SIT KIM MING v. GROWTH LEADER LTD

HCA 1055/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1055 OF 2013

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D E C I S I O N
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Introduction

1. This is the plaintiff’s application for an interlocutory injunction.  Although no interim injunction was granted between the earlier hearing (21 June 2013) which took place some a year and 9 months ago, an undertaking (which has the effect of an injunction) was given by the defendant on that occasion.

2. The reason why this application came to be heard so late is, in gist, the plaintiff has not fixed a hearing for the injunction earlier.  The defendant opposes this application on the sole ground that it should be refused for gross, unexplained and inordinate delay.

Background

3. The background leading to this application can be summarized as follows.

4. The plaintiff claims to be the lawful occupier of a piece of land in Yuen Long and has been occupying it since the early 1980s.  He constructed a house there (in which his family resides, and his business is located).  The defendant is the registered owner of a piece of land nearby (“the defendant’s land”).

5. The plank on which the plaintiff rests his case is a right of way over the defendant’s land which he contends was acquired (1) by way of prescription, and/or (2) by necessity, and/or (3) by adverse possession (“the plaintiff’s right of way”).  The plaintiff’s right of way has been used for vehicular access by the plaintiff, who has no other means for vehicular access.

6. The plaintiff complains that the defendant wrongfully blocked the plaintiff’s right of way since about March 2013: a metal gate was installed, and large rocks, boulders and debris were deposited.

7. The defendant denies the plaintiff’s right of way, and in any event denies that it was responsible for the large rocks, boulders and debris.

This application

8. The history of this action/application relied upon by the defendant is summarized below:

(a) the writ was issued in June 2013;

(b) this application was taken out on 14 June 2013. It resulted in the hearing and the defendant’s undertaking referred to in para 1 above;

(c) the statement of claim was filed in July 2014;

(d) the defence and counterclaim was filed in September 2014;

(e) the reply and defence to counterclaim was filed in October 2014.

9. As stated above, the present hearing took place about 1 year and 9 months after the 21 June 2013 hearing (the plaintiff’s indication to fix the hearing was only made by him in November 2014).

10. The action did not progress with expediency either.  Pleading having been closed, no other procedural steps have been taken so far.

11. In light of the above history, the defendant seeks the dismissal of this application on the ground of delay, relying on:

(1)  Hong Kong Civil Procedure 2015, Vol 1, para 29/1/31;

(2)  Hong Kong Toy Centre Ltd v Tomy UK Ltd [1994] FSR 593;

(3)  Newsgroup Newspapers Ltd v The Mirror Group Newspapers (1986) Ltd [1991] FSR 487;

(4)  Sanwa Development Ltd (in Liquidation) v Chan Kar Keung and Another [1999] 1 HKC 847; CACV 310/1998 (4 March 1999).

12. Based on the above, the defendant argues that the plaintiff’s delay more than justifies this application to be dismissed.

13. The parties do not dispute the principles summarized in Gee: Commercial Injunctions, 5^th Ed (2004):

“The general principles are that:

(1) A claimant who has obtained an injunction, … is bound to get on with his action as rapidly as he can.

(2) He is not entitled to retain the relief except on the basis that the proceedings are progressed promptly and without unnecessary delay.

(3) If there is delay, the relief may be discharged.

(4) In deciding whether to discharge the relief and not to regrant it the court is exercising a wide discretion taking into account all the circumstances and bearing in mind the need to deter other litigants from delaying pursuit of proceedings in which an injunction has been granted.  Therefore the exercise of the jurisdiction also has a disciplinary aspect.”

(emphasis supplied) (para 23.029 thereof);

“However, the court will not always discharge the injunction where there has been delay, even though the delay has been substantial. The court will take into account all the circumstances …, including the following:

(1) whether the delay was the result of a deliberate decision on the part of the claimant;

(2) the length of the delay, and any explanations put forward by the claimant (e.g. the pursuit of settlement negotiations, or difficulties in funding the pursuit of the proceedings);

(3) the degree of prejudice liable to be caused to the claimant if the injunction is discharged;

(4) whether the claimant sought to rectify the position and proceed with the action or whether the delay is still continuing at the time of the hearing;

(5) the degree of prejudice caused to the defendant as a result of the delay. This should be shown by evidence and not merely based on the assertions of counsel;

(6) whether the defendant has through his conduct either caused the delay or contributed to it.”

(emphasis supplied) (para 23.031 (p 726)).

14. The plaintiff’s explanation for the delay is in essence that the former solicitors did not explain to him the outcome of this application.  But he accepts that, to his knowledge, the plaintiff’s right of way was still blocked by the metal gate and the other obstacles at all times.  It was the plaintiff’s subsequent solicitors who informed him (in September 2014) nothing was done by the former solicitors.  From December 2013 onwards, the plaintiff did not drive his cars using the plaintiff’s right of way.

15. I do not consider the above explanation to be a valid reason for the delay.  Further, the plaintiff’s assertion that he was not a highly educated person does not provide a valid reason either: he was aware that the plaintiff’s right of way had not been cleared at any time, and in fact gave up using it from December 2013 (which was more than one year before this hearing).

16. As for the prejudice which may be caused to the plaintiff, it is noted that the plaintiff could tolerate the above state of affairs for a relatively lengthy period of time.  This is so despite a medical emergency which the plaintiff allegedly has to endure as early as in November 2013.

17. On the other hand, the defendant has not adduced evidence that it had suffered actual prejudice as a result of the plaintiff’s delay.  At least to some extent, it has not prevented the delay by proceeding with this summons earlier.

18. At the end, what tip the balance in the defendant’s favour are:

(a) the discretion has a disciplinary aspect to it (see the quote at para 13 above);

(b) during this hearing, the defendant has not withdrawn the undertaking it has given in the order dated 21 June 2013 (which is narrower than the injunction sought by this summons).

Conclusion

19. This summons is accordingly dismissed.

20. To avoid doubt, the defendant’s undertaking is deemed to extend to until judgment in this action or further order (whichever is the earlier).  If however the defendant should indicate in writing within 7 days it is unwilling to give such an undertaking, this matter will be reconsidered afresh.

Other matters

21. The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs order

22. There will be an order that the costs of this summons are to be paid by the plaintiff to the defendant forthwith.  I disagree with the plaintiff’s proposal for those costs to be made the defendant’s costs in the cause.  In so concluding, I have taken into account:

(1) the defendant is in gist the successful party;

(2) the disciplinary aspect of the court’s discretion which brings about the dismissal of this summons.  Not to order the costs to follow the event will not be consistent with that policy consideration.

23. I consider summary assessment of costs to be appropriate.  The above costs shall thus be so assessed.  For this purpose:

(a) the defendant be at liberty to lodge with court and serve a statement of costs within 7 days from today;

(b) the plaintiff be at liberty to lodge with court and serve a statement of objections within 7 days thereafter.