KUNG MING TAK TONG CO LTD v. PARK SOLID ENTERPRISES LTD AND ANOTHER

cacv 227/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 227 of 2005

(on appeal from hca NO. 1926 of 2001)

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.  This was an application by the plaintiff for leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance.  At the conclusion of the hearing, leave was refused with costs.  The reasons appear below.

2.  The point of law said to be of great general or public importance is the following:

“Whether in Hong Kong the law in relation to easements including the doctrine of Wheeldon v Burrows applies by analogy to land held under co-ownership (including those in multi-storey buildings) with necessary modification so that in cases where a deed of mutual covenant and/or sub deed of mutual covenant exists the test for any implied term (in so far as quasi-easements and/or similar rights are concerned) of such deed(s) is less than ‘necessary’ and is the same as the common law regarding creation of easements by implication including the doctrine of non-derogation from grant.”

3.  The background fully appears from paragraphs 2 to 28 of the judgment of Yuen JA dated 12 March 2007 to which reference should be made.  The plaintiff’s case as argued in this court was based on an implied grant of an easement of right of way under the rule in Wheeldon v Burrows.  As appears from paragraph 40 of the judgment, the plaintiff’s leading counsel argued that as the right to exclusive possession was part of an owner’s proprietary rights, an owner can grant an easement over the right to exclusive possession only, and that would get over the requirement for separately-owned dominant and servient tenements.  In Chiu Shu Choi v Merrilong Dyeing Works Ltd [1990] 1 HKLR 385, this court (Cons, Fuad and Kempster JJA) held that the concept of easements does not apply to multi-storeyed buildings where owners have equal undivided shares in the land.  Such co-owners can only govern rights and obligations over the use of areas in their exclusive possession through covenants and not easements.  That decision is binding on this court.

4.  Mr Chain (who did not appear below or at the hearing of the appeal) submitted that in construing the deed of mutual covenant, a term can be implied by analogy with the rule in Wheeldon v Burrows.  But that was not how the Wheeldon v Burrows point was argued in this court and so had not been considered in its judgment.  Mr Chain readily acknowledged that the point of law said to be of great general or public importance is, in essence, a new point which the plaintiff wishes to take on appeal.  In those circumstances, I do not consider it appropriate for this court to grant leave under section 22(1)(b).  Whether the plaintiff should be allowed to take the new point and whether it is one that raises a matter of great general or public importance would be matters that fall to be decided by the Court of Final Appeal itself.

5.  It should be mentioned that Mr Chain submitted that costs of the application before this court should be costs in the cause of the appeal to the Court of Final Appeal.  Where a party is unsuccessful in his application in this court for leave to appeal to the Court of Final Appeal, the usual order is that costs should follow the event.  I see no basis to depart from that general rule in the present case.  Even if the plaintiff were to be successful in persuading the Court of Final Appeal that it should be granted leave to argue the new point on appeal, it would not necessarily follow that the order of this court that the costs of the application before this court be borne by the plaintiff should be reversed.

Hon Yuen JA:

6.  I agree.

Hon Chu J:

7.  I agree.