SIU CHI TAT also known as CHI TAT SIU v. LAND ZONE LTD

HCA 1670/2018

[2018] HKCFI 2582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1670 OF 2018

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JUDGMENT

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The application

1.  By a Statement of Claim filed on 18 July 2018 the plaintiff (“P”) claims against his neighbouring landowner, the defendant (“D”), for trespass of P’s land and seeks various relief including a declaration as to thecorrect boundary, a permanent injunction (both prohibitory and mandatory), vacant possession and damages or mesne profits to be assessed.

2.  This is P’s application by summons for an interlocutory injunction against D requiring D to demolish part of the wall which it has erected along the boundary between D’s lot and D’s lot (the “CF Wall”) and restraining D from obstructing P’s access.

The background facts

3.  The case arises from a boundary dispute on San Hing Road, Tuen Mun, New Territories.  It is perhaps important by way of background to note that P’s lot is the result of a subdivision of a larger plot into three lots in 1972, the result of which, in D’s submission, is that P’s lot and one other lot became landlocked since they were deprived of direct access to a public highway to the west.  D submits that the correct resolution of this state of affairs is provided by the law of property whereby a right of way by implied grant might arise or an easement of necessity might operate as against the grantor of P’s lot.

4.  P’s case is that since 1972 he and his predecessors in title obtained access to and egress from his lot via a footpath along what P claims is the southern boundary of his property.  He submits that the present boundary dispute has nothing to do with historic rights which might have arisen when P’s lot was created.

5.  It is this access from the footpath to the south of the property that has been denied by D’s construction of the CF Wall on what P claims is part of his property.

6.  D built the CF Wall, it appears, in March 2014 and P accepts that it took no urgent action to seek relief from the courts at the time on the ground that the cost of doing so would have been disproportionate if an alternative solution could be found.

7.  Thus over the intervening period there have been various discussions between the parties without providing a satisfactory permanent solution. For instance, P served a pre-action letter on D in March 2015 and even at one point resorted to self-help by knocking a hole in the wall which D subsequently sealed up. Subsequently P obtained a license to enter into and egressfrom his property to the west via his neighbour Siu Yuk Tin’s (“Siu Elderly”) property.

8.  During this intervening period P wanted to develop the old two-storey village-type house situated on the lot by demolishing it and constructing in its place a new house.  Construction of the new house began in December 2015 and was completed in November 2017.  This was facilitated by the said license obtained from Siu Elderly.  P claims however that the development costs were significantly increased by the need to use cranes to access the site from Siu Elderly’s property and furthermore, faced now with the prospect of the lot being landlocked, it has been impossible to find a tenant so P has been deprived of rental income.  He also seeks damages for trespass.

9.  The matter has come to a head, it is submitted, because Siu Elderly informed P on 2 August that he would terminate the licensing arrangement and gave P 21 days to rebuild the boundary wall between their premises.  As a result P’s solicitors wrote to D demanding demolition of part of the CF Wall in order to allow P’s access into and egress from his property and took out the summons which is now before the court.  By that summons P asked for an injunction to the effect that:

“ (1) Pending trial or further order, D do within 14 days demolish part of the CF Wall at the south-eastern corner of P’s Lot (the ‘Interim Demolition Work’) with an opening of at least 100 cm width and 235 cm height (the ‘Proposed Opening’);

(2) Alternatively, leave be given to P to carry out the Interim Demolition Work to create the Proposed Opening on the CF Wall with costs and expenses to be borne by P upfront and the issue of liability for payment of such costs and expenses to be determined at the trial; and

(3) Pending trial or further order, D be restrained from obstructing the access pathway to and from P's Lot and the Footpath via theProposed Opening and re-instating the CF Wall to the extent of blocking the Proposed Opening by whatever means.”

10.  At the conclusion of the hearing I left the temporary provision on entry and egress made by DHCJ Leung in place pending this decision albeit all agreed this temporary provision was unsuitable for the longer term.

The plaintiff’s case

11.  P accepts that he bears the burden of showing that there is a serious issue to be tried, that damages would not be an adequate remedy and that the balance of convenience lies in favour of granting the injunction.

12.  When considering whether there is a serious issue to be tried the law is clear that it is no part of the Court’s function at this stage to try toresolve conflicts of evidence on affidavit as to facts on which the claims ofeither party may ultimately depend, nor to decide difficult questions of lawwhich call for detailed argument and mature considerations.  Accordingly the prospect of the claimant’s success are to be investigated to a limited extent.  All that has to be considered is whether such prospect in substance and reality exists.  Odds against success do not defeat him, unless they are so long that P can have no expectation of success, but only a hope: see Hong Kong Civil Procedure §29/1/10.

13.  Ms Law for P submits that the grant of the Injunction, being an equitable remedy, is discretionary but where an injunction, as in the present case, is sought to restrain the continuation of a wrongful act which interferes with the claimant’s right and is prohibitory in substance as well as in form, it would be fairly readily granted: see Clerk & Lindsell on Torts (22^nded, 2018) at §29-05.

14.  She further submits that the Court should be more inclined to grant an injunction if a claimant can establish a cause of action to protect aproperty right recognised by the law: see SmithKline Beecham Plc v Apotex Europe Ltd [2003] EWCA Civ 137 per Aldous LJ at §§13 and 18.

15.  Finally, she submits that for a case of trespass to land, the general rule has always been that a landowner can bring a suit against trespassers for unjustifiable intrusion on their land.  In a case concerning threats of trespass, the Court is also concerned with the protection of a property right, which, if not protected by an adequate remedy, becomes diminished: see Billion Star Development v Wong Tak Chuen [2012] 2 HKLRD 85 at §38.

16.  Against this background P says that there is undoubtedly a serious issue to be tried based on the conflicting expert testimony as well as the toing and froing over this issue for many years.  Furthermore it can hardly be said that P has no prospects of success; it goes without saying thequestion as to the proper boundary between P’s lot and D’s lot is the precise factual and legal question in dispute. The parties have not adduced full and complete evidence or even their full expert evidence on this issue and indeed it is not appropriate for me to decide this issue at this stage.  I accept therefore that there is a serious issue to be tried.

17.  I am faced in P’s submission with the following circumstances:

(1) without the Interim Demolition Work to create the Proposed Opening on the CF Wall, P’s Lot in its entirety (and not just the Enclosed Area in dispute) would be unreasonably “enclosed” and deprived of any access via the Footpath;

(2) without the Interim Demolition Work to create the Proposed Opening on the CF Wall, the New House would have to remain unoccupied.  Effectively, the value of the whole of P’s Lot (and not just the Enclosed Area in dispute) would be diminished and rendered almost “meaningless” if P could not enjoy any part of the New House; and

(3) unless restrained by this Court, D clearly threatens and intendsto continue to trespass onto P’s Lot (by keeping the whole CF Wall intact) and obstruct P’s access to any part of P’s Lot via the Footpath from the direction of the CF Wall.

18.  Ms Law submits that there is no reason to suppose that P will be able to find alternative access to his land.  In particular there is no evidence to suggest Siu Elderly would reinstate the recently revoked licence and she submits D’s speculation about the relationship between P and Siu Elderly has no foundation in the evidence.

19.  Further she says the potential losses which would be suffered by P from his inability to use the property at all far outweigh the losses D would suffer by virtue of the minimal trespass which would occur if the injunction were granted particularly given the disputed piece of land is unused and has been for many years.

20.  Ms Law further points to the fact that D is a Hong Kong company with a share capital of only HK$10 whereas P is clearly good forhis undertaking in damages particularly given the fact that he is prepared to undertake the necessary works including reinstatement if D is ultimately successful.

21.  In conclusion Ms Law submits that the course which involves the “least injustice” in this case would be to grant the Injunction which preserves the status quo in terms of permitting P to continue to enjoy the use and benefit of his Lot (excluding the vast majority of the area in dispute) in circumstances where his title to the land is indisputable.  The Injunction sought is clearly proportionate in the circumstances of this case; it does not go as far as to authorise P pending the trial to enjoy exclusive use and possession of the disputed area which he claims to be his nor does it effect a total embargo on D’s continued use and enjoyment of the remainder of his undisputed land pending trial.

The defendant’s case

22.  D accepts the basic legal principles to be applied here but urges the court to reach an alternative conclusion on the facts for the purposes of exercising its discretion.

23.  Mr Ho for D submits that P’s case is fatally weak, relying as it does on what he describes as a “wholly unsatisfactory” expert report.  I am not in a position to reach such a conclusion on the limited evidence before the court and so cannot accept this submission.

24.  Neither can I accept his submission that P has intentionally misled the court by changing his stance about the use to be made of the newhouse on the lot.  Whilst there may be various suggestions in P’s evidenceas to how the new building on P’s lot will be used I do not interpret this, asD urges me to, as P readily changing his story for the purpose of satisfying the requirements under an application for an interlocutory injunction.  Indeed I find it not at all surprising that P should be vacillating over what isthe best use of the property particularly with the current dispute in the offing.  

25.  I think too that D’s argument is predicated on the assumption, which has not been established, that D is the rightful owner of the land in dispute, such that P’s entering on and egress from any part of it amounts to trespass.  It is clear to me that this is one of many factual issues which will have to be resolved at trial and which are incapable of resolution on an interlocutory application such as this.

26.  Mr Ho also relies on the delay, admittedly long, since the CF Wall was built as being sufficient to defeat P’s application.

The court’s decision

27.  Having concluded, as I have, that there is a serious issue to be tried I have to decide whether I think damages would be an adequate remedy and if I do not whether the balance of convenience lies in favour of granting the injunction.

28.  I am satisfied on the evidence that damages would not be an adequate remedy in circumstances where from now until trial, whenever that occurs, P would in effect be locked out of his land, land which he says is his and which forms the basis for his claim against D.

29.  I turn then to the balance of convenience and recognize that in considering this matter I have to have regard to the delay which D relieson as sufficient to defeat the application for the injunction.  Whilst I accept that there has been delay I take into account the submissions which have been made to the effect that there was an earnest desire on the part of P to find a more cost effective solution than going to court when the likely dispute was over such a small plot of land.  I am also mindful of the fact that D asserts the rights he does by building the CF Wall when he had donenothing to assert these rights for many, many years and indeed could be said to have acquiesced in P’s use of that land.

30.  In the circumstances I have concluded that an injunction is theappropriate way forward.  The risk of detriment or inconvenience to P is sogreat that it seems to me just that the court should act to protect P’s positionpending trial.  The injunction sought is of very limited application.  P hasconfirmed that it is prepared to erect a padlocked gate with fencing blocking any access to D’s lot through the proposed opening if D requests this.

31.  I am conscious too in exercising my discretion in this way that throughout the period of the dispute and for many years before that D’s lot has been deserted and in particular nothing has been stored or placed on the disputed land.  As a result it seems to me that the injustice which will be caused to P if the injunction were to be refused far outweighs any inconvenience which would be caused to D if the injunction is granted.  Whilst the delay in seeking the court’s assistance is a factor to be taken intoaccount, I do not think that it should be the predominant factor in deciding whether or not it is just and fair to grant the injunction.

32.  I would only add that it is unfortunate that the parties have not been able to reach an accommodation pending trial to avoid the time and costs expended so far.  In the circumstances I make an order nisi for D’s costs in the cause.