KAN SUI YAU AND OTHERS v. WONG TIN LUNG AND OTHERS

HCA 1975/2019

[2020] HKCFI 94

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1975 OF 2019

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DECISION

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INTRODUCTION

1.  On 28 October 2019, the plaintiffs (“Ps”, respectively “P1” to “P5”) commenced these proceedings against the 1^st defendant (“D1”, who was the only defendant in these proceedings at that time) and filed an inter partes summons (“the 1^st Summons”) for an injunction restraining D1 from stationing any person, setting up any barrier gate, parking any vehicle or lorry, or placing any other obstruction on Lot 713 in DD 111 (“Lot 713”), or demanding payment of any fee from Ps for passing the said lot.  According to Ps, almost the entire Lot 713[1] constitutes a way (“the Subject Way”), which is part of a road (coloured yellow in the plan annexed to the Amended Writ of Summons) connecting Ha Che Village in Pat Heung (“the Village”) and Fan Kam Road.

2.  On 1 November 2019, the 1^st Summons was heard by me.  In that hearing, I gave directions for filing affidavit evidence and adjourned the summons to this hearing for substantive arguments.  On the basis of the evidence before me in that hearing, I refused Ps’ application for an interim interim injunction, as I did not think there was an extreme urgency requiring a grant of such an injunction before the substantive hearing of the summons.

3.  On 7 November 2019, Ps issued a summons against D2 and D3[2] for an injunction (“the 2^nd Summons”), the terms of which are same as the one claimed in the 1^st Summons.  The 2^nd Summons was heard by Lisa Wong J on 8 November 2019 and 22 November 2019.  On 22 November 2019, the learned judge granted a short-term injunction against D2 in terms of the 2^nd Summons (“the short-term injunction”) and adjourned the 2^nd Summons to this hearing for substantive arguments.  The duration of the short-term injunction is up to this hearing or a further order made by the court.

4.  On 5 December 2019, Ps issued a summons (“the 3^rd Summons”) for leave to amend the Writ of Summons by adding D2 and D3 as parties in these proceedings and for leave to amend the Statement of Claim.  I am of the view that this application would not prejudice the interest of any defendant.  At the beginning of this hearing, I have given the leave sought by Ps and directed Ps to file the Amended Writ of Summons and the Amended Statement of Claim within 7 days, service of the same was dispensed with.  Costs of the 3^rd Summons should be to Ds in any event, the amount of which, if not agreed, are to be taxed or summarily assessed as the court deems fit after the conclusion of the trial herein.

5.  The 1^st Summons and the 2^nd Summons are considered on the basis of the matters pleaded in the Amended Statement of Claim.  Ps have adduced evidence in support of the 2 summonses.  Although Ds have been given time to file evidence to oppose the applications made by Ps by these 2 summonses, Ds have not put forward any evidence. Notwithstanding this, I have to examine whether Ps’ applications should be allowed based upon the matters pleaded in the Amended Statement of Claim and the evidence put forward by Ps.

Ps’ CASE

6.  According to Ps[3]:

(1)  All Ps are the indigenous villagers of the Village.

(2)  P1 is the registered owner of House No. 75A in the Village erected on Lot 37 in DD 111;

(3)  P2 is the registered owner of House No. 64 in the Village erected on Lot 31 in DD 111;

(4)  P3 is a licencee under a licence granted by Kan Koon Lin, the registered owner of House No. 2 in the Village erected on Lot 3189 in DD 111;

(5)  P4 is a licencee under a licence granted by Kan Ming On, the registered owner of House 102C in the Village erected on Lot 3292 in DD 111;

(6)  P5 is a licencee under a licence granted by his mother Law Kwan Tai, the administratrix of Chan Ah Au, deceased and registered owner of House No. 77 in the Village erected on Lot 913 in DD 111;

(7)  D1 is the registered owner of Lot 713, which was conveyed to him by the predecessor at the consideration of HK$500,000 in April 2019.

(8)  D2 is the tenant, renting Lot 713 from D1.

(9)  D3 are the persons who at the material times took part in blocking the Subject Way.

7.  Ps claim that they have right to use the Subject Way.  Their pleaded case is as follows:

“(5)  For many years the villagers and/or owners of houses erected in Ha Che Village and/or the several occupiers thereof have been using a road described below (“the road”) for access to Fan Kam Road and ingress to Ha Che Village; the road starts from a stretch of land between Lot 111 S.576B and S.588B (which two lots were adjacent to Fan Kam Road), running north over a stretch of government land, beyond the government land the road continues running north on a small portion of Lot 111 S.667, and beyond that, on Lot 713, beyond Lot 713, over other lands owned by several different owners until the road reaching an open space outside the entrance of the Ha Che Village it diverts to the west.  For identification purpose, the road is shown and coloured green in the Plan annexed to the Writ of Summons.

(6)  Almost the entirety of Lot 713 formed part of the road (“the said way”); for identification purpose, the said way is shown and coloured yellow in the Plan annexed to the Writ of Summons.

(7)  The road was built sometime around 1969 by the villagers of Ha Che Village with the donation from the villagers; since being constructed and until 1980s, the road (including the said way) has been maintained by the villagers; in the early 1980s, the Hong Kong government erected lamp posts at intervals of the road and has since maintaining the lamp posts and has since taken up the responsibility to maintain, and has been maintaining the road (including the said way).

(8)  Further or in the alternatively, the predecessors of the 1^st Defendant had since the road was constructed, together with other villagers of Ha Che Village, been using the road (including the said way) for access to Fan Kam Road; the predecessors of the 1^st Defendant had thereby expressly or alternatively represented to the villagers, including the 1^st, 2^nd, 3^rd, 4^th and 5^th Plaintiffs and/or their predecessors and/or licensors, that they were entitled to a right of way over the said way running over Lot 713.

(9)  Prior to 1970s and since 1970s different owners of land have rebuilt old houses in Ha Che Village; since the 1970s, with the benefit of the Small House Policy, different owners of land have built various small houses in Ha Che Village.

(10)  In or about 1995, the Hong Kong government carried out maintenance work of the road and covered the road by asphalt.

(11)  In March, 2012 the Hong Kong government carried out maintenance work of the road again.

(12)  The villagers and/or owners of houses in Ha Che Village and/or the several occupiers thereof, including the 1^st , 2^nd , 3^rd , 4^th and 5^th Plaintiffs and/or their predecessors and/or landlords and/or licensors, have for the period of over 40 years and more next preceding to the commencement of this action enjoyed as of right and without interruption the said way as part of the road for themselves, their servants and/or licencees and/or tenants on foot and with motor vehicles including trucks, private vehicles and other conveyance at all times and for all purposes connected with use and enjoyment of the lands in Ha Che Village, Pat Heung, New Territories (新界八鄉下輋村) including driving motor vehicles to enter and/or leave Ha Che Village, Pat Heung (新界八鄉下輋村).

(13)  Further or alternatively, the villagers and/or owners of houses and/or the several occupiers, including the 1^st, 2^nd, 3^rd, 4^th and 5^th Plaintiffs and/or their licensors and/or landlords and/or predecessors, have for the period of over 40 years and more next preceding to the commencement of this action by virtue of a deed of grant made unto them by the predecessor in title of the 1^st Defendant (but which deed have since been lost or destroyed by accident) been enjoying using the said way as part of the road without interruption for access to Fan Kam Road.

(14)  Further or alternatively, the villagers and/or owners of houses and/or the several occupiers thereof, including the 1^st, 2^nd, 3^rd, 4^th and 5^th Plaintiffs and/or their licensors and/or landlords and/or predecessors, have for the period of over 20  years and more next preceding to the commencement of this action as of right continuously and apparently enjoyed the said way for themselves, their servants and/or licencees and/or tenants as part of the road for access to Fan Kam Road; in so far as necessary, the Plaintiffs shall rely on the Prescription Act 1832.

(15)  Further or alternatively, by reason of the matters set out in Paragraphs 5 to 14 above, the predecessors of the 1^st Defendant had dedicated the part of Lot 713 forming the said way to the public and/or villagers of Ha Che Village for construction of the road and the public and/or villagers of Ha Che Village have by open user as of right and/or long user accepted the dedication.

(16)  Further or alternatively, the villagers of Ha Che Village including the 1^st, 2^nd, 3^rd, 4^th and 5^th Plaintiffs and/or their predecessors and/or licensors, had expended money or acted to their detriment by constructing and/or maintaining the road including the said way and had been led to believe that they and/or their successors in title are entitled on a permanent basis to enjoy a right of way over the said way; in the premises, they and/or their predecessors and/or licensors are entitled in equity to the easement by proprietary estoppel.”

8.  Ps are claiming that since about mid-September 2019, they have been prevented by Ds from using the Subject Way as a vehicular access unless they pay the passage fees demanded by Ds.  The passage fees demanded are, HK$10 per hour or HK$1,000 per month for a private car, and HK$20 per hour or HK$2,000 per month for a larger vehicle[4].  Ps have not explained the exact meaning of these passage fees in either their pleadings or their evidence.  My understanding is that if the requested hourly fee is paid, a private car or a larger vehicle may pass the Subject Way for unlimited times within a particular hour.  Similarly, if the requested monthly rate is paid, a private car or a larger vehicle may pass the Subject Way for unlimited times within a particular month.

9.  Mr Andy Hung (together with Mr Ricky KY Li), counsel for Ps, mentions in his written submissions that P4 and P5 are the representatives for the residents in the Village and are suing on behalf of them.  With respect, that is not the case according to the Amended Writ of Summons and the Amended Statement of Claim.  According to Ps’ pleaded case, each of Ps is suing on behalf of himself and no one else.  This is not disputed by Mr Hung in the hearing.  I note that the scope of the short-term injunction obtained by Ps is restraining D2 from interfering anyone living in the Village using the Subject Way.  This is too wide and not permissible.  None of Ps is suing on behalf of the whole village.  Based upon Ps’ current pleadings, there cannot be a claim for an interlocutory injunction restraining Ds from interfering anyone in the Village using the Subject Way.

10.  The evidence in support of Ps’ application as per the 1^st Summons and the 2^nd Summons are 1 affirmation made by P1, 3 affirmations made by P4 and the 1 affirmation made by P5.

11.  In P5’s affirmation dated 25 October 2019, P5 mentioned an episode in 2012.  P5 said in November and December 2012, the Subject Way was blocked by the tenant of then owner of Lot 713.  The resident representative of the Village at that time, together with 2 other persons, commenced legal proceedings (ie HCA 2415/2012) against the then owners of Lot 713 for, inter alia, a declaration of right of way over the stretch of road on Lot 713 and an injunction against the then owners of Lot 713 restraining them from blocking the Subject Way.  The plaintiffs in that case managed to obtain a short-term injunction restraining the then owners of Lot 713 from blocking the Subject Way.  That injunction had effect until the determination of the plaintiffs’ application for an interlocutory injunction.  However, after obtaining that short-term injunction, there has been no progress in that action at all.   

THE PRINCIPLES

12.  One must not forget that Lot 713 is a private property owned by D1.  Within the boundary permitted by law, D1 has the right to deal with that piece of land in any way which he deems fit.  Ps are now seeking an interlocutory injunction to compel Ds to remove all the obstruction on the Subject Way and to keep the Subject Way open as a vehicular access for Ps’ use at all times without charging Ps any sum.  In my view, the injunction sought by Ps is an interlocutory mandatory injunction.

13.  The general principles concerning interlocutory injunctions are well known.  Those principles have been set out by Ribeiro J (as he then was) in Wah Nam Holdings Co Ltd v Excel Noble Development Ltd^[5], which are as follows:-

(1)  whether there is a serious question to be tried;

(2)  if so, whether, if the plaintiff were to succeed in obtaining a permanent injunction at trial, it could adequately be compensated by an award of damages in respect of any loss which it might suffer by reason of the defendant continuing to act unrestrained pending the trial;

(3)  if not, whether the defendant would be adequately protected by the plaintiff’s cross-undertaking in damages should it be later found that the plaintiff should not have been granted an interlocutory injunction; and

(4)  if there is doubt as to the adequacy of the respective remedies of damages, where the balance of convenience lies.

14.  A serious question to be tried is not a very steep hurdle.  As long as there is a serious issue, it matters not whether the plaintiff’s chance of success at trial are 90% or 20%.  All that has to be shown is that the plaintiff has prospects of success which, in substance and reality, exists[6].

15.  In respect of an interlocutory mandatory injunction, the party seeking the injunction has to demonstrate a high degree of assurance that it will succeed at trial^[7]. However, “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 an 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.”^[8]

16.  It is trite that if damages would be an adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff’s claim appeared to be at the interlocutory stage[9].

DAMAGES AS SUFFICIENT REMEDY

17.  In my judgment, even assuming that Ps have demonstrated a serious question to be tried and a high degree of assurance that they would succeed at trial, Ps’ application for an interlocutory injunction against Ds must be refused, for damages would be an adequate remedy to Ps, and D1 would be in a financial position to pay the damages if Ps eventually succeed at trial.

18.  According to Ps’ case, Ds in fact allow Ps’ vehicles to pass the Subject Way, provided that Ps would pay passage fees to Ds.  Details of the passage fees have been set out in [8] above.  Assuming that each of Ps has 2 large vehicles and it would need 18 months to take this matter to trial, the total of the passage fees paid by Ps to Ds during this 18-month period would be HK$2,000 x 2 x 5 x 18 = HK$360,000.  Ps’ case is that D1 acquired Lot 713 in April 2019 at the price of HK$500,000.  At that time, Ps were still able to use the Subject Way as a vehicular access without any interference.  So the market value of Lot 713 subject to the vehicular right of way claimed by Ps would be about HK$500,000 in April 2019.  With all these figures in mind, D1 in fact is financially able to repay all the passage fees collected from Ps during the period from now until the conclusion of the trial, if Ps are the ultimate winners in these proceedings.  That being the case, I am of the view that the interlocutory injunction claimed by Ps must be refused.

OTHER MATTERS

19.  Apart from the above, there are some other problems in Ps’ application for an interlocutory injunction against Ds.

Using the Subject Way as a vehicular access

20.  Based upon the evidence produced by Ps, Ps are complaining that after the Subject Way being blocked by Ds, Ps can no longer use the Subject Way as a vehicular access.  Mr Hung on behalf of Ps submits that by reason of the matters pleaded in [12] to [16] of the Amended Statement of Claim, Ps have a right to use the Subject Way as a vehicular access.

21.  Ps in fact is claiming a vehicular right of way over the Subject Way.  In China Field Ltd  v Appeal Tribunal (Buildings) (No 2)[10], Lord Millett NPJ has succinctly summarized the ways by which one may acquire a right of way or other easements.  In that case, the learned judge said:

“41. In England rights of way and other easements may be acquired by (i) express grant (ii) implied grant (which covers inter alia ways of necessity) or (iii) prescription. Prescription is of three kinds: (i) common law prescription, which is based on user since time immemorial, that is to say since the accession of Richard I to the throne of England in 1189; (ii) prescription under the Prescription Act 1832, which is based on user for at least 20 years next before action brought; and (iii) prescription based on the fiction of lost modern grant. Common law prescription is for obvious reasons not applicable in Hong Kong. The Prescription Act 1832 does not (if it ever did) apply to Hong Kong after the 1 July 1997. That leaves lost modern grant as the only method by which rights of way and other easements may be acquired in Hong Kong in the absence of an actual grant, express or implied.”

22.  In the light of the aforesaid CFA judgment, one can immediately see that Ps cannot claim a vehicular right of way over the Subject Way by relying on the Prescription Act 1832.  There is no serious question to be tried by reason of the matters pleaded in [14] of the Amended Statement of Claim.

23.  In [13] of the Amended Statement of Claim, it is pleaded that Ps have acquired the vehicular right of way by an actual grant, but that grant has been lost or destroyed by accident.  My reading of the pleading is that the plea in that paragraph is a plea of express grant and not a plea of a right of way by the operation of the doctrine of lost modern grant.  By the operation of the doctrine of lost modern grant, when there has been a long enjoyment of an easement for a period of not less than 20 years, the law would presume that there was a grant for such an easement.  The presumption cannot be rebutted even by an admission by the claimant that in fact no grant has ever been made[11].  What Ps have pleaded in [13] of the Amended Statement of Claim is that an express grant has been made in the past.  However, no particular of this express grant has been given.  No evidence in relation to this express grant has been produced.  Further, even assuming what has been pleaded by Ps in [13] of the Amended Statement of Claim is true, the alleged express grant has not been registered in the Land Registry.  D1 has purchased Lot 713 at the price of HK$500,000.  It has not been alleged that D1 is not a bona fide purchaser for valuable consideration of Lot 713. Bearing in mind s.3(2) of the Land Registration Ordinance, it has not been demonstrated in these circumstances, why the express grant can be enforced against D1 and his tenant or agents.  I hold that there is no serious question to be tried by reason of the matters pleaded in [13] of the Amended Statement of Claim.

24.  I would now discuss the matters pleaded in [12], [15] and [16] of the Amended Statement of Claim, which are lost modern grant, public dedication and proprietary estoppel respectively.  In my view, P3, P4 and P5 have not demonstrated that there is a serious question to be tried by reason of the doctrine of lost modern grant.  Further, Ps have not demonstrated that there is a serious question to be tried, let alone a high degree of assurance that they would succeed at trial, by reason of the public dedication and the proprietary estoppel pleaded in the Amended Statement of Claim.

Lost Modern Grant

25.  I note that P3, P4 and P5 are mere licensees occupying Lots 3189, 3292 and 913 in DD 111 respectively.  The owners of these lots have not made any claim for a vehicular right of way over the Subject Way.  I am of the view, as mere licensees, P3, P4 and P5 do not have the locus to claim a vehicular right of way over the Subject Way serving the respective lots occupied by them.  I have considered the same question in Ko Shun v Royal Mortgage Ltd and Another[12], in which I said:

“27. In China Field Ltd v Appeal Tribunal (Buildings) (No 2)^[13], the Court of Final Appeal has made it clear that the only kind of prescription in Hong Kong is the prescription based upon the doctrine of lost modern grant.

28. Madam Ko’s case is that she is not the owner of House 43C. The owner of the same is the elder son. According to Madam Ko, she is a licensee exercising exclusive possession and effective control of House 43C since about 2006, and treating the same as her own house.

29. In my view, since Madam Ko is not the owner of House 43C but is merely a licensee occupying the same, Madam Ko does not have the locus to claim a right of way serving House 43C by relying upon the doctrine of lost modern grant. The authority on the point is the Court of Appeal’s decision in Hollywood Shopping Centre Owners Committee Ltd v Wing Wah Building^[14].

30. In Hollywood Shopping Centre, the plaintiff sought to raise a new point on appeal, ie, it had acquired an easement or quasi-easement by the doctrine of lost modern grant by its uninterrupted use of a canopy of the building for more than 20 years. The Court of Appeal did not allow the plaintiff to raise this new point in the appeal. The Court of Appeal also said that the point would fail in any event. Kwan JA in her judgment said (other members of the court concurring):-

“56. In any event, the plaintiff’s arguments on the easement point are unsustainable in law. As we had permitted the parties to address us on this matter de bene esse, I would just dispose of the arguments succinctly for the sake of completeness.

57. The plaintiff does not have locus standi to claim any easement or quasi-easement. It has never been a co-owner. ......” (Emphasis added)

31. [counsel] submits that what has been said by Kwan JA in Hollywood Shopping Centre [57] is merely obiter. [counsel] refers me to another decision by the Court of Appeal, Chan Tin Yau & Ors v Tsang Kwok Kay^[15]. In that case, the plaintiffs claimed a right of way over the defendant’s land. The plaintiffs were villagers who lived in the southern part of Shui Tsan Tin Tsuen. The Court of Appeal overturned the Court of First Instance’s decision that a public right of way was granted by written dedication^[16], but found that a legal basis existed for the villagers to acquire a right of way by lost modern grant^[17]. [counsel] submits that in Chan Tin Yau, in both the Court of Appeal’s decision and the Court of First Instance’s decision^[18], there was no suggestion that the plaintiff villagers owned any land in the village. [counsel] therefore submits that a claimant may succeed in claiming an easement by the doctrine of lost modern grant even that he may not be the owner of the dominant tenement. With respect, I am unable to accept these submissions.

32. If a court has given more than one reasons for its decision, there is no justification to treat one reason as obiter, simply because the court has given another reason. All the reasons given are the ratio of that decision^[19]. In Hollywood Shopping Centre, the Court of Appeal has given more than one reason explaining why the plaintiff could not succeed by relying upon the point on lost modern grant. In my view, what has been said by Kwan JA in [57] of the judgment is a ratio of the decision of rejecting the plaintiff’s point. The ruling in [57] of the judgment is binding upon me.

33. It is correct that by reading the judgments given by the Court of First Instance and by the Court of Appeal in Chan Tin Yau, we do not know whether the plaintiff villagers owned any land in the village. However, that cannot be treated as a ruling made by the Court of Appeal that a claimant who is not the owner of the dominant tenement may still claim an easement serving the dominant tenement by the doctrine of lost modern grant. At most it can only be said that this point is not clear in Chan Tin Yau. However, subsequently, the Court of Appeal has spoken in Hollywood Shopping Centre, and the point has been made clear in [57] of the judgment in that case.

34.  In any event, I agree with the ruling in [57] of Hollywood Shopping Centre.  It has to be borne in mind that under the doctrine of lost modern grant, the easement granted is a proprietary interest granted to the dominant tenement, not a personal interest granted to any person.  That being the case, naturally the person claiming an easement by the doctrine of lost modern grant would have to be the owner of the dominant tenement, for he or she is claiming a proprietary interest serving and being enjoyed by the dominant tenement.”

26.  I maintain the same view.  The correctness of this view is not disputed by Mr Hung.  In my judgment, P3, P4 and P5 have not demonstrated that there is a serious question to be tried between them and Ds by reason of the doctrine of lost modern grant.

Public dedication

27.  On public dedication, in Ko Shun, I said the following:

“45. [counsel] has helpfully referred me to the Canadian Court of Appeal’s decision in Cook’s Road Maintenance Association v Crowhill Estates^[20].

(1) In [28], the Canadian Court of Appeal approved another Canadian case of Reed v Town of Lincoln^[21], which stated:-

“The defendant was required to prove an actual intention on the part of a predecessor in title of the plaintiff to dedicate the road as a public highway ... Such an intention ought not to be too readily inferred from the use by members of the public of a road traversing private property in a rural community, especially in a locality where the normal system of roads did not develop. In these circumstances the owner of the property may well, in a neighbourly spirit, permit local residents to use a way across it for their convenience without having any intention of dedicating the road as a public highway ...” (Emphasis added)

(2) In [45], the Canadian Court of Appeal said:-

“... it is necessary to be mindful of the fact that Cook’s Road is situated on private land. It is privately owned by the appellant. To declare a private road to be a public road will extinguish the property rights of its owner. It is a very serious step, therefore, for a court to declare an individual’s private property to be public property. Property rights are to be respected. No doubt this underlies the admonition of Martin J.A. in Reed, supra, at p. 402, that before the court can find that private property rights have been extinguished by dedication cogent or substantial evidence is required...” (Emphasis added)”

28.  Ps have put forward no allegation, let alone evidence, concerning when and by what means the predecessor-in-title of D1 has dedicated Lot 713 to the public as a public road.  Bearing in mind that the Subject Way is situated in a rural area where no systematic network of roads has been planned and developed, a long user of the Subject Way by the villagers (assuming that there is such a long user) may well be due to the permission of the owner of Lot 713 given to the villagers in a neighbourly spirit without any intention of dedicating the Subject Way to the public.

29.  Based upon the evidence adduced by Ps, on the question of public dedication, I am of the view that Ps have not demonstrated a serious question to be tried, let alone a high degree of assurance that they would succeed at trial.

Proprietary estoppel

30.  The 3 elements of proprietary estoppel are (a) a representation or assurance made to the claimant; (b) reliance on it by the claimant; and (c) detriment to the claimant in consequence of his reasonable reliance^[22].  While Ps have tried to plead a proprietary estoppel in [16] of the Amended Statement of Claim, no particular of the representation or assurance founding the estoppel has been given, and no evidence concerning the said representation or assurance has been produced.  In these circumstances, I cannot say that Ps have prospects of success which exists in substance and reality in relation to the proprietary estoppel pleaded.  That being the case, there is certainly no high degree of assurance that Ps would succeed at trial on the proprietary estoppel pleaded.

DISPOSITION

31.  For the reasons above, I dismiss the 1^st Summons and the 2^nd Summons.  I also discharge the short-term injunction. 

32.  Costs should follow the event.  However, I note that none of Ds have put forward anything to resist the 2 summonses, and the costs incurred by Ds in relation to the 2 summonses should be minimal. I order that costs of these 2 summonses be to Ds in any event, the amount of which, if not agreed, are to be taxed or summarily assessed as the court deems fit after the conclusion of the trial herein.

33.  Finally, I remind the parties that any unmeritorious application would only waste time and costs.  If Ps are anxious to get the reliefs pleaded in the Amended Statement of Claim or any other reliefs, Ps must take active steps to expeditiously bring these proceedings to trial.  Similarly, if Ds would like to get rid of these proceedings as soon as possible, Ds have to take active steps to bring the matter to trial.