GOTLAND ENTERPRISES LTD v. KWOK CHI YAU AND ANOTHER

HCA 638/2021

[2022] HKCFI 625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 638 OF 2021

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J U D G M E N T

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1.  On the authority of Billion Star Development Ltd v. Wong Tak Chuen & ors [2013] 5 HKC 539, I am satisfied that as a matter of law, the Court may grant an injunction against defendants who are named by description rather than by individual names. At [74], Lam JA (as he then was) identified 4 aspects as to which the Court should exercise vigilance.

(a)  First, whether the description of the defendants is sufficiently certain as to identify both those who are included and those who are not.  Here, the description should satisfy this requirement, seeking to include only those who have trespassed onto the Plaintiff’s property.

(b)  Second, the court must be satisfied that naming defendants in this way does not prejudice the rights of those potentially affected by whatever orders the court may make.  Here, I note that by order of 10 November 2021, the Plaintiff was ordered to effect service by posting the relevant court documents at conspicuous places at all entrances and exits of the Disputed Land, so that reasonable notice should have been given to those who might seek to challenge the Plaintiff’s claim.  I note from the affidavits of service, including the photographs exhibited, that this has been done.  I further note that by the same order, any further court orders made by the court will be posted in this way on the Disputed Land.

(c)  Third, proper directions must be given for the service of proceedings and notification given to those who may be affected.  As mentioned, I am satisfied that this has been done.

(d)  Fourth, if nobody comes forward to resist a plaintiff’s application against a group of unnamed defendants, the court should consider whether caveats similar to those in RHC O.15 r.12(3) to (6) should be built into any relief to be granted.  I will come back to this.

2.  This being an application under O.19 r.7, I should have regard only to the statement of claim.  I am satisfied that the Plaintiff has set out the necessary elements to found its claim in trespass against the 2^nd Defendant. The Plaintiff has pleaded that:

(a)  it owns the Disputed Land;

(b)  the 2^nd Defendant has been trespassing on the Disputed Land.  In particular, after the 1^st Defendant’s tenancy expired in June 2017, the 2^nd Defendant has been passing over the Disputed Land as an access road without the Plaintiff’s consent, and has occupied the Disputed Land by parking vehicles and storing vehicles on it without the Plaintiff’s consent.

3.  It is further pleaded that unless restrained by the Court, the 2^nd Defendant will continue to trespass on the Disputed Land.

4.  As to the tort of trespass:

(a)  it is actionable per se, without there having been any actual damage;

(b)  in Lea Tai Property Development Ltd v. Incorporated Owners of Leapoint Industrial Building [1996] 1 HKC 193, Godfrey JA observed that “in the ordinary case, an owner of property who complains of a trespass is entitled almost as a matter of course to an injunction to restrain the continuance of the trespass”;

(c)  an injunction may be granted even if the trespass is trivial: The Incorporated Owners of Fu Fai Court, Tin Hau Temple Road v. Henble Ltd, unreported, HCA 2844/2003, 8 August 2003, Deputy High Court Judge To at [17].

5.  Thus whilst the power to grant an injunction is discretionary, and the power to grant default judgment under O.19 r.7 is discretionary, I exercise this discretion in favour of the Plaintiff and grant injunctive relief and costs.