CHOW SAI PING AND ANOTHER v. CHAN YAM KING

DCCJ 3416/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3416 OF 2010

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BETWEEN

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JUDGMENT

Introduction

1.  This is a land dispute over a small area of land measuring 3.5 feet (long) x 4 feet (wide) (“Disputed Area”) on the 5^th Floor of East Asia Mansion, Nos. 23, 23A, 25, 27, 29, 29A Hennessy Road, Hong Kong (“Building”). The location and boundary of the Disputed Area is shown and coloured pink in a plan marked as Annexure II and is attached to the Statement of Claim.

2.  The 1^st Plaintiff (“Mr. Chow”) claims that he is the owner of the Disputed Area and seeks a declaration to that effect. He also seeks an injunction to compel his neighbour, the Defendant herein (“Madam Chan”), to remove a metal gate installed at the doorway of Madam Chan’s premises (“Unauthorised Gate”) which had allegedly encroached on his premises, i.e. the Disputed Area.

3.  Madam Chan disputes the claim and contends that the Disputed Area is the common part of the Building and thus Mr. Chow does not have the locus standi to seek an injunction.

4.  The 2^nd Plaintiff is the tenant of Mr. Chow. Perhaps, I should point out at this stage that the 2^nd Plaintiff does not feature in this case or in the trial. As a matter of fact, he is absent in the trial and has authorized Mr. Chow to act on his behalf. 

5.  In the Statement of Claim as pleaded, there is also a dispute over a metal gate installed at the entrance of the Disputed Area (“Main Gate”) which, without any dispute by the parties, was installed for a long time well before the Unauthorized Gate was built. However, I am informed by the parties that the dispute on the Main Gate has been settled before trial and is no longer of concern. Also pleaded in the Statement of Claim is for damages to be assessed. That is also waived by Mr. Chow and the 2^nd Plaintiff at the commencement of the trial.

6.  In view of the above, coupled with further clarifications from me on their respective lists of issues in dispute, the parties have come up with the following agreed list of issues for determination by this Court:

(1)   Whether the Disputed Area is part of Mr. Chow’s premises, or common part of the Building?

(2)   In the event that the Disputed Area is found to be part of Mr. Chow’s premises, whether an injunction to remove the Unauthorizied Gate should be granted?

Conveyancing History of Nos. 23 and 25 East Asia Mansion

7.  Unless stated otherwise, the following facts are largely uncontroversial and evidenced by contemporaneous documents. And it does not appear to me that the parties dispute the contents of these documents.

8.  At the material times, Mr. Chow is the registered owner of No. 25, 5^th Floor of the Building (“No. 25”).

9.  At the material times, Madam Chan is the registered owner of No. 23, 5^th Floor of the Building (“No. 23”).

10.  The Building was built in the 1960s by the developer, East Asia Investment and Mortgage Company Limited (“Developer”). By an assignment dated 2^nd August 1966 and registered at the Land Registry by Memorial No. 546857 (“1^st Assignment”), the Developer sold both Nos. 23 and 25 to a Madam Yee Shang Chi (“1^st Purchaser”).  The total areas of Nos. 23 and 25 are highlighted and coloured pink in a floor plan that is annexed to the 1^st Assignment (“Assignment Plan”).

11.  The 1^st Purchaser passed away on 12^th August 1972. Letters of Administration was granted to a Tam Yau Yuen who sold Nos. 23 and 25 separately in 1997 as follows:

(1)   by an assignment dated 14^th March 1997, No. 25 was sold to a Wu Kwok Fai.

(2)   by an assignment dated 10^th April 1997, No. 23 was sold to a Hung Chi Sum.

12.  On 9^th May 1997, Wu Kwok Fai sold No. 25 to Mr. Chow. Since then, Mr. Chow rented out No. 25 and he has never resided there.

13.  On the other hand, No. 23 has changed hands several times since 1997. On 26^th February 2010, Madam Chan becomes the owner of No. 23.

Building Plan

14.  There is building plan of the 4^th to the 14^th floors of the Building marked as Annex 1 and attached to the Amended Defence (“Building Plan”). It is not in dispute that the plan was approved by the Building Department on 22^nd December 1965.

15.  The Building Plan is an important document in Madam Chan’s defence to show that the Disputed Area is the common part of the Building.

16.  In the Building Plan, there is an area marked as “corridor”, which, if loosely described, is in a reverse and angular U-shape. The main doors of Nos. 23 and 25 are both located on the left “leg” of the U-shape corridor, so that people coming in or out of Nos. 23 and 25 must use the same ingress and egress.

17.  Madam Chan says that since the Disputed Area, according to the Building Plan, is situated at the upper part within the left “leg” of the U-shape corridor, it thus forms part of the common part of the Building.

1^st Assignment & Assignments Thereafter

18.  Mr. Chow and the 2^nd Plaintiff’s case, however, rely heavily on the 1^st Assignment and the Assignment Plan.

19.  The 1^st Assignment provides, so far as it is material, that:

“the Vendor [Developer] DOTH hereby assign unto the Purchaser [1^st Purchaser] ALL THAT the right to exclusive use occupation and enjoyment of ALL THAT THOSE FIFTH FLOORS of the said No. 23 & 25 Hennessy Road as shown on the said Plan and thereon marked Floor Plan and coloured Pink [Assignment Plan] Together with all rights and benefits of the Vendor under and by virtue of the said Deed of Mutual Covenant..” (emphasis added)

20.  The Assignment Plan will need some detailed description, which I intend to do so later in my Judgment.

21.  Suffice for me to say now is that in so far as to those subsequent assignments relating to Nos. 23 and 25 that have been disclosed to this Court are concerned, they all refer to the Assignment Plan as part of the description to the property. This is not in dispute by the parties.

22.  For avoidance of any doubt, I set out below the property description excerpted from the relevant assignments under which Mr. Chow and Madam Chan obtained ownership of No. 25 and No. 23 respectively.

23.  In the Assignment dated 9^th May 1997 and registered at the Land Registry by memorial no. UB7084650, Mr. Chow’s No. 25 is described as follows in the schedule:

“ALL THAT one equal undivided 93^rd part and share of and in ALL THOSE pieces or parcels of ground registered in the Land Registry as THE REMAINING PORTION INLAND LOT NO. 6926, THE REMAINING PORTION OF INLAND LOT NO. 6925, THE REMAINING PORTION OF INLAND LOT NO. 6924 and THE REMAINING PORTION OF INLAND LOT NO. 6923 (‘the said LOTS”) And of and in messuages erections and buildings thereon now known as Nos. 23, 23A, 25, 27, 29 and 29A Hennessy Road (“the said Building”) TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT the FIFTH FLOOR of the said No. 25 Hennessy Road as shown and coloured Pink on the Floor Plan annexed to an Assignment registered in the Land Registry by Memorial No. 546857 [1^st Assignment]....” (emphasis added)

24.  In the Assignment dated 26^th February 2010 and registered at the Land Registry by memorial no. 10031902330429, Madam Chan’s No. 23 is described in the schedule like this:

“ALL THAT 1 equal undivided 93^rd part and share of and in ALL THOSE pieces or parcels of ground registered in the Land Registry as THE REMAINING PORTION INLAND LOT NO. 6926, THE REMAINING PORTION OF INLAND LOT NO. 6925, THE REMAINING PORTION OF INLAND LOT NO. 6924 and THE REMAINING PORTION OF INLAND LOT NO. 6923 (collectively ‘the LAND”) And of and in messuages erections and buildings thereon now known as EAST ASIA MANSION NOS. 23, 23A, 25, 27, 29 and 29A HENNESSY ROAD (“the Building”) TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT the FIFTH FLOOR of the said No. 23 HENNESSY ROAD which said Floor is shown on the Plan annexed to an Assignment registered in the Land Registry by Memorial No. 546857 (“the Assignment”) [1^st Assignment] and thereon coloured Pink .”(emphasis added)

The Assignment Plan

25.  The Assignment Plan is attached to the 1^st Assignment and appears on p. 102-1 in the trial bundle. It consists of a Block Plan at the top and a Floor Plan at the bottom. Of concern in this action is only the Floor Plan and it is the Floor Plan alone that I am going to describe in the Judgment below.

26.  I should also point out that Annexure II which identifies the Disputed Area is, in fact, a blown-up copy of the Floor Plan of the Assignment Plan.

27.  The area in pink as appeared in the Assignment Plan is in irregular shape and is circumscribed by intermittent/dotted black lines. Another intermittent/dotted line, also in black, runs vertically within the pink area (“Vertical Dotted Line”) so that the pink area is divided into two unequal halves. The words “No. 23” are written at the bottom of the left half of the pink area, whereas the words “No. 25” are written at the bottom of the right half.

28.  There are some concrete lines running vertically or horizontally as the case may be within the pink area of the Assignment Plan. It is not disputed by either party that the concrete lines denote dimensions.

29.  An area, coloured purple and in horizontal rectangular shape, is marked as “common corridor” in the Assignment Plan.

30.  If one is to compare the Assignment Plan with the Building Plan, one would at once notice that the shape and size of the corridor in the Building Plan is different from that of the corridor in the Assignment Plan. The main differences are:

(1)   in the Building Plan, the corridor is called “corridor”, whereas in the Assignment Plan, the corridor is called “common corridor”;

(2)   the corridor in the Building Plan is, as mentioned earlier in my Judgment, in a reverse and angular U-shape. But in the Assignment Plan, the two “legs” of the U-shape corridor have gone; in particular, the left “leg” of the U-shape corridor in the Building Plan (where the Disputed Area is located) has become part of the area that is coloured pink in the Assignment Plan. Under the 1^st Assignment, all area in pink in the Assignment Plan was sold to the 1^st Purchaser. 

Whether Disputed Area is Common Part

Submission from Respective Party

31.  Mr. Wong, Counsel for the Plaintiffs, submits to me that in order to determine whether the Disputed Area belongs to Mr. Chow or not, I should just look at the wording of the 1^st Assignment and the Assignment Plan, but not the Building Plan relied on by Madam Chan. Mr. Wong argues that it is not alleged or pleaded by Madam Chan in her Amended Defence that the 1^st Assignment or the Assignment Plan are inaccurate or ambiguous. And the wording of the 1^st Assignment and the Assignment Plan are in fact clear and unambiquous so that this Court needs not look into such extrinsic evidence as the Building Plan.

32.  Mr. Hung, Counsel for the Defendant, however, asks me not to look at the 1^st Assignment or the Assignment Plan. He says that whether or not Mr. Chow should be entitled to exclusive use and possession of any part of the Building should be decided according to the Deed of Mutual Covenant dated 2^nd March 1966 (“DMC”). And in the First Schedule of the DMC, it provides that the Developer should be entitled to exclusive use and possession of the premises set out in the second column of the First Schedule, namely “Fifth Floors of Nos. 23 and 25”. Mr. Hung submits that any subsequent assignments would have no bearing as to what exactly mean by “Fifth Floors of Nos. 23 and 25” in the DMC on the ground that these subsequent assignments all post-date the DMC and thus should not be considered. However, Mr. Hung is adamant in saying that I should refer to the Building Plan in ascertaining the meaning of “Fifth Floors of Nos. 23 and 25” in the DMC because the Building Plan pre-dates the DMC.

Discussion

33.  Clause 4(m) of the DMC provides that:

“The common parts services and facilities referred to in this Deed shall include the following:-

(i) The lavatories entrances yards staircases landings and passages which are not included in any part of the building exclusively owned by one owner or several co-owners as specified in the First Schedule hereto and as shown on the plans annexed hereto.” (emphasis added)

34.  It is not in dispute that despite the wording of Clause 4 (m) (i) above, there is no plan annexed to the DMC.

35.  To me, the wording of Clause 4 (m) (i) of the DMC is plain and clear. An entrance and passage is a common part so long as it is not “exclusively owned” by an owner of the Building. I note that the wording in the DMC here is exclusively “owned”, but not exclusively “use” and/or exclusive “possession”.

36.  It cannot be argued that the Disputed Area is within the meaning “entrances” or “passages” in Clause 4 (m) (i) of the DMC. The remaining question is thus whether the Disputed Area is “exclusively owned” by Mr. Chow or not. In order to ascertain the answer to this question, subsequent title documents defining ownership of No. 25 at the very least must be considered.

37.  That said and with the greatest respect to Mr. Hung, I find it difficult to comprehend his argument on why subsequent assignments of Nos. 23 and 25, in particular the 1^st Assignment and Assignment Plan, should not be considered simply because they post-date the DMC. It is crystal clear to me that these subsequent assignments, in particular the Assignment Plan which has been repeatedly referred to in the subsequent assignments of Nos. 23 and 25, are all important title documents which may shed light one way or the other on the issue in dispute before me. They should be read together with the DMC and should be considered by this Court.

38.  I have carefully considered all documents and evidence. I come to the conclusion that the Assignment Plan is an important document which helps to determine whether the Disputed Area is part of No. 25, or part of the common parts of the Building, for the obvious reason that it has been referred to in all subsequent assignments. It is not disputed that the concrete lines of the Assignment Plan show dimensions. What then do the dotted lines mean?

39.  In my Judgment, the dotted lines can denote nothing but the boundary of Nos. 23 and 25; and the Vertical Dotted Line symbolizes the partition between No. 23 and No. 25. This I will so find as facts of the case. In the circumstance, it is clear that according to the Assignment Plan, the Disputed Area is within the perimeter of No. 25 owned by Mr. Chow.

40.  However, the problem does not end here. Both Mr. Wong and Mr. Hung have made submission on the Building Plan; yet, neither of them refers me to the fact that the Building Plan is actually annexed to the Agreement for Sale and Purchase made between the Developer and the 1^st Purchaser on 15^th December 1965 and registered in the Land Registry by memorial no. 514851 (“1^st Agreement”). That said, the Building Plan cannot possibly be described by Mr. Wong as “silent on the property rights assigned to and vested in different parties such as the developer and the subsequent purchasers”. For the same reason, I cannot accept Mr. Wong’s argument that the Building Plan only dictates the physical conditions of the Building and at most their respective uses. The Building Plan must be considered as a part of the title documents of Nos. 23 and 25.

41.  The situation now is this. I have before me two different plans, being (1) the Building Plan annexed to the 1^st Agreement and (2) the Assignment Plan attached to the 1^st Assignment, which may shed light on the ownership of the Disputed Area. Which one takes precedence?

42.  The answer is clear: the 1^st Assignment (and thus the Assignment Plan) must take precedence over the 1^st Agreement (and thus the Building Plan) because a legal estate in land may be created, extinguished or disposed of only by deed: Section 4(1) of Conveyancing and Property Ordinance, Cap. 219. The Agreement is not a document by deed, but the 1^st Assignment is. It is the 1^st Assignment including the Assignment Plan, but not the 1^st Agreement or the Building Plan, that confers the legal right on ownership of No. 25 to the 1^st Purchaser, who then passed her title and ownership in No. 25 to her successors-in-title down the line to Mr. Chow now as the present owner.

43.  Due to the above analysis, I find as facts that the Disputed Area is part of No. 25; that the Disputed Area is an entrance or a passage exclusively owned by Mr. Chow, and that the Disputed Area does not fall within the definition of common parts of the DMC. 

Should an Injunction be granted

Submission from the Defence

44.  Having found that the Disputed Area is not a common part and is exclusively owned by Mr. Chow, I now turn to the injunction to be sought.

45.  In his submission, Mr. Hung concedes on behalf of Madam Chan that the Unauthorized Gate has encroached onto the Disputed Area by a few inches. But he submits that an injunction should not be granted by this Court to remove the Unauthorized Gate because of the following reasons:

(1)   the Unauthorized Gate has been installed at No. 23 for a long time without objection from Mr. Chow until this action. There is thus acquiescence on the part of Mr. Chow.

(2)   There is delay on the part of Mr. Chow to apply for an injunction.

(3)   hardship will be created to Madam Chan if the Unauthorized Gate is to be removed.

(4)   the Unauthorized Gate has caused little inconvenience to Mr. Chow.

(5)   damages will be sufficient remedy.

Discussion

46.  It is pertinent for me to say that Mr. Hung does not elaborate much on the above points until invited by me. In fact, his submission is rather brief on the injunction point.

47.  It is also pertinent for me to point out that none of the above grounds of objection has ever been pleaded in the Amended Defence or described in the witness statement of Madam Chan. Mr. Wong is quite right in saying that this is a prima facie breach of Order 18 rule 8(2), Rules of District Court. It would be unfair to Mr. Chow and the 2^nd Plaintiff if I am to consider these unpleaded points.

48.  However, even if I was minded to consider these grounds of objection, I am of the view that the these grounds cannot be sustained.

49.  On acquiescence, Madam Chan gave evidence to the effect that the Unauthorized Gate was not installed by her. It was there at the time when she purchased No. 23 in early 2010. Mr. Chow, on the other hand, said that he found out that the Unauthorized Gate was installed in early 2010. Prior to that, the last time he went to No. 25 was 2009; and at that time, no metal gate was found at No. 23. Thus, the Unauthorized Gate was likely to have been installed between 2009 and early 2010. The time gap is about one year only. The duration, in my view, is too short to make out any case of acquiescence on the part of Mr. Chow.

50.  Mr. Chow became aware of the existence of the Unauthorized Gate in early 2010. The Writ and Statement of Claim was issued on 6th October 2010. Ii can hardly be said that there is a substantial delay in applying for an injunction here.

51.  It is the evidence of Madam Chan under cross-examination that even if the Unauthorized Gate is removed, sufficient protection on security can be offered by the wooden main door of No. 23. Her evidence does not reveal any hardship as Mr. Hung has put forward in his submission. Further, one must not lose sight of the protection on security which can be offered by the Main Gate.

52.  On the inconvenience point, I think the fact speak for itself. The Disputed Area is by dimension a very small area of 3.5 feet x 4 feet. As conceded by Mr. Hung on behalf of Madam Chan, the Unauthorized Gate by itself has encroached on the Disputed Area by a few inches. Coupled with this, Mr. Chow gave evidence that there was a handle bar at the Unauthorized Gate and the handle bar alone caused another 2 – 3 inches protrusion into the Disputed Area. The joint effect was to cause difficulty and inconvenience when furniture was delivered to his property. Mr. Chow said that in such small area as the Disputed Area, a few inches would matter a lot. I think Mr. Chow must be telling the truth here; otherwise, Madam Chan’s decoration masters would not have advised her to remove the Main Gate so that construction materials and bamboos could be delivered into her property for the purpose of renovation.

53.  Lastly, although Mr. Hung points out that an award for damages may be a sufficient remedy in this action, no monetary figure is ever suggested. Further, taking into account all evidence in the case, in particular the area of the Disputed Area, I am satisfied that any damages awarded will not be an adequate remedy for Mr. Chow. The evidence before me is in favor of granting an injunction.

Conclusion

54.  Mr. Wong has indicated at the beginning of the trial that Mr. Chow is willing to grant an easement to Madam Chan in case this Court finds that Disputed Area is his property. I would simply add that Clause 3 (a) of the DMC seems to offer similar easement right to Madam Chan in this scenario.

55.  In view of the matters set out above, I shall make a declaration that the disputed area more particularly shown and coloured pink on the floor plan (“Disputed Area”) marked as “Annexure II” (i.e. a plan excerpted from the block plan and floor plan attached to an assignment dated 2^nd August 1966 and registered at the Land Registry by Memorial No. 546857) attached to the Statement of Claim dated 6^th October 2010 (“Annexure II”) is part of the property known as No. 25 of the 5^th Floor, of East Asia Mansion, Nos. 23, 23A, 25, 27, 29 and 29A Hennessy Road, Hong Kong.

56.  I shall grant an injunction to compel Madam Chan to pull down the Unauthorized Gate installed at the doorway of No. 23 of the 5^th Floor, of East Asia Mansion, Nos. 23, 23A, 25, 27, 29 and 29A Hennessy Road, Hong Kong within 28 days from the date after the sealing of this Order. 

57.  I shall also declare that Madam Chan is entitled, together with her successors-in-title, lawful agents, tenants and occupiers, to have a right of way over the Disputed Area for the purpose of proper use and enjoyment of No. 23 of the 5^th Floor, of East Asia Mansion, Nos. 23, 23A, 25, 27, 29 and 29A Hennessy Road, Hong Kong.

58.  I direct that Annexure II, properly marked out in colour after agreement between parties, be annexed to the draft Order for approval.

59.  There be a costs order nisi that the Madam Chanshall pay Mr. Chow and the 2^nd Plaintiff’scosts of this action, to be taxed if not agreed, with certificate for counsel.If no application is made to vary the costs order nisi within 14 days from today, the said costs order nisi will be made absolute.