CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LTD. v. CHERRY CITY CONTRACTORS LTD. AND OTHERS

HCCT 7/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS
NO. 7 OF 2003

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J U D G M E N T

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1. This is an application to continue an ex parte injunction granted in favour of the Plaintiff restraining the Defendants from entering or remaining in a construction site of which the Plaintiff is the main contractor and the 1st Defendant used to be the sub-contractor. The 2nd Defendant is the director of the 1st Defendant whereas the other individual Defendants were workers working on the site. There can be no dispute that rightly or wrongly the sub-contract has been terminated, and in those circumstances there really is no further right or licence for the various Defendants to remain on the site which they did try to do prior to the grant of the ex parte injunction.

2. At today's hearing, counsel appearing for the 1st Defendant does not contest the continuation of the injunction and in any event I can see no real ground for anybody to oppose the continuation of the injunction in question. Counsel suggests some modifications to the terms. In my judgment, the ex parte injunction should be continued subject to the following modifications. In other words, paragraph 1 of the order made by the Honourable Madam Justice Chu on 20 January 2003 be continued until the earliest of:

(1) the Plaintiff vacating the site;

(2) the completion or earlier determination of the main contract between the Government and the Plaintiff;

(3) the final determination of the issues between the parties herein; or

(4) further order.

3. For the avoidance of doubt, the continuation of the injunction is subject to the first two undertakings given by the Plaintiff through counsel that were set out in the original ex parte order.

4. Further, I make an order substantively in terms of paragraph 5.2 of the 2nd Affirmation of Chong Wai Sun dated 24 January 2003 relating to the amendment of the names of some of the Defendants, the omission of some other Defendants from this action and the joinder of one further party to the action. For the avoidance of doubt, the injunction order that I continued just now should not apply to the new Defendant that I have just ordered to be joined, i.e. Kwok Kam Tung Super Rich Marine Services Ltd., or the three Defendants (i.e. 5th, 8th and 11th Defendants) who have now been omitted from this action.

5. On the question of costs, I have fully borne in mind counsel's submissions as well as an authority cited to me by counsel for the 1st Defendant, namely, Chermar Productions Proprietary Limited v. Prestest Proprietary Limited (1991) 7 B.C.L. 46. The facts in that case are similar to ours, but I do bear in mind the correspondence referred to during the course of argument by Mr Westbrook SC appearing for the Plaintiff regarding the repeated warnings given by the Plaintiff to the Defendants to vacate the site. I bear in mind the facts in the present case, and the behaviour of the Defendants including the blockade of the site thereby preventing the contract work in question from being carried on after the termination of the sub-contract in question.

6. I also bear in mind that the hearing of the ex parte application on notice was actually attended by the 1st and 2nd Defendants' representatives and submissions were indeed made by their counsel in relation to the application by the Plaintiff.

7. I also bear in mind that in this type of disputes, more often than not, there will not be a trial eventually. If I were to make an order reserving costs or make an order on costs that depends on the eventual outcome of the dispute between the parties at trial, that could lead to the undesirable result of either compelling the parties to have a trial in order to determine the question of costs or forcing the party who deserves to receive the costs of this application to abandon his entitlement because it is deemed not worthwhile to have a trial just for the purpose of getting costs.

8. I further bear in mind that in my judgment, the Defendants simply had no arguable case or right to remain at the site after the termination of the sub-contract. I can well understand why they wanted to remain at the site or even hinder the construction work pending the negotiations between the parties, but that cannot give them any excuse to remain on someone else's land particularly when construction work is being performed on the land.

9. So for all these reasons, I make an order, in the exercise of my discretion, that the costs of the present application (including the ex parte on notice application) be paid by the 1st and 2nd Defendants, the Plaintiff having through counsel informed the Court that it is not seeking costs against the other Defendants, to the Plaintiff, such costs to be taxed if not agreed. As between the 1st and 2nd Defendants and the other Defendants, on the question of costs, I give the parties liberty to apply.

Schedule 1

Defendants

(3) Luck Silk Development Ltd

(4) Hong Kong Dredging Ltd

(5) [omitted]

(6) Daily Active Ltd [as amended]

(7) Top Regal Investment Ltd

(8) [omitted]

(9) Multi-Strategic Investments Ltd [as amended]

(10) Wing Fat Motor Boat Tug Company [as amended]

(11) [omitted]

(12) Sin Shu Kei 冼樹基

(13) Lam Tak Po 林特波

(14) Wong Yuk Hei 黃玉喜

(15) Tsui Hei Kuen 徐悕權

(16) Peter, C. F. Chan 陳財發

(17) Gregory K. P. Wong 黃家鵬

(18) Wong Lam Lion 黃淦良

(19) Chung Kwok Ki 鍾國基

(20) Kok Wing Sum 郭永森

(21) Yeung Kwok Keung 楊國強

(22) Leung Koon Sing 梁冠星

(23) Lam Ling 林靈

(24) Leung Bing Chin 梁炳前

(25) Sumuwar, Raju

(26) Yeung Chi Wai 楊志偉

(27) Ng Mou Wa 吳茂華

(28) Lin Yuen Fai 連遠輝

(29) Tse Yik Man謝翼民

(30) Chan Yim 陳染

(31) Chui Yui Wo 徐銳戈

(32) Law Wai Hung 羅惠雄

(33) Chan Kin Shing 陳健誠

(34) Yeung Shu Ching 楊樹清

(35) Chan Chung Yin 陳仲賢

(36) Li Ting Yuen 李鼎元

(37) Luk Chi Ching 陸智禎

(38) Chan Sau Chu 陳秀珠

(39) Tsui Ka Kei 崔嘉冀

(40) Wong Fok Yau 黃福有

(41) Lee Wah Sun 李華新

(42) Ho Kam Mun 何金滿

(43) Chan Mok Shui 陳木水

(44) Cheng Ar Chu 鄭亞珠

(45) Chan Fok Chai 陳福仔

(46) Cheng Fok Loi 鄭福來

(47) Lo Yung Bo 羅容保

(48) Sin Chi Fai 冼志輝

(49) To Au Chai 杜牛仔

(50) Yeung Pak 楊北

(51) Wong Wah Geng 黃華根

(52) Leung Tai Hay 梁帶喜

(53) Chan Yung Hay 陳容喜

(54) Chan Kam Fok 陳金福

(55) Leung Wah Sing 梁華勝

(56) Leung Ka Fai 梁家輝

(57) Lai Yee 黎義

(58) Cheng Kam Tong 鄭錦棠

(59) Fan Sai Fok 樊細福

(60) Cheng Bak Hei 鄭北喜

(61) Lam Tai Shing 林帶勝

(62) Leung Chi Keung 梁志強

(63) Cheung Wah Ken 張華根

(64) Lai Wah Sing 黎華勝

(65) Lai For Sing 黎火勝

(66) Chan Yiu Wah 陳耀華

(67) Lai To 黎桃

(68) Leung Sin Ping 梁善平

(69) Leung Kam Sheung 梁錦常

(70) Yeung Wah Chai 楊華仔

(71) Kwok Wing Sum 郭永森

(72) Chan Hon Wing 陳漢榮

(73) Kwok See Lok 郭思樂

(74) Wong Sing 黃勝

(75) Ma Kam Tai 馬金帶

(76) Leung Ah Chung 梁亞祥

(77) Cheung Sai To 張世道

(78) Lai Tak Hong 黎得康

(79) Fong Kam Shui 馮金水

(80) Lai Mok Sing 黎木勝

(81) Cheung Hung Chai 張洪仔

(82) Wen Lo 溫佬

(83) Cheng To 鄭桃

(84) Ho Chi Kwong 何志光

(85) Yeung Mok Geng 楊木根