TANG TIM FAT AND ANOTHER v. CHAN FOK KEI AND OTHERS

TANG TIM FAT AND ANOTHER v. CHAN FOK KEI AND OTHERS

Defendants failed to prove any legal right of way for vehicular traffic: prescription, presumption of a lost modern grant and the Prescription Act 1832 do not operate to create such a right between lessees of Crown leases in Hong Kong absent fee simple proprietorial involvement; dedication to the public requires consent of the fee simple owner and cannot be presumed against lessees alone; easement of necessity for vehicular traffic was not established given the historical character of the grant. Consequently the defendants have no vehicular right of way; a pedestrian footpath easement was conceded and stands; the 1st plaintiff lacks locus to pursue injunctive relief after surrender of the...

Citation
TANG TIM FAT AND ANOTHER v. CHAN FOK KEI AND OTHERS
Parties
1st Plaintiff: Tang Tim Fat; 2nd Plaintiff: Brightmore Development Limited; 1st Defendant: Chan Fok Kei; 2nd Defendant: Wu Lin Hor (personal representative to the estate of Wu Moon Hing deceased); 3rd Defendant: Wu Siu Hing sued as Wu Shu Hing; 4th Defendant: Wu Choi Hing sued as Wu Tsoi Hing
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 November 1992
Case Number
HCA7338/1989
Procedural Posture
Land Dispute: Trespass and Easement Claim / High Court Judgment (trial)
Outcome
Plaintiffs' claims for a vehicular right of way dismissed; concession of pedestrian footpath easement upheld; 1st plaintiff's claims for injunctions, declarations and damages dismissed for lack of locus standi and failure to prove loss; 2nd plaintiff's declaration claims dismissed; defendants' alternative claims for...
Legal Topics
Lost Modern Grant, Prescription Act 1832, Dedication to the Public, Easement by Necessity, Application of English Law in Hong Kong, Crown Leases
Source Language
EN
Property Law Easements Prescription Trespass Public Rights of Way Lost Modern Grant Prescription Act 1832 Dedication to the Public +3 more

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Parties

Tang Tim Fat

1st Plaintiff

Brightmore Development Limited

2nd Plaintiff

Chan Fok Kei

1st Defendant

Wu Lin Hor (personal representative to the estate of Wu Moon Hing deceased)

2nd Defendant

Wu Siu Hing sued as Wu Shu Hing

3rd Defendant

Wu Choi Hing sued as Wu Tsoi Hing

4th Defendant

Procedural Posture

Land Dispute: Trespass and Easement Claim / High Court Judgment (trial)

Legal Issues

  1. 1 Whether a right of way for vehicular traffic was acquired by prescription (common law or under Prescription Act 1832)
  2. 2 Whether a presumption of a lost modern grant supports a vehicular right of way between lessees of Crown leases in Hong Kong
  3. 3 Whether a public right of way arose by dedication to the public

Ratio Decidendi

Defendants failed to prove any legal right of way for vehicular traffic: prescription, presumption of a lost modern grant and the Prescription Act 1832 do not operate to create such a right between lessees of Crown leases in Hong Kong absent fee simple proprietorial involvement; dedication to the public requires consent of the fee simple owner and cannot be presumed against lessees alone; easement of necessity for vehicular traffic was not established given the historical character of the grant. Consequently the defendants have no vehicular right of way; a pedestrian footpath easement was conceded and stands; the 1st plaintiff lacks locus to pursue injunctive relief after surrender of the...

Court Disposition

Plaintiffs' claims for a vehicular right of way dismissed; concession of pedestrian footpath easement upheld; 1st plaintiff's claims for injunctions, declarations and damages dismissed for lack of locus standi and failure to prove loss; 2nd plaintiff's declaration claims dismissed; defendants' alternative claims for...

Orders

  • 1st plaintiff's claims for injunction, declarations and damages dismissed with costs
  • 2nd plaintiff's declaratory claims dismissed