Seah Sye Kim v Chua Mui Ying

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 05 September 1991
• Neutral Citation: [1991] SGCA 30
• Docket Number: Civil Appeal No 14 of 1988
• Date: 05 September 1991
• Published date: 19 September 2003
• Year: 1991
• Plaintiff Counsel: Low Tiang Hock (Low Neo & Wong)
• Citation: [1991] SGCA 30
• Defendant Counsel: Ruth Kao (Ruth Kao)
• Court: Court of Appeal (Singapore)
• Subject Matter: Common driveway,Rights of way,Whether easement necessarily inferred,Parties' common intention,Land,Express or implied reservation,Easements,Plaintiff's claim of right of way over defendant's part of common driveway

Cur Adv Vult

This is an appeal by the plaintiff against the decision of Grimberg JC [see [1988] 2 MLJ 1 ] dismissing the plaintiff`s claim to an easement of right of way over the defendant`s part of a common driveway running on both sides of the boundary between two houses, viz No 67 Trevose Crescent, which belongs to the plaintiff and No 69 Trevose Crescent, which belongs to the defendant.

In this judgment, the expression `the defendant`s driveway` will be used to mean that portion of the common driveway situated on the defendant`s land, and the expression `the plaintiff`s driveway` will be used with the corresponding meaning. The plaintiff`s driveway is 2.74m wide at the end of Trevose Crescent and 3.95m wide about half-way up the driveway, and the defendant`s driveway is 2.73m wide at the end of Trevose Crescent and 3.5m wide at about half-way up the driveway. Since 1957, the common driveway has been used by both the plaintiff and the defendant for access by means of motor cars to the parking lots situated at the back of both the houses.

The said houses and the other houses in the same area were developed in the 1950s by M/s Ideal Homes as part of two housing estates known as Dunearn Park and Whitley Park. No 69 was conveyed by a conveyance dated 20 June 1956 by Hongkong & Shanghai Bank (Malaya) Trustee Ltd as the vendor and the developers as the original purchasers to the defendant as the sub-purchaser. No 67 was conveyed in the same manner to the plaintiff`s predecessor in title by a conveyance dated 24 April 1957. In this judgment, the expression `the No 69 conveyance` will be used to refer to the conveyance dated 20 June 1956, and the expression `the No 67 conveyance` will be used to refer to the conveyance dated 24 April 1957.

His Honour dismissed the plaintiff`s action on three grounds: (1) that the express reservation of easements in the No 69 conveyance did not include a right of way over the defendant`s driveway; (2) that the plaintiff could not claim a right of way by necessity as the plaintiff`s driveway provided vehicular access to his parking lot; (3) that there was no common intention between the developers and the defendant that the defendant`s driveway be used by the developers and those deriving title from them for access by motor car to and from the parking lot at No 67.

Before us, counsel for the plaintiff abandoned the ground of necessity and confined his case to express reservation and implied reservation arising from a common intention.

Was there an express reservation of a right of way over the defendant`s driveway?

The terms of the No 69 conveyance was as follows:

... convey ... All the land and premises described in the First Schedule hereto together with full and free right and liberty for the [defendant] ... in common with the [developers] and all persons having the like right and liberty with or without horses ... 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 premises hereby conveyed to pass and re-pass along over and upon the roads built [or] to be built by the [developers] in or upon the said estates and providing access to the said land and premises hereby conveyed ... Reserving nevertheless to the original purchasers and to all others to whom the original purchasers may grant or have already granted the same similar rights of way along over and upon the said roads and similar rights of drainage and the right to make connections as aforesaid and to construct and use any drains pipes and cable over or under the said land hereby conveyed as the original purchasers may consider necessary for the purpose of serving other adjoining and adjacent houses on the said estates and to make all necessary connections thereto to hold the same unto the sub-purchaser in fee simple.

The question for determination was whether the word of reservation in the No 69 conveyance, ie `to the [developers] and to all others whom the [developers] may grant or might have granted the same similar rights of way over ... the said roads` included a right of way over the defendant`s driveway. This was a question of construction of the said words, in the context of the said conveyance and having regard to the circumstances surrounding its execution.

Counsel for the plaintiff contended before the judicial commissioner that the reservation included the defendant`s driveway as it was a road built or to be built by the developers in the said estates and providing access to the plaintiff`s land and premises. It was argued that the access was not only to the land but also the `premises`, ie the dwelling house. The judicial commissioner rejected this argument. He held: (a) that it was Trevose Crescent that provided the access to the defendant`s land and premises and not the defendant`s driveway; (b) that there was no need for a right of way to be granted to the defendant over her own property, which was also not possible in law; (c) that there was no express reservation of a right of way over the defendant`s land in favour of the developers; and (d) it followed that the developers were in no position to grant a right of way to the plaintiff.

Before us, counsel for the plaintiff has repeated his arguments he made before the judicial commissioner. He also made the following additional points: (1) that the developers, being the owner of the estate roads, did not need to reserve to themselves a right of way over such roads including Trevose Crescent, and accordingly, the expression `said roads` affected by the reservation should be construed to mean the common driveways in the said estates, including the defendant`s driveway; (2) any other construction would render the reservation meaningless and superfluous; (3) that the judicial commissioner failed to give effect to his own finding of fact that the road which actually provided access to `the premises`, as distinct from `the land` was the common driveway; (4) that if there were any ambiguity in the reservation, it should be resolved in favour of the plaintiff.

The reply of counsel for the defendant to points (1) and (2) was that the reservation of a right of way over the estate roads in favour of the developers was probably for the purpose of preventing the defendant from claiming that she had an exclusive right of way over the said roads. With respect to point (3), she submitted that the plaintiff`s driveway was and is capable of providing vehicular access to the plaintiff`s house without the need to encroach on the defendant`s driveway, and that the judicial commissioner had found that the common driveway was in fact two separate driveways running alongside each other.

With respect to point (4), counsel for the defendant submitted that there was no ambiguity in the reservation, but that if there were, it should be construed in favour of the defendant. It is well established that a reservation of rights to the grantor in a grant operates as a regrant of those rights to the grantee: Johnstone v Holdway [1963] 1 QB 601; [1963] 1 All ER 432. The grantor, in effect, becomes the grantee under the reservation. It is also established law that if there is any ambiguity in a grant, it should be construed in favour of the grantee. The question is whether this principle of construction also applies to a grantee in a reservation operating as a re-grant. The law on this point is not finally settled in England. In Megarry and Wade, The Law of Real Property (5th Ed), it is stated (at p 858) that the Court of Appeal in England has held itself bound (although only obiter) in St Edmundsbury & Ipswich Diocesan Board of Finance v Clark [1975] 1 WLR 468; [1975] 1 All ER 772, that a vendor`s reservation is to be construed against the purchaser, contrary to the general rule for other reservations and exceptions. We are, of course, not bound by any decision of the English Court of Appeal, much less any dicta of that court.

Having regard to the terms of the reservation, and the circumstances in which the No 69 conveyance was executed, we do not find it necessary to decide how the principle of construction should be applied. We are of the view that there is no such ambiguity in the reservation that requires the application of that principle one way or the other.

The circumstances surrounding the purchase of No 69 and the execution of the No 69 conveyance were as follows: the developers had obtained planning permission to develop two housing estates known as Dunearn Estate and Whitley Estate in accordance with approved plans. Access to the sub-divided plots of land was to be by means of the estate roads, one of which was Trevose Crescent, which itself was described as `semi-metalled` on the plans. Access to all the duplex houses fronting one side of Trevose Crescent was provided by common driveways to be construed between the boundaries of the said houses. Private lot 95B (on which No 69 stands) was sold by the developers to the defendant. At the time of the sale, the developers separately agreed to erect a house on the land for the defendant. When the No 69 conveyance was executed, the house was still in the course of construction, and thus was not specifically referred to therein. The plan attached to the No 69 conveyance showed private lot 95B in a row of subdivided plots of land and neither the house nor the driveway was delineated thereon. The No 67 conveyance was similar in all such respects.

The easement reserved in the No 69 conveyance was `the same similar rights of way over ... the said roads`. The persons for whose benefit the said roads were reserved were the developers themselves and `all others` to whom the developers `may grant or have granted` such rights. The expression `all persons` would include the defendant since the developers had granted to her a right of way over `the said roads`. If the expression `the said roads` is construed to...