Lian Kok Hong v Lee Choi Kheong and others

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 28 April 2010
• Neutral Citation: [2010] SGCA 19
• Plaintiff Counsel: William Ricquier (Pan Asia Law Corporation) and Prabhakaran Nair (Ong Tan & Nair)
• Docket Number: Civil Appeal No 15 of 2009
• Date: 28 April 2010
• Hearing Date: 06 July 2009,19 October 2009
• Subject Matter: Land
• Year: 2010
• Citation: [2010] SGCA 19
• Defendant Counsel: Letchamanan Devadason (Steven Lee, Dason & Partners)
• Court: Court of Appeal (Singapore)
• Published date: 26 August 2010

Chan Sek Keong CJ (delivering the grounds of decision of the court): Introduction

This is an appeal by the appellant (“the Appellant”), the owner of the land comprised in Lot 187-157 on which house No 72 Belmont Road is erected, against the decision of the High Court allowing the counterclaim of the respondents (“the Respondents”), the owners of the adjacent land comprised in Lot 185-156 on which house No 70 Belmont Road is erected. The Respondents’ counterclaim was that, as the owners of Lot 185-156, they were entitled to a right of way over part of the Appellant’s land (for convenience, the land that comprises this right of way will be referred to hereafter as “plot B”) as shown in the sketch plan in the Annex hereto (“Sketch Plan”). In these grounds of decision, we shall refer to both lots of land by the street numbers of the houses erected thereon, ie, 70 Belmont Road for Lot 185-156 and 72 Belmont Road for Lot 185-157.

The Respondents’ counterclaim was made in response to an action by the Appellant for an injunction in Suit No 674 of 2007 to restrain the Respondents from building a gate (“the common gate”) at the entrance of an access road (for convenience, the land that comprises this right of way will be referred to hereafter as “plot A”) where it meets Belmont Road. As shown in the Sketch Plan, plot A leads to, and is part of the land on which is erected 70 Belmont Road.

The High Court Judge (“the Judge”) dismissed the Appellant’s action and allowed the Respondents’ counterclaim (see Lian Kok Hong v Lee Choi Kheong & Others [2009] SGHC 18 (“the GD”)). At the conclusion of oral pleadings before us, we allowed the appeal. We now give our reasons.

Background facts

Both 70 and 72 Belmont Road were part and parcel of the same property comprised in Lot 187-102 until their common owner subdivided the land and sold 70 Belmont Road to the Respondents’ predecessor in title in 1949, whilst retaining ownership of 72 Belmont Road. 72 Belmont Road fronts Belmont Road directly whilst 70 Belmont Road is situated behind 72 Belmont Road. Since 1949, both 70 and 72 Belmont Road have changed ownership many times.

It can be seen from the Sketch Plan that, after the subdivision of Lot 187-102 in 1949, the owner of 70 Belmont Road would not have been able to gain access to Belmont Road except through plot A, whilst the owner of 72 Belmont Road would have been able to do so through both plot B and plot A. Nevertheless, the common owner of Lot 187-102 decided, upon its subdivision, to grant to the owner of 70 Belmont Road a right of way over plot B and reserved to herself as the owner of 72 Belmont Road a right of way over plot A (which was part of the subdivided lot on which 70 Belmont Road is erected). The transaction was effected by an Indenture 1056 No 101 dated 24 November 1949¹. The express grant and reservation of the two easements respectively provided for were as follows²:

[T]he Vendor hereby conveys unto the Purchaser All and Singular the land and hereditaments described in the Schedule hereto together with full and free right and liberty for the Purchaser and its assigns the owner and occupiers for the time being of the said land and hereditaments hereby conveyed and its and their tenants servants and all other persons for the time being authorised by it in common with all other persons having the like right and liberty with or without horses cattle and other animals carts carriages motor cars and other vehicles of every description at all times and for all purposes whatsoever connected with the use and enjoyment of the said land and hereditaments conveyed to pass and repass along over and upon the whole length of the private estates roads leading from Holland Road to the said land and hereditaments hereby conveyed And Together Also with a similar right of way over so much of the access road leading to the house erected on the land hereby conveyed [ie, 70 Belmont Road] and forming part of the roadway shown on the plan annexed hereto and thereon coloured brown as is excluded from the conveyance hereby made and forms part of the remaining land belonging to the Vendor [ie, plot B] …Reserving nevertheless to the Vendor and all others the owner or owners for the time being of the remaining property belonging to the Vendor [an easement of] a similar right of way over so much of the roadway coloured brown on the said plan hereto annexed as is included in the Conveyance hereby made [ie, plot A – the access road].

As regards 72 Belmont Road, the Appellant purchased it on 25 July 1994 from Peter Leo Chin Fang (“Peter”) who had purchased the property from Koh Ah Kim (“Koh”) on 18 February 1987. Koh in turn purchased the property from Muriel Anna Hutchinson on 6 August 1971. Following this transaction, 72 Belmont Road was brought under the Land Titles Act (now Cap 157, 2004 Rev Ed) (“the LTA”) on 15 December 1971, with a qualified title. The caution endorsed on the Certificate of Title lapsed on 5 March 1987 and the title became unqualified.

As for 70 Belmont Road, the Respondents purchased their property on 20 September 2007 from Gan Boon Hwee (“Gan”) who had purchased it from Tsang Shou Meng (“Tsang”) on 4 October 1986. Tsang purchased the property on 10 February 1977 from Singapore Oxygen Air Liquide Pte Ltd (“Singapore Oxygen”) which had bought the property on 1 December 1971 from Far East Oxygen & Acetylene Company Ltd (“FEOAC”). Following the purchase of the property on 10 February 1977, 70 Belmont Road was brought under the LTA on 22 December 1977, with a qualified title. The caution endorsed on the Certificate of Title lapsed on 4 October 1986 and the title became unqualified.

What happened next after Koh purchased 72 Belmont Road in 1971 which is material to the dispute in this case was that she constructed a chain-linked fence along the common boundary of the two houses and fenced off plot A. The fence effectively became a party wall separating the two properties and deprived FEOAC, the then owner of 70 Belmont Road, of its right of way over plot B (which was adjacent to plot A) to gain access to Belmont Road. The Respondents’ case is that the fence was constructed around 1980 (according to the evidence of their surveyor). In our view, however, the fence was most likely constructed on or before August 1973 when the renovation plans of 70 Belmont Road showing the existence of the fence were approved by the Building Control Division. However, what is more material to the dispute in this case, and which was not, and could not be, denied, is that there is no evidence that FEOAC had ever objected to plot B being fenced off and thereby preventing FEOAC from using plot B as a right of way.

Since then, plot B had been fenced off, unavailable for use as a right of way to all successive owners of 70 Belmont Road until the issue as to its existence was raised by the Respondents in their counterclaim. It seems clear that they would not have made the counterclaim to the right of way over plot B, but for the action commenced by the Appellant which has led to this appeal. The Appellant’s reply to the counterclaim was that the right of way had been extinguished by express or implied consent of the previous owners of 70 Belmont Road or by surrender of the usage of the easement by the previous owners.

The Judge held that the easement continued to subsist for the reasons set out at [2] of the GD as follows:

The evidence showed that when 70 and 72 Belmont Road were created in 1949 under Indenture 1056 N0 101 (by sub-dividing 70 Belmont Road from the parent lot), the then owner also created mutual easements over both properties. The owner of 72 Belmont Road was entitled to an easement through the access road which was part of the property of 70 Belmont Road and the owners of 70 Belmont Road had a right of easement over a part of the property belonging to 72 Belmont Road. This part of the mutual easement had been walled off since it was part of the [Appellant’s] land. It was not known to the parties that the [Respondents’] easement had been blocked in this way because what was shown on the sketch plans was not obvious on site. The easements were created to be mutually co-existing and one could not be abandoned without the abandonment of the other. The mere encroachment by walling off the easement by the previous owner was not by itself sufficient proof of abandonment. I find that there was no abandonment of the easement as alleged by the [Appellant].

Issues on appeal

Counsel for the Appellant contended that the Judge’s decision was wrong on three grounds: (a) that one “mutual” easement could not be abandoned without the abandonment of the other; (b) that there was no abandonment of the easement; and (c) that, in any case, the right of way over plot B was extinguished. We will deal with these three grounds in turn.

Mutuality

We agree that the Judge was wrong to...