THE INCORPORATED OWNERS OF GOLDEN CROWN COURT v. DAVID HSIUNG AND OTHERS

1986, No. A4322

IN THE SUPREME COURT OE HONG KONG

HIGH COURT

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JUDGMENT

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1. This is an application by the plaintiff, The Incorporated Owners of Golden Crown Court, for relief by way of injunction against the 3rd defendant, Chow Shun Yung, to restrain him from exhibiting advertisements for his guest houses at the front entrance to the building. The original pleaded case was based upon nuisance and annoyance exclusively, There has now been filed some evidence in support of that assertion. The evidence, as it stands, is not anything like sufficient to justify the Court acting upon it at an interlocutory stage. What may emerge when it is fleshed out at the hearing is a totally different matter. But now before me Mr Wong for the plaintiff relies principally on three further grounds which he says entitle his clients to relief, not a single one of which is so far mentioned in the Statement of Claim. That is a singular circumstance when interlocutory relief is being sought.

2. The first ground is that he wishes to rely upon Clause 19 of the Deed of Mutual Covenant and section 16 of the Ordinance. This was a point which I raised, when the matter first came before me, because I thought it might give him some assistance. On further reflection I think the point might be good, equally, it might be bad. The great problem in relation to it is the meaning to be given to the phrase "the owners of the building" in the Deed of Mutual Covenant. It seems to be used in different senses in different parts of that Deed. There is a considerable doubt to my mind in relation to Clause 19 whether the operative parts of it deal with the owners of the building collectively which expression may now comprehend the present plaintiff or whether in that particular Clause it relates to the owners of the floors enumerated in Clause 8(a) of the Deed. Again that seems to me to be altogether too uncertain to provide a basis for interlocutory relief.

3. Thirdly, it said that the owners have resolved that certain things would happen. That may be true in fact, what the legal effect of their resolutions is or are, is a totally different matter.

4. Finally, it said that as a tenant, the defendant cannot do what he is doing without permission and he cannot assert permission, or he has not asserted any case for permission. What he has asserted is a practice which he says the other tenants have indulged in when it comes to exhibiting signboard and that he should be free to follow that same practice.

5. I do not know whether any of those three additional grounds are going to be shown to be well-founded at the trial. They may be, but at the present moment nothing is there on paper. I do not believe that this Court should grant interlocutory relief upon grounds which have not been properly formulated; and further grounds which have been raised in argument at the very last moment as against a litigant in person, and which are not plainly and obviously sound.

6. I think this is a case where there have been unfortunate disputes amongst the occupants of this building which may well stem from the fact that the Deed of Mutual Covenant is a somewhat ancient document, and not very well drawn, if I may say so with respect to the draftsman in 1964. It has given rise to problems. It is not suprising that these problems do arise where you got multi-story buildings and this sort of ownership. The sooner they are settled the better. But when the consequences of the injunction sought would be so serious to this defendant, I do not believe that the Court should be too ready to grant injunctions of this nature on an interlocutory basis. The proper order, in my judgment, is an order for a speedy trial. I therefore propose to make no order on the summons and say (1) direct a speedy trial and (2) reserve the costs of this application to the trial judge.