CHIN LING INVESTMENT LTD v. THE GENERAL OF THE SALVATION ARMY

HCA 1/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1 OF 2012

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D E C I S I O N

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1.  This case is a neighbourhood dispute. The neighbouring pieces of land were originally from Lot 181 of DD390 in Sham Tseng which is an enclosed area away from the Castle Peak Road. So in the Additional Special Condition No. 7 of the Conditions of Grant, a non-exclusive right of way was granted over a slip road on Government land for access purposes. It is marked blue on the plan attached to the Conditions of Grant (“Blue Area”).

2.  Pursuant to a Deed of Partition dated 30 October 1958, Lot 181 was divided into Lot 181 SA and Lot 181 RP.  As a result of the partition, Lot 181 SA, which is further away from the slip road, has become land‑locked.  Lot 181 RP abuts the slip road, so in order to access the slip road for ingress and egress, persons on Lot 181 SA have to pass over Lot 181 RP, so in Clause 2 of the Deed of Partition there is a provision for a right by the owner of Lot 181 SA and related persons to pass or repass over the portion of Lot 181 RP coloured green on the plan annexed to the Deed of Partition (“Green Area”).

3.  The plaintiff became the owner of Lot 181 SA in 1992, and in 2005 the Government granted the plaintiff an additional parcel of land to the west of Lot 181 SA as an extension thereto (“Extension”).

4.  The plaintiff claims that for a long time they and their predecessors in title had a right of way over the Green Area to reach the slip road and then onto Castle Peak Road.  But in 2005 they discovered that such access was blocked by a metal gate (“first metal gate”).  For reasons which I need not detail for today’s purpose, the first metal gate was removed by the defendant.

5.  Subsequently, the plaintiff discovered (and the defendant admits) another metal gate was installed on the Government land immediately outside Lot 181 RP and a small parcel of Government land was enclosed  (“ the second metal gate”).  The defendant admits it was installed in 2011, and claims that the second metal gate is required to keep out trespassers and stray dogs and to prevent illegal parking.

6.  There is dispute whether a metal gate had previously been installed at about the place where the first and/or second metal gate was/is located.  The plaintiff claims there was none until very recently, but the defendant says there has always been a metal gate.  Again this dispute is not really material to our consideration today because this is not an occasion to resolve issues of fact. 

7.  The plaintiff claims that the second metal gate, whether locked or not, wrongfully interferes with their entitlement of free and uninterrupted right to pass over the Green Area, and demands its removal.

8.  It is the defendant’s stance that currently the access road used by the plaintiff, the defendant and the owner of Lot 201 in DD390 to reach Castle Peak Road came into existence in 1992 when the Blue Area was rebuilt and realigned by the owner of Lot 201 pursuant to a modification of his lot, and the new access road was different from the Blue Area. But it is still necessary for persons from Lot 181 SA to pass through the Green Area to get to the new access road.  Before the new access road, the defendant had used the Blue Area, i.e. the slip road, for ingress and egress.  They say that since the 1970s there was already a metal gate to the location of the second metal gate, and the plaintiff should have known about the metal gates since the 1990s.  They further say that they are entitled to erect the second metal gate and to keep it closed but not padlocked in order to keep out human or canine intruders.  All that needs to be done is to lift the hinge of the second metal gate to open it.  Even if there were a right of way over the Green Area, the plaintiff is not entitled to excessive use of the right of way for developing Lot 181 SA and the Extension which exceeds the original grant for such right of way.

9.  In respect of the Extension, the plaintiff’s pleadings claim that it is used as a private garden so there is no burden on the servient tenement. Alternatively, use of the Extension for the purpose of Lot 181 SA is reasonably necessary, and falls within the scope of the right of way.

10.  On 3 January 2012, the plaintiff applied for interlocutory prohibitory and mandatory injunction orders, including the dismantling of the second metal gate.  In paragraph 21 of the plaintiff’s affirmation in reply filed on 19 March 2012, it was clear that the plaintiff was aware of the encroachment of the Government land by the defendant because the plaintiff’s solicitors sent two letters to the District Land Office on 21 January 2012 and 13 March 2012 drawing their attention to such fact and asking the Government (if seen fit) to pursue statutory enforcement action without delay.  The affirmation goes on to say:

“Although the plaintiff has not heard any reply as of today, I verily belief that because of the encroachment on the Government land, sooner or later the 2nd Metal Gate is bound to be demolished. Any alleged prejudice likely to be caused to the Defendant by the demolition therefore is unreal, or otherwise self-made, since the Defendant is not entitled to erect the 2nd Metal Gate on the Government land in the first place.”

11.  At the hearing on 28 March 2012, Deputy High Court Judge Burrell adjourned the summons for injunction upon the undertaking by the defendant through counsel to keep the second metal gate open at all times until further order.  An order was granted for expedited trial and for affirmations to stand as witness statements and evidence-in-chief.

12.  Two things are of note.  First, it is plain that the court considered that the defendant’s undertaking to the court together with the order for early trial was a more appropriate way to deal with the case rather than going into the merits of the injunction application.  Mr Yin, counsel for the defendant, reminded there was no appeal from this order.

13.  Secondly, at the time when the undertaking was given by the plaintiff and the order was made by Deputy High Court Judge Burrell, the plaintiff was already aware of the encroachment of the second metal gate onto the Government land and they already took a view that because of this the second metal gate was bound to be removed sooner or later. Hence, they were alive to the consequences of the encroachment of an unauthorised structure on the Government land when the undertaking was given and accepted by the court.

14.  After this, the plaintiff took active steps to push ahead with the case, going so far as to try to set the case down for trial.  When it was confirmed that no leave had been granted for such purpose, orders were sought for usual case management.  Thereafter, list of documents were filed.  There was mutual agreement to extend time for compliance with court-imposed case management timetable.  Parties exchanged expert reports, and the defendant served witness statements.  The plaintiff did not serve witness statements and presumably only relied on the earlier affirmations.

15.  At the case management conference on 11 October 2012, the action was stayed for mediation until 21 November 2012. Mediation failed.

16.  On 15 October 2012, the defendant applied to lift the stay.  On 9 November 2012, the parties by consent lifted the stay, allowed the defendant to file several short supplemental witness statements, and gave permission to the plaintiff to file supplemental witness statements.

17.  At the case management conference on 22 November 2012, the Master considered the case to be essentially ready, and asked the parties to make a consent application in respect of the supplemental expert report by the plaintiff’s expert and to confirm that the case would be ready for trial within 28 days.

18.  In my view, the progress of the case up to this point cannot really be criticised, notwithstanding an order for expedited trial.  There was cooperation between the parties and time was taken up with the witness statements, expert reports, discovery and mediation.  There were no unjustified steps.  However, it would have been more desirable had those steps been expedited in the spirit of the order for early trial. 

19.  But thereafter the plaintiff sought three time extensions for serving supplemental witness statements by time summonses dated 3 and 17 December 2012 and 8 January 2013.  I pause to note that the plaintiff already had access to the defendant’s signed supplemental witness statements since 15 October 2012, and I agree that those supplemental witness statements are factually uncomplicated.  It was suggested that time was needed to study the video clip recently disclosed by the defendant, but it was merely about dogs roaming Lot 181 RP when the second metal gate was open.  Eventually, on the third application, an unless order was granted on 16 January 2013.  The plaintiff had to file and serve supplemental witness statements by 30 January 2013, and jointly with the defendant write to the court on expert evidence with confirmation for setting down for trial by 6 February 2013.

20.  But it transpired that on 9 August 2012 the plaintiff received a letter from the District Land Office (“DLO” – see paragraph 38 below).  By 3 October 2012 it was discovered that the main metal gate at the other end of the access road abutting the Castle Peak Road had been removed.  On 27 December 2012, the plaintiff’s solicitors wrote to the defendant’s solicitors demanding removal of the second metal gate.  On 9 January 2013, the defendant’s solicitors confirmed that the defendant received a similar letter from the DLO, but suggested that enforcement action could be against the defendant and not the plaintiff because the defendant never denied it was responsible for erecting and maintaining the second metal gate.

21.  On 15 January 2013, the plaintiff issued a summons for prohibitory and mandatory injunctions returnable before me today.  This was just before the plaintiff’s third time summons in which time extension was sought until 14 days after the plaintiff’s application for removal of the second metal gate erected by the defendant, which was subject to the letter from the DLO.  Nevertheless, the learned Master granted the aforesaid unless order.

22.  The defendant says that all these are tactical moves to delay the setting down for trial in the hope that the DLO would remove the second metal gate before court adjudication in this case. They say that because the delay poses security problems for them, so on 21 January 2013 they applied for release from the undertaking given to and accepted by the court in March 2012.

23.  As a backup to the plaintiff’s summons for interlocutory injunction, the plaintiff also issued a summons returnable before a Master on 1 February 2013 to amend the statement of claim with proposals for directions to file sequential amended pleadings and to defer the plaintiff’s supplemental witness statements until after close of those amended proceedings.

24.  Let me deal with some of the procedural matters raised.

25.  First, counsel for the defendant, Mr Yin, says that it is an abuse of process not to restore the adjourned interlocutory injunction summons that was before Deputy High Court Judge Burrell.  Whether that be correct or not, I do not wish to deal with the matter of form.  After all, the injunction sought by the summons dated 15 January 2013 are not exactly on all fours with the earlier injunction summons, so if that is going to be pursued, a fresh summons is required in any event.

26.  Secondly, I agree that the plaintiff cannot reopen a claim for interlocutory injunction merely because he feels, or the circumstances appear to indicate, that he wrongly estimated that an undertaking given and accepted would give him adequate protection.  Mr Wong, counsel for the plaintiff, also accepts this proposition.  That being the case, the plaintiff cannot really be heard to seek an injunction on the basis of matters already canvassed in the earlier application for which the defendant had given an undertaking that had been accepted by the court.

27.  Thirdly, I agree (and so does Mr Wong) that the plaintiff has to show there has been a material change in circumstances so as to justify the present application for interlocutory injunction despite the undertaking that was given by the defendant.

28.  I would like to say a few words about the main metal gate first before I deal with the material change in circumstances, if any.  The main metal gate is a metal gate at the position where the access road abuts Castle Peak Road.  Mr Wong informs the court in the course of the proceedings today that the plaintiff does not now wish to pursue the injunction in respect of the main metal gate because it had been removed. But the injunction application encompasses not just the main metal gate but also the ancillary wire mesh fencing and the concrete columns of the main metal gate.  The defendant’s affirmations confirm that the concrete column still stands, but Mr Wong says today that no injunction will be sought in respect of the concrete columns or any wire mesh fencing ancillary to the main metal gate.

29.  This, in my view, must be correct, because these structures are not on Lot 181 RP, and there is no evidence that they were erected by the defendant alone.  According to paragraphs 47 to 49 of Wong Man-yee’s first affirmation dated 3 January 2012, the main metal gate was constructed and contributed to by the agreement of the six owners of Golden Villa together with the plaintiff and defendant, and the costs for the installation of the main metal gate were shared by them.  Each of them also had a remote control device.  Indeed, it was suggested in such affirmation made for the purpose of the first injunction application that the removal of the second metal gate would not be a problem because the existence of the main metal gate would protect the defendant’s land.

30.  According to the defendant, the main metal gate was removed by the owner of the Golden Villa, leaving the two concrete columns still standing.  Although the plaintiff casts suspicion on such assertion, they confess they have no prior knowledge as to the demolition of the main metal gate, and they only discovered the removal by 3 October 2012.  However, they believe it was the defendant who stealthily dismantled the main metal gate as the defendant was one of the contributors to the setting-up costs of the main metal gate.  No concrete reason was given for such surmise, nor was an explanation given as to why it could not have been demolished by the six owners of the Golden Villa who had also contributed to the setting-up costs of the main metal gate.  Indeed, the plaintiff themselves were one of the contributors.

31.  Mr Wong suggests that because the plaintiff’s solicitors have written to the defendant’s solicitors demanding removal of the main metal gate and the ancillary features, and there was no positive or constructive response from the defendant either to invite a joint effort of all the relevant owners for the removal of the main metal gate or to authorise the plaintiff to do so or to deny responsibility for the main metal gate, the plaintiff is therefore entitled to seek an interlocutory mandatory injunction to require the defendant alone to remove the main metal gate and the ancillary structures.

32.  Such proposition needs only to be stated for it to be rejected.  There is no arguable basis for such proposition, let alone any strong prima facie case for attaching sole responsibility on the defendant for removing the structures at the main metal gate.  Indeed, there is no evidence before me at all for suggesting that it was the defendant who removed the main metal gate.

33.  The plaintiff has not persuaded me there is a serious question to be tried, let alone a strong prima facie case as to the defendant’s alleged duty or liability to remove the concrete columns of the main metal gate on their own.  So in any event, I would not have been prepared to grant any interlocutory injunction for the removal of the concrete columns or installations in relation to the main metal gate vis-à-vis the defendant.

34.  The presently pleaded issues in this case are whether the defendant is entitled to erect or maintain a gate at the boundary of Lot 181 RP and the Blue Area, being Government land, and whether the plaintiff is entitled to use the right of way over the Green Area to access the Extension which the plaintiff obtained after the grant of such right of way.

35.  The defendant says there are no merits to the plaintiff’s case on these real issues, but given the order for expedited trial, there is no need for me to consider these matters.  I accept there is a serious question to be tried on these issues, but since these matters are not new developments but are subject matters canvassed at the earlier injunction application resolved by way of an undertaking given by the defendant and accepted by the court, I am not persuaded that these matters ought to be revisited in any detail today.

36.  I now turn to the alleged material change in circumstances.  The only matter that has been referred to is the DLO’s letters of 9 August 2012 to both the plaintiff and the defendant.  The plaintiff seeks to further suggest that the present application is different from the earlier injunction application in that they now additionally seek removal of both the second metal gate as well as the ancillary mesh wire fencing and concrete columns.  But given my views on the main metal gate, the only additional matter is the fencing of the second metal gate, which essentially is part and parcel of the structures which are already evident at the last application for injunction.  After all, the gate cannot stand without supporting structures, and the fencing was seen in the photographs exhibited for the last application.  So but for the DLO’s letters and the complaints therein, there is nothing essentially new.

37.  Under clauses 3 and 4 of the Deed of Partition, the owners of Lot 181 RP and Lot 181 SA covenanted with each other to perform the terms and conditions by and in the grant and agree to indemnify each other against all actions and suits in respect of the non-performance of the said terms and conditions or any of them. 

38.  The DLO letters of 9 August 2012 claim that the second metal gate, the main metal gate and the ancillary mesh wire fencing and concrete columns are unauthorised structures within the Government land and constitute a breach of the Additional Special Condition No. 7 of the Conditions of Grant which I have referred to above, and request the plaintiff and the defendant to purge the breach by demolishing the structures. The DLO also reserves the right to take out lease enforcement action including re-entry and other enforcement action. 

39.  So I will have to consider the DLO’s letter of 9 August 2012 in light of the provisions in the Conditions of Grant, the Deed of Partition as well as the discussion on law that has been canvassed by counsel.

40.  There is no dispute that the second metal gate is slightly outside the lot boundary of Lot 181 RP and straddles Government land.  To avoid this new issue being raised or pleaded to derail the real issues in dispute, the defendant is prepared to move the second metal gate and any ancillary feature to relocate them within the lot boundary of Lot 181 RP, which exercise will take three working days and cost about $8,000 to $10,000.

41.  The plaintiff is not prepared to accept this, and says that this is an abuse of process or even a contempt of court. Insofar as the defendant intends to relocate the second metal gate, fencing and other structures back within their own land, Lot 181 RP, and to keep the gate open at all times, I cannot see how it is an affront to the undertaking to the court.  Indeed, it remains within the spirit of the undertaking of allowing access via an open gate until trial.  After all, the relocation of the gate will be done over the defendant’s own land and not on either the plaintiff’s land or Government land.

42.  But now the plaintiff wants the removal of the second metal gate altogether, without permitting the defendant to erect any gate structure within their own land at the point where it abuts the Blue Area.  They require demolition altogether, which is the effect of the mandatory and prohibitory injunctions now being sought.

43.  Given the defendant’s offer to relocate the second metal gate and to remove all ancillary structures from encroaching on Government land, I am satisfied that really addresses all the concerns of the plaintiff insofar as they require preservation of the use of the right of way over the Green Area within the spirit of the undertaking.  To go further to ask for the demolition of the second metal gate simpliciter without any relocation at all goes much further than what is provided for in the undertaking accepted by the court, and that must be justified on the basis that there is a serious question to be tried on any material change in circumstances.

44.  Is there any material change in circumstances and is there any serious question to be tried?  Mr Wong says yes, but Mr Yin says that the injunction application is a non-starter in the first place.

45.  The plaintiff claims that after 28 day deadline in the DLO’s letter, the second metal gate poses a real risk that the Government, through the DLO, will take enforcement action by re‑entering and forfeiting not just the defendant’s land but the plaintiff’s land, ie Lot 181 SA and the Extension, any time soon, which amounts to an encumbrance on title.  Even though the defendant accepts it is responsible for the second metal gate and will be the prime target of any enforcement action, the plaintiff says the DLO has also issued a demand letter to the plaintiff, and the risk of enforcement can only be removed by the removal of the second metal gate.  Mr Wong says the risk of enforcement is there because the defendant has not produced their reply to the DLO, and it is not known whether they have openly indicated to the DLO that they are responsible for the second metal gate.

46.  The defendant says that since it has never been denied they were responsible for erecting and maintaining the second metal gate, the enforcement action at best would only be against the defendant and not the plaintiff.  Even if there is a risk of enforcement for Lot 181 SA, this risk has all along been there and has been considered at the time of the first injunction application and when the undertaking was given.  Indeed, it was the plaintiff who reported the matter to the DLO and invited enforcement action without delay.  In the circumstances, if the plaintiff wrongly estimated the adequacy of the protection offered by the undertaking, it is not a ground for reopening the injunction.

47.  The defendant further says that even if the second metal gate gives rise to a right on the part of the Government to forfeit the lease on Lot 181 SA, the plaintiff still cannot sue the defendant. Even if the plaintiff has an arguable cause of action that the Government may forfeit the lease of the land, on any view of the matter, the Government will not be able to do so.  The defendant says this is because Clause 7 of the Additional Special Conditions of the Conditions of Grant merely specifies that the Blue Area would not give the grantee a non-exclusive right to use the slip road, and the Government reserves the right to grant the right of way to lessees of other lots.  The plaintiff says that the presence of the second metal gate, as distinct from the main metal gate, does not derogate from the non-exclusivity of the right of way over the Blue Area because it was at the margin of the Blue Area.  They also say that since the plaintiff is not responsible for the second metal gate, they will have a cast-iron case for relief against forfeiture.

48.  In relation to the DLO’s letter complaining about the second metal gate and the encroachment on Government land as a result thereof, Mr Wong does not premise his case on nuisance and trespass.  Rather, he says there is a risk of enforcement because of a potential blot on title. 

49.  It is common ground between counsel that the principles in Lester v Ridd [1990] 2 QB 413 are applicable.  In that case, Lord Justice Dillon held at page 438 that the effect in law of the partition of demised premises by assignment of part to A and remainder to B of the residue of the unexpired term of the lease, then notwithstanding that the landlord did not concur in the partition to sever the covenants of the lease to follow the land, an action on the covenants would be in favour of the landlord against each assignee of part for not repairing his part of the land or for not paying a fairly attributable part of the rent for his part of the land.  In short, the landlord cannot pursue a claim on default against all of the owners of the partitioned lands.  

50.  Here, the Government is the landlord, and the plaintiff and the defendant are the lessees of part of the demised land after the partition.  Additional Special Condition No. 7 of the Conditions of Grant, ie the lease, that provides for a right of way over the Blue Area is non-exclusive, but that right of way abuts Lot 181 RP, and there is no dispute between the parties that the second metal gate is put up by the defendant.  So even assuming that the second metal gate located on the Government land is a breach of the Additional Special Conditions, on the above legal principles, which Mr Wong accepts, the landlord, being the Government, will have a right of action against the lessee of the part in breach, ie the defendant, and not the plaintiff, who has nothing to do with the second metal gate.

51.  Mr Wong’s answer to this is that because the plaintiff does not know what the defendant told the DLO, the DLO might still decide to take enforcement action against the plaintiff’s land as well as the defendant’s land which they have referred to in their letters of 9 August 2012.  But as Mr Yin points out, that is tantamount to saying that there will be a blot on title because of potential wrongful enforcement action that may be taken by the landlord against an innocent owner of part of the demised land after partition.  That cannot be right, even though it may be tiresome to deal with wrongful action by the landlord.

52.  In the circumstances, I am not persuaded that the plaintiff has satisfied the threshold test for either a mandatory injunction to remove the second metal gate and all ancillary features altogether or a prohibitory injunction not to reinstate any such gate at this interlocutory stage.  I also make clear that this is independent of the offer by the defendant to relocate the second metal gate and ancillary structures back to their own land.

53.  Given Mr Wong’s acceptance of the legal principles, on any view in respect of the application of such principles to the circumstances of the present case, I am not satisfied that the threshold test for granting interlocutory injunction has been satisfied.  That being the case, there is no need for me to go further to analyse the other grounds put forward by Mr Yin, ie whether assuming that the Government is entitled to take enforcement action against the plaintiff’s land it could be resisted on the basis that encroachment was de minimis or there being a case for relief against forfeiture by the plaintiff.

54.  Nevertheless, given that the defendant is willing to remove the second metal gate and the ancillary features from the Government land and relocate them back to their own land, the court accepts such proposal to forestall any future contention so that this case can proceed to early trial as originally intended.  But in case if I am wrong on the issue of whether the threshold test has been satisfied, I will go further to consider the balance of convenience.

55.  The defendant says that this is a mere technical ploy to delay or prevent the trial to put pressure on the defendant. The application was made more than five months after the receipt of the DLO’s letter in August 2012, without any explanation for the delay.  The time extension sought for the supplemental witness statements in reply to simple statements served by the plaintiff resulting in an unless order speak of undue delay.  The defendant says that an order for setting down should be made as soon as possible.

56.  As regards the complaint about the hinged lever of the second metal gate causing injury and difficulty to children, these matters have been canvassed in the earlier injunction application, and consideration of such matter must have been taken into account in the undertaking given and accepted.  I am not persuaded I should delve into the history of whether there had or had not been any metal gate in the past.  There is dispute between the parties on this issue, and as I have said, an injunction application is not the time or place to resolve dispute of facts.

57.  In respect of the demolition of the first metal gate, this is again a matter canvassed in the earlier injunction application.  I see no justification for the plaintiff to say that because the defendant has given an undertaking to keep the gate open until trial and has abided by that undertaking to date, that is a reason now, prior to trial, to forego the undertaking and restore the mandatory injunction originally sought so that the defendant has to demolish the gate structure, but only to reinstate it if they succeed at the end of the day.

58.  The status quo pending trial prior to this application by the plaintiff (pursuant to the undertaking accepted by the court) is that the defendant has a second metal gate in place, but it is kept open at all times.  The status quo during pendency until trial is not the absence of any metal gate at all, as suggested by Mr Wong by reference to matters prior to the undertaking.

59.  The plaintiff says that it plans to develop and sell Lot 181 SA and the Extension, but upon disclosure of the letter from the DLO to potential purchasers, the negotiations fell through since prudent purchasers would not buy the land before the removal of the encumbrance specified by the DLO.  The existence of the second metal gate being an encumbrance and the DLO’s demand for removal may well bring the market value of the land down, and the grant of a mandatory injunction to do what the DLO required would not cause prejudice, so there is said to be urgency in the removal of the second metal gate in order to sell or develop the site, especially when planning approval for utilising the full development potential of the land and application for building works to commence would not be entertained without the removal of the second metal gate as required by the DLO.

60.  However, there has been no persuasive explanation from the plaintiff as to why no fresh injunction application was made upon receipt of the DLO letter, but only months afterwards when the case is close to being ready to set down for trial.  This is especially of concern when they are alive to the issue of encroachment on the Government land and the risk of enforcement action as early as when the first injunction was being sought.  Anyway, this point is dependent on the viability of the plaintiff’s cause of action based on encroachment of the Government land.  In light of the above views, there is no merit to this argument. 

61.  In any event, until adjudication in this case, the plaintiff has unresolved problems that affect the potential sale or redevelopment, namely whether there is a right of way over the Green Area for serving the Extension which itself is landlocked, and whether the defendant is entitled to put up a gate at the adjoining edge of Lot 181 RP and the Blue Area.  Either party may succeed at the end of the day, and it is not for me to speculate now who will do so.  I cannot see how the balance of convenience is served by having the second metal gate removed altogether now, when there is already an undertaking to keep it open at all times pending trial for ingress and egress.

62.  In this case, the defendant has offered to move the gate structure to relocate it back to within their own land, which can be done within three days at minimal cost to be borne by the defendant.  So long as the gate structure, whether the metal gate, wire mesh fencing, or any other structure, is relocated back to the defendant’s own land and such gate is kept open at all times until trial, it maintains the status quo as per the undertaking, and answers the plaintiff’s complaint concerning the encroachment and risk of enforcement.  It also permits the plaintiff open ingress and egress to their own land.

63.  There is no need for, and indeed it is inappropriate to consider, an interlocutory mandatory injunction when a less intrusive measure can be achieved quickly and economically that meets the undertaking that has been in place as well as the balance of convenience of the parties. This approach also has the added advantage that the parties can progress to trial quickly in the spirit of the order for expedited trial without further skirmishes on issues of encroachment and enforcement.

64.  The defendant has applied for release from the undertaking.  The defendant says that with the removal of the main metal gate, the enforced opening of the second metal gate as a result of the undertaking causes hardship, as there is no way the defendant can keep out human or vehicular intruders.

65.  I am not persuaded that the defendant should be released from the undertaking to keep the second metal gate open at all times now that the second metal gate will be relocated within the defendant’s land.  As I have pointed out, until November 2011, there is no clear sign of deliberate delay on the part of the plaintiff.  Although time has been spent by the parties to prepare expert and lay evidence and further, although better progress would have been desirable, now that the second metal gate will be relocated, and given that the unless order by the learned Master sets a guillotine deadline for the plaintiff to serve supplemental witness statements, I am persuaded that tight case management measures can progress this case to trial quickly without undue risk to the defendant.

66.  Further, I am not persuaded that loss of the main metal gate materially affects the balancing of the considerations. The defendant does not seek to bolt the second metal gate even if it is closed, and says that it can be easily opened.  If that is the case, it is unlikely to keep out any determined intruder or trespasser. 

67.  That being the case, on the basis that the defendant will move the second metal gate structure, whether the gate, any wire mesh fencing or any further structure back to within Lot 181 RP, but will keep such relocated gate open at all times until trial, the plaintiff’s application for injunctions is dismissed, and the defendant’s application for release from undertaking is also dismissed.

68.  I will now hear counsel to work out the wording of the formal order, including the period for the relocation of the gate structure, and to address on the costs and ancillary matters including whether, if possible, the amendment summons can now be disposed of, and what outstanding matters can be dealt with today before the matter can be set down for trial.

(Submissions on the above matters)

69.  Although both parties hold a different stance on the question of costs, the plaintiff asking for costs in the cause, and the defendant asking for costs, I see no reason to depart from the usual principle that costs follow event.  The plaintiff shall pay the defendant’s costs of and occasioned by the plaintiff’s summons dated 15 January 2013, and the defendant shall pay the plaintiff’s costs of and occasioned by the defendant’s summons dated 21 January 2013.  For the avoidance of doubt, I apportion one-third of the overall costs of the hearing to be for the defendant’s summons dated 21 January 2013.