SHING YAT KWONG v. LI MAN HONG AND ANOTHER

DCMP 3218/2018

[2023] HKDC 97

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3218 OF 2018

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JUDGMENT

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1.  This is a trespass/boundary dispute between the adjacent land owners.

2.  The Plaintiff (“P”) is the registered owner of two pieces of agricultural land in Yuen Long, New Territories, known respectively as Lot No 2123 and Lot No 2125 in Demarcation District No 118.

3.  The 1^st and 2^nd Defendants (“Ds”) are the registered owners of Lot No 2126 and Lot No 2127 in Demarcation District No 118.

4.  P commenced this action by way of Originating Summons (the “OS”) dated 13/11/2018 to claim for vacant possession of parts of the alleged encroached area in Lot 2123 and 2125 (as marked and coloured in P’s Encroachment Plan annexed to the OS).

5.  Ds filed their affirmation in opposition. By the court order dated 18/12/2018, the OS proceedings were to continue as if begun by writ. P filed his Statement of Claim (“SOC”) on 22/1/2019.

6.  On 15 March 2019, P filed his Amended SOC with a Revised Encroachment Plan of Lots 2123 and 2125 in DD 118 (“the 2019 Plan”). The 2019 Plan identified three areas of encroachment on P’s Lots:

(1)  Encroached Area 1 (about 13.7 sq.m) was encroached by a wall off a portion of Lot 2123.

(2)  Encroached Area 2 (about 6.1 sq.m) was encroached by an overhanging platform supported by three pillars in Lot 2123 and Lot 2125 in 2013.

(3)  Encroached Area 3 (about 10.1 sq.m) was encroached by the Ds extending out the wall of their residential structure into Lot 2125 in 2014 (“the Wall Extension”).

7.  In respect of Encroached Area 1, P conceded by his Amended SOC that it was adversely possessed by Ds for more than 12 years. Negotiations between P and Ds through their solicitors then ensued.

The Consent Order

8.  In September 2020, the parties were able to settle their disputes regarding Encroached Area 1 and Encroached Area 2 in that

(1)  The Plaintiff’s title, interest and/or rights and/or over Encroached Area 1 was absolutely extinguished by virtue of Section 17 of the Limitation Ordinance (Cap 347).

(2)  The Plaintiff was granted an order for possession of Encroached Area 2 of Lot 2123 and Lot 2125.

(3)  A mandatory injunction against the Defendants to demolish all structures erected by them and/or their predecessors in title in Encroached Area 2.

9.  On 24 September 2020, a consent order was made incorporating the terms of their agreement (“the Consent Order”). The Consent Order disposed of the dispute in relation to Encroached Area 1 and Encroached Area 2 leaving only the dispute relating to Encroached Area 3. It should be noted that in granting the Consent Order, the costs of the Consent Summons was reserved.

10.  In or around late 2020, Ds demolished 2 of the 3 pillars in Encroached Area 2. P filed his Re-Amended SOC on 31 March 2021. In P’s opening, P alleged, inter alia, that the remaining pillar was located on Lot 2125 within Encroached Area 3 and therefore it remained an issue before the court and Ds disputed that. At the conclusion of the evidence at the trial, both parties confirmed that the alleged remaining pillar was not an issue and did not require the determination of this court. The issue before the court relates only to Encroached Area 3.

Encroached Area 3

11.  By Order dated 5 January 2021, Mr JC Ng of TH & Associates Limited was appointed as the single joint expert (“the SJE”). He was instructed to determine (1) the boundary as between Lot 2125 and Lot 2126; (2) the historical changes of the ground features and occupations in Encroached Area 3 between 2003 to 2018 and (3) if any of Ds’ structures encroached on any part of Lot 2125.

12.  On 9 April 2021, The SJE prepared his report for the present proceedings (“the SJR”). With leave of the court and on the instruction of the parties, the SJE prepared a supplemental report dated 24 August 2022 and a 2^nd supplemental report dated 26 September 2022 in response to the request for clarification.

13.  At the PTR on 5 August 2022, P’s counsel confirmed that P would only seek nominal damages regarding mesne profits/damages for Ds’ trespass.

14.  Therefore, the main issues that require the Court’s determination are :

(1)  Whether the Wall Extension encroached upon Lot 2125 (being P’s lot);

(2)  If (1) is in the affirmative, whether Ds can rely on any of their pleaded defence?

P’s Case

15.  It is P’s case that in around end of April 2014, Ds extended outward the wall of their residential structure (“the Wall Extension”) into and encroaching upon Lot 2125, the Encroachment Area 3. By his Re-Amended SOC, P claimed that the encroached area was about 10.1 sq.m as identified in the 2019 Revised Encroachment Plan. At the conclusion of the evidence given by the parties, P sought leave, which was granted, to amend the Re-Amended SOC by adding an alternative claim that the encroached area was about 8.9 sq.m as identified in the 2021 Plan: P’s Re-Re-Amended SOC.

Ds’ Case

16.  Ds’ primary defence is that their structures do not encroach upon P’s Lot 2125 and that the 2019 Plan is incorrect. Ds’ case is that the 2013 Plan is correct which had accurately delineated the common boundary between P’s Lot 2125 and Ds’ Lot 2126. Based on this plan, Ds constructed their structures (i.e. the Wall Extension) and hence there could not be any encroachment on Lot 2125 (“the Non-Encroachment Defence”).

17.  If the court were to find there was encroachment on Lot 2125, Ds would rely on the following defence:

(1)  P had full knowledge of the Wall Extension and made no complaints to the Ds to stop the works. Acting in reliance on such conduct, Ds incurred costs, expenses and time and effort. Hence, even if the Wall Extension encroached on the Lot 2125, it would be unconscionable for P to seek relief against the Ds because:

(a)  P has acquiesced (“the Acquiescence Defence”);

(b)  P is estopped (“the Estoppel Defence”);

(c)  P has granted an implied licence to Ds (“the Implied Licence Defence”);

(d)  P has expressly (or impliedly) agreed with Ds that the Encroached Area 3 would be the “new” boundary between Lot 2125 and Lot 2126 (“the Agreement Defence”).

(2)  Further, if there is any encroachment on Lot 2125, Ds would rely on the “de minimis” principle (“the de minimis Defence”).

(3)  Finally, even if there is any encroachment on Lot 2125, the court should not grant the mandatory injunction in the present case.

18.  Based on the above defence and by way of counterclaim, Ds seek a number of declarations from the court.

19.  Upon granting leave to P to re-amend his Re-Amended Statement of Claim, Ds also sought leave, which was granted, to make consequential amendments. In the Re-Re-Amended Defence and Counterclaim filed on 3 October 2022, Ds appeared to raise some new points on their defence in paragraph 50B. P sought to strike out those new points. Mr Ma, counsel for Ds, agreed that Ds were only allowed to make consequential amendments and that Ds would not raise any new points in Ds’ defence other than those previously pleaded. By consent, Ds agreed that the points on waiver and laches pleaded in paragraph 50B be removed/deleted.

P’s evidence

20.  P called one factual witness, Mr Shing Wai On (“Mr Shing”), who is P’s son. Mr Shing’s evidence can be briefly summarized as follows:

(1)  P and his family do not reside in Lots 2123 or 2125;

(2)  There is a notice erected in 2007 within Lot 2123 warning people not to trespass onto the land;

(3)  Lot 2123 and Lot 2125 are adjacent to each other but there is no physical barrier between the two lots;

(4)  In 2007, P had instructed a surveyor to define the boundaries of Lots 2123 and 2125 (“the 2007 Plan”);

(5)  In around November 2013, he noticed 3 pillars had been erected on Lot 2123 and Lot 2125 to support an overhanging platform. He had taken photos of the 3 pillars;

(6)  In around December 2013, Ds erected a metal wire fence on the boundary of Lot 2126 and Lot 2125 (“Ds’ Fence”);

(7)  In January 2014, he and his two brothers tried to remove the 3 pillars themselves. Ds reported the matter to the police. The police arrested his two brothers and had them detained in custody for half a day.

(8)  In January 2014, he instructed a surveyor company to erect a metal wire fence on the boundary as between Lot 2126 and Lot 2125 as well as between Lot 2127 and Lot 2123 (See P’s Photos 6A and 6B). The portion of P’s metal wire fence (“P’s Parallel Fence”) on the boundary as between Lot 2126 and Lot 2125 was parallel to Ds’ Fence;

(9)  There was a papaya tree (“the Papaya Tree”) on Lot 2125 and was in between the Ds’ Fence and P’s Parallel Fence. It was located within Lot 2125 but it was not planted by P. The reason why he could not include the Papaya Tree when erecting the P’s Parallel Fence was because Ds’ Fence was tightly close to the said tree leaving no room for them to put through their own metal fencing around it. As between 18 January 2014 and 24 February 2014, the Papaya Tree was still intact and he referred to P’s Photos 7, 8 and 9;

(10)  In mid-April 2014, he noticed that the Papaya Tree had been removed without P’s permission/consent and he referred to P’s Photo 10 (which he took on 21 April 2014) to show the disappearance of the tree. P’s Parallel Fence had also been relocated a few feet in towards Lot 2125 and Ds’ Fence was removed entirely;

(11)  On 26 April 2014, he went to the land again and took photos which showed that the construction of the Wall Extension had already started. He referred to P’s Photos 11-16A and Photos 17-21 taken in late April to May 2014 to show the said construction;

(12)  He confirmed that he did not know the identity of the owners of Lot 2126 and that he had not complained about Ds’ encroachment onto P’s land until August 2018 when P instructed his solicitor to deal with the matter;

(13)  In late 2020, he also took photos of the Extension Wall which he referred to as photos 24 and 25.

Ds’ evidence

21.  Both the 1^st Defendant (“D1”) and 2^nd Defendant (“D2”) testified. D2 basically adopted and repeated the contents of D1’s witness statement. D1’s evidence can be briefly summarized as follows:

(1)  There was a shed on Lot 2126 and Lot 2127 which had been converted between 2012 to 2014 into a residential house for him and his brother, D2;

(2)  In or about May 2013, Ds had engaged a surveyor, Mr Helicon Ma, to, inter alia, carry out survey and delineate the boundary between Lot 2125 and Lot 2126. The surveyor had carried out on-site survey and used survey nails to accurately mark the boundary between Lot 2125 and Lot 2126;

(3)  Based on the survey nails, Ds built the newly extended wall and, hence, there is no “encroachment” over P’s Lot 2125;

(4)  D1 confirmed that in early January 2014, P’s sons had attempted to demolish their concrete pillars and that it was he who reported the matter to the police. The police took the matter very seriously and arrested those people.

(5)  In early January 2014, P had erected his own metal fencing along Ds’ Fencing which accurately delineated the common boundary between Lot 2125 and Lot 2126;

(6)  D1 denied that they had removed the papaya tree or relocated P’s metal fencing.

Discussion/findings

22.  In both Ds’ pleadings and D1’s witness statement, there was no mention of Ds having erected Ds’ Fence. In cross-examination, D1 confirmed for the first time that based on the survey nails placed by their surveyor in May 2013, Ds erected the metal fence along the said boundary. He also confirmed that they removed the survey nails when erecting Ds’ Fence.

23.  Ds all along claimed that based on the survey nails placed there in May 2013, Ds built the extended wall and, hence, there was no “encroachment” over P’s Lot 2125. In cross-examination, D1 initially maintained that he relied on the survey nails to build the extended wall. When it was pointed out to him that the extended wall was only built in April 2014, D1 then agreed that he was not relying on the survey nails when building the extended wall. On D1’s own evidence, they had removed the survey nails when erecting Ds’ Fence which, according to D1, took place in about June or July 2013. It is quite clear that the survey nails had already been removed when Ds built the extended wall in April 2014. I have no hesitation in rejecting Ds’ case that Ds built the extended wall based on the survey nails placed along the boundary in May 2013.

P’s Warning board/notice

24.  In 2007, Mr Shing erected within Lot 2123 a warning notice board warning people not to trespass onto the land. This was admitted in paragraph 41 of Ds’ Re-Re-Amended Defence and Counterclaim. D1 agreed that the warning notice applied to Lot 2123 but disagreed that it applied to Lot 2125. D1 also agreed that there was no physical barrier between Lot 2123 and Lot 2125. According to D1, he knew and noticed the warning notice in 2011 which was not challenged by P’s counsel Mr Yung in cross-examination. Hence, I accept that D1 only knew about the warning notice board in 2011.

Ds’ Fence

25.  In respect of Ds’ Fence, D1 said it was erected in June or July 2013 but Mr Shing stated that it was in December 2013. There is no dispute that P erected P’s Parallel Fence on 7 January 2014 (as shown in P’s Photos 1E, 6, 6A and 6B) and that P erected his fence after Ds had erected Ds’ Fence. In Photo 1A (taken on 10 November 2013), the right-hand side of it showed part of the boundary between Lot 2125 and Lot 2126 which showed that Ds’ Fence had not been erected on 10 November 2013. In the circumstances, I find on a balance of probability that Ds erected their fence in December 2013 and not June/July 2013.

Attempt to remove the pillars

26.  Regarding the incident where Mr Shing and his two brothers tried to remove the 3 pillars themselves, the Re-Amended SOC pleaded that this incident happened sometime in November 2013 whilst the Re-Amended Reply pleaded that it happened on 7 January 2014. Mr Shing had previously stated in his witness statement that it happened in November 2013. When Mr Shing gave oral evidence, he corrected the date in that the incident happened on 7 January 2014 and not in November 2013. When D1 was cross-examined on this matter, D1 also confirmed that the incident happened on 6 or 7 January 2014 and that it was he who reported the matter to the police. Hence, there is really no dispute as to the date and occurrence of the incident.

27.  Mr Shing was cross-examined as to why he did not complain to the owner of Lot 2126 about the Wall Extension. He said he was scared and did not know what to do. He was scared because on the last occasion when he and his two brothers tried to remove the pillars themselves in January 2014. The police arrested his two brothers and had them detained in custody for half a day. He repeated that he was scared and his father was scared too. They did not know what to do. He had taken photos of the construction of the Wall Extension at the material time for record.

2019 Plan

28.  Ds allege that the 2019 Plan on which P’s claim is based is incorrect.

29.  As it transpired in the course of the trial, both parties agreed that the 2013 Plan accurately delineated the common boundary between Lot 2125 and Lot 2126. According to the SJR, the 2013 Plan adopted the common boundary between Lot 2125 and Lot 2126 as defined in the 2007 Plan. Mr Ng, the SJE, confirmed that he had also graphically checked and compared the coordinate values as available among the 2007, 2013 and 2019 Plans and confirmed the common boundary between Lots 2125 and 2126 as shown on the three Plans were consistent and practically the same.

30.  On the basis of the evidence of the SJE and in the absence of any evidence to the contrary, I find on a balance of probability that the 2019 Plan accurately delineated the common boundary between Lot 2125 and Lot 2126.

Encroachment

31.  The next issue is whether the Wall Extension encroached upon Lot 2125.

32.  Ds did not dispute the construction of the Wall Extension in April 2014 but denied the Wall Extension had encroached upon P’s Lot which is the main issue before the court. On this issue, it is important to consider the evidence of the SJE.

33.  Counsel for the Ds criticised the SJE’s testimonies as being not reliable, not impressive on the grounds that the SJE had failed to address all the issues in the first report and had to prepare two more reports to clarify the issues in question; his overall testimonies and performance at trial were not impressive; and that he had not attended the site (i.e. Lot 2125 and Lot 2126) for the site survey or measurement. It was T. H. Chan who attended the site and conducted the survey. Ds now argued that the SJE’s evidence (relating to the alleged encroached area or the 2021 Plan) would only be hearsay evidence (as he had not been to the site to conduct the survey himself or to supervise the survey on site). Lastly, the SJE cannot and does not have any personal or expert knowledge whether the alleged Revised Encroached Area 3 is “encroached”.

34.  It is important to note that there is no challenge by the parties on the expertise of the SJE and the methodology adopted by the SJE. The methodology can be briefly summarized as follows:

(1)  Original copies of the relevant historical survey sheets and aerial photos issued by the Survey and Mapping Office (SMO) of the Lands Department were obtained for preparing the SJR.

(2)  The aerial photos were processed by translation, rotation, and enlargement to match (correlate) the images in the aerial photos with the corresponding line-features shown in the survey sheets, such that the processed photos are scalable and orientated towards the North. The processed plans and photos were then reproduced as Appendixes in a uniform format trimmed to fit paper size.

(3)  The Appendices were then overlaid with lot boundaries, highlighted and remarked with explanatory notes on areas of interest as appropriate.

(4)  With such plans and photos uniformly formatted and drawn with remarks, the changes in the ground features could easily be identified by comparing plans and photos of different years.

(5)  The southern boundary of Lot 2125 in D.D. 118 which is contiguous to and in common with the northern boundary of Lot 2126 was firstly defined in the 2007 Plan (Appendix 2).

(6)  The southern boundary of Lot 2125 such defined in the 2007 Plan was adopted and taken as the common boundary between Lots 2125 & 2126 respectively by the Ds’ surveyor, Helicon Y. K. Ma in the 2013 Plan (Appendix 3) and by the P’s surveyor, TANG Sze Kin in the 2019 Plan (Appendix 4).

35.  In the SJR, the SJE has made the following observations:

(1)  He had checked the common boundary between Lots 2125 & 2126 delineated respectively in the 2007 Plan, the 2013 Plan and the 2019 Plan, and found the boundary between Lots 2125 & 2126 such delineated in the three plans was the same and consistent;

(2)  The 2013 Plan showed that the Encroached Area 3 on Lot 2125 was an open ground without structures and that Lot 2126 was erected with a wall within its northern boundary and there had not been any structures of Lot 2126 encroaching onto Encroached Area 3. Some part of the said wall of Lot 2126 that survived today was surveyed and marked as the “Remnant of Old Wall” on the 2021 Plan;

(3)  The aerial photos between 27.05.2002 to 20.02.2014 show that the Encroached Area 3 on Lot 2125 was an open ground contiguous to the northern perimeter wall/structures of Lot 2126. It was not encroached upon by structures of Lot 2126 in the period;

(4)  According to aerial photos taken between 02.01.2015 – 02.04.2017, it was observed that “except some small western end of the Encroached Area 3 remained an open ground, the other part of the Encroached Area 3 was encroached upon with structures of Lot 2126;

(5)  According to the aerial photo taken on 22.03.2018, the previously open ground on the western end of the Encroached Area 3 was built with a wall, the entire Encroached Area 3 became encroached upon with structures of Lot 2126;

(6)  Taking into account the changes on the lots and by making reference to the boundaries of Lot 2126 previously defined in the 2013 Plan, some part of the structures of Lot 2126, being retaining wall, metal sheets, window panels and canopy encroach upon Lot 2125 (about 8.9 sq. m) and shown in yellow in the 2021 Plan;

(7)  In the 2021 survey, the Remnant of Old Wall was verified to remain in a position the same as that shown in the 2013 Plan. On the basis of this finding, it could be said that the structures which extended from Lot 2126 outside the Remnant of Old Wall onto Encroached Area 3 should have been built some time after the 2013 Plan;

(8)  The 2019 Plan showed the Encroached Area 3 being a vertical cutting of Lot 2126 encroaching upon Lot 2125 (about 10.1 sq.m);

(9)  The 2021 Plan prepared by T.H. & Associates Ltd. showed the positions and nature of the structures that encroached on the Encroached Area 3 as at March 2021 (about 8.9 sq.m). The difference between the measurement of 10.1 sq.m and 8.9 sq.m was accounted for by a narrow strip of open ground of some centimeters wide lying between the fence and the retaining wall which was not encroached upon by Ds’ structures.

36.  The above observations were not challenged by the parties. The fact that the SJE had to prepare two more reports to answer/clarify certain questions raised by the parties does not in itself indicate that his evidence is unreliable. I have to consider the substance of his evidence to determine whether his evidence is reliable or not. The SJE might have got confused on certain matters when giving oral evidence but he corrected himself very quickly. In respect of the fact that he himself did not attend the site survey, there is no evidence or even suggestion as to how it had adversely affected the accuracy or reliability of his observations on the boundary and encroachment on P’s Lot.

37.  There is no dispute that the 2013 Plan accurately set out the boundary between Lot 2125 and Lot 2126. There is no challenge by the parties on the following observations:

(1)  The aerial photos between 27.05.2002 to 20.02.2014 show that the Encroached Area 3 on Lot 2125 was an open ground contiguous to the northern perimeter wall/structures of Lot 2126. It was not encroached upon by structures of Lot 2126 in the period;

(2)  According to aerial photos taken between 02.01.2015 – 02.04.2017, it was observed that “except some small western end of the Encroached Area 3 remained an open ground, the other part of the Encroached Area 3 was encroached upon with structures of Lot 2126;

38.  In the absence of any evidence to the contrary, I have no hesitation in accepting the SJE’s evidence which is supported by the survey plans and the aerial photos. On the basis of the evidence of the SJE, I am satisfied that D’s Wall Extension has trespassed and encroached upon the Encroached Area 3 of P’s Lot 2125 and that the area of encroachment was about 8.9 sq.m as highlighted yellow shown in the 2021 Plan.

Relocation of P’s Parallel Fence

39.  According to aerial photos taken between 27 May 2002 to 20 February 2014, the Encroached Area 3 on Lot 2125 was not encroached upon by structures of Lot 2126. The encroachment must have happened after 20 February 2014. This is consistent with Mr Shing’s evidence. Mr Shing referred to P’s Photos 7, 8 and 9 (which he took between 18 January 2014 and 24 February 2014), which showed the Papaya Tree still existed and located in-between D’s Fence and P’s Parallel Fence. When he visited the place again on 21 April 2014, the Papaya Tree had been removed and that P’s Parallel Fence had also been relocated a few feet in towards Lot 2125. He referred to P’s Photo 10 (taken on 21 April 2014) to show that the tree had disappeared, D’s Fence had been removed and the P’s Parallel Fence had been relocated inward.

40.  D1 agreed that they had removed D’s Fence as shown in Photo 10 but denied having removed the Papaya Tree or relocated P’s Parallel Fence.

41.  Mr Shing further stated that when he returned to the site on 26 April 2014, he saw the construction of the Wall Extension had started already with wooden formwork being erected and a male worker was working on it. He took photographs of the construction which he referred to as Photos 11, 12, and 13. He went on to state that by then he realized why the Papaya Tree was removed and P’s Parallel Fence was relocated which, according to him, was to make way for the Wall Extension. He referred to Photos 17-21 taken in May 2014 to show the completion of the construction of the Extension Wall.

42.  I find Mr Shing a truthful and honest witness. I accept him as a witness of truth. His evidence relating to the encroachment is supported by the evidence of the SJE. Mr Shing frankly admitted that he himself did not see who removed the tree and who relocated P’s Parallel Fence. On the facts of the present case, the only reasonable inference is that it must have been Ds or their agent who removed the Papaya Tree and relocated P’s Parallel Fence in April 2014. The encroachment area ran along the boundary between Lot 2125 and Lot 2126. So soon as the tree had been removed and P’s Parallel Fence relocated inward, Ds started the construction of the Extension Wall as shown in the Photos 11 to 13. I find as a fact that it was Ds or their agent who removed the Papaya Tree and relocated P’s Parallel Fence inward into Lot 2125 to make way for the construction of the Extension Wall.

The Papaya Tree

43.  There is a dispute as to whether the Papaya Tree was located right at the boundary as Ds alleged or within Lot 2125 as P alleged. Given Mr Shing’s evidence and the SJE’s evidence on the encroachment as so found by this court, that dispute has become quite immaterial. The Tree was not planted by P and that Mr Shing did not know who planted it. There is no dispute that when Ds erected their metal fence in 2013, Ds’ fence did not include the Tree and the same applied to P’s Parallel Fence which did not enclose the tree either. In so far as it is relevant, I find on a balance of probability that the Papaya Tree located very much on the boundary between Lot 2125 and Lot 2126.

44.  I shall now deal with the various defence contended by Ds.

Acquiescence/Estoppel

Legal Principles

45.  Ds’ counsel, Mr Ma, referred to a number of authorities where the principles were discussed. I will only recite some of the more relevant authorities. The Court of Appeal (per Chu JA) summarised the equitable defence of acquiescence in The Incorporated Owners of Freder Centre v Gringo Ltd [2016] 2 HKLRD 190,

“25 … As stated by Thesiger LJ in De Bussche v. Alt (1878) 8 Ch D 286 at 314, the defence of acquiescence arises:

‘If a person having a right, and seeing another person about to commit, or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing that act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the fact.’

26. Hence, to succeed in a defence of acquiescence, it must be shown firstly, there was on the part of the plaintiff, an assent or lying by in relation to the acts of another person; and secondly, in view of the assent or lying by and consequent acts it is unjust in all the circumstances to grant the relief in question: see Spry, Equitable Remedies, 9^th edition, p.56.”

46.  In Unruh v Seeberger (2007) 10 HKCFAR 31, Ribeiro PJ recited the observations of Kerr LJ in The “August Leonhardt” [1985] 2 Lloyd’s Rep 28 (at §§34 – 35) :-

“All estoppels must involve some statement or conduct by the party alleged to be estopped on which the alleged representee was entitled to rely and did rely. In this sense all estoppels may be regarded as requiring some manifest representation which crosses the line between representor and representee, either by statement or conduct. It may be an express statement or it may be implied from conduct, eg a failure by the alleged representor to react to something said or done by the alleged representee so as to imply a manifestation of assent which leads to an estoppel by silence or acquiescence. Similarly, in cases of so-called estoppels by convention, there must be some mutually manifest conduct by the parties which is based on a common but mistaken assumption. The alleged representor’s participation in this conduct can then be relied upon by the representee as a basis for this form of estoppel.”

47.  In Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985 (at §8.2), the Court of Appeal recited the following:-

“2) The principles

8.2 …

1) An estoppel by silence, inaction or acquiescence arises where ‘a reasonable man would expect the person against whom the estoppel is raised, acting honestly and responsibly, to bring the true facts to the attention of the other party known to him to be under a mistake as to their respective rights and obligations’ and this has been approved as the general principle underlying estoppel by acquiescence’: see Spencer Bower on the Law Relating to Estoppel by Representation (4^th Ed) paragraph III.4.3, at page 48, citing Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890, 903F (per Lord Wilberforce). See also Lee Bing Cheung v Secretary for Justice (HCA 1092/2010, 21/2/2013) paragraphs 40-45 (DHCJ Marlene Ng).

2) A duty to speak, such as to found an estoppel on silence will arise in circumstances :

(1) ‘[w]here a person, having a title or right to property of any kind, perceives that another person is innocently, and ignorant, conducting himself with reference to the property in a manner inconsistent with such right or rights’: see Spencer Bower paragraph III.4.4(1);

(2) ‘[w]here an owner becomes aware that someone is attempting to dispose of his property’, and in such circumstances ‘he is bound to assert his rights and, if he fails to do so, he may be estopped against the disponee’. ‘His silence may be a representation either that he has no title or that the person dealing with the property has his authority’ see Handley on Estoppel by Conduct and Election paragraph 3-012; or

…..”

A Broader Approach - Unconscionableness

48.  In Lau Kwai Ping Joyce v. Fulland International Ltd [2020] HKCFI 1501, the Hon. Marlene Ng J applied the “more holistic approach” and stated the following:-

“39. I also bear in mind that more recent authorities favoured a more holistic approach to proprietary estoppel as opposed to the application of rigid rules. In Lee Bing Chueng, I explained as follows (page 526):[65]

“43. But such is the nature of the equity under the doctrine of proprietary estoppel that the true test is whether it will be unconscionable for the defendant to deny that which he has allowed or encouraged the plaintiff to assume to his detriment rather than ‘whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour’. ……”

40. In my view, the paper title owner, who is expected to keep an eye on his land, cannot turn a blind eye to the obvious and then claim not to have the requisite knowledge.”

Ds’ contention

49.  Ds submit that it is clearly unconscionable for P (and PW-1), who had full knowledge of Ds’ acts and their building and construction of the said structure, to just standby, to keep lying by, and to allow Ds to have incurred the costs, time, expenses and efforts in hiring workers and building the said structure to completion (which was costly and time consuming from April to June 2014), and chose not to complain or take any enforcement action for some 4.5 years, and then suddenly demanded Ds to remove the same. There was, according to Ds, clearly an assent or lying by on the part of P (and PW-1) in relation to the acts of Ds. PW-1 had seen and witnessed the subject structure / the subject concrete wall extension from zero to completion, which took time to complete in April, May and June 2014, but he (or P) had not made any complaint at all (but just lying by for nearly 4.5 years ). Acting in reliance upon such conduct of P, Ds at the relevant times had incurred substantial costs, expenses and time and effort to carry out all those works.

Assent/ Standing by/Estoppel

50.  There is no dispute between the parties as to the applicable legal principles and that each case must be determined by reference to its precise circumstances. It is important to note the more salient aspects of the evidence in the present case which I shall recite as follows:

(1)  There is no dispute that P and his sons had taken measures to protect P’s land. Mr Shing in 2007 put up a warning sign on Lot 2123 warning people not to trespass on his land and that D1 had notice of that in 2011. After Ds had erected the 3 concrete pillars which P believed to be encroaching upon their land Lot 2123 and Lot 2125, Mr Shing and his two brothers in early January 2014 even resorted to self-help to demolish the 3 concrete pillars in question. At about the same time, P erected P’s Parallel Fence along the boundary between Lot 2125 and Lot 2126. It should be abundantly clear to Ds that P did not consent to any encroachment from his adjacent land owner.

(2)  There is no dispute that Ds’ Fence as well as P’s Parallel Fence accurately delineated the common boundary between Lot 2125 and Lot 2126. It was only that in about late April 2014 as I have found, Ds or their agent had started to remove Ds’ Fence and the Papaya Tree, and relocated P’s Parallel Fence for the purpose of extending their wall onto P’s land. Ds well knew the area, now being referred to as Encroachment Area 3, belong to P. Ds were under no mistake that Encroachment Area 3 belong to P at all material times. Ds constructed the Extension Wall and encroached upon P’s land in total disregard of P’s right. Ds’ encroachment was not encouraged by any acts or conduct of P, nor was it induced by a mistaken belief or by the inaction of P.

51.  I am not satisfied the defence of estoppel or acquiescence has been made out. In the circumstances, I do not find it unjust or unconscionable to allow P to enforce his legal rights.

Implied licence / Parties’ Agreements

52.  It has been well established that mere silence or inaction on the part of the servient owner cannot amount to permitting or consent. Passive acquiescence is not enough to establish implied licence. There must be some overt acts on the part of the licensor referable to a licence having been granted to give rise to an implication by conduct. The fact that the landowner knows that a trespasser is on his land and does nothing about it does not alter the legal status of the trespasser. If a trespass has continued for a number of years, then the fact that it has been acquiesced in (or passively tolerated or suffered) by the landowner will not prevent the landowner claiming that it has been and is unlawful, and seeking damages in respect of it (subject to the limitation period): Raingate Ltd v Bee Cheng Hiang (Hong Kong) Ltd [2017] 6 HKC 472 at §10-11.

53.  There is no dispute that P knew about Ds’ encroachment since 2014. There is no suggestion that P had given permission to Ds’ encroachment over P’s land. On the facts, there was mere inaction on the part of P. Ds’ defence on implied licence fails.

Parties’ Agreement

54.  Ds also contend that the parties had (expressly or impliedly) agreed the same was the fixed boundary between the relevant lots at the relevant time.

55.  Ds refer to Davis v Winner [2021] 11 WLUK 575 where the following principles were stated:-

“(D) Boundary Agreement

76. The case most often cited to establish the law relating to boundary agreements is the decision of Megarry J in Neilson v Poole (1969) 20 P&CR 909, though the law on that subject has been settled going back several years.

77. Paragraph 303 of Volume 5 of the Fifth Edition of Halsbury’s Laws of England, summarises the law applicable to boundary agreements in the following terms:

“Boundaries may be fixed by an agreement made between two or more adjacent owners where their boundaries are not clearly defined or have become lost or confused. In general, such an agreement need not be in writing and, a fortiori, need not be by deed; for, if it was fairly made, it will be presumed that it did not involve any alienation of land but that the boundaries settled were the true and ancient limits. Even where a conveyance apparently conveys a disputed strip of land to one adjoining owner, the erection of a fence or wall by that owner leaving the disputed strip accessible only to the other adjoining owner may be evidence of an express or implied agreement that the boundary is to be represented by that fence or wall. Moreover, the settlement of boundaries is a mutual consideration sufficient to support a contract not made by deed, even where the land is situated out of the jurisdiction.”

78. In Stephenson v Johnson [2000] E.G, 92, Bennett J said, at [52]:

“In summary, in my judgment, the judge was right to find an agreement between Mr Vane and the defendants. It is not strictly necessary for a court to have to find an offer and an acceptance. The course of the parties' conduct, that is to say, Mr Vane and the defendants, should be looked at and if, on the balance of probabilities, an agreement is established, that is sufficient. In my judgment, the conduct of Mr Vane and the defendants does establish such an agreement.”

56.  There is no dispute that there was never any communication between P and Ds over the encroachment issue or indeed any issues. In early January 2014, P had erected his own metal fencing closely along Ds’ Fencing which accurately delineated the common boundary between Lot 2125 and Lot 2126. The boundary was clear and there was no confusion. It was only that in late April 2014, Ds or their agent removed Ds’ Fence and relocated P’s Parallel Fence to make way for the construction of the Extension Wall in disregard of P’s right. The facts as found by this court do not support any agreement as alleged or otherwise. Ds’ defence on parties’ agreement also fails.

The de minimis Principles

57.  Ds submit that the de minimis principle should apply and such should be a strong factor against the grant of the court’s discretionary mandatory injunction in any event.

58.  Counsel for the Ds referred to G and Y Co Ltd v Kwok Kim Leung and Another (02/07/1991, HCA3586/1989) in which it was held:-

“26. The de minimus rule applies to a great variety of subject-matters e.g. construction of a legacy, exacting of tithes and rates, trespass etc. See Broom’s Legal Maxims p.88 et seq. The doctrine admits of no known limit. Sellers L.J. succinctly summed it up in these terms: “It seems to me that in all cases the court is called upon to consider the substance of the matters and will not regard or give effect to what are undoubtedly, in the view of the court, trivialities, matters of little moment, of a trifling and negligible nature. It would be, in my view, difficult and perhaps undesirable to define the limits of the de minimus rule; certainly I have no desire to do so.” Margaronis Navagation Agency Ltd. v Henry W. Peabody & Co. of London Ltd., [1965] 2 Q.B. 432 at p. 444 Letters B/C - D/E. At p.447 Letter G, Pearson L.J. seemed to spare no contractual obligations from the operation of the maxim: “Once it is appreciated what the test is, namely, whether the de minimus rule applies or not, whether the departure from the precise terms of the obligations is so trivial as to be negligible or whether it has some significance, then the rest becomes a pure question of fact”. (Emphasis added). It would be more accurate to describe it as “a judge's decision on mixed fact and law” as uttered in the earlier injection of Diplock L.J. at p.441 Letter B/C. In applying the rule, each case must be judged on its own degree, measure or extent in the particular circumstances. It is really a common sense judgment as to whether the act or omission is of a trifling nature against the given background. The magnitude of the alleged deviation and its consequence are not themselves relevant except as part of the scenario. I also derive much comfort from one of the statements in Halsbury’s Laws of England, 4^th edn., which are highly regarded as an accurate source of elementary information. Nothing is added in the 1991 Supplement to its Vol.9, the last sentence of para.472 reads: “In all cases (of performance), however, the requirement of exact performance is qualified by the de minimus rule, that is that minute and unimportant deviations from exact performance will be ignored.””

59.  In the present case, the length and area of Encroached Area 3, as found by the SJE, were about 25 meters long and 8.9 sq.m. in area, respectively (“Revised Encroached Area 3”). According to the SJE, there was, in general, a margin of error of ±0.050m, and on such basis the margin of error for Revised Encroached Area 3 would be 1 sq.m.

60.  For the purpose of coming to court, the SJE recalculated a more accurate margin of error, which was ±0.015m (±15mm). In the circumstances, he held the view that the Revised Encroached Area 3 (about 8.9 sq.m) on the 2021 Plan was of an accuracy better than ±0.3 sq.m.

61.  The SJE’s evidence on margin of error was not challenged by the parties. Ds submitted that given the length of the alleged Encroached Area was about 25m, the margin of error of ±0.015m or ±0.050m would be material and that the average width would be quite narrow. Counsel for the Ds provided some calculations on the average width and the difference in terms of percentage to illustrate his points.

62.  The Revised Encroached Area 3 was calculated to be about 8.9 sq.m in area and was clearly marked on the 2021 Plan in yellow. Even with a margin of error of 1 sq.m., I do not think that an area of some 8.9 sq.m is “de minimis” in the present case. This defence fails.

Mandatory Injunction

63.  In addition to and without prejudice to Ds’ other grounds of defence, Ds urge the court not to grant the mandatory injunction.

64.  Ds refer to and cite the following extracts from the authorities, Billion Star Development Ltd v Wong Tak Chun [2012] 2 HKLRD 85 (at §38(3)).

“Even where the person in possession has established his proprietary right and proved an infringement of that right in the form of trespass, and prima facie he may be entitled to an injunction (permanent or interlocutory), and the injunction will still be denied if special circumstances exist. Special circumstances may include circumstances that damages are an adequate remedy for the wrong, in that where the expected injury to the land is small and the grant of an injunction would cause disproportionate hardship to the defendant.”

The IO of Shan Kwong Towers Phase II v Li Suet Ching [2007] 4 HKLRD 567

“Whether mandatory injunction should be granted

15. …. The court always has a wide discretion in granting or refusing a mandatory injunction. In Morris v Redland Bricks Ltd. [1970] AC 652, Lord Upjohn of the House of Lords gave the following judgment:-

‘The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be “as of course.” Every case must depend essentially upon its own particular circumstances. Any general principles for its application can only be laid down in the most general terms:

1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.

2. Damages will not be a sufficient or adequate remedy if such damage does happen….

3. Unlike the case where a negative injunction is granted to prevent the continuance or recurrence of a wrongful act the question of the cost to the defendant to do works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account…’

16. From the above judgment, it is clear that in granting or refusing a mandatory injunction, the court has to consider the particular circumstances of the case and the jurisdiction should be exercised cautiously. It is necessary to consider that damages will not be a sufficient or adequate remedy, and the cost to the defendant to do works should also be taken into account. Further, in Sharp v. Harrison [1922] 1 Ch. 502 and Wong Sui Fung & anor. v. Yip Siu Keung LDBM 248 of 2000, it has been held that where no damage has been occasioned and the granting of a mandatory injunction would inflict damage on the defendant out of all proportion to the relief given to the plaintiff, the court ought to refuse it.

…...

18. On the other hand, the Respondent would need to incur expenses to reinstate the window and the external wall below the window. Although there is no evidence on the cost of reinstatement, I think it would be reasonable for me to assume that the cost would not be cheap. The only benefit that would bring to the Applicant if the mandatory injunction were granted is that the Building will look a bit more tidy from certain limited angles of view. I do not think that such a small benefit is proportionate to the amount that the Respondent is going to spend on the reinstatement.”

Armstrong v Sheppard & Short Ltd [1959] 2 WLR 84, Lord Evershed MR held at 396:-

“Second, it is true to say that if a man, having a proprietary right, proves an infringement of that right, prima facie he is entitled to an injunction: but that needs some qualification. It is not a matter of unqualified right; and one ground for denying an injunction would be that the wrong done is, in the circumstances, trivial. That proposition is founded on the well-known case of Imperial Gas Light and Coke Co. (Directors) v. Broadbent: but I can summarise it by reading from Kerr on Injunctions, 6^th ed., p. 30:

‘After the establishment of his legal right and of the fact of its violation, a plaintiff is in general entitled as of course to a perpetual injunction to prevent the recurrence of the wrong, unless there be something special in the circumstances of the case, such as laches, or where the interference with the plaintiff's right is so trivial.’”

65.  Ds submit that the aforesaid legal principles and observations apply to the present case in that no inconvenience (or only very minimal inconvenience) had been caused and would be caused to P; no damage (or only very little damage ) had been suffered or would be suffered by P; no damage (or only very little damage) would be occasioned in future even if the mandatory injunction is being refused; there is no evidence to show that damages would not be sufficient remedy if such damages did arise; P’s own lying by and silence and allowing the alleged encroachment (for at least 4.5 years), and the fact that P now is content with claiming only nominal damages further show that P at most suffers and will suffer no or only trivial damage; if an injunction is being granted, Ds have to incur expenses in the reinstatement of the said structure.

66.  Ds contend that it is unjust and inequitable in the circumstances for the court to exercise the discretion to grant the discretionary mandatory injunction in the present case.

67.  In addition, Ds further contend that P’s proposed mandatory injunction is not workable in that it fails to satisfy the “certainty” requirement”. Ds refer to and cite the following extracts from the authorities,

Gee on Commercial Injunction, 7^th Edn at para 4-001 (p.149-150) stated :-

“(1) The Certainty Principle

There is a general principle that an order must be expressed in unambiguous language so that the defendant knows exactly what is forbidden or required by the order. Contempt proceedings will not succeed when the order is unclear or ambiguous.

The principle applies to all injunctions. This is a matter of fairness to the person enjoined. It goes not only to the drafting of an injunction when in principle the decision has been made to grant it, but also to the decision itself on whether to grant an injunction or specific performance. The degree of certainty required should be considered with the possibility of contempt proceedings in mind and whether the injunction would be enforceable in such proceedings. An injunction should not be granted in terms which leave it to be argued out in contempt proceedings what it does and does not require. …

... Particular emphasis is placed on precision where the injunction is mandatory because the defendant does not have the option of refraining from acting near the fringes of the injunction but is obliged to act…”

Morris v Redland Bricks Ltd. [1970] AC 652, at 666G‑667C:-

“If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions.

This has been well settled for a long time… There may be cases where, to revert to the simple illustration I gave earlier, the defendant can be ordered ‘to restore the right of way to its former condition.’ This is so simple as to require no further elucidation in the court order. But in anything more complicated the court must in fairness to the defendant tell him what he has to do, though it may well be by reference to plans prepared by some surveyor… The principle is summed up by Maugham L.J. in Fishenden v Higgs & Hill Ltd (1953) 153 L.T. 128, 142:

‘I should like to observe, in the first place, that I think a mandatory injunction, except in very exceptional circumstances, ought to be granted in such terms that the person against whom it is granted ought to know exactly what he has to do.’”

68.  Ds submit that the court should not make the injunction order as sought by P as the proposed terms are simply unworkable and are not supported by sufficient factual or legal basis.

69.  I disagree. The Revised Encroached Area 3 was calculated to be about 8.9 sq.m in area and was clearly identified and marked on the 2021 Plan in yellow. There is nothing ambiguous or uncertain about the encroached area.

70.  Ds’ encroachment was not induced by P in any way. Any expenses incurred by Ds were a result of Ds’ own wrong. P is entitled to possession of his own land. I do not see any unfairness in the present case. The encroached area is not trivial. I do not consider damages to be a sufficient remedy in the circumstances of the present case. I do not see the grant of an injunction would cause disproportionate hardship to Ds.

71.  Ds also argue that P failed to produce the block crown lease to prove that the Encroached Area 3 fell within the boundary of P’s Lot 2125. I do not see any merits in this argument. On the basis of the SJE’s evidence which I accept, Encroached Area 3 was within the boundary of P’s Lot 2125.

Adverse Inference to be drawn against P

72.  Ds submit that by reason of P’s failure to testify, adverse inference should be drawn against P’s case (insofar as the same are different from D1/D2’s case and evidence) on the ground that P himself has not filed any witness statement and has not testified at trial.

73.  In respect of P’s claim, he needs to adduce evidence to prove that there was encroachment upon P’s land which he has done, namely, the evidence from P’s son as well as the SJE. In respect of the various defence raised by Ds, the burden rests on Ds to prove that notwithstanding there was encroachment, P should not be entitled to the reliefs he is seeking. Given the adversarial nature of the system, P does not have any duty to assist Ds to prove their case. In the present case, I do not think there should be any adverse inference to be drawn against P on the ground that he himself did not give evidence.

PW-1’s Removal of the Pillars on Lot 2123

74.  Ds have made rather lengthy submission in this regard. Given that the parties had agreed that two of the pillars had been removed and that the remaining pillar was no longer an issue before the court for determination, I do not think it necessary to deal with it in this judgment except to the extent that it may impact on the question of costs which I shall deal with in the latter part of this judgment.

Mesne profits

75.  P, by his Re-Amended Statement of Claim, claimed mesne profit at the rate of $2,500 per month from the commencement of the trespass until delivery of vacant possession of the land. Ds disputed such claim and raised the issue on limitation in their Re-Amended Defence. At the PTR on 5/9/2022, P confirmed that he would only seek a nominal amount for mesne profit. P reiterated his position at the trial and P asked for $10 per month commencing on 1 May 2014 until possession of the Yellow Area is delivered to the Plaintiff. On such basis, the claim would not be time-barred under the Limitation Ordinance. In the absence of any evidence to show the appropriate market rent, I am minded to make a nominal award for mesne profit. I consider $10 per month is nominal and I shall so order.

Costs

76.  At the conclusion of the hearing on 8 December 2022, the parties agreed that the costs of the Consent Summons be in the cause with certificate for counsel and that this court can take into account the matters relating and leading to the Consent Order when considering the entire costs of the action.

77.  The court has wide discretion as to costs. Costs should generally follow the event unless “when it appears to the court that in the circumstances of the case, some other order should be made as to the whole or any part of the costs” (O 62 r 3(2) of RDC, Cap 336).

62 r 5 of RDC states:-

“(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account—

(aa) the underlying objectives set out in Order 1A, rule 1;

…

(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful;

…

(2) For the purpose of paragraph (1)(e), the conduct of the parties includes—

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.”

78.  When considering the entire costs of the action, I shall take into account all the relevant matters and, in particular, the followings:

(1)  P had, by the time when he filed the Amended Statement of Claim in March 2019, already conceded that Encroached Area 1 was adversely possessed by Ds for more than 12 years. Negotiations between P and Ds through their solicitors then ensued. In September 2020, the parties were able to reach an agreement regarding Encroached Area 1 and Encroached Area 2, which became the Consent Order made on 24 September 2020.

(2)  Encroached Area 1 is about 13.7 sq.m. Encroached Area 2 is about 6.1 sq.m which was encroached by an overhanging platform supported by three pillars in Lot 2123 and Lot 2125 in 2013. The difference in size of the two areas is not significant and it is quite irrelevant for the consideration of costs since both parties would have to come to court and incur legal costs in order to obtain the order they asked for.

(3)  P filed his Re-Amended SOC on 31 March 2021. Notwithstanding the making of the Consent Order, P, by his Re-Amended SOC, continued to claim against Ds in relation to the trespass by Ds’ concrete pillars in Encroached Area 2. In Ds’ Re-Amended Defence and Counterclaim, Ds continued to deny any trespass by the pillars and continued to counterclaim against P in relation to Encroached Area 2. If the parties had settled their dispute in relation to Encroached Area 2, it was not entirely clear why they should re-litigate the same issue which should not be allowed in normal circumstances. I raised the query with the parties at the beginning of the trial about this and the parties took time to consider. In the end, both parties agreed that the alleged trespass by the pillar(s) was not an issue before the court and did not require any determination by the court.

(4)  P, by his Re-Amended SOC, claimed mesne profit at the rate of $2,500 per month from the commencement of the trespass until delivery of vacant possession of the land. No evidence was adduced in this regard. Ds disputed such claim and raised the issue on limitation in their Re-Amended Defence. It was only at the PTR on 5/9/2022, P confirmed that he would only seek a nominal amount for mesne profit.

(5)  In respect of Encroached Area 3, P initially claimed against Ds for an encroached area of some 10.1 sq. m. At the conclusion of the trial, P claimed against Ds, by way of alternative, for an encroached area of some 8.9 sq. m. as marked yellow in the 2021 Plan. P only succeeded in his alternative claim (see P’s Re-Re-Amended SOC).

79.  On the question of costs, I shall adopt a broad-brush approach. P is the overall winner in relation to Encroached Area 3 which took up a significant portion of the disputes in these proceedings. Having considered all the relevant matters and, in particular, those matters set out hereinabove, I award 80% of the costs of the entire action to P.

Judgment/Orders

80.  I make the following orders

(1)  There be judgment to the Plaintiff. The 1^st and 2^nd Defendants do deliver vacant possession of the Yellow Area (“the Yellow Area”) identified in the Plan of Existing Occupation adjoining the Common Boundary between Lot 2125 and Lot 2126 in D.D. 118 dated March 2021 as attached at Appendix 5 of the Single Joint Expert Report prepared by Mr Ng Jor Choi dated 9 April 2021 (“the 2021 Plan”) within 28 days of the judgment;

(2)  A mandatory injunction requiring the 1^st and 2^nd Defendants to demolish all structures within the Yellow Area identified in the 2021 Plan at their own costs and expense within 28 days of the judgment;

(3)  The 1^st and 2^nd Defendants do pay mesne profits to the Plaintiff in respect of the said Yellow Area at $10 per month commencing on 1 May 2014 until possession of the Yellow Area is delivered to the Plaintiff;

(4)  The 1^st and 2^nd Defendants’ counterclaim herein be dismissed;

(5)  An order nisi that the 1^st and 2^nd Defendants do pay to the Plaintiff 80 % of the costs of the action (including Defendants’ counterclaim), including any costs reserved, with certificate for counsel to be taxed if not agreed. This order nisi shall become absolute after 14 days from the date of this judgment absent any application to vary the same by summons.

81.  Lastly, I thank both counsel for their assistance in these proceedings.