KING’S DEVELOPMENT CO LTD v. PARKVIEW INVESTMENT LTD AND ANOTHER

DCCJ 1664/2019

[2019] HKDC 1695

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1664 OF 2019

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DECISION

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Introduction

1.  This is the application by the plaintiff for interlocutory injunction against the 1^st and 2^nd defendants.  At the hearing, the plaintiff was represented by counsel Mr Devin C I Sio (“Mr Sio”), and the 1^st and 2^nd defendants were represented by counsel Mr Anthony P W Cheung (“Mr Cheung”).

2.  In its Inter Partes Summons dated 7 August 2019 (the “Summons”), the plaintiff seeks, amongst others, the following orders:-

(1)  An interlocutory injunction or order be granted that the 1^st and 2^nd defendants be restrained from, by themselves or their contractors, employees, servants, staff, workers, agents or any persons with their authority or acting on their behalf, from obstructing or causing or permitting any obstruction of the right of way and access to and from Subsection 19 of Section B of Lot No. 3250 in Demarcation District No. 104 (“P’s Land”) and Fairview Park Boulevard and Ha San Wai Road shown on the Plan annexed to the Summons and thereon coloured yellow (the “Right of Way”) until the outcome of trial in this action or further order of the court.

(2)  An interlocutory injunction or order be granted that the 1^st and 2^nd defendants shall at their own costs and expenses remove and demolish such structures, chattels and/or things to cease such obstruction of the Right of Way and if they shall not so remove or demolish to cease such obstruction within 7 days after service of this Order on them, the plaintiff shall be at liberty to remove and demolish such structures, chattels and/or things at the costs and expenses of the 1^st and 2^nd defendants.

3.  The Summons went before His Honour Judge Kent Yee on 16 August 2019 and was adjourned for argument with consequential directions given by the learned judge.  The directions have been complied with by the parties.

The plaintiff’s pleaded case

4.  By a specially indorsed writ of summons filed on 2 April 2019, the plaintiff commenced the present action against the 1^st and 2^nd defendants, seeking essentially the same orders under the Summons.[1]  The facts that the plaintiff relies on to establish its claim are set out below.

5.  The plaintiff is the registered owner of P’s Land since 30 March 1993.  By way of an assignment dated 15 February 2018, the 1^st defendant became the registered owner of the land situated at Subsection 44 of Section B of Lot No. 3250 in Demarcation District No. 104 (“D1’s Land”).

6.  From the plan annexed to the plaintiff’s statement of claim, P’s Land and D1’s Land are adjoined, with P’s Land situated at the north of D1’s Land.  The Right of Way (coloured yellow) encompasses D1’s Land in its entirety.  Also from the plan, one can see that P’s Land and D1’s Land are located between Fairview Park Boulevard and Ha San Wai Road, with the two roads running parallel to each other.  The former is on the west side and the latter is on the east side of P’s Land and D1’s Land.

7.  The 2^nd defendant was a tenant of P’s Land from November 1993 until about November 2018.  It is said that the plaintiff had been using D1’s Land, whether by itself or by the 2^nd defendant as its tenant, as the Right of Way for access to and from P’s Land, Fairview Park Boulevard, and Ha San Wai Road since 30 March 1993, without interruption, objection or obstruction.

8.  However, after termination of the tenancy between the plaintiff and the 2^nd defendant, the latter, with the authority or permission of the 1^st defendant, erected certain structure or chattel or thing close to the usual entrance and exit near Ha San Wai Road, obstructing the Right of Way which the plaintiff usually used for access to and from P’s Land.  The plaintiff complained that such obstruction affects its use and enjoyment of D1’s Land as the Right of Way, which has been the only right of way and access to enable the plaintiff to go to and from P’s Land and Fairview Park Boulevard and Ha San Wai Road.

9.  It is alleged that when the 1^st defendant purchased D1’s Land, it purchased the same subject to the Right of Way.

10.  The plaintiff pleaded in aid the tenets “Loss of Modern Grant”, which, in the plaintiff’s own words, “seem to be the situation that the Plaintiff has such Right of Way granted to [P’s Land] as dominant tenement…”.[2]

The 1^st and 2^nd defendants’ pleaded case

11.  By their defence filed on 27 May 2019, the 1^st and 2^nd defendants first admitted the former’s ownership of D1’s Land, and the latter’s tenancy relationship with the plaintiff prior to November 2018.  The plaintiff’s ownership over P’s Land is also admitted.

12.  The keys of the 1^st and 2^nd defendants’ defence are that:-

(1)  D1’s Land abuts Fairview Park Boulevard but not Ha San Wai Road;

(2)  the 1^st defendant acquired D1’s Land from its predecessor-in-title Fairland Overseas Development Company Limited (“Fairland”);

(3)  Fairview Park Boulevard is not a public road, but privately owned by Lee Fat Shing Development Company Limited (“LFS”);

(4)  neither Fairland nor the 1^st defendant had or have the right to use Fairview Park Boulevard to access to and egress from D1’s Land, except by grant of consent of LFS;

(5)  the 1^st defendant acquired the right to use the Fairview Park Boulevard from LFS by way of a Deed of Grant dated 15 February 2018 for a term of 20 years at a maintenance fee of HK$35,000.00 (the “Grant”);

(6)  the plaintiff does not have the right to use the Fairview Park Boulevard;

(7)  prior to the 1^st defendant’s acquisition of D1’s Land, the 2^nd defendant had entered into licence agreements (each for a 2-year term renewed from time to time) with Fairland, under which the 2^nd defendant was granted the right to use D1’s Land in return for a monthly licence fee (the “Licence Agreements”), which was fixed at HK$28,750.00 at the time when the 1^st defendant acquired D1’s Land;

(8)  based on the Licence Agreements, the plaintiff’s claim of the Right of Way is denied, and the 1^st and 2^nd defendants are entitled to erect or cause to erect any structures for dividing P’s Land and D1’s Land; and

(9)  Ha San Wai Road abuts the north or north-east corner of P’s Land, and there is nothing to hinder any pedestrian access from Ha San Wai Road to P’s Land.

The plaintiff’s evidence in support of the Summons

13.  In support of the Summons, the director of the plaintiff, Mr Lam Ho Wai (“Mr Lam”), filed an affirmation on 8 August 2019 (“Lam’s 1^st Affirmation”).  The contents of Lam’s 1^st Affirmation largely mirrored the facts pleaded in the statement of claim. Land searches showing the parties’ ownerships over the lands in question, and the tenancy agreement between the plaintiff and the 2^nd defendant, are exhibited.  Photographs showing P’s Land, D1’s Land and the alleged obstructions are also exhibited.[3]

14.  Mr Lam also took shot at the 1^st and 2^nd defendants’ defence, claiming that throughout the 25 years since the acquisition of P’s Land, neither the plaintiff nor the 2^nd defendant required the permission or approval of LFS in using the Fairview Park Boulevard.

The 1^st defendant’s evidence in opposition

15.  Mr Law Yau Hung (“Mr Law”), the sole director of the 1^st defendant, filed an affirmation on 15 August 2019 against this application (“Law’s Affirmation”).  Similar to Lam’s 1^st Affirmation, Law’s Affirmation repeated the facts pleaded in the defence, but with further elaborations.

16.  Mr Law first emphasized that what the plaintiff is seeking in this case is for the vehicular access to P’s Land via the alleged Right of Way.  But he added that vehicular access was only possible from Fairview Park Boulevard, which is a land privately owned by LFS, and its usage by the 1^st defendant was permitted by the Grant.  It is said that there was no vehicular access from D1’s Land to Ha San Wai Road, as the junction was blocked.

17.  As to the Licence Agreements, Mr Law explained that when the 1^st defendant acquired D1’s Land from Fairland, the assignment made it clear that it was subject to the then subsisting Licence Agreement.  He added that on 1 February 2019, the then subsisting Licence Agreement was replaced by a tenancy agreement between 1^st and 2^nd defendants (the “Tenancy Agreement”), retrospectively giving the use of D1’s Land to the 2^nd defendant since 1 November 2018 (for 2 years) in return for a monthly rental of HK$35,000.00.[4] 

18.  Mr Law stressed that the injunction now sought by the plaintiff would cause damage to the 1^st defendant.  He explained that the effect of the order would affect the entire D1’s Land, which would in turn sabotage the car repairing business of the 2^nd defendant.  This may lead to the 2^nd defendant lodging claims against the 1^st defendant.

19.  Finally, Mr Law accused the plaintiff for having delayed in the making of this application, when the obstructions were erected in late November 2018.  There was a lapse of over 8 months.  He thus asked for a status quo by leaving everything undisturbed until after trial.

The 2^nd defendant’s evidence in opposition

20.  The 2^nd defendant filed her affirmation in opposition on 15 August 2019 (“D2’s Affirmation”).  In it, she echoed the case and complaints made in Law’s Affirmation.  Apart from that, she has exhibited the last of the alleged various Licence Agreements between Fairland and the 2^nd defendant, which was dated 18 April 2017 and covered the period from 1 April 2017 to 31 March 2019 (the “2017 Licence”).

21.  As to the damage she stands to suffer if the injunction were granted, the 2^nd defendant repeated that her business is in car repair, and that it is inevitable for cars to be parked on D1’s Land for this purpose.  The injunction now sought, if granted, would affect her business to a very substantial extent, or even lead to its cessation.

The plaintiff’s evidence in reply

22.  Mr Lam filed an affirmation in reply on 27 September 2019 (“Lam’s 2^nd Affirmation”).  He repeated the plaintiff’s case that it had free and uninterrupted use of the Right of Way since 30 March 1993 when P’s Land was acquired.  And such Right of Way was also acquired by the use of the 2^nd defendant, during the subsistence of her occupation of P’s Land as a tenant since November 1993.

23.  In addition, Mr Lam pointed out that the plaintiff was not a party to the Grant or the Licence Agreements.  In relation to the latter, he cried foul that the existence of the same was never brought to the plaintiff’s attention by either Fairland or the 2^nd defendant.  Nevertheless, he doubted on the genuineness of the 2017 Licence, stating that it was not registered against D1’s Land at the Land Registry.

24.  As to the Tenancy Agreement, Mr Lam ran the same arguments that the plaintiff was not a party to it, and that the same was not registered.[5]

25.  Explanation was given regarding the delay in bringing this application.  Mr Lam cited the reasons that time was expended on seeking survey expert evidence with aerial photos, and the process was interrupted by its former solicitors, Messrs Jim & Co., being intervened by the Law Society in late June 2019.

26.  Apart from the above, Mr Lam referred to the allowed user for both P’s Land and D1’s Land under the relevant Government Lease.  He highlighted that the user for the subject lands was restricted to agricultural purpose, so that the car repair business now operated by the 2^nd defendant on D1’s Land is unlawful and should not be encouraged by the court.

The legal principles on mandatory interlocutory injunction

27.  The principles on interlocutory injunction are well established. The applicant would need to show that: (1) there is a serious issue to be tried; (2) if the injunction is not granted now, and the applicant eventually wins at trial, the applicant’s loss (because interlocutory injunction was not granted) will not be able to be adequately compensated by an award of damages; (3) if interlocutory injunction is granted but the respondent eventually wins at trial, damages (because interlocutory injunction was granted) will adequately compensate him for any loss he may suffer; (4) if it appears that damages will not compensate the applicant, or respondent, or both, the court should then compare the likely hardship to the applicant and respondent and see where the balance of convenience lies, i.e. who is likely to suffer the greater hardship; and (5) if all else is equal the court should generally lean to preserving the status quo but it may at this stage be proper to take into account the relative strength of each party’s case.[6]

28.  Where the interlocutory injunction sought is mandatory, the leading authority is Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041.  The guidance by Ma J (as he then was) has been summarized by DHCJ Lisa Wong SC (as she then was) in Wu Wei v Liu Yi Ping (unreported, HCA 1452/2004, 30 January 2009) in paragraph 80 as follows:-

“(1) The difference between the grant of a mandatory interlocutory injunction and a negative interlocutory injunction is not one of principle.

(2) The ultimate question is: what is the course to adopt which involves the least injustice in case the grant or refusal of interlocutory relief, as the case may be, turns out to be wrong.

(3) The balance of convenience test is in reality a balance of the risk of doing an injustice ......

(4) The more “assured” the court is on the merits of the applicant’s case, the less will be the risk of injustice.

(5) However, if the circumstances are that justice requires the grant of the mandatory injunction at an interlocutory stage, then such an injunction should be granted irrespective of whether the court has a “high degree of assurance” as to the merits of the applicant’s case.

(6) Nor does the court lose sight of the practical realities of the situation to which the injunction will apply.”

29.  Put simply, that the injunction being sought is mandatory in nature does not per se entail the application of a different test in the consideration of the merits of the claim.  It is the finality effect of the grant or refusal of the interlocutory relief that matters.[7]

30.  Where the nature and extent of the interim relief sought is such that the relief will effectively dispose finally of the claim, the applicant has a higher evidential burden in proving the merits of its case, that it is at least likely to succeed at trial.  The applicant is required to show a strong prima facie case and the court must have a high degree of assurance that at trial, it will appear that the injunction was rightly granted.[8]

Discussion

31.  I will start with some clarifications on the parties’ cases.

32.  Mr Sio at the hearing readily conceded that the orders sought under the Summons are mandatory in nature, as the obstructions concerned are already in place.  The aim is therefore to have the 1^st and 2^nd defendants to demolish or remove the obstructions.  On this point, I had sought assistance from Mr Sio as to what structures, chattels and/or things that the plaintiff was referring to in its pleadings and Lam’s 1^st and 2^nd Affirmations which caused the obstructions.  In answer, Mr Sio brought me to the photographs and pointed to the following structures:-

(1)  The metal gate which was erected at the entrance of D1’s Land from Fairview Park Boulevard.[9]

(2)  A cargo container which appeared to have been transformed into an office (with air-conditioner installed on its wall), and was placed on D1’s Land near the junction with Ha San Wai Road.[10]

(3)  The fencing erected and carts placed along the border between P’s Land and D1’s Land.[11]

33.  I had also, at the start of the hearing, clarified with Mr Sio as to whether the plaintiff maintained the contention that the Right of Way would provide access to P’s Land from Ha San Wai Road.  The cause for such inquiry was that there was no reference to the same at all in his written submissions.  After some shifting in his stance, he finally confirmed that this line of argument is not abandoned.

34.  Mr Cheung had, in his written submissions, contended that no authority was cited in support of the plaintiff’s case that the Right of Way could be acquired over D1’s Land because of its tenant’s (namely the 2^nd defendant) usage of the same.  At the hearing, Mr Cheung conceded that there could be cases where a landlord acquires easement over a piece of land by its tenant’s usage.  With Mr Cheung’s concession, I need only mention in passing that such principle was confirmed by Lord Millet NPJ in China Field Ltd v Appeal Tribunal (Buildings) (No. 2) [2009] 5 HKLRD 662, when he was discussing on the common landlord rule:-

“68. The principle that the possession of the tenant is the possession of his landlord is well established. It ensures that the benefit of any rights acquired by a tenant over neighbouring land should enure for the benefit of the reversion.”

35.  With these questions out of the way, I will now turn to the key arguments between the parties.

Loss of modern grant

36.  As per its pleadings, the plaintiff’s case premised on the doctrine of loss of modern grant.  This type of easement by prescription is now available in Hong Kong after the Court of Final Appeal’s decision in China Field.

37.  But what is interesting is the way the plaintiff pleaded it.  It certainly does not sound assuring when it said this doctrine seems to be applicable to the present case.  Moreover, I agree with Mr Cheung that this is not a proper way of pleading on its reliance.

38.  Come what may, even if the doctrine is applicable to our case, I agree with Mr Cheung that the plaintiff’s case is at least controverted, if not obliterated, by the Licence Agreements and the Tenancy Agreement.  The easement by description would apply when enjoyment over D1’s Land by the 2^nd defendant was continuous and uninterrupted, and the enjoyment has been without duress, without secrecy and without the need to obtain permission.[12]

39.  On this point, Mr Sio in his submissions tried to doubt the authenticity of the Licence Agreements and the 2017 Licence.  First, he argued that there was no mention of the starting date of the Licence Agreements.  As such, there is no indication that the 20-year requirement under the doctrine of loss of modern grant had not been complied with by the time the first of these Licence Agreements came into existence.  Second, only the 2017 Licence was tendered to support the claim that there were Licence Agreements before the 2017 Licence.  Third, there was no supporting evidence to show the payment of monthly licence fee of HK$28,750.00 under the 2017 Licence.

40.  I do not agree with these submissions.  First, albeit there was no mentioning as to when the 2^nd defendant had started entering into the Licence Agreements with Fairland, clauses 6(g) and 9(b) of the 2017 Licence did refer to “existing Licence Agreement”, and the latter clause even required some monies paid by the 2^nd defendant under the “existing Licence Agreement” be transferred to the 2017 Licence as fencing deposit.  This showed that the licensor-licensee relationship between Fairland and the 2^nd defendant started before 2017.  If the term of each of the Licence Agreements were 2 years like the 2017 Licence and as alleged by the 2^nd defendant, the said “existing Licence Agreement” should have been entered into in or about April 2015.

41.  Apart from the above, a letter dated 13 October 2010 issued by the 2^nd defendant to the plaintiff (the “Letter”) also indicated that the licensor-licensee relationship between Fairland and the 2^nd defendant went back to 2010 or even earlier.  In the Letter, the 2^nd defendant requested for the plaintiff’s signature in support of the former’s application to the Town Planning Department for renewal of the permission to conduct her used-car dealership business on P’s Land.  But what is telling is that, in the Letter, the 2^nd defendant proffered the information that only part of her business was conducted on P’s Land.  She was at the same time conducting her business on other lots.  In this regard, Mr Sio at the hearing confirmed that the 2^nd defendant had been using P’s Land, D1’s Land and the Fairview Park Boulevard for her business at the material time.  It is also the case of the plaintiff that, like P’s Land, D1’s Land was restricted to agricultural use under the Government Lease.  In the circumstances, it is possible that the 2^nd defendant had relied on the Licence Agreements, and the signature from Fairland, to also obtain permission from the Town Planning Department to conduct her business on D1’s Land at the same time.  The information contained in the Letter not only could fortify the 2^nd defendant’s claim that she had various Licence Agreements with Fairland, it could also undermine the plaintiff’s claim that there was continuous and uninterrupted use of D1’s Land, and the enjoyment of it had been without duress, without secrecy and without the need to obtain permission for over 20 years.[13]

42.  I agree with Mr Sio that there was no receipt showing payment of the monthly licence fee to Fairland, and the Licence Agreements were not registered with the Land Registry.  However, these omissions are, in my view, insufficient to challenge the authenticity of the same.  It could be seen from the first page of the 2017 Licence that it was affixed with the chop of the Stamp Duty Office with the date of 17 April 2017.  The assignment between Fairland and the 1^st defendant also made the latter’s acquisition of D1’s Land subject to the 2017 Licence.[14]  The authenticity of the 2017 Licence could not be doubted, and that it was not a recent creation to defeat the plaintiff’s case.  It is also unimaginable that Fairland, a party who has no interest in the outcome of this case, would volunteer in committing an act of criminal nature as seemingly suggested by the plaintiff.

43.  Mr Sio added that even if the Licence Agreements and the 2017 Licence really existed, he doubted whether the same were performed.  However, he also acknowledged that this is merely a speculation.  I do not find the need to deal with such speculation.

44.  Mr Sio complained that, if the 2^nd defendant had truly entered into the Licence Agreements with Fairland, she should have informed the plaintiff, as her act would affect the plaintiff’s claim for the Right of Way. I could not follow this argument.  There is nothing to show that the 2^nd defendant was duty bound to inform the plaintiff her Licence Agreements with Fairland over the use of D1’s Land.

45.  Finally, as to Mr Law’s comments that the plaintiff was not bound by the Licence Agreements and the Tenancy Agreement, I agree that the plaintiff was not a party to these agreements thus was not so bound.  Nevertheless, as aforementioned, their existence could damage the plaintiff’s claim of easement by prescription over D1’s Land.

46.  In all, I am not convinced that the plaintiff’s case based on loss of modern grant is made out on the available evidence.

Necessity: is P’s Land landlocked?

47.  For starter, easement by necessity is not pleaded in the statement of claim, notwithstanding the plaintiff’s case that D1’s Land is the only access to and from P’s Land, Fairview Park Boulevard and Ha San Wai Road.[15]  It is also not pleaded that P’s Land is landlocked due to the obstructions erected on D1’s Land.

48.  Conversely, the 1^st and 2^nd defendants’ pleaded case is that P’s Land abuts Ha San Wai Road, and there is nothing to hinder any pedestrian access and egress between them.  For this reason, Mr Cheung submitted that the Right of Way as alleged by the plaintiff concerned only vehicular access to P’s Land.  Mr Cheung argued that where pedestrian access is still available, one cannot claim easement of necessity.  In support, Mr Cheung cited the case of Tang Tim Fat & Anor v Chan Fok Kei & Ors [1992] 2 HKC 623, where DHCJ Jerome Chan (as he then was) quoted at p 635B-C:-

“…It has been said that ‘an easement of necessity, such as is referred to, means an easement without which the property retained cannot be used at all, and not merely necessary to the reasonable enjoyment of that property’ (per Stirling LJ in Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557, 573).”

49.  As I have highlighted in the above, Mr Sio did not cover this topic in his written submissions.  However, based on his verbal submission at the hearing, he seemed to suggest that P’s Land is landlocked.  Despite so, there is no evidence adduced by the plaintiff to support such submission.  Nothing was said in Lam’s 1^st and 2^nd Affirmations to rebut the 1^st and 2^nd defendants’ case that pedestrian access from Ha San Wai Road to P’s Land is available.

50.  At the hearing, Mr Sio referred me to two photographs and pointed to some trees located at the north or north-east corner of P’s Land which allegedly blocked the pedestrian access from Ha San Wai Road.[16]  Unfortunately, such narrative is inadmissible, as Mr Sio was giving evidence from the bar table.  Even if I were to consider the photographs without Mr Sio’s narrative, I could not tell whether that was true.  The north or north-east corner of P’s Land and the trees captured in these photographs are so far away that one simply could not ascertain from them whether pedestrian access was available.

51.  Furthermore, Mr Sio added at the hearing that there was a slope along the left side of Ha San Wai Road abutting P’s Land, rendering pedestrian assess from the former to the latter impossible.  Again, by such submission, Mr Sio was giving evidence from the bar table.  The plans annexed to the statement of claim and exhibited to the affirmations of the parties also rendered no aid to his submission.

52.  For the above reasons, I reject the plaintiff’s case based on P’s Land being landlocked and easement of necessity, if such doctrine were so relied on.

Summary

53.  I find that the plaintiff has failed to show that there is a serious issue to be tried, not to mention a strong prima facie case.  I find no high degree of assurance that at trial it will appear that the injunction, if granted, were rightly granted.

54.  My finding above is sufficient to dispose of this application.  But just in case I am wrong, and for completeness sake, I would proceed to consider in the following sections the other arguments raised by the parties.

Adequacy of damages

55.  On the issue of adequacy of damages, nothing has been said by Mr Lam in Lam’s 1^st and 2^nd Affirmations.  Mr Sio, at the hearing, agreed that if there was any loss the plaintiff would suffer if the injunction were not granted, it would strictly be monetary and could be adequately compensated by damages.

56.  Turning to the 1^st defendant, Mr Law’s main concern was the possible termination of the Tenancy Agreement and claim by 2^nd defendant.  I therefore form the view that the likely loss suffered by the 1^st defendant if the injunction were granted would also be monetary in nature, and the same could be adequately compensated by damages.

57.  Unlike the plaintiff and the 1^st defendant, the 2^nd defendant’s loss could be more than money or business.  Although it was not specifically mentioned in D2’s Affirmation, one would appreciate by nature of her car repair business that the customers would entrust to her the possession and custody of their cars, and the cars might need to be parked and stored overnight on D1’s Land if the repair could not be completed on the same day.  A bailment could be created, under which the bailee, i.e. the 2^nd defendant, would have a duty to exercise reasonable care for the safety of the cars entrusted to her.  In such a case, if the obstructions, i.e. the metal gate and the cargo container respectively at the entrances from Fairview Park Boulevard and Ha San Wai Road, were removed pursuant to the injunction, and the cars were then stolen or vandalized, not only would the 2^nd defendant be liable for the loss suffered by her customers,[17] the reputation of her business could also suffer, which is not something that could be adequately compensated by damages.

Balance of convenience

58.  Considering all the evidence before me, I am of the view that the risk of doing injustice is far greater if the injunction were granted than if it were not.  As accepted by Mr Sio, the metal gate, the cargo container and the fencing were all erected in late November 2018.  The removal of the same would involve substantial expenditure and would create not only inconveniences to the operation of the 2^nd defendant’s business, but monetary and even non-monetary losses are foreseeable as highlighted in the preceding section of this Decision.  On the other hand, I observed from the photographs that P’s Land was not in use and uninhabited.  Any inconvenience that the plaintiff could face is therefore limited to the possible inability to lease out P’s Land in return for any rental income, or possibly leasing out the same at a lower rent if pedestrian access from Ha San Wai Road were available.

59.  Apart from the above, I would add that the effect of the injunction, if granted, could altogether deny the usage of D1’s Land by the 1^st and 2^nd defendants.  The Right of Way claimed by the plaintiff covered D1’s Land in its entirety.  In addition, granting of the injunction now could mean immediate nullification of the Tenancy Agreement.  To the 2^nd defendant, such order would have a finality effect, and the plaintiff has a higher evidential burden in proving the merits of its case. By my finding above, such burden has not been discharged.

Delay

60.  In support of his clients’ complaint of delay, Mr Cheung cited the Court of Appeal’s judgment of King Fung Vacuum Ltd & Ors v Toto Toys Ltd & Ors [2006] 2 HKLRD 785.  In particular, Mr Cheung referred to the following passage from Roger V-P’s judgment at paragraph 20:-

“There has traditionally been a strong requirement when interlocutory injunctions have been sought, that the plaintiff must show that it has acted promptly and without delay. Promptly in the circumstances of interlocutory injunctions has been commonly understood to be a period of six weeks or so of unexplained delay and three months with an explanation given for delay in making application for an injunction. Since the American Cyanamid decision the importance of irreparable damage in an application for an interlocutory injunction is paramount. If there is no irreparable damage demonstrated then the need for an interlocutory injunction has not been shown. This is important because of the approach that the courts take to interlocutory injunctions. They are not the trial of the action and the court is concerned with whether irreparable damage will occur before a trial can take place. It stands to reason that if a party is prepared to allow matters to proceed and takes no action with respect to matters which have been extant for lengthy periods, it lies ill in their mouth to say that there is likely to be irreparable damage and that is the case here.”

61.  Apart from the issue of irreparable damage, a relevant question to ask is whether the delay complained of had made it unjust to grant the interlocutory injunction.[18]

62.  The plaintiff’s case is that it was aware of the erection of the obstructions on D1’s Land in late November 2018.  The Summons was taken out only on 7 August 2019, a lapse of 8 months.  The plaintiff tried to explain away that the delay was caused by time being expended on seeking survey expert evidence with aerial photos, and the process was interrupted by its former solicitors being intervened by the Law Society in late June 2019.  I am unable to accept this explanation.  If the survey expert evidence, with aerial photos, are so crucial to the present application, its absence is inexplicable.  The fact that the plaintiff proceeded to take out the Summons without the same trashed the above explanation.

63.  In my view, adopting the above principles, the delay in taking out the Summons showed the lack of irreparable damage to the plaintiff if the injunction were not granted.  Mr Sio’s concession that any loss the plaintiff would suffer would only be monetary in nature and could be adequately compensated by damages also lends support to this.

64.  Moreover, the delay in taking out this application and acquiescence on the part of the plaintiff in letting the metal gate, cargo container and the fencing be erected on D1’s Land without taking prompt action to prevent the same in the first place created a greater injustice to the 2^nd defendant if the injunction were granted.  The 2^nd defendant could have avoided the need, and avoided or reduced the costs, of having the obstructions removed.  I therefore find that the plaintiff is guilty of inordinate delay.

User of D1’s Land

65.  As aforesaid, Mr Lam alleged that the 2^nd defendant’s business of car repair is not allowed on D1’s Land, as it is restricted to agricultural use as per the Government Lease. As such, 2^nd defendant is operating her business unlawfully on D1’s Land, something that should not be encouraged by the court.

66.  Notwithstanding such complaint, the Government Lease for D1’s Land is not tendered to the court.  Assuming that D1’s Land is indeed restricted for agricultural use, the Letter indicated that the 2^nd defendant could have obtained permission from the Town Planning Board to operate her car repair business there. In the absence of clear evidence showing the 2^nd defendant’s breach of the Government Lease, it is not appropriate for this court to make a ruling on it.  Come what may, if there were such violation, the matter should be dealt with by the relevant governmental department.

Conclusion

67.  For the reasons above, I find the plaintiff’s application unmeritorious and it is therefore dismissed.

68.  As to costs, Mr Cheung in his written submissions asked for costs of this application.  I am aware of the normal practice for a successful respondent in an interlocutory injunction application to be granted his costs in the cause.[19]  But I also note the modern trend of departing from such normal practice.  In light of my findings that the plaintiff lost on all fronts of the application, its inordinate delay in bringing this application and to continue pursuing the same despite not having a case on irreparable damage, I find this a proper case to depart from the said normal practice.[20]  I would therefore make an order nisi that costs of this application, including the hearing on 16 August 2019, be to the 1^st and 2^nd defendants in any event, to be taxed if not agreed, with certificate for counsel.  Unless any party applies to vary the costs order within 14 days from the date of this Decision, the costs order shall become absolute.