CHEUNG YUK YING v. THE PERSONAL REPRESENTATIVE of LO KOON FUK as MANAGER of LOA TSIT (or TSIP) HEUNG TSO AND ANOTHER

CHEUNG YUK YING v. THE PERSONAL REPRESENTATIVE of LO KOON FUK as MANAGER of LOA TSIT (or TSIP) HEUNG TSO AND ANOTHER

On the totality of the aerial photographic, survey and oral evidence the Way had been used on a reasonably regular basis from at least the mid‑1940s to the present, openly and without permission; lost modern grant was therefore established and the Plaintiff was entitled to a declaration of an easement/right of way and a permanent injunction; the counterclaim for trespass in relation to pipes had no merit and was dismissed.

Citation
CHEUNG YUK YING v. THE PERSONAL REPRESENTATIVE of LO KOON FUK as MANAGER of LOA TSIT (or TSIP) HEUNG TSO AND ANOTHER
Parties
Plaintiff (original Action): Cheung Yuk Ying; 1st Defendant; 1st Plaintiff by Counterclaim: The Personal Representative of Lo Koon Fuk as Manager of Loa Tsit Heung Tso; 2nd Defendant; 2nd Plaintiff by Counterclaim: Law (or Lo) Kin On; 2nd Defendant by Counterclaim (co Owner): Cheung Ka Wah Danny; 3rd Defendant by Counterclaim (co Owner): Cheung Suk Ying
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 June 2013
Case Number
HCA1127/2006
Procedural Posture
Civil Property Dispute (easement/right of Way) / Judgment at Trial (court of First Instance)
Outcome
Judgment for the Plaintiff: declaration that Plaintiff entitled to easement/right of way over the Way; interlocutory injunction continued and made permanent; counterclaim dismissed.
Legal Topics
Easement, Right of Way, Lost Modern Grant, Prescription, Proprietary Estoppel, Injunction, Trespass, Costs
Source Language
EN
Property Law Land Law Equity Civil Procedure Tort Easement Right of Way Lost Modern Grant +5 more

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Parties

Cheung Yuk Ying

Plaintiff (original Action)

The Personal Representative of Lo Koon Fuk as Manager of Loa Tsit Heung Tso

1st Defendant; 1st Plaintiff by Counterclaim

Law (or Lo) Kin On

2nd Defendant; 2nd Plaintiff by Counterclaim

Cheung Ka Wah Danny

2nd Defendant by Counterclaim (co Owner)

Cheung Suk Ying

3rd Defendant by Counterclaim (co Owner)

Procedural Posture

Civil Property Dispute (easement/right of Way) / Judgment at Trial (court of First Instance)

Legal Issues

  1. 1 Whether the Way is an easement/right of way benefiting the Plaintiff's land
  2. 2 Whether an easement could be acquired by lost modern grant or implication on statutory re-grant/extension
  3. 3 Whether prescription or estoppel established an easement

Ratio Decidendi

On the totality of the aerial photographic, survey and oral evidence the Way had been used on a reasonably regular basis from at least the mid‑1940s to the present, openly and without permission; lost modern grant was therefore established and the Plaintiff was entitled to a declaration of an easement/right of way and a permanent injunction; the counterclaim for trespass in relation to pipes had no merit and was dismissed.

Court Disposition

Judgment for the Plaintiff: declaration that Plaintiff entitled to easement/right of way over the Way; interlocutory injunction continued and made permanent; counterclaim dismissed.

Orders

  • Declaration in terms of Prayer 1 of the Statement of Claim that the Plaintiff is entitled to a right of way over the Way
  • The interlocutory injunction granted on 22 September 2006 is continued and made permanent restraining the defendants from hindering or obstructing the Plaintiff's use of the Way