CHAN TIN YAU AND OTHERS v. TSANG KWOK KAY

Date of Hearing:  26 January 2007

Date of Handing Down Decision:  9 February 2007

_____________

D E C I S I O N

_____________

Introduction

1.  The outcome of this action was stated in a judgment handed down on 6 November 2006 (“the Nov 06 judgment”):-

“I enter judgment in the plaintiffs’ favour (the plaintiffs’ claim that the defendant caused flooding to the alleged right of way by raising the ground beside it is not disputed in evidence, and not dealt with in closing submission) and dismiss the counterclaim” (para. 92 thereof).

2.  The parties were left to agree to the precise terms of the order(s) to be made, but (before the hearing) they failed to reach agreement as regards most of the relief sought by the plaintiffs.

3.  However, by the end of the hearing on 26 January 2007, only the following parts of the prayer for relief are still in dispute:-

(a)     an order for the said nullah (defined in para. 6 to 8 below) including any damaged water pipes embedded therein to be repaired by the defendant; alternatively, the plaintiffs be permitted to repair the same or cause the same to be repaired to avoid flooding in future (para. (4) thereof);

(b)    an order for the said nullah to be covered properly by the defendant or for the same to be effected by the plaintiffs (para. (5) thereof).

4.  Hence, the need for this decision.

Background leading to this Application

5.  The factual background has already been set out in the Nov 06 judgment.  Only those facts which may assist the understanding of this decision will be repeated.

6.  The defendant’s land is registered as Lot No. 1363 Remaining Portion in Demarcation District No. 112 (“the suit property”).  Physically, it is located in Shui Tsan Tin Tsuen village.

7.  The suit property’s position is such that vehicular access to an area known as the village bottom area from Kam Sheung Road (the main trunk road) has to make use of a strip of land running along the north and north-western boundary of the suit property.  This has been called “the alleged right of way” in the Nov 06 judgment.

8.  Immediately next to the alleged right of way is a nullah, inside which run some water and other pipes (“the said nullah”).  Relative to the alleged right of way, the said nullah is closer to the boundary of the suit property; parts of it actually lies outside the suit property.

9.  The said nullah has been referred to in the statement of claim.  The relevant averments are:-

“… the Defendant … wrongfully caused considerable amount of sand, mud, broken pieces of stone slab to fall into [the said nullah] … ” (para. (2), particulars to para. 14);

“As the stone slabs which used to cover [the said nullah] were removed, [the said nullah] had since become and remained open.  The water pipes supplying water to the residents in Shui Tsan Tin Tsuen embedded inside [the said nullah] had likewise become exposed.  Some of the water pipes were damaged by the broken slabs fallen into [the said nullah] and those not yet damaged are subject to the risk of being damaged ... ” (para. (5), particulars to para. 14).

10.  Evidence relating to the said nullah has been adduced through the witness statement and affirmation of the first plaintiff (“P1”).  There is, however, nothing in the evidence adduced by the defence to refute this piece of evidence.  Further, despite the meticulous cross-examination, this aspect has not been dealt with by defence counsel formerly instructed to conduct the trial.  The parties’ written final submissions did not address this aspect.  As a result, the said nullah has not been specifically dealt with in the Nov 06 judgment.

The Defendant’s Grounds of Objection

11.  The defendant’s grounds of objection are twofold: insufficiency of pleading and inadequacy of evidence.

12.  The first ground of objection can be summarized as follows.  The statement of claim is based only on a claim of right of way.  Para. 14, statement of claim supports this argument.  It reads:-

“… it is unjust and unconscionable for the Defendant to deny the Plaintiffs and the said villagers the exercise of the said right of way … ”.

The averments quoted in para. 9 above are merely particulars given for the above plea.

13.  On the other hand, a right to enter another person’s land to lay pipes and drains (and to repair and/or maintain the same) is in law often regarded as an easement: see, for example, Sara: Boundaries and Easements (2002), para. 21.16, 21.17 and 21.21 and Wilkinson: Pipes, Mains, Cables & Sewers (1989) 5^th Ed., especially pp. 13 to 16.  Such a right is a kind of easement different from a right of way.

14.  In relation to the second ground of objection, the defendant points out that the plaintiffs have failed to adduce any evidence as to precisely when the said nullah and/or the pipes and drains were placed within the boundary of the suit property.

15.  The plaintiffs disagree with both grounds of objection.  But insofar as may be necessary, they will seek leave to amend the statement of claim to remedy any pleading defect.

16.  As regards evidence of the said nullah, the plaintiffs also rely on exhibit “D2” (apart from P1’s testimony).  This is an aerial photograph produced by the defendant (and agreed by the parties to have been taken in November 1978).  It has already been referred to in para. 51, the Nov 06 judgment in connection with the alleged right of way.  The said nullah was clearly visible in this exhibit.  Hence, the said nullah must have come into existence before November 1978.

17.  Another exhibit “D1” is an aerial photograph, also produced by the defendant, but taken in February 1973.  Unfortunately, due to the scale of the photograph, whether the said nullah already existed then cannot be satisfactorily ascertained from the exhibit.

18.  In resolving the dispute relating to pleading, the most important point to note is that, at least up to the end of the trial, the parties (and consequently the court) have not made any distinction between the alleged right of way and the said nullah.  Details of that have been set out in para. 10 above and will not be repeated.

19.  It should also be noted the defendant has, through counsel appearing in this application, accepted the plaintiffs can enter and repair or maintain the said nullah and/or pipes and drains therein.  But the defendant maintains this is only a voluntary concession, and is not an admission that the plaintiffs are entitled to any relief in this regard.

20.  With the above matters in mind, this is a case where my discretion should be exercised to give leave to the plaintiffs to amend their statement of claim to enable them to rely on a claim based on easement in relation to the said nullah.

21.  In addition, based on P1’s testimony (which I accept) and exhibit “D2”, I am entitled to, and should, infer that the said nullah came into existence round about the same time as the alleged right of way.  To the extent necessary to do so, the same findings as those set out in para. 76 to 78, 81 to 85 and 86 to 87, the Nov 06 judgment are made in relation to the said nullah.

Terms of Order

22.  Accordingly, the following orders are made in relation to the said nullah:-

(1)     the defendant, whether by himself, his relatives, servants or agents, or any of them howsoever, do permit the plaintiffs, whether by themselves, their servants or agents, or any of them howsoever, to repair and/or maintain the nullah more particularly delineated in yellow in the plan annexed to this order (and/or the pipes and/or drains therein) (“the said nullah”);

(2)     the defendant, whether by himself, his relatives, servants or agents, or any of them howsoever, do permit the plaintiffs, whether by themselves, their servants or agents, or any of them howsoever, to cover the said nullah in a manner not inconsistent with the use of the Access Road for the purpose and in the manner set out in this order.

Costs

23.  The parties request that arguments relating to the costs of this application be put forth after the pronouncement of this decision.  For that reason, nothing further will be said about this at present.

Date of Hearing:  14 September 2006

Date of Ruling:  14 September 2006

Date of Hearing:  12 September 2006

Date of Ruling:  12 September 2006

___________

R U L I N G

___________

1.  This is the ruling on the defendant’s application in effect for leave to re-open the examination-in-chief of DW1 曾國洪.  In short, defence counsel wants to elicit evidence from DW1 regarding the contents of a video tape, exhibited as “TKH-7” to the affirmation of DW1 dated 28 April 1999.  This is opposed by the plaintiffs.

2.  The grounds of opposition are as follows:-

(1) the plaintiffs’ witnesses were not cross-examined regarding the tape when they testified.  To allow the defence to elicit evidence regarding it after the plaintiffs have closed their case is procedurally unfair because effectively this would deprive them of the opportunity to properly deal with the matter;

(2) further to (1) above, the defence has never indicated (whether by way of correspondence, or by including the tape in the bundles for use at trial) that it will be referred to at trial;

(3) not only has the examination-in-chief of DW1 been completed, he is already being cross-examined.

3.  Defence counsel disagrees with all the above grounds.  She contends that:-

(a) there was no need to cross-examine the plaintiffs’ witnesses regarding the tape and no procedural unfairness has arisen or will arise;

(b) it is the plaintiffs’ own fault not to include the tape in the trial bundles.  They should acquaint themselves with all the documents (including the tape) which were disclosed by the defence during discovery;

(c) the right to further examine DW1 has impliedly been reserved when defence counsel indicated earlier during trial that the defence wishes to have the tape played in court later.

4.  In short, I agree with the grounds put forth by the plaintiffs in opposition to this application and disagree with those put forth by the defence.

5.  In particular, during the course of the trial, the defence has already on several occasions added new materials to the trial bundles without prior notice to the plaintiffs.  Plaintiffs’ counsel have been accommodating in not objecting to those earlier additions.

6.  One of the purposes of preparing trial bundles is to put the litigants and court on notice of the materials which will be referred to at trial.  Efforts should be made to compile agreed bundles.  But in the absence of agreement, each litigant can prepare his own trial bundle(s) which (at least appear to him) contain materials which need to be adduced before the court.  The defence has not done so in this action.

7.  I also disagree with defence counsel’s contention that the right to further examine DW1 has impliedly been reserved.  What has been indicated earlier was only an intention to play the tape in court.  There was no mention of eliciting further evidence from DW1 when the tape is played.

8.  By reason of the above matters, I will refuse this application.

Date of Hearing:  5 September 2006

Date of Decision:  5 September 2006