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Chatham Industries Ltd v The Incorporated Owners Of Gold King Industrial Building And Another

Judgment Cited authorities 5 Cited in 1 Precedent Map Related
Vincent
Judgment Date04 May 2011
Year2011
Citation[2011] 3 HKLRD 140
Judgement NumberCACV252/2010
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV252/2010 CHATHAM INDUSTRIES LTD v. THE INCORPORATED OWNERS OF GOLD KING INDUSTRIAL BUILDING AND ANOTHER

CACV 252/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 252 OF 2010

(ON APPEAL FROM HCA No. 1603 OF 2007)

________________________

BETWEEN

CHATHAM INDUSTRIES LIMITED Plaintiff
and
THE INCORPORATED OWNERS OF
GOLD KING INDUSTRIAL BUILDING		 1st Defendant
SYNERGIS MANAGEMENT SERVICES LIMITED
 2nd Defendant

________________________

Before : Hon Cheung, Fok JJA and Chu J in Court

Date of Hearing : 15 April 2011

Date of Judgment : 4 May 2011

________________________

J U D G M E N T

________________________

Hon Cheung JA :

1. This appeal is concerned with a dispute over the use of a private road situated between two industrial buildings in Kwai Chung, Tsuen Wan. The incorporated owners of Gold King Industrial Building (‘Gold King Industrial Building’) are the owners of the private road over which a right of way has been granted to the owners of South China Cold Storage Building (‘South China Cold Storage Building’).

The background

2. In 1965, South China Building Materials Limited (‘SCBM’) and Pickford Development Limited (‘Pickford’) were the registered owners of the land known as Lot 702 in DD 445 located in Tsuen Wan, New Territories. Lot 702 was subsequently sub-divided into three smaller lots, namely Lot 702A, Lot 702B and Lot 702RP but they remained in the ownership of SCBM and Pickford. On 14 August 1969 they surrendered Lot 702B to the authorities in exchange for KCTL Lot No. 111 (‘Lot 111’). It is not challenged that Lot 111 is situated in the same location as Lot 702B.

South China Cold Storage Building

3. The owners sub-divided Lot 111 into two parts, namely Lot 111 SA and Lot 111 RP. By 5 February 1970, South China Cold Storage Building, was constructed on Lot 111 SA. The building consisted of six levels, namely, the basement, lower ground floor, ground floor, first, second and third floors. There are :

(1) five cold storage rooms in the basement;

(2) five cold storage rooms, a store and a plant room on the lower ground floor;

(3) two factory working areas each on the ground, first and second floor; and

(4) a factory working area on the third floor.

4. The building is built on a slope. The main entrance (‘the Entrance’) to the building is on the ground floor. Vehicles have to use Lot 111 RP in order to reach the Entrance. Lot 111 RP is in the shape of an inverted T. This is the private road in dispute and is described in the judgment below as the Road. The building is located on one side of the vertical leg of the T and on the other side of the vertical leg is Lot 702A. The horizontal part of the inverted T leads to two main roads, namely, Wah Sing Street and Dai Lin Pai Road. The parties agreed that at the time of the action, vehicular access can no longer be gained from Wah Sing Street to the Road.

5. At the basement of the building, there is a car port (‘the Car Port’) consisting of six car parks. There is also a loading and unloading area in the basement. The Car Port has its own separate entrance. Due to the gradient of the slope, one reaches the Car Port entrance first and then the Entrance which is located higher on the slope.

6. The Entrance faces directly towards the end of the vertical leg of the T. Vehicles cannot enter the building through the Entrance. Inside the Entrance is a lift (‘the Lift’). This is the only lift which serves all the floors of the building from the ground floor onwards.

7. In order to access the Lift from the Car Port in the basement, one would have to either walk out of the Car Port, up the Road and re-enter the Entrance. The alternative is to walk up two flights of stairs within the building to reach the lower ground floor and enter the Entrance from the back.

8. There are two other entrances to the building at its back and eastern side respectively. They are served by two flights of staircase to the various floors of the building. However they are not normally in use because there are no lifts for cargo and passenger on these two sides of the building and these two entrances are used merely for the purpose of fire escape. The layout of the building I have just described has been the same since the building was first constructed.

The creation of the right of way

9. By an assignment dated 5 February 1970 (Memorial No. 84663) SCBM and Pickford assigned the basement, lower ground floor and part of flat roof of the third floor to South China Cold Storage and Industrial Company Limited (‘SCCS’). They also assigned Lot 111 RP to SCCS. This assignment is subject to a right of way of the owners and other occupiers of the other floors of the building to ‘pass and repass over and along the lift lobby, staircases and landings and car ports’ of the parts assigned to SCCS and further subject to a right of way for the owners of Lot 111 SA and their ‘tenants, visitors, workmen and other persons authorised by them… to pass and repass over along and upon’ Lot 111 RP. The latter is the right of way in question.

10. By another assignment of the same date (Memorial No. 84390) SCBM and Pickford assigned the second floor of the building to Florist Design Corporation Limited (‘FDCL’) who was the predecessor in title of the plaintiff. It was also given, first, the right to use the Car Port and any one of the four parking spaces marked on the Basement Plan as 1, 2, 3, 4 and, second, the right of way to ‘pass and repass over along and upon’ Lot 111 RP. This right is granted to FDCL ‘or the owner or owners for the time being of the premises hereby assigned their tenants, visitors, servants, workmen and all other persons authorised by them’.

11. By a further assignment of the same date (Memorial No. 84413), SCBM and Pickford assigned the ground and the first floor of the building to Him Wo Paper Products Factory Limited (‘Him Wo’) together with the use of the Car Port and car parking spaces no. 1, 2, 3 and 4. Him Wo was further granted the rights ‘to pass and repass over along and upon’ Lot 111 RP.

12. Of the four Car Parking Spaces, two of them i.e. Numbers 1 and 2 are located inside the Car Port area of the basement which was assigned to SCCS. The other two are located on Lot 111 RP. No. 3 is on the horizontal leg of the T while No. 4 is on the vertical leg near the Entrance.

Gold King Industrial Building

The parties

13. The plaintiff is currently the registered owner and occupier of the premises (‘the Premises’) known as Unit A of the second floor of South China Cold Storage Building. It became the owner in 1989 by an assignment dated 24 May 1989 (Memorial No. 591291). The assignment to the plaintiff was subject to and with the benefit of ‘all rights of way (if any) And other rights privileges easements and appurtenances belonging to the [plaintiff’s] property and those as are more particularly defined and described in the Crown Lease and the Assignment Memorial No. 84390’. The Premises is one of the two units on the second floor. The plaintiff has been carrying on a leather processing business there.

14. By a development agreement dated 16 July 1979, SCBM, Pickford and SCCS agreed with Great Eagle Company Limited to jointly redevelop Lots 702A and Lot 111 RP by demolishing the then existing building on Lot 702A and constructing a new industrial building on both Lots 702A and part of Lot 111 RP. Pursuant to the development agreement, Gold King Industrial Building was subsequently erected in 1987 as evidenced by an occupation permit dated 1 April 1987. Hence the vertical leg of the Road is now sandwiched between South China Cold Storage Building and Gold King Industrial Building. It is not disputed that only the upper part of the Gold King Building overhangs on Lot 111 RP.

15. The 1st defendant is the incorporated owners of Gold King Industrial Building while the 2nd Defendant is its manager.

The dispute

16. Dispute arose between the parties on the use of the Road. Au J who tried this case below summarised the dispute as follows :

(1) In July 2006, the 2nd defendant closed the gate situated at the left limb of the horizontal side of the Road after a metal scrap had fallen from a tall chimney of a nearby building. [Two gates had been installed at the horizontal side of the Road leading towards Wah Sing Street.]

(2) Later, in April 2007, the 2nd defendant sent a letter to the owners and occupiers of the South China Cold Storage Building saying that it would not allow vehicular access to the Road due to a safety concern of concrete falling off from South China Cold Storage Building.

(3) The plaintiff then wrote to the defendants stating that the stopping of vehicular access to the Road would affect the plaintiff’s operation and business.

(4) In June 2007, pursuant to a resolution passed by the 1st defendant, the 2nd defendant issued a notice to the owners of South China Cold Storage Building stating that with effect from 15 July 2007, all vehicles would be prohibited from stopping or loading and unloading goods on the Road. The 2nd defendant also wrote to the owners and occupiers of the South China Cold Storage Building stating that, pursuant to legal advice, they only had the right to pass and repass over the Road and thus any vehicles breaching this limited right would be locked and towed away.

(5) Thereafter, various tenants and owners of South China Cold Storage Building, including SCCS, SCBM and Pickford, also wrote to the defendants objecting to the restrictions on the use of the Road.

(6) On 15 July 2007, the 2nd defendant, put up various notices on the Road prohibiting vehicles from stopping or loading and unloading goods on the Road. They also gave warning that the 2nd defendant would lock and tow away any vehicles in...

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1 cases
  • Wong Pui Wan v Wong Wing Kwong And Others
    • Hong Kong
    • District Court (Hong Kong)
    • 12 February 2018
    ...J in Jones v Pritchard [1908] 1 Ch 630 at 638): see Chatham Industries Ltd v The Incorporated Owners of Gold King Industrial Building [2011] 3 HKLRD 140 at 24. Under English rule, there are 3 kinds of prescription: (i) common law prescription which is based on user since time immemorial; (i......

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