CHINA MERCHANTS KIN SWISS TRANSPORTATION CO LTD AND ANOTHER v. TREASURE WISE LTD AND OTHERS

CHINA MERCHANTS KIN SWISS TRANSPORTATION CO LTD AND ANOTHER v. TREASURE WISE LTD AND OTHERS

The court held clause 4 constituted a valid easement enforceable by the plaintiffs against the 1st defendant; the surrounding conveyancing context and absence of reliable evidence of prohibitive physical impediments established the grant covered access by container/heavy vehicles for use of plaintiffs' land as container yards; D1's erection of hoardings, creation of the New Access and traffic control to deny heavy vehicles breached clause 4; accordingly injunction and damages were awarded and D1's counterclaim dismissed.

Citation
CHINA MERCHANTS KIN SWISS TRANSPORTATION CO LTD AND ANOTHER v. TREASURE WISE LTD AND OTHERS
Parties
1st Plaintiff: China Merchants Kin Swiss Transportation Company Limited; 2nd Plaintiff: Orienture Industries Limited; 1st Defendant: Treasure Wise Limited; 2nd Defendant (discontinued): Luen Fat Tannery Limited; 3rd Defendant (discontinued): Luen Tai Leather Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 November 2008
Case Number
HCA344/2007
Procedural Posture
Civil Property (easement) / Judgment on Liability and Relief (court of First Instance)
Outcome
Judgment for plaintiffs; 1st defendant found to have breached clause 4; 1st defendant's counterclaim dismissed
Legal Topics
Right of Way, Scope of Easement, Quasi Easement, Construction of Grant, Admissibility of Expert Evidence, Injunctive Relief, Damages
Source Language
EN
Property Law Easements Injunctions Civil Procedure Evidence (expert) Right of Way Scope of Easement Quasi Easement +4 more

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Parties

China Merchants Kin Swiss Transportation Company Limited

1st Plaintiff

Orienture Industries Limited

2nd Plaintiff

Treasure Wise Limited

1st Defendant

Luen Fat Tannery Limited

2nd Defendant (discontinued)

Luen Tai Leather Company Limited

3rd Defendant (discontinued)

Procedural Posture

Civil Property (easement) / Judgment on Liability and Relief (court of First Instance)

Legal Issues

  1. 1 Whether an express easement (clause 4) was valid as between the plaintiffs and 1st defendant despite prior common ownership
  2. 2 Whether the scope of the express grant includes access by container trucks/heavy vehicles
  3. 3 Whether alleged physical obstacles at time of grant (slopes, bottlenecks) limited the scope of the grant

Ratio Decidendi

The court held clause 4 constituted a valid easement enforceable by the plaintiffs against the 1st defendant; the surrounding conveyancing context and absence of reliable evidence of prohibitive physical impediments established the grant covered access by container/heavy vehicles for use of plaintiffs' land as container yards; D1's erection of hoardings, creation of the New Access and traffic control to deny heavy vehicles breached clause 4; accordingly injunction and damages were awarded and D1's counterclaim dismissed.

Court Disposition

Judgment for plaintiffs; 1st defendant found to have breached clause 4; 1st defendant's counterclaim dismissed

Orders

  • Injunction granted in terms of the plaintiffs' amended statement of claim (per draft minutes of order submitted) restraining 1st defendant from interfering with plaintiffs' right of way and related works as specified therein
  • Damages awarded to plaintiffs: HKD 126000, HKD 168000, HKD 4000, HKD 28000 and HKD 1350 for specified losses and expenses