FAR EAST CONSORTIUM LTD v. OCCUPIER(S) ENTERING OR REMAINING AT THE LOT WITHOUT THE CONSENT OF THE PLAINTIFF AND OTHERS

HCMP 221/2019

[2019] HKCFI 2298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 221 OF 2019

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R E A S O N S    F O R    D E C I S I O N

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The application

1.  The plaintiff (“P”) is the registered owner of the lot of land known as Section B of Lot No 20 in DD 390, Tsuen Wan, New Territories (“Lot 20B”).  The defendants (“Ds”) are occupants of a number of houses or huts (“Houses”) erected on different portions of Lot 20B.  They claim to have acquired possessory title to the portions they have been in occupation of.  On Lot 20B is part of a retaining wall (the “Feature”).  The Feature is said to be dangerous and is the subject matter of a current building order dated 6 September 2013 (the “2013 Building Order”).  Remedial/preventive works have been ordered (the “Remedial Works”). By summons dated 19 February 2019 (the “Summons”), P seeks a mandatory interlocutory injunction for the immediate dismantling of the Houses so that, it says, the Remedial Works could be carried out and the 2013 Building Order complied with.  It claims that unless those works are carried out, the Feature “has relatively high possibility of failure”, and that P will face prosecution.  It also seeks the eviction of Ds pending completion of such works.  Some of the Ds oppose the application.

2.  At the end of the hearing, I dismissed the Summons.  I ordered instead that there be a speedy trial of the matter.  I gave a tight time table for parties to follow.  I indicated that I would hand down my reasons.  I now do.

The parties

3.  P is a wholly owned subsidiary of Far East Consortium International Limited.  The latter is a listed company.

4.  P has been the registered owner of Lot 20B since 30 January 1982.

5.  On 19 February 2019, P took out the Originating Summons herein.  At that stage, the only defendants were generically named as “Occupier(s) entering or remaining at the Lot without the consent of [P]”.  P seeks thereby in gist (1) an order for possession of Lot 20B; (2) an injunction against occupation, erection of structures and creation of nuisance; and (3) alternatively an order permitting P to carry out the Remedial Works.  Whilst not expressly pleaded to be so on the face of the Originating Summons, the underlying cause of action, according to §§4 and 5 of Lai Wah Pun’s affirmation of 18 February 2019 filed in support (“Lai Aff/#1”), is one of trespass.  Lai said therein that:

“ 4. Since a time unknown to [P], the [Ds] has/have wrongfully trespassed upon [Lot 20B] without the consent, permission or authorization of [P]. Various authorized building works have been unlawfully erected on [Lot 20B], including on the crest on the [Feature]…

5.  As at the date hereof, [Ds] is/are still unlawfully trespassing upon and occupying [Lot 20B] without the consent, permission and/or authorization by [P].”

6.  The identities of the occupants were subsequently identified.  Different defendants have been joined.  Some subsequently dropped out for different reasons.  Currently, those defendants who remain in the picture and active are D3, D4, D5, D9, D10, D15, D16, D17, D18, D19, D20 and D21.  I am not however concerned with D17 for the purpose of this hearing as the location of the House she says she occupies is outside the scope of the injunction currently being sought.  I will call D3, D4, D5, D9, D10, D15, D16, D18, D19, D20 and D21 the “Injunction Ds”.

The Feature, and 2013 Building Order

7.  I mention in §1 above the Feature.  It is described in the 2013 Building Order as an “earth retaining structure”.  Mr Arthur Yung (“Yung”), the Registered Geotechnical Engineer engaged by P, at section 2 of his Geotechnical Study Report dated 6 August 2018 (“Yung Report #1”) gave the Feature this description:

“ The Feature is L-shaped in plan loosely packed random rubble retaining wall, and is approximately 16m long. The Feature comprises a retaining wall of maximum height of 3.2m, maximum base width of 0.4m and inclined at an angle of approximately 80 degree.”

8.  Not the entire Feature is located on Lot 20B.  Whilst one part of the “L” is located on Lot 20B (“Sub-division No 1”), the other part of the “L” is located within Section C of Lot No 20 (“Sub-division No 2” and “Lot 20C”). 

9.  Lot 20B and Lot 20C are separately owned.

10.  The Building Authority (“BA”) first had concern about the safety of the Feature in 2002.  On 26 November 2002, it served upon P a building order (the “2002 Building Order”) under section 27A of the Buildings Ordinance (“BO”) covering the portion of the Feature within Lot 20B. P was ordered thereby to carry out the following works:

“ a. appoint an Authorised Person within 2 months of the date of this Order to co-ordinate the work required below;

   b. investigate, analyse, report on the above earth-retaining structure, and submit remedial/preventive works proposals for approval by the Building Authority based on the findings of the investigation within 7 months of the date of this Order.”    

11.  Despite the time limit imposed, the 2002 Building Order was not complied with until more than 10 years later in January 2013.  In a letter from BA to P dated 29 January 2013, BA said:

“ I refer to the geotechnical reports and remedial works proposals submitted by your Authorized Person on 23 August 2012 and 19 November 2012 and approved by me on 11 October 2012 and 17 January 2013. This is to advise you that the [2002 Building Order] is considered to be complied with…

Please cause the approved slope remedial works to be carried out as soon as possible under the supervision of your appointed building professionals according to the [BO].  You are, however, reminded that should the remedial works not be carried out, I will have no alternative but to issue another order under section 27A(2B) of the [BO] to require you to carry out the approved works within a stipulated period.”

12.  As it turned out, P failed to carry out the Remedial Works “as soon as possible” as requested, and a building order was, as warned, subsequently issued under s 27A(2B) of the BO.  That took the form of the 2013 Building Order.  It was issued on 6 September 2013.  It related to Sub-division No 1 of the Feature.  P was ordered thereby to carry out the following work:

“ a) appoint an authorised person and a registered geotechnical engineer within TWO months of the date of this Order to co-ordinate and supervise the work required below;

b) to carry out and complete the approved remedial/preventive work in accordance with the proposal approved by the [BA] on 11 October 2012 within SEVEN months of the date of this Order.”

13.  One paragraph of the covering letter dated 6 September 2013 from the BA to P (under cover of which the 2013 Building Order was issued, the “2013 Building Order Covering Letter”) should be noted.  With reference to Sub-division No 2 of the Feature, BA said:

“ I have also served a similar Order on the owner(s) of No 29A Sham Tseng San Tsuen, Tsuen Wan, New Territories. I suggest that it would be of mutual benefit for you to liaise with the above owner(s) with a view to carrying out the work jointly.”

14.  Despite the reminder in the letter of 29 January 2013, and despite the issue of the 2013 Building Order, P did not carry out the works as ordered.  By another letter dated 7 May 2014, BA wrote to P, made reference to the 2013 Building Order, and (amongst other things) said:

“ To date I have not received an notification of the appointment of an authorized person and a registered geotechnical engineer. You are advised that an authorized person will need to make preparations for the works in order to meet the completion date and early appointment is advisable.”

15.  On 8 July 2014, BA wrote to P again and stated that no notification of any appointment had been received from P.  BA stated further, amongst other matters, that:

“ As you have failed to complete the required works without a reasonable excuse, I consider to institute prosecution proceedings against you for non-compliance with my Order, under section 40(1B) of the [BO]. Please note that you are required to attend Court if prosecution action is taken…”

16.  Some months afterwards, the then legal advisers of P wrote to BA on 3 February 2015.  They said that:

“ We are instructed that [Lot 20B], including relevant earth-retaining structure, were illegally occupied by the unknown occupier(s) without our client’s consent. We therefore instructed to advise and to prepare the recovery action of [Lot 20B].

In this regard, as [Lot 20B], including the earth-retaining structure, were not under our client’s control, we would be obliged if the director may withhold all further action, if any, to be issue [sic] against our client.  We will report to you from time to time the process of the recovery action.”

17.  In reply, the BA in its letter of 25 February 2015 referred to the 2002 Building Order, the compliance of that Order on 29 January 2013, and the 2013 Building Order.  It stated its view that P had been given ample of time to deal with the “unknown occupier”.  It refused to withhold enforcement action.

18.  On 25 April 2017, BA wrote to P again.  It said, amongst other matters, that:

“ It is noted from your solicitors’ letter dated 3 February 2015 which said that [Lot 20B] was illegally occupied by ‘unknown occupier’ without your consent and therefore recovery action of [Lot 20B] would be prepared. Please advise whether any steps had been taken since then such that the required works could be carried out in compliance with the Order.”

P was further warned of the possibility of prosecution should it fail to comply with the 2013 Building Order.

19.  On 13 July 2017, P was summoned for having failed without reasonable excuse to comply with the 2013 Building Order, contrary to s 40(1B)(b) of BO. On 16 August 2017, P pleaded guilty to that summons and was fined HK$7,000.

20.  In the meantime, and only on 21 July 2017 when P first started to take steps to recover possession of Lot 20B.  Those steps I will set out as follows.

Steps taken by P in attempted compliance with the 2013 Building Order

21.  According to §17 of Lai Aff/#1, demands letters dated 21 July 2017 were issued to the occupiers of Lot 20B.  He said that “[d]espite some negotiations, no agreement was reached and the occupiers’ acts of trespass persisted ”.

22.  Apparently, P on 16 March 2018 reported to BA the steps it had taken to repossess Lot 20B.  By its letter dated 27 April 2018 to P’s solicitors, BA acknowledged receipt of that report.  BA said further therein that:

“ 2. Please be advised that this acknowledgment on your abovementioned letter does not imply that the slope feature is still safe. You are reminded that it is the responsibility of your client for monitoring the stability of the slope feature until completion of the preventive works and giving warning of any impending danger of the concerned slope feature.

3. You are reminded that [BA] may under section 40(1B) of the [BO] prosecute any person who fails, without reasonable excuse, to comply with an order served on him under section 27A of the [BO].”

23.  P subsequently engaged Yung and a registered contractor called CR Construction Company Limited (“CR”).  Yung rendered his Yung Report #1 on 6 August 2018, followed by his Supplementary Information dated 14 September 2018 (“Yung Report #2”).  On 31 October 2018, CR rendered its Method Statement (“Method Statement #1”) outlining “our temporary facilities to be provided, construction method and sequence to deliver this project in accordance with the target programme with acceptable quality in a safe and environmentally friendly manner”.  On that same date, Yung rendered his 2^nd Supplementary Information (“Yung Report #3”).  Subsequently on 18 February 2019, CR rendered its Revised Method Statement (“Method Statement #2”).  I will collectively refer to all these reports and Method Statements as “P’s Expert Reports”.

24.  I have considered P’s Expert Reports.  The main points in gist are:

(a) Yung expressed the following views in Yung Report #1:

(i) “The Factor of Safety in design should be the highest criteria if failure may affect occupied residential buildings (ie Category ‘1’)”. The Feature would fall into that Category (p 6);

(ii) “It is considered the Feature is under dangerous situation and has relatively high possibility of failure based on the design assessment” (p 7);

(iii) Should the Feature fail, the “potential affected buildings” would be, in so far as structures within Lot 20B are concerned, two temporary structures and the two Houses sitting on the crest of Sub-division No 1 (ie Houses 30A and 30B) (p 8);

(iv) “prompt execution of the [2013 Building Order] is required and commencement of remedial, preventive or upgrading works to the [Feature] without delay is highly recommended ” (p 12);

(b) CR expressed the opinion at §2.1 of Method Statement #1, and elaborated upon at §2.1 of Method Statement #2, that:

“ At initial stage, residents inside the site boundary to be evacuated and removal of temporary structures TS, 30A, 30B, 30B1, 30C, 39A, 49, 49A and 49B within the site boundary to provide site access, construction working area and storage area for the proposed construction works.”;

CR further expressed it views at §3.1 of Method Statement #2 that:

“ Ground-borne Vibrations

   Installation of sheet piling and operation of construction machines will generate vibrations and settlements which may have adverse effects on, or cause damage to, adjacent buildings/structures/services, in particular, non-structural elements therein.”

(c) In Yung Report #3 (which has only one page) issued on the same date as Method Statement #1, Yung made reference to Method Statement #1 and stated that:

“ [Method Statement #1] indicated that a lot of working space, site office, storage area and hoarding are required…to facilitate the carrying out of the construction of mass concrete wall. This echoed with our previous advice that occupants residing in [Lot 20B] including TS, 30A, 30B, 30B1, 30C, 39A, 49, 49A and 49B have to be vacated during the construction period and the temporary houses should be removed.”

One notes however that in Yung Report #1, only two temporary structures and Houses 30A and 30B were mentioned as “potential affected buildings”.  Nor were those other Houses mentioned in Yung Report #2.

25.  P’s stance therefore is, in summary, this, that if the Feature fails, Houses 30A and 30B (which are on the crest of Sub-division No 1), together with 2 temporary structures, would directly be affected.  To carry out the Remedial Works, given the need for site access, construction working area and storage, and given the vibration that might be generated, several other Houses nearby would also have to be vacated and cleared.

26.  Ultimately, on 19 February 2019, P took out the Originating Summons herein.

The Injunction Ds’ position

27.  I have set out above who the Injunction Ds are. 

28.  Mr Vincent Lam (with Mr Kurt Ng) appeared for D4, D5, D15, D19 and D20.  Each of those 5 Ds has filed at least an affirmation in opposition of the Summons.  Each of those other Ds who are still in the picture (D3, D9, D10, D16, D18, and D21) but were unrepresented during the hearing have also filed one affirmation in opposition.  All of them claim possessory title in the portions of Lot 20B they say have been occupying.  In summary:

(a) D3 claims that he together with his wife (ie D21) had been occupying House 39BB for more than 20 years.  Various utilities and rates demands have been produced.  Some time in December 2001, somebody claiming to be the representative of Mr Deacon Chiu came to Lot 20B and asked each villagers to sign a document called “特許使用合約” and pay certain “使用費”. Due to ignorance, fear, and in awe of Deacon Chiu’s name, most villagers, including him and his wife, signed one.  However, he had refused to pay the “使用費” after a while, and refused to acknowledge the “特許使用合約”;

(b) D4 claims that he had been occupying House 49A since 1966. Various utilities and rates demands have been produced.  His case on the “特許使用合約” is similar to that of D3.  He said that he had only paid “使用費” for about 3 years;

(c) D5 claims that he and his father have had exclusive possession of House 49B for at least 12 years before the commencement of the present action. Water bills have been produced;

(d) D9 claims that she has been occupying House 30A since 1978 when she came to Hong Kong from the Mainland.  It was subsequently purchased by her husband in 1977.  She also purchased House 30B in 2006.  Various utilities and rates demands have been produced.  Her case in respect of the “特許使用合約” is similar to that of the other Injunction Ds, and said that she had only paid “使用費” up to March 2005;

(e) D10 claims that he and his wife (D18) in 1972 purchased House 30A.  Some bills have been produced.  His case in respect of the “特許使用合約” is similar to that of the other Injunction Ds, and that he had only paid “使用費” for 4 seasons;

(f) D15 claims that he and his father purchased House 30B1 from the previous squatter (who had been in exclusive possession of the same since at least 2004) in about December 2010;

(g) D16 claims that House 27 was left to her by Mr Chu Tou (朱滔).  She has produced Mr Chu’s will.  She claims that she has been in possession of House 27 since Mr Chu’s demise in 1997;

(h) D18 is the wife of D10.  Their case is the same;

(i) D19 claims that she (with her late husband) purchased House 49 in 1969 and has been residing there since.  Various utilities and rates bills have been produced.  Her case in respect of the “特許使用合約” is similar to that of the other Injunction Ds, and said that she had only paid “使用費” up to December 2006;

(j) D20 claims that her late husband purchased House 39A in 1970.  She and her family had been living there since her marriage in 1972.  Various utilities and rates bills have been produced.  Her case in respect of the “特許使用合約” is similar to that of the other Injunction Ds, and said that they had according to her recollection only paid “使用費” for one season;

(k) D21 is the wife of D3, and their case is the same.

29.  D4 has himself instructed an expert to comment on P’s Expert Reports. That expert is Mr Stephen Wai (“Wai”), a registered civil and structural engineer.  He has prepared a report dated 20 May 2019 (“Wai’s Report”).  It is a lengthy report (87 pages).  The thrust of Wai’s Report which Mr Lam has highlighted for my consideration is that according to Wai’s view, the methods suggested by CR would endanger public safety (or at least the safety of the site personnel) (§45).  He expressed his views (at §48) that the method suggested by CR of using vibratory drivers is not the most advanced, feasible and suitable method.  The more advanced and suitable method in his view is the GIKEN Silent Piler Press-in Method (the “GIKEN Method”). The GIKEN Method is less disturbing, occupies less space, and its adoption would affect less number of Houses.  He concludes at §71 that “In order to comply with the [2013 Building Order], it is not necessary to demolish structures / houses on the Upper Platform other than Houses 30A, 30B and TS at all ”.

30.  Yung has prepared a report in reply.  He maintained that the Method Statements prepared by CR are more reliable, though he himself accepts that “the GIKEN Method is new to me” (§17).     

Applicable legal principles on grant of interlocutory injunctions

31.  The Cyanamid principles are well known and there is no need for me to recite them here. 

32.  The interlocutory injunction which P is seeking is, and is accepted by Ms Jacqueline Law, counsel for P, to be, mandatory in nature.  For that reason, I remind myself of the principles summarized in §29/1/29 of Hong Kong Civil Procedure 2019, Vol 1:

“ Where the plaintiff seeks a mandatory injunction, by which the defendant is compelled to act rather than prohibited from acting, the American Cyanamid principles are usually modified to require a higher standard of proof. This has been expressed as requiring the plaintiff to show ‘a strong prima facie case’ and that the court must feel a ‘high degree of assurance’ that at trial it will appear the injunction was rightly granted (Brave Venture Ltd v Xinhua News Media Holdings Ltd [2017] 5 H.K.L.R.D. 153 (CA); Shepherd Homes v. Sand Ham [1971] Ch. 340 at 351; TKI Ltd v. New Happy Ltd [1995] 1 H.K.C. 551, CA). The plaintiff need not, however, show that its case is so strong as to entitle it to obtain summary judgment Emagist Entertainment Ltd v. Nether Games (Hong Kong) Ltd [2013] 1 H.K.L.R.D. 898.

However, this more stringent test arises due to the typically more onerous effect of a mandatory injunction rather than the mere classification of an injunction as mandatory National Commercial Bank Jamaica v. Olint Corp Ltd [2009] 1 W.L.R. 1405, cited in Re Wako Giken (HK) Co. Ltd [2010] 4 H.K.L.R.D. 121; see also para.29/1/8.  The ultimate question is: what is the course to adopt that involves the least injustice in case of the grant or refusal of interlocutory relief, as the case may be Music Advance Ltd v. Incorporated Owners of Argyle Centre Phase I [2010] 2 H.K.L.R.D. 1041.  Where the court cannot be satisfied that the plaintiff has a ‘strong prime facie case’, it may still grant a mandatory injunction where the balance of convenience is tilted so much in the plaintiff’s favour that justice requires the grant of an injunction…”

33.  I further remind myself of the observations made by Ma J (as the Chief Justice then was) in Music Advance Ltd and Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD, 1041, at §12, and in particular:

“ 12. …

(d) At the interlocutory injunction stage, the principal concern of the court is that it might make a wrong decision in the sense that after trial, the party to whom an interlocutory injunction has been granted may lose or the party who has been refused one, may win. The Court will therefore take whichever course appears to carry the lower risk of injustice if it should turn out that it is wrong. This ‘fundamental’ principle is the source of the guidelines that have evolved for the determination of interlocutory injunctions (included are, of course, the American Cyanamid guidelines) and therefore, in the application of any guidelines, sight must not be lost of this principle…

…

(f) In the case of interlocutory mandatory injunctions, the risk of injustice (being wrong in the sense referred to above) can be quite acute. In Films Rover International Ltd v Cannon Film Sales Ltd, it was put thus by Hoffmann J at p.681B-E:

‘ In Shepherd Homes Ltd v Sandham, Megarry J spelled out some of the reasons why mandatory injunctions generally carry a higher risk of injustice if granted at the interlocutory stage: they usually go further than the preservation of the status quo by requiring a party to take some new positive step or undo what he has done in the past; an order requiring a party to take positive steps usually causes more waste of time and money if it turns out to have been wrongly granted than an order which merely causes delay by restraining him from doing something which it appears at the trial he was entitled to do; a mandatory order usually gives a party the whole of the relief which he claims in the writ and makes it unlikely that there will be a trial. One could add other reasons, such as that mandatory injunctions (whether interlocutory or final) are often difficult to formulate with sufficient precision to be enforceable. In addition to all these practical considerations, there is also what might be loosely called a ‘due process’ question. An order requiring someone to do something is usually perceived as a more intrusive exercise of the coercive power of the state than an order requiring him temporarily to refrain from action. The court is therefore more reluctant to make such an order against a party who has not had the protection of a full hearing at trial.’

(g) This passage in my view explains just why it is that generally a court will have to feel a high degree of assurance that at the trial of an action it will be shown that the interlocutory injunction was rightly granted before an interlocutory mandatory injunction will be given; all this being an exercise in assessing the strength of the plaintiffs’ case: see sub-para. (a) above.  However, I emphasise that this is only generally the court’s approach.  Where it is shown, as an exception to this general approach, that the case is one in which the withholding of on interlocutory mandatory injunction ‘would in fact carry a greater risk of injustice than granting it even though the court does not feel the high degree of assurance’ as aforesaid, it would be right to grant an interlocutory mandatory injunction, see Films Rover International Ltd v Cannon Film Sales Ltd, p.681A-B.”

Whether “serious issue to be tried”, and whether “high degree of assurance”

34.  This should be reiterated and made clear at the outset.  The cause of action which P is relying on is trespass.  That is the basis of its claim.  The existence of the 2013 Building Order does not by itself give P a cause of action against Ds for any order for possession or injunction. 

35.  At this stage, it is therefore the cause of action of trespass which has to be focused upon.

36.  P is the registered owner of Lot 20B.  There is and can be no dispute about it.

37.  The Injunction Ds have no registered title to the portions of Lot 20B which they say they have been occupying.  Prima facie, they are all squatters. 

38.  In my view, and on those facts alone, P has demonstrated a serious issue to be tried as to whether it is entitled to an order for possession against each of the Injunction Ds.

39.  However, is the evidence before me such that I feel a high degree of assurance that at the trial of the action, it will be shown that any interlocutory mandatory injunction that I may grant at this stage was rightly granted? 

40.  The Injunction Ds are and have been in occupation of a number of Houses erected within Lot 20B.  This is not disputed by P.  It has itself told the BA so.

41.  The time when the Injunction Ds commenced their respective occupation is unknown to P.  Lai said so at §4 of Lai Aff/#1.

42.  Each of the Injunction Ds has filed at least one affirmation.  They have told the court on oath when they started their respective occupation. Utilities and rates bills have been produced.  I have summarized their evidence above.  There is no contrary evidence before me at this stage.

43.  Some of them said that they had signed a “特許使用合約”.  But that was in about 2001.  They said that they did so due to ignorance and fear, and because they were in awe of Deacon Chiu’s name.  They also stated that they had stopped paying the “使用費” shortly afterwards.  At this stage, and on the evidence, I do not feel a high degree of assurance that the signing of “特許使用合約” and the payment of “使用費” some years ago necessarily negate their requisite intention to possess so as to negate their claims based on adverse possession.

44.  As observed by Ma J in Music Advance, in the case of interlocutory mandatory injunction, the risk of injustice can be quite “acute”.  In that same context, Hoffmann J in Films Rover International used the phrase “intrusive exercise of the coercive power of the state”.

45.  The Injunction Ds are a group of elderly citizens.  They were before me during the hearing.  Most of them have stated their ages in their affirmation. Some are of poor health.  The Houses concerned, albeit apparently unauthorized building works, are places they call homes, places they say, supported by evidence, which they and their families have been living in for decades.  The risk of injustice of any interlocutory mandatory injunction which I might summarily grant to demolish those Houses could not have been more acute.  The coercive power that might be utilized could not have been more intrusive.

46.  Then there is the competing expert evidence.  If Wai is correct, and the GIKEN Method should be adopted, only Houses 30A and 30B (and 2 temporary structures) need to be vacated and demolished.  Yung admittedly is not familiar with the GIKEN Method.

47.  There is one further point here. As I have noted above, the Feature comprises Sub-divisions No 1 and No 2.  Only Sub-division No 1 is within Lot 20B.  Sub-division No 2 is on Lot 20C which is separately owned.  In the 2013 Building Order Covering Letter, BA advised P to liaise with the other owner with a view to carrying out the Remedial Works jointly.  There is no evidence before me that P has done that. P’s Expert Reports have not expressly addressed the question as to whether Remedial Works could be carried out on Sub-division No 1 independently.   I have no assurance that once I grant the injunction sought, if I were to grant it, Remedial Works could immediately be carried out without the need of further liaison with the owner of Lot 20C.  If there were any such need, it would have been quite wrong of this Court to grant the injunction urgently at this stage. 

48.  In the light of the evidence before me, I answer the question I posed in §39 above in the negative.  

Balance of convenience, and the exercise of my discretion  

49.  The next stage is for me to consider whether this is one of those cases where, despite the absence of any “high degree of assurance”, the withholding of the injunction sought would in fact carry a greater risk of injustice, so that the application should be granted.  For the reasons given below, the answer is in my view no.

50.  I repeat that the effect of the injunction being sought is to immediately and permanently demolish those Houses the Injunction Ds call homes.

51.  It has been pressed upon me that in the absence of the injunction sought, P may face further prosecution.

52.  I have set out above the facts leading to the issue by BA of the 2013 Building Order.  P had taken more than 10 years to comply with the 2002 Building Order.  Despite the time limits imposed by the 2013 Building Order, P only issued letters to Ds demanding possession on 21 July 2017, only after repeated reminders by the BA and after the initiation of the prosecution by BA against it on 13 July 2017.  The present Originating Summons and the present Summons were then only taken out in February 2019, another one and a half years later.

53.  In the circumstances, and given the delay on P’s part, if there is any risk of further prosecution by BA against P as a result, that risk carries little weight in favor of P for the purpose of the exercise I am now undertaking. 

54.  The risk of the Feature failing and the public safety concern arising have also been pressed upon me.

55.  That is a concern.  However, P has taken some 16 years since the 2002 Building Order to commence recovery proceedings.  And now having started the proceedings, they turn round and say in effect that as the Feature may fail anytime, all the Injunction Ds should be summarily evicted pending completion of the Remedial Works, and the Houses they call homes immediately and permanently demolished.  That does not accord with the sense of justice this Court holds.

56.  In my view, rather than for me to grant the injunction sought, the public safety may at least be partly addressed by me ordering that there be a speedy trial of this action.  I did give such directions at the end of the hearing.  I will reproduce those directions I gave below.

Conclusion

57.  Having considered all the evidence, and having balanced all relevant factors, I have reached the view that the course which involves the least injustice is for me to dismiss the summons, but to order a speedy trial as I have.

58.  For the avoidance of doubt, nothing I have stated above is meant to bear upon BA’s exercise of its statutory powers under the BO.  In particular, whether BA decides to take further enforcement action in respect of the 2013 Building Order and if so how remain entirely matters for the BA to independently consider and decide.

The directions

59.  The directions which I gave at the conclusion of the hearing were as follows:

(a) there be a speedy trial of the action;

(b) the case be continued as if started by writ;

(c) the plaintiff shall within 10 days from the date of this Order file its Statement of Claim;

(d) each of the defendants concerned (ie D3, D4, D5, D9, D10, D15, D16, D17, D18, D19, D20 and D21) shall within 21 days from receipt of the Statement of Claim file and serve their Defence and Counterclaim (if any);

(e) the plaintiff shall within 21 days from receipt of the Defence and Counterclaim from each of the defendants file and serve its Reply and Defence to Counterclaim (if any);  

(f) the parties do file and serve their respective lists of documents within 21 days after the plaintiff has filed and served the last Reply and Defence to Counterclaim, and there be mutual inspection of documents within 7 days thereafter;

(g) the parties do file and serve their signed witness statements as to facts and expert reports on the issue of adverse possession within 42 days thereafter, and save where otherwise directed by the trial judge, they shall stand as their makers’ respective evidence-in-chief at trial;

(h) parties’ respective experts shall meet within 7 days after the filing of the last expert reports, and a joint expert report be prepared within 14 days thereafter;

(i) the parties shall set down the case for a speedy trial within 7 days thereafter, with an estimate of 12 days (which shall be confirmed in writing by the parties’ counsel at the time of setting down), and convenience of counsel shall not be considered in fixing dates;

(j) the trial shall not commence earlier than one month after setting down and there shall be a pre-trial review before the trial judge (if possible) not later than 21 days before the commencement of trial;

(k) the parties must inform each other and the court forthwith if they or any of them should become aware of any matter or development that may affect the above estimate or trial or the holding of the speedy trial on the dates fixed;

(l) time shall run during the summer vacation; and

(m) the parties shall within 5 days from the date of this order approach the listing clerk of the court to pencil-mark the available trial dates, which shall be formally confirmed upon setting down as provided in (i) above.

60.  As D17’s legal representation was not before me when I gave the directions, I ordered that those directions be nisi in nature, and would only take effect upon expiration of 3 days.  

Costs

61.  I make a costs order nisi that the costs of the Summons be the Injunction Ds’ costs in the cause.  In so far as any costs having been incurred by D17 in relation thereto (and in particular the costs of D17’s legal representation attending the hearing to deal with the issue of speedy trial), those costs be costs in the cause.  Any party who seeks any variation or summary assessment should lodge their submissions within 14 days from the date hereof, response within 14 days upon receipt, and reply within 7 days thereafter.