CHINA MERCHANTS KIN SWISS TRANSPORTATION CO LTD AND ANOTHER v. TREASURE WISE LTD AND OTHERS

cacv 66/2008

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 66 of 2008

(on appeal from HCA NO. 344 of 2007)

________________________

________________________

J U D G M E N T

________________________

Hon Le Pichon JA:

1.  This is an interlocutory appeal by the first defendant from a Ruling on Admissibility dated 11 January 2008 of Chung J whereby the judge ruled against the admissibility of certain expert evidence in the course of a trial relating to an express grant of a right of way over various parcels of land in the New Territories described collectively as “the Fourth Property”.  At the conclusion of the hearing judgment was reserved which we now give.

Background

2.  The action concerns a claim by the plaintiffs as owner/occupier of the dominant tenement (Lot 43B4) against the first defendant for wrongful interference with the right of way over the Fourth Property obtained by express grant under clause 4 of a Deed of Partition dated 14 November 1988 (“the Deed”).  The first, second and third defendants are the co-owners of the Fourth Property.  The action against the second and third defendants was discontinued in April 2007 since they had not interfered with the plaintiffs’ use of the right of way and did not deny their right as asserted.

3.  Two days before the trial commenced on 19 November 2007, the first defendant took out a summons for leave to adduce further expert evidence.  On the second day of the trial, before its summons had been dealt with, the first defendant produced additional materials (not covered by its summons) described as “Further Commentaries on Concrete Carriageway Pavement Design of Hyder.”

4.  On the third day of the trial, when the plaintiffs indicated that they would be making an application to exclude part of the expert evidence, the judge gave directions and adjourned the trial pending the hearing and determination of that application.  The trial is scheduled to resume on 4 August 2008.

5.  The first defendant appeals against the judge’s Ruling that certain expert evidence be excluded (“the excluded evidence”).

6.  The salient facts may be summarised as follows.  On 14 November 1988, three transportation companies (“the original co-owners”) who were tenants in common of a relatively large piece of land consisting principally of fishponds and farmland situated close to Castle Peak Road entered into the Deed, partitioning the properties amongst themselves but leaving of a strip of land (“the Fourth Property”) in co-ownership.

7.  By clause 4, they covenanted with and granted to

“each others a full and uninterrupted right of way for each others and the owners and occupiers for the time being of ALL THAT the Fourth Property his or their tenants visitors workmen and other persons authorised … for all purposes in connection with the proper use and enjoyment of the [partitioned land] at all times to go pass and repass with or without vehicles over along and upon the Fourth Property …”

As the judge observed, this covenant forms the backbone of the plaintiffs’ claim.

8.  The Fourth Property is a strip of land on the western and southern boundary of the plaintiff’s property and continues in a southeasterly direction towards the government road that runs parallel to Castle Peak Road.  The government road and Castle Peak Road lie to the southeast of the strip and at that point both roads run from the southwest to the northeast.  As it approaches the government road the strip widens into and becomes Lot 1318RP which is part of the Fourth Property but lies at right angles to the rest of the strip of land.  The southeastern boundary of Lot 1318RP abuts and runs parallel to the government road.

9.  Within a month or so after the Deed was executed, the first plaintiff agreed to purchase part of the partitioned property (the dominant tenement) from one of the original co-owners.  The agreement required the vendor to reclaim the land sold with soil such that it would after reclamation level with that part of the Fourth Property that adjoined it and the vendor undertook at its own costs to construct or procure the construction of a two-way carriageway of not less than 22 feet wide leading from Castle Peak Road to the dominant tenement.  The purchase was completed in August 1989 and the first plaintiff assigned the dominant tenement with the benefit of the right of way to the second plaintiff in December 1997.

10.  From 1989, most of the partitioned land as well as part of Fourth Property were used as container yards, a road having been formed on Lot 43B1 being part of the Fourth Property.  However as it approached closer to Castle Peak Road, the road did not continue to proceed through the rest of Lot 43B1 and then through Lots 1271A, 1270A, 1312A and 1318RP (all of which formed part of the Fourth Property and which would have been the most direct route) to the government road to and from which access could be gained to Castle Peak Road.  For reasons unknown, to reach Castle Peak Road, it diverted in a north easterly direction through land that did not form part of the Fourth Property.

11.  In May 1997 the first defendant acquired part of the partitioned land that had belonged to the same original co-owner from whom the first plaintiff had acquired its property and also became one of the co-owners of the Fourth Property.

12.  In the third quarter of 2006 the first defendant filled in Lot 1318RP so that part of it came to be raised to the level of the adjoining government land and built an access on Lot 1318 RP and Lot 1312A (“the New Access”) rendering vehicular access possible from the adjoining government road to the road already formed on the Fourth Property before it diverged outside the Fourth Property.  Although the first defendant had erected hoardings along parts of the boundaries of the Fourth Property including the part where it adjoins the government road, it left and created an opening or entrance between Lot 1318RP and the adjoining government land to allow vehicular access.

13.  The first defendant caused a container to be placed on Lot 1318RP near the opening between the lot and the adjoining government land for personnel it employed to implement traffic control measures it imposed to regulate usage of the New Access.  In particular, container lorries and other long or heavy vehicles are denied access.

14.  For present purposes, the relevant defence to be considered is pleaded in paragraph 8 of the Defence as follows:

“…having regard to the relevant circumstances, including the matters pleaded in Paragraphs 2 and 6 above, the physical characteristics of the Fourth Property and the surrounding land at the time of and since the Deed of Partition, the physical extent and mode of the user of the Fourth Property, the Fourth Property …is not catered for container-lorry traffic.  Therefore, even if …the Plaintiffs were entitled to a right of way over the Fourth Property, the scope and extent of such right of way does not include container lorry traffic.”

The matters pleaded, inter alia, in paragraph 6 (8) to (10) relate to the physical characteristics of the New Access, the conduct of the first defendant since early 2007 and the traffic control and management measures adopted by it.

15.  In the court below, the first defendant sought to adduce the excluded evidence which pertains exclusively to “post-grant” physical conditions of the right of way and contended that it was relevant to the issues summarised by the judge in § 23 of his judgment:

“ (a)      it must have been the reasonably (sic) contemplation of the parties to the deed of partition that the authorized user must be proper and lawful and accords with the requisite standards applicable from time to time.  Expert evidence is relevant to this aspect;

  (b)      whether there has been excessive user which results in nuisance to and interference with the plaintiffs’ neighbours;

  (c)      the injunction sought by the plaintiffs is a discretionary relief.  Expert evidence is also relevant to this aspect.”

The judge rejected the first defendant’s contentions relating to all three grounds.

This appeal

16.  Mr Scott SC who appeared for the first defendant in this court (but not below) essentially addressed the court on the relevance of the excluded evidence to “excessive user” and “relief”.

17.  One additional matter raised was the seemingly “uneven treatment” on the part of the judge in that the order made, while excluding evidence from the first defendant’s expert on certain points, had the effect of allowing in evidence on the same points from the plaintiffs’ expert.  After a short adjournment, the matter was clarified between leading counsel.  It would appear that certain extracts from the evidence of the plaintiffs’ expert filed in rebuttal ought to have been omitted but had been overlooked.  In any event, the matter has been sorted out between the parties and is no longer an issue on this appeal.

18.  The right of way the plaintiffs are claiming is not along the whole of what has been described as the New Access which opens onto the adjoining government road through an opening created by the first defendant.  It is over the section that forms the continuation of the road formed on Lot 43B1 running in a southeasterly direction and in use since 1989 and then more or less in a straight line through Lots 1271A, 1270A, 1312 before making a slight right turn after it reaches 1318RP.  Instead of progressing along the rest of the so called New Access, the plaintiffs wish to continue through what is currently an obstruction, namely, the blue hoarding dividing Lot 1318RP from the adjoining government road onto that road.  The way claimed (which is over property forming part of the Fourth Property) would not involve having to make the sharp 90º turn to the right when it reaches Lot 1318RP and along 1318RP to reach the opening created by the first defendant.

Excessive user

19.  It is not disputed that the first issue for determination at the trial (assuming the grant is held to be valid) is the scope of the plaintiffs’ right of way.  That issue has to be decided by reference to circumstances existing at the time of the grant and the intention of the parties as to user to be ascertained from matters subsisting at that time.  The judge was of the view that if, as a matter of construction, the express grant permits vehicular access by container lorries and heavy vehicles including those exceeding 5.5 tonnes and 7 or even 11 m in length, “logically there cannot be any excessive user”.

20.  Mr Scott relied on Todrick v Western National Omnibus Company, Ltd [1934] Ch 190, 206 where Farwell J in considering the question of excessive user took into account “the circumstances of the case, the situation of the parties and the situation of the land at the time when the grant was made”.  But that was a case where there had been a change of user of the dominant tenement and the expert evidence related to whether structures on the servient tenement that had existed at the date of the grant were capable of accommodating the altered user.  Those matters do not arise in the present case and Todrick is of little assistance.

21.  Reference was also made to Prosperous Tone Ltd v Pearl Fame Development Ltd, unreported, CACV 1128 of 2001, 6 March 2002.  That was a decision of this court (differently constituted) on the scope of a right of way acquired by user, in circumstances where there was insufficient evidence of any express grant before the court.  In that case, the right of way was over a narrow and steep private road part of which was an access ramp built over and resting on a caisson and retaining wall.  In issue was whether the right extended to the use by 24 tonne trucks.  Mr Scott referred to the fact that in that case expert evidence was adduced, for example, relating to the design and loading of the caisson and retaining wall.  But that expert evidence was irrelevant.  In § 21 of the judgment, the dominant owner’s attempt “to extrapolate from the design loading of the caisson and retaining wall built in the mid-1970s … an inference that it reflected the extent of the right of way” was rejected as approaching the problem from “the wrong end … because the relevant inquiry is the nature and extent of the right as it existed at that time of the 1955 Memorandum rather than the design loading of what was constructed in the mid-1970s”.  In the present case, it would appear that the first defendant was also attempting to approach matters “from the wrong end”.  Since the New Access was not in existence at the time of the grant, expert evidence as to its characteristics and suitability for use by container lorries and long vehicles are plainly irrelevant to the determination of the scope of the right way.  In any event, the servient owner is not entitled to restrict or limit the scope and extent of a right of way granted by subsequent works it chose to carry out on its land.

22.  The expert evidence on design loading was also irrelevant to the excessive user aspect in Prosperous Tone.  The relevant evidence on that issue was nothing more than physical damage to the road that had occurred.  As explained in Gale on Easements, 17^th Ed at § 9-02, the approach and the applicable rules in determining the question of excessive user differ depending on whether the easement in question was acquired by user or by grant.  The extent of a right acquired by user is measured by the extent and purpose of user on which the acquisition of a right is based, but the extent of right acquired by grant depends on the terms of the grant properly construed in the light of all relevant factors.

23.  Mr Scott also prayed in aid the decision of the English Court of Appeal in Jelbert v Davis [1968] 1 WLR 589, 595D for the proposition that a right granted “at all time and for all purposes” is not a sole right but is a right “in common with all other persons having the like right.”  Accepting the correctness of that proposition for present purposes, it does not assist Mr Scott as it is not an issue that has arisen and, in any event, the excluded evidence has no bearing on that issue.  It should be mentioned that the land situated between the dominant tenement and the government road has not yet been developed but there appears to be a plan for a number of houses to be erected on it.

24.  The judge recognised that while it might be open to third parties who, unlike the first defendant, are not bound by the covenant to complain about nuisance, trespass etc., the first defendant is not in a position to do so.  In my view, that is plainly right.  In that context, the excluded evidence is simply irrelevant.

Relief

25.  As noted earlier, the plaintiffs seek the removal of the hoarding that divides Lot 1318RP from the adjoining government road so that that road could be accessed more or less in a straight line although there would be a slight right curve as the way crosses Lot 1318RP without the need for the 90º turn that the New Access involves.  It is the plaintiffs’ case that if after trial it is held that the right of way granted extends to container lorries exceeding 5.5 metric tons and 7 or even 11 m in length, then they must be allowed to exercise that right.  It is also the plaintiffs’ case that if the road should prove unsuitable or inadequate for such traffic, the plaintiffs are entitled to make such repairs including alterations to and improving the surface of the servient land to accommodate the right granted.  See Gale,op.cit. § 1-82 to 1-83.

26.  In his reply, Mr Scott queried the feasibility inasmuch as he suggested that the government road and Lot 1318RP were not level at the point where the plaintiffs wish to have access.  The photographs that are in the bundles are unhelpful in that regard.  The court was then referred to a topographic survey which records the principal datum.  Looking at that plan, it would appear that at the proposed point of access, the level at the boundary between the government road and 1318RP is marked 6.18 and the middle of the government road at that point is marked 6.21, a difference of a mere 3 cm.  It is also evident from that plan that the middle of the northwestern edge of Lot 1318RP (at or just after the so-called access ramp constructed on Lot 1312A) is marked 5.49 and rises as the New Access crosses Lot 1318RP to 6.08 at approximately 1 m from the boundary with the government road.  There is thus but a difference of roughly 13 cm in level between that point (6.08) and the middle of the government road.

27.  Plainly once the scope of the right of way granted has been determined it will lead to a more focused approach when it comes to the question of relief.  If the judge considered it necessary at that stage to have some assistance from the experts on specific aspects of the right of way, it would be open to him to give the necessary directions.  That would be an entirely different matter from letting in wholesale at this stage the excluded evidence since it is far from clear whether or not any, and if so which, part of the excluded evidence might render assistance.  That would be a matter for the trial judge once the issues have narrowed and a more focused approach can be adopted.

Conclusion

28.  For the reasons stated, I would dismiss this appeal.  I would also propose that there be an order nisi of costs in favour of the plaintiffs.

Hon A Cheung J:

29.  I agree.