Hong Kong Case Law: Decisions & Judgments

Topic

Wheeldon v burrows

Legal area

Court

28 Feb 2023

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

Citation

[2023] HKCA 270
Court

Court of Appeal
Case number

CACV326/2021

The Court of Appeal construed the 2005 Deed as acknowledging and preserving existing mutual pedestrian and vehicular rights of way over the Side Road such that plaintiffs have pedestrian and vehicular easements over the Side Gate; the 2006 Deed did not create a vehicular right over the Main Road because it expressly covered only specified parcels and the context (designated car parks and omitted parcels) precluded a vehicular easement by construction or implied grant; withholding of smart key cards from 21 July 2013 to 15 November 2013 unjustifiably interfered with plaintiffs' pedestrian ease…
29 Mar 2018

HAU CHO SHING v. HAU CHI WING AND OTHERS

Citation

[2018] HKCFI 686
Court

Court of First Instance
Case number

HCA167/2016

The defendants' strike-out application in respect of the Easement Claim is dismissed because it is arguable that s16 C&PO permits appurtenant easement rights to pass with an assignment notwithstanding attempts to prevent enjoyment immediately before assignment, disputed factual issues (tenancy, exclusivity, alleged collusion) cannot be resolved on strike-out, and the allegations of frivolousness, abuse and unclean hands are not sufficiently established to defeat the claim; consequently the application to discharge paragraph 2 of the interlocutory injunction also fails on the evidence presente…
12 Feb 2018

WONG PUI WAN v. WONG WING KWONG AND OTHERS

Citation

[2018] HKDC 160
Court

District Court
Case number

DCCJ118/2014

Court held defendants acquired exclusive possession and animus in respect of the area of the disputed hut such that the plaintiff's title to that parcel was extinguished under section 17 Limitation Ordinance; defendants failed to show exclusive possession of the adjacent open space and failed to establish any easement or right of way at Points 1-3 (claims on Wheeldon/prescription grounds were untenable or unpleaded and government land issues meant wrong defendant).
10 Feb 2009

WONG CHUNG MING DEVELOPMENT FUND CO LTD v. PROFIT SURPLUS LTD

Citation

WONG CHUNG MING DEVELOPMENT FUND CO LTD v. PROFIT SURPLUS LTD
Court

Court of Appeal
Case number

CACV239/2008

The appeal was dismissed because the judge correctly found that the defendant had a serious question to be tried on entitlement to use the private sewer and that damages would not be an adequate remedy given the prospect of a completed building being unusable, deteriorating and causing non-quantifiable losses; on balance of convenience the interlocutory injunction preventing the plaintiff from obstructing the defendant's connection was properly granted and there was no dispositive delay.
3 Dec 2008

YEUNG YU CHUNG AND ANOTHER v. BASE KEEN INVESTMENTS LTD AND OTHERS

Citation

YEUNG YU CHUNG AND ANOTHER v. BASE KEEN INVESTMENTS LTD AND OTHERS
Court

Court of Appeal
Case number

CACV204/2008

The injunction was discharged and the order granting interim relief set aside because plaintiffs could not demonstrate a serious issue to be tried: objective evidence (aerial photographs and plans) showed the Second Road did not exist for the required 20-year period and the plaintiffs' easement claims (prescription, Wheeldon v Burrows, necessity, public dedication) were untenable; indemnity costs were awarded against the second plaintiff for deliberate falsehood in pleadings and evidence selection.
23 Sept 2008

WONG CHUNG MING DEVELOPMENT FUND CO LTD v. PROFIT SURPLUS LTD

Citation

WONG CHUNG MING DEVELOPMENT FUND CO LTD v. PROFIT SURPLUS LTD
Court

Court of First Instance
Case number

HCA335/2008

Court concluded plaintiff demonstrated a high likelihood of success on appeal because the learned judge erred in factoring speculative rerouting and related considerations into the adequacy of damages and balance of convenience; accordingly an interim stay of execution of the interlocutory injunction was granted pending determination of the appeal, subject to plaintiff's undertaking to expedite the appeal and costs directions.
6 Sept 2007

RE JOHN McDONNELL QC

Citation

RE JOHN McDONNELL QC
Court

Court of First Instance
Case number

HCMP1532/2007

The court granted admission under s27(4) LPO because the application for leave to the Court of Final Appeal was a substantial matter and the applicant's expertise and experience in land matters meant he could make a significant contribution; the size of the local senior counsel pool and incomplete detail about enquiries did not outweigh the CFA factor; accordingly the applicant was approved, admitted and enrolled to practice for the specified CFA hearing.
26 Jun 2007

KUNG MING TAK TONG CO LTD v. PARK SOLID ENTERPRISES LTD AND ANOTHER

Citation

KUNG MING TAK TONG CO LTD v. PARK SOLID ENTERPRISES LTD AND ANOTHER
Court

Court of Appeal
Case number

CACV227/2005

Leave to appeal was refused because the point relied on was essentially a new point not argued below and therefore inappropriate for this court to grant leave under s22(1)(b); additionally, binding authority (Chiu Shu Choi) establishes that easements do not apply to multi-storey co-ownership and rights are governed by covenants, undermining the plaintiff's Wheeldon-based claim.
15 Jun 2007

LOYAL LUCK TRADING LTD v. TAM CHUN WAH

Citation

LOYAL LUCK TRADING LTD v. TAM CHUN WAH
Court

Court of First Instance
Case number

HCMP444/2006

The court held that a vehicular right of way over the Defendant's land arose by implication under the rule in Wheeldon v Burrows at the latest on 31 January 2000 (and could likewise have arisen by operation of s16 CPO); the alleged prior illegality did not prevent creation or enforcement of the easement where the Plaintiff did not have to rely on the illegality to establish the right; the claimed easement was not excessive so as to deprive the Defendant of reasonable use; accordingly declaration and injunction were granted.
7 Jul 2001

KUNG MING TAK TONG CO. LTD. v. PARK SOLID ENTERPRISES LTD. AND ANOTHER

Citation

KUNG MING TAK TONG CO. LTD. v. PARK SOLID ENTERPRISES LTD. AND ANOTHER
Court

Court of First Instance
Case number

HCA1926/2001

The court held there is a serious question to be tried that an easement/right of way over the existing entrance lobby may have arisen by implication or otherwise, that construction of a new shop would substantially interfere with that right and cause irreparable or hard-to-quantify loss so that damages are inadequate, and that the balance of convenience favors maintaining the status quo; no material non-disclosure justified discharge of the ex parte injunction; given the apparent association between the 1st and 2nd Defendants the injunction should run against both.