LEE KOK CHE AND OTHERS v. ROYAL MORTGAGE LTD AND OTHERS

LEE KOK CHE AND OTHERS v. ROYAL MORTGAGE LTD AND OTHERS

On the evidence (uncontested), the Suit Access Road existed in substantially the same form since at least 1962, public and Plaintiff use was open, continuous and as of right for over 20 years with no credible objection by servient owners; expert evidence confirmed usability; accordingly plaintiffs acquired...

Source-derived case information.

Citation
[2023] HKCFI 648
Parties
1st Plaintiff: HAPPY DRAGON LIMITED; 2nd Plaintiff: FULLY KINGDOM LIMITED; 3rd Plaintiff: HERO LIMITED; 4th Plaintiff: CASDON MANAGEMENT LIMITED; 5th Plaintiff: LOYAL TRUTH CORPORATION LIMITED; 6th Plaintiff: BLISSFUL YEAR LIMITED; 7th Plaintiff: ROYAL MORTGAGE LIMITED; 5th Defendant: CASDON MANAGEMENT LIMITED; 6th Defendant: LOYAL TRUTH CORPORATION LIMITED; 7th Defendant: BLISSFUL YEAR LIMITED; 8th Defendant: 8th Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 March 2023
Case Number
HCA1308/2015
Procedural Posture
Easement / Right of Way Claim (land) / Judgment (court of First Instance)
Outcome
Declaration granted that 1st and 2nd Plaintiffs possess pedestrian and vehicular right of way over Suit Access Road; plaintiffs' claim against 6th Defendant permanently stayed with liberty to restore; Counterclaims of 5th and 7th Defendants dismissed; costs awarded to plaintiffs against certain defendants.
Legal Topics
Lost Modern Grant, Public Dedication and Acceptance, Right of Way, Stay of Proceedings, Bona Vacantia, Counterclaim Dismissal, Corporate Dissolution
Source Language
en
Property Easements Civil Procedure Company Law Lost Modern Grant Public Dedication and Acceptance Right of Way Stay of Proceedings +3 more

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Parties

HAPPY DRAGON LIMITED

1st Plaintiff

FULLY KINGDOM LIMITED

2nd Plaintiff

HERO LIMITED

3rd Plaintiff

CASDON MANAGEMENT LIMITED

4th Plaintiff

LOYAL TRUTH CORPORATION LIMITED

5th Plaintiff

BLISSFUL YEAR LIMITED

6th Plaintiff

ROYAL MORTGAGE LIMITED

7th Plaintiff

CASDON MANAGEMENT LIMITED

5th Defendant

LOYAL TRUTH CORPORATION LIMITED

6th Defendant

BLISSFUL YEAR LIMITED

7th Defendant

8th Defendant

8th Defendant

Procedural Posture

Easement / Right of Way Claim (land) / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether plaintiffs acquired pedestrian and vehicular right of way by lost modern grant
  2. 2 Whether plaintiffs' use was by express consent or met with objection by predecessors-in-title
  3. 3 Whether change of use or intensity extinguished easement (radical change / substantial increase in burden)

Ratio Decidendi

On the evidence (uncontested), the Suit Access Road existed in substantially the same form since at least 1962, public and Plaintiff use was open, continuous and as of right for over 20 years with no credible objection by servient owners; expert evidence confirmed usability; accordingly plaintiffs acquired pedestrian and vehicular easement by lost modern grant (and alternatively dedication and acceptance), the alleged change of use and illegality did not extinguish the easement, claim against the dissolved BVI-registered defendant (D6) is permanently stayed with liberty to restore, and certain counterclaims are dismissed.

Court Disposition

Declaration granted that 1st and 2nd Plaintiffs possess pedestrian and vehicular right of way over Suit Access Road; plaintiffs' claim against 6th Defendant permanently stayed with liberty to restore; Counterclaims of 5th and 7th Defendants dismissed; costs awarded to plaintiffs against certain defendants.

Orders

  • Declaration that 1st and 2nd Plaintiffs (and successors, tenants, licensees) are entitled to pedestrian and vehicular right of way through and along the whole of the Suit Access Road as delineated in Right of Way Plan LSC/YL/4973/An1/ROW1 and within specified lots annexed to judgment
  • Declaration that predecessors-in-title of the relevant servient tenements dedicated the Suit Land as a public highway, that members of the public accepted such dedication, and that the Government consented to such dedication, as against the 3rd,4th,5th,7th and 8th Defendants