaded issues cannot be raised out of evidence which is to be or has been adduced, and it is the pleaded issue that will define the evidence not the other way round. A court will not proceed to judge the merits of a party’s defence by reference to an unpleaded case. See: Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663, paras 21 and 22; Mak Shiu Tong v Yue Kwok Ying (2004) 7 HKCFAR 228, para 55.

94.  Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. See: Wing Hang Bank Ltd v Crystal Jet International Ltd [2005] 2 HKLRD 795 (CA), 798J-799F. There was however no application sought by Ps to amend their pleadings even after seeing D's closing submissions objecting to such point of Additional Portion being raised.

95.  In these circumstances, I do not see it right nor fair to permit Ps to run the contention on the Additional Portion which in truth and in substance basing on an unpleaded issue. Therefore, this Court can refuse to entertain the submissions and evidence adduced by Ps in relation to the Additional Portion basing on this procedural reason alone. In passing, it was also due to similar reasons that this Court refused to allow a point of implied release of the easement in question (as submitted under paragraphs 71 to 73 of D's Written Opening by making reference to the previous conducts of D and Ps' predecessors over their respective lands) from being run by D at the trial, since the necessary material facts as required for establishing such legal defence are likewise not pleaded in the Defence.

Substantive merits of Ps' contention

96.  Nonetheless, even if this Court needs to proceed to judge the substantive merits of Ps' contention for whatever reason (which I fail to see there is any here), with respect, I think Mr Siu’s submissions that such portion of the former platform area (where the Additional Portion is currently erected thereon) form part of the RoW are still misconceived. I have considered the authorities submitted by Mr Siu in this regard, but they cannot advance Ps' contention under the circumstances of this case. I do not think this Court needs to delve into these authorities in this judgment given my above reasoning on the pleading point that is already sufficient to dispose of the Additional Portion contention. It suffices for this Court me to set out its observation on the crux of this substantive issue to demonstrate why Ps' such contention is not acceptable.

97.  First, there is no dispute between counsel that the extent of the RoW is a matter of construing the language of the grant under the Deed in the light of the surrounding circumstances at the time of grant.

98.  The operative clause of the grant did not describe the extent of the RoW in words. The language used is nonetheless clear enough to this Court that, as said, the extent of the RoW is a portion of Lot 3326 as coloured red on the Plan initially annexed in the Conditional Agreement and then incorporated in the Deed of Grant by reference. See: paragraph 18 above, and para (3) of the Recital of the Deed cited at paragraph 21 above.

99.  Apparently, the coloured portion on the Plan is not demarcated with any figures for the dimensions of the RoW, and this is why experts’ evidence was called for by the parties to take measurement in accordance with the experts’ direction as mentioned above. That notwithstanding, one can quite confidently tell that the coloured area on the Plan extends in NW direction up to the northern boundary of Lot 3326, and in SE direction to the southern boundary of the same lot.

100.  It can also be discerned from the Plan that the eastern limit of the RoW (as represented by the area coloured red thereon) aligns with the physical boundary of the tiled platform outside the small house of Lot 3326 (facing west), given quite a uniform distance between such eastern limit of the RoW and the line demarcating the western outer-wall of the small house (running from its NW corner to its SW corner). As discussed above, this is verified by both experts after their careful examination, among others, of the surrounding landscape features, the survey record plans and the aerial photos over the years.

101.  After carefully going through different photos taken of the site at different periods (as produced in the Trial Bundle) paying particular attention to the location of the flower bed outside the small house of Lot 3326 and the tiled platform areas at both Lot 3325 and Lot 3326, this Court is fully convinced that there is no way the concrete pathway (as pleaded in the ASOC to demarcate the scope of RoW) can extend into the tiled platform of Lot 3326, and this can be clearly seen by looking at a screen capture of Google map street view of the site taken in April 2009, as annexed to D’s expert report under Annex 6A-1 (which was unchallenged at the trial)[32].

102.  Next, according to the aerial photo of 11/10/1994 (under Annex 4A-1 to D's expert report)[33], the flower bed already existed before the RoW was granted, it clearly did not form part of the RoW. And as clearly shown by the survey record plan of 18/5/2010 as mentioned in paragraph 92 above, the RoW was running along directly adjacent to the lateral side of the flower bed, and then aligning in a straight line with the edge of the tiled platform of Lot 3326 all the way up to the southern boundary of Lot 3326.

103.  Mr Siu seeks to argue that the surveyor experts derived their measurements by scaling, which are bound to be imprecise. However, any difference between the measurements taken by scaling from the survey records and the actual site condition concerning the eastern limit of the RoW[34] as may be given rise by scaling, cannot impossibly be translated into a distance of about a few feet (ie the length of the Additional Portion as extended from the eastern limit of the concrete Pathway into the former tiled platform of Lot 3326 that Ps now seek for its demolition as marked on Court Exhibit P2). Even according to Ps’ own expert’s observation from the aerial photos (as stated in para 16 of his supplemental report), ‘[b]etween 1990-2008, the platform on Lot 3326 was generally aligned with the eastern limit of the RoW’, and neither expert ever suggested there is any possibility that any part of the southern portion of the RoW can extend beyond into the tiled platform, let alone to such substantial extent as now contended by Ps. On the contrary, D's expert categorically states in para 4.2 of his expert report that the historical measurement of the distances of Lot 3326 platform from the RoW to be "0m to 0.11m" and Ps' expert also agreed to adopt these figures.[35]

104.  The two experts in para 6 of their Joint Statement in fact said that "we are agreed that there were only about one to two centimeters differences between our measurements of the RoW due to scaling and correlation of the RoW Plan.".

105.  In light of the aforesaid, it is evident that Ps’ contention is seriously contradicted by the two experts’ evidence.

106.  Seeing this, Mr Siu ventures to urge this Court to look into the history of the actual usage of the vehicular passage, and submits that there were some periods in the past when vehicles could travel on the tiled platform area of Lot 3326 to reach Lot 3325, and that this vehicular usage would reflect the extent of the RoW granted. In this regard, he refers in particular to the photo under Court Exhibit P1.

107.  With respect, I cannot agree. When it is crystal clear to this Court (upon reasonable interpretation of the Deed of Grant as a whole) that the specified portion coloured red on the Plan annexed to the Conditional Agreement (subsequently incorporated into the Deed of Grant by reference) was intended by the Grantors to demarcate the extent of the RoW at the time of grant as not including any tiled platform area of Lot 3326 (and the RoW's boundaries are now verified by the expert’s measurements confirming this point), the fact that the respective owners of Lot 3326 and Lot 3319RP somehow permitted vehicles to travel on their respective tilted platforms in the past to facilitate vehicles to completely drive through the RoW so as to reach and even park on Lot 3325, would not by itself be sufficient to show that the Grantors intended the actual extent of the RoW to be deviating from what was clearly demarcated on the Plan. This is because, LCW and/or D could just be accommodating at the time, and this would not necessarily reflect what is actually permitted under the grant.

108.  Mr Siu then tried to resort to the phrase “with or without carriages motor or other vehicle” at the operative clause of the grant to submit that somehow the RoW granted ought to be fit for both vehicular access and access on foot. This type of phraseology would appear to be adopted with modifications from precedents for drafting clauses on right of way, and were subject to consideration by courts in previous authorities. Needless to say, each case has to be decided on its own merits. In my view, such phrase as appeared in the present operative clause of the RoW cannot support Mr Siu’s argument, when it is considered in light of all the circumstances at the time of grant.

109.  It is undisputed or indisputable that, all along, the RoW has to be combined with the Footpath in order to provide sufficient width for, say, a sedan of normal size to drive along to reach Lot 3319RP. The RoW alone (given its decreasing width when it proceeds along from north to south[36]), without the Footpath, would not be sufficient. In the past, practically speaking, if the driver wanted to drive the sedan to further reach Lot 3325 (without travelling on Lot 3326 tiled platform), he had to do so by driving the sedan onto part of the tiled platform of Lot 3319RP before entering into Lot 3325. This point can be illustrated by the actual site condition as captured by the same Google map street view taken in April 2009 as referred to in paragraph 101 above[37], and the Annex 1 plan attached to this judgment. In other words, if a private car was parked on the tiled platform area of Lot 3319RP next to the southern portion of the RoW like the case as shown in the screen capture (or as in the current situation where the boundary of Lot 3319RP is now completely sealed off by fence wall), it would appear very difficult for the driver to manoeuvre the sedan (let alone a 7-seater car) to completely drive through the RoW so as to go into Lot 3325 unless part of it has to travel on the former tiled platform area of Lot 3326 as well. This may also explain why Ps now have such a strong desire to seek for the demolition of the fence wall to such an extent as including the Additional Portion.

110.  The occurrence of the past and current scenarios as pointed out above would however in this Court’s view be within the reasonable contemplation of the Grantors, as nothing in the Grant or elsewhere to suggest that the owners of Lot 3319RP at the time of grant, ever promised to keep the tilted platform of Lot 3319RP free and unobstructed to facilitate vehicles to completely drive through the RoW first onto Lot 3319RP and then to further reach Lot 3325.

111.  As such, it would also be reasonably clear to the Grantors that they could not grant vehicular access of RoW to the owners of Lot 3325 to such extent of “guaranteeing” that vehicles of whatever size must be able to go pass the RoW, so as to get into Lot 3325, even if the owners of Lot 3319RP would no longer accommodate to allow vehicles to travel over any part of their property. This is because "the said Portion" under the operative clause of the grant over which vehicles are permitted to go pass and repass is of a definite boundary as can be clearly seen from the Plan as analysed above. Having said that (even with the sealing off of Lot 3319RP boundary), the narrowest part of RoW (if combined with the Footpath) would still appear to wide enough to allow a motorbike of normal size to drive through so as to reach Lot 3325.

112.  The measurements of the widths of the RoW as taken by D's expert (set out at para 4.1 of his report) are agreed by Ps' expert[38], and they are quoted as follows:-

Location	Width of the RoW	Width of the Pathway	Reference
near        the vehicular gate	3.43m	5.23m	Plan no.6138/02 (Annex 1A)
next to Lot 3325	0.95m	2.36m	Plan no.6138/02 (Annex 1A)

113.  In light of above analysis and upon the construction of the Deed of Grant as a whole against the actual site condition of the RoW at the time of grant, it can be reasonably construed that the Grantors only intended to allow the RoW over Lot 3326 (only to such extent as demarcated on the Plan) to be used for vehicular access so long as the surrounding circumstances permit, given the limited width of its narrowest portion (abutting the northwest corner of the tiled platform of Lot 3325) would not appear to be sufficient per se for even a private car of normal size to drive through.

114.  But that may be considered sufficient at that time for the owners of Lot 3319RP (when the boundary is not yet sealed off), because they can make use of the Footpath at the same time to provide sufficient combined width to gain access to their own land. As for the owners of Lot 3325, the RoW may appear less valuable to them (when compared with the case of Lot 3319RP), for if the owners of Lot 3326 and Lot 3319RP would no longer accommodate (as in the cases discussed above), they can only drive vehicles of fitting widths through the Pathway. As pointed out above, the narrowest RoW width is about 0.95m, and if combined with the corresponding Footpath width, the relevant Pathway's width would be about 2.36m according to the experts' agreed measurements. Be that as it may, objectively speaking, the RoW would still appear to be of significant value to the owners of Lot 3326 because they can prima facie have vehicle(s) of such kind travelled into the RoW zone up to where the relevant width of the RoW at the site reasonably permits, even though they cannot have vehicle(s) of whatever size(s) they want to drive pass the RoW, so as to go onto their own land and have such vehicle(s) parked there.

115.  I would also think that if the extent of the RoW was not properly demarcated with a definite boundary in advance, but left any part of it as ambulatory and subject to changes along with the surrounding parameters (such as, for instance, the boundary of Lot 3319RP became sealed off in 2019), this would put the owners of Lot 3326 under a precarious position always subject to the risk of offending clause 2(d) of the Deed of Grant by obstructing the RoW unknowingly, if they place or erect anything on the tiled platform area beyond the flower bed, especially the farther away from the flower bed, and the closer to the common boundary of Lot 3326 and Lot 3325 (even though no part of the tiled platform area was covered by the red coloured portion demarcating the extent of RoW as shown on the Plan which is now confirmed by both parties' experts).

116.  In light of the above analysis, I accept Mr Chiu’s submission made in this regard that the phrase “with or without carriages motor or other vehicle” as relied by Ps do not have the effect of altering or expanding the extent of the ROW (which has been delineated by the coloured portion on the Plan). Mr Chiu referred this Court to an English Court of Appeal's decision in White v Richards (1994) 68 P&CR 105 (CA). In that case, the grant provision does not limit the type of motor vehicles which could pass through the right of way (which was coloured in brown on a plan appended to the relevant instrument). The Court of Appeal upheld the trial judge's interpretation of grant, and held that even so the physical characteristics and dimension of the right of way at the time of the grant could nevertheless restrict the type of vehicles which could pass through.

117.  The English Court of Appeal's judgment at pp.109-111 is instructive:

“...The main question therefore depends on the natural meaning of components (ii) and (iii) read in the light of the surrounding circumstances. The words " motorvehicles" are unrestricted and in themselves apt to include any motorvehicle, whatever its dimensions or weight. But the right is for them to pass and repass " over and along the track coloured brown on the plan" . Although no guidance as to the width of the way can be gathered from the. brown colouring, the right of passage is expressed to be over and along " the track" , a plain reference to something existing at the date of the conveyance. So the judge was entirely correct to start, as he did, by ascertaining the physical characteristics of the track in January 1987.

  In conducting that inquiry, the judge reviewed the evidence at length. His principal findings were as follows. On the basis of the expert evidence and from his own observations on site, he was quite satisfied that the average width of the track in 1987 was 2.7 metres or 8 feet 10 inches. ....

  Although Mr Ainger's argument at times verged on a submission to the contrary, it is quite clear that there was ample evidence to support the judge's findings as to the physical characteristics of the track in January 1987. So the main question is reduced to this. Are the words " motorvehicles" , when read in the light of those characteristics, seen to be restricted to certain types of motorvehicle, in particular to those of certain dimensions and of a certain weight?

  In Todrick v. Western National Omnibus Co. Ltd a right of way had been reserved in these terms:

A perpetual right of way ... at all times and for all purposes with or without vehicles and animals from and to the public highway ... over across and along the private road or way coloured yellow on the said plan ....

The defendant company used, or proposed to use, the private road, which Farwell J. described as a short country lane, for the passage of motor omnibuses seven feet six inches wide and of a weight of at least three tons. The lane was nine feet wide for the most part, but where is led into the public highway there was a gateway with stone pillars, the width of the opening when the gates were opened being seven feet nine inches. The lane was bounded by a retaining wall belonging to the plaintiff, which his expert witness thought would suffer badly if vehicles of such a weight as motor omnibuses were driven freq_uently up and down it.

  Distinguishing the decision of this court in White v. Grand Hotel, Eastbourne, Ltd Farwell J. held:

... when I consider that this is a road to which the only entrance is 7 feet 9 inches, wide, that the width of an omnibus is 7 feet 6 inches, leaving only 1 ½ inches clearance on each side, that the weight of an omnibus is at least three tons, that this is a road which is retained by a wall the strength of which is at least in doubt, when I take all those circumstances into consideration, I am unable to come to any conclusions but that a user of this roadway by motor omnibuses is not such a user as can be justified by the terms of the grant. It is not having regard to the circumstances of the case, the situation of the land and the situation of the parties at the time of the grant, such a user as could have been in the contemplation of either of the parties, and is not such a user as is proper in my judgment for a way of this kind.

The test applied in the second sentence of this passage was suggested by the judgment of James L.J. in United Land Co. v. Great Eastern Railway Co.:

I am of opinion that there is nothing in the circumstances of the case, or in the situation of the parties, or in the situation of the land, to prevent the words from having their full operation.

There is no practical difference between that test and the test propounded in Cannon v. Villars, which does not appear to have been cited to Farwell J.

  When Todrick v. Western National Omnibus Co. Ltd reached this court the argument was mainly directed to another point, on which Farwell J.'s decision was reversed. Counsel for the defendant company did not press for the appeal to be allowed on the ground that the judge's decision on user by omnibuses had been wrong. However, all three members of the court (Lord Hanworth M.R., Romer and Maugham L.JJ.) gave their express approval to that part of his decision. Its authority was again recognised by this court in Robinson v. Bailey, where it was distinguished, and in Jelbert v. Davis (supra), where it was applied. The complaint made in each of these cases was that there had been excessive use of the right of way by authorised vehicles rather than use of it by unauthorised vehicles, as was the case in Todrick..." (emphasis supplied)

118.  Lastly, Mr Siu appears to have submitted to the effect that the Plan should be disregarded in the interpretation of the Deed of Grant for determining the extent of RoW because it was for “identification purpose only”. With respect, such argument goes against the authority of our highest court. I have carefully considered Mr. Siu's submissions touching on this point, but I cannot accept the same.

119.  Pausing here, before I move on. It is observed that Mr. Siu's submission seems to carry with it an erroneous factual assumption. He said at para 37 of his closing submissions that "the parcel clauses of the Deed, i.e. Clause 1 to Clause 5, do not involve the "plan"." This is not entirely correct because clause 1 (being the operative clause of for the grant) made express reference to "the said Portion", which is defined earlier in paragraph (3) of the Recital to be that as mentioned in Clause 23 of the Conditional Agreement (see : paragraph 18 above). And that Clause 23 in turn describes the right of way is such portion of Lot 3326 as shown coloured red on the Plan.

120.  Essentially, I accept Mr Chiu’s submission (citing the CFA’s decision in Green Park Properties Ltd v Dorku Ltd (2001) 4 HKCFAR 448, that even the Plan was glossed with the phrase “for identification purpose only” as marked on the original building licence plan at its left bottom corner by the Building and Lands Dept of Yuen Long District Lands Office[39], this would not obscure the importance of such plan in our present context, which as illustrated by the above analysis can properly identify the extent of the RoW in this case. Having further the benefit of reading the measurements taken by the experts cross-checking with the site conditions and other official survey records of the site (who have come up with an agreed a plan demarcating the boundaries of the RoW with sufficient precision). According to the two experts, any differences between their measurements of the RoW due to scaling and correlation of the Plan are only about one to two centimeters, that in my view is negligible. In these circumstances, I have no hesitation to come to the view that the specified portion of Lot 3326 as coloured red on the Plan would fairly and reasonably represent the extent of RoW as intended under the grant as well back up by experts' measurements.

121.  In Green Park, on the vendor's appeal to the Court of Final Appeal, at issue was whether it was permissible to ascertain the precise boundary of the property by reference to a tenancy plan.

122.  Litton NPJ (with whom Li CJ, Bokhary and Ribeiro PJJ and Lord Millett NPJ agreed) held as follows:-

“17. As Le Pichon JA said, the parcels clause in the sale and purchase agreement threw no light on the boundary of the property and did not say whether the yard was within the boundary of the property: Nor, for that matter, did it say whether the toilets on either side of the yard formed part of the property. Plainly, in the circumstance of this case, the only way whereby the precise boundary of the property could be ascertained was by reference to the tenancy agreement.

18. If the tenancy agreement (which was annexed to the agreement) had included the tenancy plan, the matter would have been conclusive: It matters not that the plan was said to be “for identification purposes only”. It would have shown that the entire area including the yard was the subject-matter of the sale. But it did not. How then does this leave the parties?

19. It was obviously not open to the Judge to throw up his hands and say: “The agreement failed ab initio because it never identified the property to be sold with sufficient precision: The parties thought they had a binding agreement: In law they did not”. This was not a position adopted by either party, so the Judge had to do the best he could with the agreement as it stood, and to ascertain the scope of the bargain from the words actually used and the circumstances under which the agreement was made. Since the tenancy agreement, annexed to the sale and purchase agreement, referred to the tenancy plan for the purpose of identifying the area purportedly in the vendors’ ownership, it was plainly permissible for the purchasers to rely upon that. As Le Pichon JA remarked in her judgment: “The whole point of reference to the plan was because of the inadequacy of the verbal description in both the agreement as well as the tenancy agreement”.”

20. Once one looks at the plan, the position becomes clear: The vendors were purporting to sell and convey to the purchasers Portion A including the yard: This was not something they were able to do on completion ... The Court of Appeal was accordingly right to reverse the Trial Judge on this point.” (emphasis supplied)

123.  In light of the aforesaid, in particular, the experts' agreement on the measurements of the dimensions of the RoW as shown on two plans prepared by D's expert as annexed under 'Annex 1A' and 'Annex 1A-1' to his report[40] (see : the two experts' joint statement, Section A, para 6), this Court would make a finding that the extent of the RoW as granted under the Deed of Grant is being such as demarcated on these two plans.

Point 3

124.  On this point, the tide has however turned against D. I have considered Mr Chiu’s submissions and authorities in this regard. But with respect, I think there is simply no or no sufficient evidence (as so found by this Court) to show that Ps or their predecessors-in-title were in default of obligations under the Deed of Grant, so as to prevent the RoW from being first granted to Lapereau, and then passed on through the chains of title to Ps by virtue of s 16 of the CPO, or to preclude the benefit of the easement covenant from being enforced by Ps through section 41(3) of the CPO.

125.  Upon reviewing the authorities submitted by Mr Chiu, I hold that any exercise by Ps and their predecessors' rights of easement of the RoW would be suspended if any of them will be in breach of the obligations as specified under clauses 2 and 3 of the Deed of Grant (but not extending to such payment obligation under clause 4(a) to pay for the charges and expenses incurred in connection with the Deed, which ought to be borne by the signing parties to the Deed only[41]), especially when clause 4(e) (as cited in paragraph 22 above) is read alongside with clause 5, which provides that:-

“5. The Grantees and their respective successors in title and assigns hereby jointly and severally further covenant with the Grantors that they will use their best endeavours to procure the Co-owners and the Owner(s) for the time being of the Neighbouring Property and their respective successors in title and assigns to observe and perform the covenants on the part of the Grantees to be observed and performed as mentioned in Clauses 2 and 3 above." (emphasis supplied)

126.  But since the owners of Lot 3325 are not signing parties to the Deed and further given the special mechanism for the Grantees' procurement of compliance by the Owners of Lot 3325 as provided under clause 5, despite Mr. Chiu's argument to the contrary, I would think that, in relation to the period since the date of the Deed of Grant up to the erection of fence wall by D to enclose the RoW in 2019, Lapereau, V-Powers and Ps (as owners of Lot 3325 at different periods of time) can only be meaningfully held to be in breach of the relevant obligations under clauses 2 and 3 upon the occurrence of the following two pre-conditions:-

(1)  when the relevant obligation(s) on the part of the Grantees had already arisen; and

(2)  the Grantees or their successors in title or assigns had in accordance with clause 5 of the Deed of Grant, demanding the relevant owner(s) of Lot 3325 to comply with such obligation(s) and any of these owner(s) has or have failed to comply with the same within a reasonable time after such demand was made.

127.  On top of that, it would also appear sensible and in fact goes without saying that the Grantors or their successors-in-title and assigns of Lot 3326 (including D in this case) are also entitled to directly make a demand upon the relevant owner of Lot 3325 to comply with the relevant obligation(s) that has or have arisen.

128.  This is especially the case when, say, the easement of RoW (as between Lot 3319RP and Lot 3326) has become extinguished for whatever legitimate reason(s), since clause 5 may no longer be workable should that situation arise.

129.  But even in that case, this Court would still be inclined to think that, as a matter of principle,

(1)  the Grantors and their successors in title and assigns in respect of the servient land (Lot 3326), would then be further entitled, by necessity, from that time onwards to make the relevant demand directly upon the owners of the servient land (Lot 3325) to comply with the obligations under clauses 2 and 3 of the Deed of Grant;

(2)  the owners of Lot 3325 would continue to be subject to the incidence of burdens of maintenance and repair (as clearly provided for under the Deed of Grant to come along with the use and enjoyment of the RoW by all the owners of the two the dominant lands (i.e. Lot 3319RP and Lot 3325) if they are to continue to take the benefit of the easement (as between Lot 3325 and Lot 3326), even after the easement for Lot 3319RP has become extinguished.

130.  Surely, one cannot be held to be in breach of an obligation which has not yet arisen. It would also appear unreasonable to construe the terms of the Deed of Grant to hold the owner(s) of Lot 3325 to be in breach of the relevant obligation(s) without making a prior demand (as mentioned in either paragraph 126(2) or paragraph 127 above) upon them to comply since they are not signing parties to the Deed of Grant. Prima facie, the owners of Lot 3325 would not know when the relevant Crown rent of the Lot 3326 became due and payable, and it would also make no good sense, nor fair to hold them liable under clause 2(c) before the due proportion(s) of Crown rent or other costs and charges in connection with the RoW that ought to be contributed by the owners of Lot 3325 was even apportioned for their payment.

131.  Insofar as may be necessary, this Court would make a holding that the pre-conditions as mentioned in paragraphs 126 and 127 above would be reasonably and necessarily implied in the Deed of Grant for its effective operation before the relevant owner(s) of Lot 3325 can be held liable for any default(s) of the obligation(s) as provided therein, so as to suspend their rights to use the RoW during any such period(s) of default(s) in accordance with clause 4(e) of the Deed of Grant.

132.  After carefully considering the evidence and submission of the parties, I find that there is in fact no or no sufficient evidence in this case for D to prove on balance of probabilities that LCW, D or LKC/Jim had ever demanded Ps or their predecessors to comply with the obligations as provided under clauses 2 and 3 of the Deed of Grant (before D's erection of fence wall to enclose the boundary of Lot 3326 in 2019). In light of the above analysis, this Court also finds that Ps and their predecessors in title cannot be held to be in breach of any the alleged breaches of the relevant obligations as contended by D in any event.

133.  I will refer to the history of the relevant usage of the RoW by the relevant owners of the 3325 since the Deed of Grant (and the responses of LCW, D and LKC at different periods) to explain why this Court find the contended non-compliance to prevent Ps from taking the benefit of the RoW cannot be established.

134.  To begin with, back to the time of the grant in 1995, there is no evidence that there was any relevant obligation(s) which had arisen, and Lapereau was asked to comply with but they failed to do so. According to paragraph 5(c) of LCW’s witness statement, Lot 3325 was vacant most of the time back then, and she let a lady and a gentleman use the RoW (whose identities are not clear from LCW’s witness statement, and they might be Lapareau’s tenants or licensees) to drive their vehicles through the RoW to park at Lot 3325 (though they did not park their cars there often), without complaining they have not complied with any obligations of the Deed of Grant.

135.  As for D, she said in her witness statement that after she became the owner of Lot 3325 in 1997, she saw one Ms Carol Cheng of Lapareau moved in to reside in Lot 3325 in about 2009. It appears from the overall tenor of D’s witness statement suggests these two neighbours were living in harmony. D also let Ms Coral Cheng park her car side by side with D's car in between their two small houses.

136.  After V-Power became the owner of Lot 3325, according to D, one Ms Cheung moved in, but she did not drive a vehicle. D further said in about 2010, she agreed with Ms Cheung to replace the wooden fence (which she erected earlier at the boundary between Lot 3325 and Lot 3326) with a shared brick wall. There was no discussion between herself and Ms Cheung about the right of way or the Deed of Grant at all. Shortly after the erection of that shared wall, Ms Cheung constructed the Side Door to facilitate her exit from her property. Ms Cheung never drove or parked any car. During the beginning of Ms Cheung’s period of residence, the owners and/or tenants of Lot 3325 did not use the RoW, and did not park any car on Lot 3325 or have any complaints about the RoW at all material times.

137.  In these circumstances, since D became the owner of Lot 3326, if there were then really any obligations under the Deed so happened to have arisen but not complied with by the owners of Lot 3325 in her perspective, one would expect D to expressly and directly say so in her witness statement, but this is not what she did.

138.  Rather, D said obliquely in the earlier part of her witness statement that LKC informed her none of the owners of Lot 3325 ever contributed to costs and liabilities of the Deed of Grant, and Mr Li further confirmed that, Ps and/or their predecessors in title have not repaired or kept them in good repair the condition of RoW, they never paid Crown Rent, costs, charges and expenses, in connection with the said Deed, nor legal charges and expenses in connection with the said Deed equally.

139.  However, these evidence of D is neither here nor there because there is no mention that LKC has ever demanded any of the owners of Lot 3325 to contribute to the maintenance or repair the RoW or the payment of the Crown or any costs, charges and expenses in connection with the RoW in accordance with clause 5 of the Deed of Grant, and the relevant owners of Lot 3325 failed to comply.

140.  This observation is actually reinforced by what LKC said in his own witness statement (at para 5) to the following effect: he was advised by the lawyers acting for the Grantors that the duties for maintaining and paying all expenses for the RoW shall be shared between “the registered owners of Lot No.3326, the parties of the Deed and their respective successors”, and he never mentioned that (according to his belief or understanding) these duties shall be shared by the owners of Lot 3325. LKC further said at para 6 of his witness statement that he and Jim agreed to the said terms and to share for all costs of the RoW with LCW and the subsequent owners of Lot 3326.

141.  On the other hand, P2 under cross-examination said that she knew of the Deed of Grant before they purchased Lot 3326, and she also knew that Ps have the obligation to make contribution to the repair and maintenance of the RoW. After the incident when the vehicular gate was damaged in 1995, she told LKC that if they need to contribute to the repair of the gate they would do so, but LKC said it was not necessary. LKC in the witness box confirm this was the case under cross-examination.

142.  In fact, the Crown rent for the whole Lot 3326 was paid by D, there is no evidence that D ever ask LKC to contribute to the payment of Crown rent. It seems unlikely that LCK would somehow demand the owners of Lot 3325 to contribute for payment of Crown rent, especially when there is no evidence of any apportionment of the due proportion of Crown rent was ever made for seeking payment of contribution from the relevant owner(s) of Lot 3325 for any period(s) of time.

143.  At the trial, substantial time were spent by both sides in dealing with a letter dated 3/3/2021 issued by D’s solicitors to provide answers to the Request for Further and Better Particulars of paragraph 10 of the Defence dated 2/2/2021[42] ("D's F&BP Letter"). Under paragraph 10 of the Defence, certain defaults and/or breaches of the covenants contained in clauses 2, 3 and 4 of the Deed of Grant were pleaded. Those pleaded defaults and/or breaches were exactly repeated under paragraph 30 of D’s witness statement, save the word ‘successors in title’ as appeared under paragraph 10.1 to 10.4 of the Defence would appear to be wrongly pleaded. According to D's evidence, such word ought to be replaced by the word ‘predecessors in title’ as used in paragraph 30(a) to (d) of her witness statement instead. No leave was sought to amend paragraph 10 of the Defence at the trial.

144.  But even assuming that leave to amend had been sought by D to plead in line with paragraph 30 of her witness statement, the analysis and findings made by this Court above (in particular, the finding as mentioned in paragraph 132 above) would already dispose of such contended case of D, which is rejected by this Court.

145.  Subject to this overview, I now turn to the individual answers given under D's F&BP's letter.

146.  First, to answer Request (1)(a) for particulars of when the RoW was alleged to have (been) repaired, and Request 1(b) for particulars of what condition of RoW needed to be repaired and/or kept in good repair[43], Ds listed out the following headings of expenses as allegedly incurred in relation to their pleaded repair or maintenance works:-

(1)  Lights at the RoW - (a) light bulbs at Lot 3326 that illuminate the RoW replaced multiple times a year, (b) electricity charges for light bulbs at Lot 3326, (3) installation of solar lights in about 2015 at Lot 3326, (4) replacement of damaged solar lights, (5) replacement of outdoor waterproof electric systems for lights.

(2)  Asphalt of RoW - repair and maintenance work to the cracked or chipped asphalt of the RoW.

(3)  Gates leading to the RoW - (a) rust prevention and paint work to the gates leading to the RoW, (b) repair, oiling and maintenance work on the gates, (c) replacement of gates after it was damaged by the car collision in April 2015, (d) replacement of footpath gate around 2014-2015, (e) the post of main gate replaced 2 times, (f) replacement of lock of main gate.

(4)  Drainage of right of way - repair works to the drainage in 2009.

(5)  Payment to solicitor firm to cancel Deed of RoW.

147.  In relation to these answers given by D, this Court further observes and finds that:-

(1)  Strictly speaking, the averments (including all the figures of costs or expenses allegedly incurred or estimated to have been incurred) as made in such letter are further and better particulars of D's pleaded case, but not her evidence. D did not in her witness statements give any evidence to substantiate any of the alleged figures in D's F&BP letter.

(2)  The documents in the Trial Bundle that might shed light on these alleged items appear to be minimal. Further, it is incumbent upon D to refer the Court to those documents to articulate how and to what extent they would support D's pleaded figures. Nor did Mr. Chiu in his submissions make any reference to the documents in the Trial Bundle to explain if any of them can correlate or support any of the figures as pleaded in D's F&BP letter either.

(3)  Furthermore, it is observed that the expenses as allegedly incurred by herself is highly in lack of documentary support or otherwise embedded with the evidential defects as mentioned above. The Court is not obliged to take any bare assertion of figures on their face value. Further, although it is said in D's F&BP letter that the costs and expenses listed out therein were shared between D and G/F owners of Lot 3319RP, but according to LKC's evidence given in court, the expenses referred to in the letter as being incurred by him, he was solely responsible for discharging them without contribution from D. In relation to the alleged item of replacement of lock of main gate at a costs of HK$400 per year from 2012-2018, LKC testified that there was in fact no change of lock.

(4)  When being asked by the Court whether D has ever asked him to contribute any costs and expenses as allegedly spent by her on those items as mentioned in D's F&BP letter, LKC's answer is in the negative.

(5)  In the light of the aforesaid, on balance of probabilities, this Court refuses to accept any of the figures of costs and expenses allegedly incurred by D herself as so pleaded in D's F&BP letter can come up to proof. As for the expenses allegedly incurred by G/F owners of Lot 3319RP, they were not shared by D, and I also find D to be an incredible and unreliable witness in presenting her case in this regard.

(6)  Without prejudice to anything aforesaid, the costs and expenses for the various items mentioned in paragraph 146(1), (2) and (4), and item (b) of paragraph 146(3) above, were all pleaded to be incurred by D, and yet there is no evidence that D has ever apportioned the due proportions of such alleged costs/expenses that the relevant owner(s) of Lot 3325 are obliged to pay, and this Court finds that such apportionment is required to be made before such owner(s)' relevant payment obligation arises;

(7)  The alleged costs/expenses for the various items as mentioned in paragraph 146(3) above (except the said item (b) thereof) were all pleaded to be incurred by "Lot No.3319 G/F" (i.e. supposedly LKC and Jim). But as said, this Court finds that these owners have never demanded any of the owners of Lot 3325 to contribute for the due proportions that they are obliged to pay. In these circumstances, D's contended non-payment by Ps or their predecessors in title of any of these costs/expenses to prevent Ps from taking the benefit of the RoW under the Deed of Grant likewise cannot get off the ground in any event.

(8)  The payments made by D for preparing the Deed of Cancellation (as mentioned in paragraph 146(5) above) has nothing to do with Ps' obligation to comply with the obligations under the Deed of Grant.

(9)  As to the legal charges and expenses in connection with the Deed of Grant, they are only stated to be shared by the signing parties to the Deed equally according to clause 4(a) of the Deed of Grant. Upon construction of the Deed as a whole, I hold that these expenses are not required to be contributed by the owners of Lot 3325.

Point 4

148.  Given this Court's above analysis and findings, and in particular that the Deed of Grant was valid and effective in creating and granting the interest of the RoW easement to Lapereau which was in turn legitimately and effectively passed on to Ps through the chains of title, and further that the burden and benefit of the easement covenant run with the lands of Lot 3326 and Lot 3325 respectively, so Ps is entitled to take the benefit and enforce the easement covenant by virtue of section 16 and section 41(3) of the CPO for reasons as explained above.

149.  In these circumstances, this Court also finds that the RoW so created and granted under the Deed of Grant vis-a-vis Lot 3325 could not be validly extinguished merely by the current owner of Lot 3326 and the owners of the G/F and 1/F of Lot 3319RP entering into the Deed of Cancellation without involving the current owners of Lot 3325 (ie Ps). It is also doubtful whether the RoW easement so created and granted to the predecessor in title of 2/F of Lot 3319RP under the Deed of Grant could be extinguished without any evidence of the current owner of 2/F of Lot 3319RP agreeing to the release of such easement.

150.  On this basis, but for a technical procedural point which I shall return later, Ps would appear to have a good cause to seek for the vacation of the Deed of Cancellation from the Land Registry. Because given this Court's above findings that the interest of easement was validly created and is still subsisting as between Lot 3325 and Lot 3326 and enforceable by Ps, qua the current owners of Lot 3325, it would be false and misleading for clause 1 of the Deed of Cancellation to state that "the said Deed [i.e. referring to the Deed of Grant] is hereby cancelled and shall have no further effect whatsoever". (emphasis supplied).

151.  Nonetheless, Mr Chiu submitted that the vacation of the Deed of Cancellation would involve the other parties executing such Deed, namely, LKC and Jim, but Ps ought to but did not join them in this action for the purpose of seeking the order of vacation of such deed.

152.  I tend to agree with Mr Chiu that these two other parties should have been joined for such purpose. Be that as it may, this does not preclude this Court from making a declaration to the effect that the Deed of Cancellation is invalid and shall have no effect with respect to the easement of the RoW as so created and granted under the Deed of Grant between Lot 3325 and Lot 3326, and such easement is still subsisting, when in this Court's view the overall justice of this case clearly demands such a declaration be made.

153.  Plainly, such declaration would affect Lot 3325 and Lot 3326, and can be registered with the Land Registry.

Injunctive reliefs

154.  Given the above rulings, the replacing of the 2015 metal gate by installing a new metal of her own under her lock and key[44], and the erection of the fence wall enclosing the western boundary and part of the southern boundary of Lot 3326 has plainly constituted a unlawful interference with the easement of the RoW, and these wrongful acts have wholly deprived Ps' property right and benefit and enjoyment of the RoW to pass and repass between their land and the public road at the north of the site (as conferred under the grant and so found by this Court). On the evidence before me, I also find that the fence wall was erected without Ps' consent, and Ps did protest while it was under construction.

155.  As such, after considering the parties' submissions and the overall circumstances of the present case, this Court sees it just and right to grant a mandatory injunction ordering D to completely demolish at her own costs the fence wall now enclosing the western boundary and part of the southern boundary of Lot 3326 so as to restore the RoW (as so found by this Court at paragraph 123 above). For the avoidance of doubts, the whole portion of fence wall (with its outer-side facing west), where a major part of which (including D's new small gate erected thereat) has encroached into the Footpath (which is government land), is required to be fully demolished. As for the portion of fence wall (with its outer-side facing south) is only required to be demolished to the extent of the southern boundary of the RoW as demarcated on Annex 2.

156.  In this connection, I respectfully adopt the principles as succinctly summarised by Au J (as he then was) in Billion Star Development Ltd v Wong Tak Chuen [2012] 2 HKLRD 85 (at para 38) on granting an injunction to restrain unlawful interference with a right of way. In particular, I fully agree that the right of way is property right which if not protected by an adequate remedy, becomes diminished as in the present case:

“38. In these circumstances, I am satisfied that the following principles (as submitted by the plaintiff and not disputed at the hearing) shows that the plaintiff is prima facie entitled to an injunction to restrain the unlawful interference with its right of way and the trespass:

(1) A person in possession of the land can bring a suit for unjustifiable intrusion by another on his land to claim damages or an injunction or both. The plaintiff is the registered owner of the Property and has the necessary locus standi to bring the present action.

(2) Likewise, a person entitled to a right of way can bring proceedings to claim an injunction and damages for substantial inference of such right.

(3) The injunction (permanent or interlocutory) will be prima facie granted and will be denied only if special circumstances exist (which may include circumstances that damages are an adequate remedy for the wrong, in that where the expected injury to land is small and the grant of an injunction would cause disproportionate hardship to the defendant).

(4) However, damage suffered is not a prerequisite to the grant of an injunction in such a case, nor is the triviality of the interference alone sufficient reason to justify a departure from the general rule of granting injunctions. In a case concerning trespass to land (in particular for threats of trespass and acts of trespass in the future), the court is concerned with the protection of a property right, which, if not protected by an adequate remedy, becomes diminished.." (emphasis supplied)

157.  Regarding D's metal gate as now erected at the entrance of the RoW (which is currently under D's lock and key), the parties are directed to lodge with this Court within the next 21 days a set of agreed terms for either keeping it or having it demolished, for this Court's approval in line with this Court's above findings and the further observations as mentioned in paragraph 158 below. In this connection, the parties should try their best endevaour to reach an agreement in line with the CJR objective, but failing such agreement, they should set out their respective proposals and their submitted reasons for the Court's further consideration within the same time limit).

158.  The Court sees it just and appropriate to let the parties have a chance to work out this matter by themselves in particular noting that substantial costs would appear to have been spent for the installation of D's metal gate, bearing in mind a vehicular gate has always been at the same location (see : paragraphs 30 to 32 above). The set of costs for the prior installation of the vehicular gate by D would not be wasted if it can be kept and further costs for demolishing the same and rebuilding a new vehicular gate can be saved. On the other hand, the parties should bear in mind whether the keeping of the existing vehicular gate is workable in light of the surrounding circumstances after the demolition of the fence wall as ordered, and there is also the practical consideration that needs to be properly addressed by the parties that if the gate is to remain to stand as it is, which particular person(s) concerned that duplicate key(s) to the gate should be given, since D said that it is currently under her lock and key[45].

159.  Regarding the prohibitory injunction as sought by Ps as per relief (c) under the Prayer of the ASOC, after considering the parties' submissions and overall justice of this case, this Court would tend to think that it is not appropriate to make such order in the circumstances. In particular, this Court is inclined of the view that D committed her present tort under the mistaken belief that Ps has not acquired the benefit of the RoW, though it turns out to be wrong. Further, the mandatory junction as granted aforesaid would appear to be sufficient to redress D's wrongful interference of the RoW, especially noting that there is no or no clear evidence suggesting that D would continue or otherwise repeat the unlawful interference of Ps' use and enjoyment of the RoW in future. The declaration of the extent of the RoW granted by this Court also clarifies the rights and liabilities of the parties vis-a-vis the right of way. See : Chiu Hung Shun Paul v So Ka Tai CACV 136/2005 (unrep., 5 December 2005) per Ma CJHC (as he then was) at para 16.

Issue of damages

160.  Given the above Court's finding that D has infringed Ps' property right of easement of RoW, in principle, Ps are entitled to claim damages against D as permitted under the law. However, Ps have to adduce the necessary evidence to prove and substantiate the loss they claimed to have suffered as a result. Further, this Court also reminded Mr. Siu to provide authorities to support Ps' claim for damages for loss of comfort as pleaded in the ASOC when counsel were addressing the Court in their openings, and yet there were no specific cases identified by Mr. Siu to suggest the proper quantum of the general damages for Ps' loss of comfort claim at the closing submissions stage. Mr. Siu only referred the Court to some passages from Gale on Easement, 21^st ed, generally commenting on (1) various heads of damage as may be available, (2) assessment of loss is generally based on tort, (3) diminution in value as a head of loss, (4) loss of amenity, and another passage from McGregor on Damages, 21^st ed, para 39-017.

161.  With respect, it would not be too helpful for Mr. Siu to refer the Court to these commentaries, when he was fully aware that Ps have not adduced the necessary evidence to substantiate their pleaded damages.

(1)  For the contended diminution of the property value of Lot 3325 due to loss of vehicular access (including Ps' inability to park vehicle on their land as a result), they have not adduced any valuation expert evidence to properly show the quantum of diminution of value of the property owing to such vehicular access being deprived of;

(2)  As to the loss of comfort which the Plaintiff claimed under para 39(f) of ASOC, it is unclear what exactly such loss is. As said, this Court asked Mr. So to properly articulate such loss at the opening submission stage, but he only submitted a passage from para 14-145 from Gale on Easements on loss of amenity and did not further submit positively what such loss really is. It would be of no avail for Mr. Siu to submit tangentially at para 134 of his closing submission that "...the Plaintiffs have not made up a story of mental distress and adduce (sic) medical report on their mental state. As mentioned hereinabove, the Plaintiffs have already stated in their Opening Submission that they are settled to have nominal damages under those headings.", when there is no such case of mental distress being run at the trial at all.

(3)  Mr. Siu at para 130 of his closing submissions still refer this Court back to paragraph 11 of Ps' opening submissions to say Ps are content to have nominal damages. Yet, in that paragraph 11, Mr. Siu is submitting that each of Ps is content to have nominal damages of HK$1,000 per year for such loss of comfort. But this Court already pointed out to Mr. Siu at the opening stage that it is wrong in principle for nominal damages to be sought in such manner. For, "nominal damages" is essentially symbolic being a token sum of money that may be spoken of but has no existence in point of quantity. (see Beaumont v Greathead (1846) 2 C.B. 494, per Manule J at 499). Mr. Chiu also rightly submits that there is simply no justification for Ps just to arbitrarily fix a sum of $200 per year (as quantum of loss for wrongful interference of the Pathway and/or RoW) or $1,000 per month (as quantum of loss of comfort for each P as a result of such tort).

162.  For completeness, Ps also generally claims for (1) loss of the RoW created and granted under the Deed, (2) loss of the Pathway and/or the RoW as a vehicular access to Lot 3325, and (3) wrongful interference with P's enjoyment of the Pathway and the RoW (as pleaded under paragraph 39(a), (b) and (d) of the ASOC). In my view, any one of these pleaded losses would be subsumed under either one of the two limbs of loss as discussed in the paragraph 161 above under the circumstances of the present case. In any event, according to Mr. Siu's submissions, Ps are content to seek for nominal damages for their damages claim only.

163.  In light of the above analysis, in response to the relief of "damages for wrongful interference with the easement, RoW and the Pathway" (as sought under relief (d) of the ASOC), this Court would make an award nominal damages of HK$100 for Ps' contended loss for diminution of the property value of Lot 3325, on the basis that although I am satisfied that some loss of that kind would be occasioned to the property due to the loss of vehicular access during the period of the wrongful interference, the necessary evidence as to its quantum is not given, and hence it cannot be sufficiently proved. See : McGregor on Damages, 22^nd ed, para 134.

164.  Regarding the relief (e) under the Prayer of the ASOC for "damages for loss of comfort as a result of the wrongful interference and obstruction of Right of Way and/or Pathway", this Court would likewise grant nominal damages in the sum of HK$100 but on the following basis :

(1)  Some inconvenience and loss of amenity may understandably be caused by the wrongful interference of Ps' easement right as appurtenant to Lot 3325,

(2)  But with respect, not only Mr. Siu have not provided any specific legal authority to submit on the conventional sum as may be awarded as general (non-pecuniary) damages as commensurate to Ps' situation (despite the earlier indication as made by this Court), the same submission is repeated that Ps are content to claim nominal damages for such contended loss but basing on the same erroneous concept of nominal damages as pointed out in paragraph 161(3) above.

(3)  As such, there is no proper legal and/or evidential basis for this Court to award any substantial non-pecuniary damages for such contended loss. It is up to the claiming party to frame in clear terms his loss for his opponent to meet his case, and for the Court's consideration and assessment. But, Ps elected to claim nominal damages only. Viewed thus, it would only be right and fair for this Court to award anything but nominal damages in its proper sense to address such claim.

165.  Since only nominal rather than substantial damages are awarded in respect of P's damages claim, it is this Court's provisional view Ps should prima facie be responsible for compensating D's costs spent in meeting such claim.

166.  Hong Kong Civil Procedure 2025, vol 1, para 62/2/6 states thus:

“... Where plaintiffs in an action for breach of contract recover only nominal damages and do not established anything which is of the least value to them, they are not to be regarded as successful plaintiffs, and the court will normally treat the defendants as having succeeded and award the defendants the costs of the action, whether or not the defendants have at any stage made a payment into court of nominal damages (Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873; Alltrans Express Ltd v CVA Holdings Ltd [1984] 1 WLR 394; [1984] 1 All ER 685)..."

167.  The Court cannot accept Mr. Siu submission that if the damages for the diminution in value of Lot 3325 is not pleaded in the first place, Ps will not be able to sue for this head of loss in the event they are to sell the land. Irrespective whether this is really so, the fact remains that such claim is not seriously pursued by obtaining the necessary expert valuation evidence to substantiate the same, and costs have been incurred by D to defend against such claim.

168.  As for the damages for loss of comfort as claimed, Ps chose not to provide any specific authority to submit an appropriate conventional sum for this court to consider, but rather be content with nominal damages (but claimed in an erroneous way). Viewed thus, the aforesaid manner as to how P presented such damages claim would indeed appear inappropriate and unreasonable, also consuming substantial judicial time and resources to address their unjustifiability in the sense as illustrated above.

Disposition

169.  Due to the above reasons, judgment be entered against the D and it is ordered that:-

(1)  a declaration that Ps have acquired an easement of right of way as validly created and granted under the Deed of Grant to Lapereau, which was in turn legitimately and effectively passed on to Ps through the chains of title, and that the burden and benefit of such easement covenant run with the lands of Lot 3326 and Lot 3325 respectively, and the extent of the said right of way is that demarcated on the two plans annexed to D's expert report dated 20/10/2021 under 'Annex 1A' and 'Annex 1A-1' thereto, which are reproduced in this Judgment as Annex 2;

(2)  a declaration that the Deed of Cancellation as entered into between D and the owners of the G/F and 1/F of Lot 3319RP is invalid and ineffective to extinguish or otherwise cancel the the RoW as created and granted under Deed of Grant (as between Lot 3325 and Lot 3326) and that the easement of RoW as so created and granted under the Deed of Grant is still subsisting as between Lot 3325 and Lot 3326;

(3)  a mandatory injunction that D shall demolish at her own costs within 28 days from the date hereof the fence wall currently enclosing the western boundary and such portion of southern boundary of Lot 3326 (as referred to in paragraph 155 above) so as to fully restore the RoW granted under the Deed of Grant in accordance to such extent as so found by this Court and declared in (1) above;

(4)  In relation to (3) above, the parties are further directed to submit an agreed set of terms to facilitate the implementation of the mandatory injunction in line with the above findings of this Court and addressing further the matters as mentioned in paragraph 158 above, within 21 days and in such manner as provided under paragraph 157 above, and there be liberty to apply in connection with this purpose;

(5)  Nominal damages in the sum of HK$100 was ordered against D in relation to P's claim for the diminution of property value of Lot 3325 owing to D's unlawful interference with the RoW as so found by this Court;

(6)  Nominal damages in another sum of HK$100 was also ordered against D in relation to Ps' claim for loss of comfort flowing from D's unlawful interference of the RoW as so found by this Court;

Costs

170.  This Court also make a costs order nisi that D shall pay Ps’ costs of this action (including all costs orders previously reserved, if any), together with certificate for counsel, to be taxed if not agreed, save and except that Ps shall pay D costs of this action in relation to P’s alterative claim for easement by prescription as pleaded under the ASOC, as well as D's costs in defending Ps' damages claim, together with certificate for counsel.

171.  The aforesaid costs order nisi shall become absolute in the absence of any application within 14 days to vary the same.

172.  Lastly, it remains for me to thank counsel for their assistance rendered to the Court.

Annex 1

Annex 2