CHENG SING KEUNG AND ANOTHER v. CHAN KA HAY AND OTHERS

CHENG SING KEUNG AND ANOTHER v. CHAN KA HAY AND OTHERS

Plaintiffs failed to establish proprietary estoppel, implied grant or that the 2005/2006 Deeds conferred vehicular rights; the 2006 Deed did not cover the whole route and could not be construed to create the vehicular easement claimed; the 2005 Deed was a grant to Sino Favour only; necessity did not apply; plaintiffs have a pedestrian easement over the Main Gate (Lots 485RP, 482P and 482O) but no vehicular easement; the 12th defendant's counterclaim for management fees failed because the 2006 Management Agreement required written authorisation from the MAC to commence legal proceedings and no such authorisation was proven.

Citation
[2021] HKCFI 1509
Parties
1st Plaintiff: Cheng Sing Keung; 2nd Plaintiff: chan wai fun; 1st Defendant: chan ka hay; 2nd Defendant (discontinued): Ng Chi Chun; 3rd Defendant: Kong Fung Chun; 4th Defendant: Rich Billion Development International Limited; 5th Defendant (discontinued): Wong Shu Fat; 6th Defendant (discontinued): Wong Yin Lan Teresa; 7th Defendant (discontinued): Li Yun Kwong; 8th Defendant: Tsui Yin Fong Molly; 9th Defendant: Lau Pak Hin Raymond; 10th Defendant (stayed): Or Yan Tat Kelvin; 11th Defendant (discontinued): Lui Kwan Yan Fanny; 12th Defendant: Yick Tat Property Management Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 May 2021
Case Number
HCA2164/2013
Procedural Posture
Civil Action (high Court of the Hong Kong Sar, Court of First Instance) / Trial (judgment Delivered 28 May 2021)
Outcome
Declaration that plaintiffs have pedestrian right of way over Main Gate (Lots 485RP, 482P and 482O); all other claims dismissed; counterclaim dismissed.
Legal Topics
Rights of Way, Easement, Proprietary Estoppel, Implied Grant (wheeldon V Burrows), Construction of Deeds, Management Agreement, Managerial Authorisation, Nuisance/interference
Source Language
EN
Property Law Easements Land Law Equity Contract Law Building Management Rights of Way Easement +6 more

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Parties

Cheng Sing Keung

1st Plaintiff

chan wai fun

2nd Plaintiff

chan ka hay

1st Defendant

Ng Chi Chun

2nd Defendant (discontinued)

Kong Fung Chun

3rd Defendant

Rich Billion Development International Limited

4th Defendant

Wong Shu Fat

5th Defendant (discontinued)

Wong Yin Lan Teresa

6th Defendant (discontinued)

Li Yun Kwong

7th Defendant (discontinued)

Tsui Yin Fong Molly

8th Defendant

Lau Pak Hin Raymond

9th Defendant

Or Yan Tat Kelvin

10th Defendant (stayed)

Lui Kwan Yan Fanny

11th Defendant (discontinued)

Yick Tat Property Management Company Limited

12th Defendant

Procedural Posture

Civil Action (high Court of the Hong Kong Sar, Court of First Instance) / Trial (judgment Delivered 28 May 2021)

Legal Issues

  1. 1 Whether plaintiffs have pedestrian and/or vehicular rights of way over the Main Gate
  2. 2 Whether plaintiffs have pedestrian and/or vehicular rights of way over the Side Gate
  3. 3 Whether proprietary estoppel arises from brochure and physical layout

Ratio Decidendi

Plaintiffs failed to establish proprietary estoppel, implied grant or that the 2005/2006 Deeds conferred vehicular rights; the 2006 Deed did not cover the whole route and could not be construed to create the vehicular easement claimed; the 2005 Deed was a grant to Sino Favour only; necessity did not apply; plaintiffs have a pedestrian easement over the Main Gate (Lots 485RP, 482P and 482O) but no vehicular easement; the 12th defendant's counterclaim for management fees failed because the 2006 Management Agreement required written authorisation from the MAC to commence legal proceedings and no such authorisation was proven.

Court Disposition

Declaration that plaintiffs have pedestrian right of way over Main Gate (Lots 485RP, 482P and 482O); all other claims dismissed; counterclaim dismissed.

Orders

  • Declaration: 1st and 2nd plaintiffs and their assigns, successors-in-title and tenants with servants and licensees have pedestrian right of way over Main Gate located in Lots 485RP, 482P and 482O.
  • All other claims by plaintiffs dismissed (no vehicular right of way over Main Gate; no rights over Side Gate as claimed).