THE INCORPORATED OWNERS OF FU FAI COURT, TIN HAU TEMPLE ROAD v. HENBLE LTD

HCA 2844/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2844 OF 2003

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D E C I S I O N

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Introduction

1. This is an application by the Plaintiff for continuation of an interlocutory injunction obtained at an ex parte hearing against the Defendant. The Plaintiff is the Incorporated Owners of Fu Fai Court at 33 Tin Hau Temple Road. The Defendant is the owner of a property behind the Plaintiff's property known as 31 Tin Hau Temple Road. The Defendant's property has no frontage at Tin Hau Temple Road and the only access to and from the Defendant's property is via a right of way in a passage of 10.5 feet wide over the Plaintiff's property.

2. When the Plaintiff learned of the Defendant's intention to redevelop its property, the Plaintiff offered to sell its interest in Fu Fai Court to the Defendant but the parties could not reach any agreement. In July 2002, after the Defendant commenced construction works, the Plaintiff offered the Defendant a licence to use the right of way for a sum of $3,500,000. The offer was rejected by the Defendant. The construction work caused obstruction at the entrance to the Plaintiff's property and the right of way. In December 2002, the Plaintiff instituted High Court Action 4616 of 2002 against the Defendant. The action was discontinued upon the Defendant paying the Plaintiff $210,000 and half of the Plaintiff's costs. The Plaintiff agreed to allow the Defendant to continue using the right of way with full vehicular access and excessive user of the right of way for the purpose of the redevelopment of the Defendant's property and permitted the Defendant to use the airspace over the Plaintiff's property for removing materials to and away from the Defendant's property. On 27 December 2002, I made an order by consent (the "Consent Order") which included the following terms in paragraphs 5 and 6:

"5. The Plaintiff undertake not to institute any further proceedings in respect of the Defendant or its contractors or workmen in respect of the Defendant or its contractors or workmen continuing to use the right of way with full vehicular access (including trucks and lorries) and any excessive user of the right of way for the purpose of the present redevelopment at No. 31 Tin Hau Temple Road;

6. The Defendant be permitted to use the airspace of Fu Fai Court as swing space for the purpose of the crane to be used by the Defendant's contractors or workmen in removing materials to and away from the site at No. 31 Tin Hau Temple Road before the completion of the said redevelopment. For the avoidance of any doubt, the Defendant or its contractors or its workmen shall not be permitted to enter the surface area within the confines of Fu Fai Court (except Car Park No.1)."

3. On 31 July 2003, seven months later, the Plaintiff made an ex parte application for an interlocutory injunction order restraining the Defendant from trespassing into the Plaintiff's property other than the right of way. The Plaintiff alleged that in breach of paragraph 6 of the Consent Order the Defendant had by its contractors and its workmen blocked the entire right of way, stationed heavy construction vehicles on the Plaintiff's property and allowed workmen to trespass on the surface area within the confines of Fu Fai Court. I granted the interlocutory injunction order until return date. The Plaintiff now seeks to continue the order until trial and the Defendant opposes the application.

Material non-disclosure - background

4. Mr Hung, counsel for the Defendant, submitted that the ex parte order should be set aside for material non-disclosure as to the background of the case and the incidents of 17 and 29 July 2003. He said the Plaintiff had been trying to extort money from the Defendant as shown in its attempted offer to sell Fu Fai Court and the offer of a licence to use the right of way. When those attempts failed, the Plaintiff instituted proceedings under HCA 4616/2002, which was settled for $210,000 and the Plaintiff is now repeating the same. Mr Hung submitted that had these backgrounds been disclosed fully to the court, the ex parte injunction order would not have been granted.

5. I do not think the background referred to above material. The basis of the present application is breach of paragraph 6 of the Consent Order. Whatever might have been the Plaintiff's motive which led to its instituting HCA 4616/2002 has disappeared into insignificance once that action was concluded with the Consent Order. As with any commercial transaction, there must be an element of financial interest involved in any litigation. Because of its location and access to Tin Hau Temple Road, acquisition of the Plaintiff's property by the Defendant would substantially enhance the value of the Defendant's property. The Plaintiff thought that the Defendant would be prepared to pay a significantly higher price for its property. The price offered by the Plaintiff was a commercial decision, so too was the Defendant's decision to decline the offer. Though the Defendant had a right of way over the Plaintiff's property, it had no right to an excessive user and no right to trespass on the other area of the Plaintiff. It was again a commercial decision what price the Defendant would pay for an excessive user in order to facilitate or accelerate its redevelopment project. The Defendant had to balance consideration of time, timing, cost, convenience and safety to its workers against the price for a licence for an excessive user. Likewise, the Plaintiff had to assess what price the Defendant would be prepared to pay and what inconvenience the Plaintiff was prepared to suffer for that price. Again, no bargain was reached and the parties had to resort to litigation. Eventually, the parties came to the terms for a consent order at a price of $210,000.00 plus half of the Plaintiff's costs. All these were commercial decisions. There is nothing to suggest threat and duress had been exerted by the Plaintiff. I do not think the Plaintiff's motive or the backgrounds at all relevant. In any event, all these backgrounds had been fully deposed to in the affirmations filed by the Defendant in earlier proceedings. I do not think the Plaintiff should be penalised for not repeating those backgrounds in the present action. Furthermore, as I was the judge presiding at the earlier proceedings, I am fully aware of the backgrounds. But, as I say, all these have disappeared into insignificance once the Consent Order was made.

Material non-disclosure - 17 and 29 July 2003

6. The Plaintiff complained that on two occasions on 17 and 29 July 2003, John Chuan of the Plaintiff warned a Mr Tse and a Mr Wong who were managers of the Defendant's contractors not to enter the surface area within the confines of Fu Fai Court, particularly not to damage the residual wall thereat. Despite that, the Defendant's contractors entered the surface area and pulled down the residual wall on 17 July 2003 and on 29 July 2003, they drove a bulldozer thereat to execute further works, causing severe and extensive damage.

7. According to the affirmation of the Defendant's project manager, its site manager, Mr Tse Man Cheung, had informed the Plaintiff's chairwoman on 16 July 2003 that the Defendant's contractors would be digging up the surface of the right of way for the purpose of laying underground water, gas and sewage pipes and a written notice was sent to the Plaintiff for its record. No adverse comments were raised by the chairwoman. On 17 July 2003, the Defendant's contractors commenced excavation work, during which a portion of the Plaintiff's curb near Car Park No.1 collapsed. Presumably, the Defendant's contractors entered the Plaintiff's property to reinstate the curb. As the right of way had been excavated, the boundary of the right of way with the curb had become exposed. To prevent soil from collapsing from the exposed surface in case of rain and thereby cause damage to the surface area of Fu Fai Court, the Defendant's contractors used an excavating machine to lay concrete along the boundary on 29 July 2003.

8. Mr Hung submitted that the Plaintiff was guilty of failing to disclose that Car Park No.1 in fact belonged to an associate company of the Defendant which raised no complaint against the alleged act of trespass and that the trespasses on 17 and 29 July 2003 were necessary for the purpose of protection of the Plaintiff's property. The ownership of Car Park No.1 had been deposed to in the affirmation filed in the earlier proceedings. In any event, the Plaintiff's complaint is not about inconvenience to the car park but about damage to the Plaintiff's property, i.e. the curb. While trespass can be justified by showing that it was necessary to enter upon the land of the plaintiff to preserve life or property, the defendant in an action of trespass has to establish that the necessity arose without negligence on his part: see Rigby v. Chief Constable of Northamptonshire [1985] 1 WLR 1242. The dangerous state in the Plaintiff's property was caused by the excavation work carried out by the Defendant. The Defendant has quite failed to show how the damage to the curb near Car Park No.1 was occasioned without negligence on its part. More importantly, the Defendant has failed to show why the remedial work could not have been effected without trespassing on the Plaintiff's property and why the Defendant did not seek prior consent from the Plaintiff. In my view, the trespasses on both occasions were not acts of necessity but the result of a deliberate choice of convenience. The Defendant's contractors chose to effect the works by operating on the Plaintiff's property with an excavator than by operating from the sunken right of way by manual labour, which obviously would be more difficult, time consuming and costly. In any event, even if the Defendant had a defence or excuse for trespassing the Plaintiff's property, the incidents on 17 and 29 July 2003 were just two of the many incidents complained of by the Plaintiff. Even if these amounted to material non-disclosure, they were de minimis and cannot justify depriving the Plaintiff of the remedy sought.

Material non-disclosure - notice to the Defendant's solicitors

9. Though not specifically raised as a material non-disclosure, Mr Hung said that despite the parties were and are represented by lawyers, no single letter of complaint had been raised with the Defendant's lawyers and the letter dated 28 January 2003 exhibited in John Chuan's 1st affidavit was referred to out of context. In that paragraph, John Chuan deposed as follows:

"Despite repeated requests and warnings, the aforesaid acts are still continuing. I am advised by the Plaintiff's legal advisors and verily believe that the Plaintiff has a good case against the Defendant arising from the aforesaid acts. Besides, notice was given to the Defendant through its solicitors Messrs Yeong & Co in a letter written to them by Messrs Y.L. Yeung & Co., Solicitors, on behalf of the Plaintiff and dated 28th January 2003 that pursuant to paragraph 6 of the Consent Order, the Defendant(?) or its contract(ors) or workmen shall not be permitted to enter the surface area within the confines of Fu Fai Court (except Car Park No.1). There is now produced and shown to me marked "JC-4" a photocopy of the said letter dated 28th January 2003."

10. The letter of 28 January 2003 reads:

"We refer to your letter of the 27th the message of which has been passed to our clients.

Nevertheless, you are to take notice of paragraph 6 of the Order of Deputy High Court Judge To herein dated the 27th December 2002, whereby it provides, inter alia, that for the avoidance of any doubt, your client or its contractors or workmen shall not be permitted to enter the surface area within the confines of Fu Fai Court (except Car Park No.1).

Further, your client is required to reinstate the wire mesh and poles within 30 days after the issue of the occupation permit pursuant to the said Order."

11. The letter of 27 January 2003 from the Defendant's solicitors was not exhibited. Reading paragraph 16 of John Chuan's 1st affidavit and the Plaintiff's solicitors' letter of 28 January 2003 which was exhibited, gives one the impression that the Plaintiff's solicitors have complained to the Defendant's solicitors about trespass on 28 January 2003. However, after hearing Mr Hung's submission, it is clear that the letter was merely a follow-up letter from the earlier proceedings reminding the Defendant of paragraph 6 of the Consent Order and the obligation to reinstate the wire mesh and poles. Reference to that letter in paragraph 16 of John Chuan's 1st affidavit was misleading and out of context of that paragraph as to amount to a material non-disclosure. Invariably, these affidavits are drafted by solicitors, though on the instruction of the client. The inclusion of the letter in paragraph 16 of John Chuan's 1st affidavit might well have been innocent. Were I hearing an application to discharge an ex parte injunction order, I might have so discharged it, if satisfied that the non-disclosure was deliberate and made with intention to mislead. However, the ex parte injunction order has expired and I am now considering an inter parte application for an injunction order. For reasons as given below, I consider the Plaintiff entitled as of right to the injunction order. Whether the non-disclosure was deliberate is of no relevance.

The injunction

12. Mr Hung submitted that the Plaintiff does not have an unqualified right to an injunction. He argued that the trespass was trivial and damages would be sufficient. He said the Plaintiff has unreasonably refused the Defendant's offer of undertaking to the court not to trespass on the Plaintiff's property and to fence off the right of way so as to prevent workers from trespassing into Fu Fai Court. He repeated his complaint of the Plaintiff's lack of bona fide, motive in extracting money from the Defendant and misleading the court as to urgency.

13. Mr Hung cited the case of Armstrong v. Sheppard & Short Ltd [1959] 2 QB 384 as authority in support of his proposition that an owner of the property does not have an unqualified right to an injunction against trespass. The plaintiff in that case was the owner of a small strip land at the rear of his premises on which the defendant had entered and constructed a sewer for the discharge of sewage and effluent. The defendant's work was concluded by the end of 1957. In August 1958, the plaintiff demanded compensation for trespass and that the sewer be removed. Lord Evershed MR held at 396:

"Second, it is true to say that if a man, having a proprietary right, proves an infringement of that right, prima facie he is entitled to an injunction: but that needs some qualification. It is not a matter of unqualified right; and one ground for denying an injunction would be that the wrong done is, in the circumstances, trivial. That proposition is founded on the well-known case of Imperial Gas Light and Coke Co. (Directors) v. Broadbent: but I can summarise it by reading from Kerr on Injunctions, 6th ed., p. 30:

'After the establishment of his legal right and of the fact of its violation, a plaintiff is in general entitled as of course to a perpetual injunction to prevent the recurrence of the wrong, unless there be something special in the circumstances of the case, such as laches, or where the interference with the plaintiff's right is so trivial.'

The judge was here dealing with the claim as I have formulated it; and he came to the conclusion that the circumstances of this case were special, and, as his judgment shows, that the damage was trivial. For the latter statement he was supported by the plaintiff himself, who said in evidence that he had suffered no inconvenience himself whatever from what had been done. But there were other good grounds, and formidable grounds (as I think), for refusing the plaintiff an injunction. That he misled the defendant is beyond a peradventure. It is no less clear that he attempted to mislead the court. He asserted - contrary to the fact - that he had never had any conversation with the defendants about the matter at all; and in his evidence in chief he so swore, untruly."

14. I think Mr Hung has overlooked the general principle cited by Lord Evershed MR and emphasised the exception as the general rule. The principle as held by Lord Evershed MR is that a plaintiff is in general entitled as a matter of course to a perpetual injunction to prevent the recurrence of the wrong unless there are special circumstances. Whether special circumstances existed is a question of fact of the individual case. In Armstrong v. Sheppard & Short Ltd, the construction work had been completed with the consent of the plaintiff. The manhole was far away from the plaintiff's house and the sewage was underground. Though the infringement of his right was a continuing trespass, the plaintiff confirmed he suffered no inconvenience. It was on the totality of these facts that the English Court of Appeal upheld the judge's finding of special circumstances which took the case out of the application of the general rule and refused to grant the injunction. If the proceedings were initiated while construction work was being carried out, I have not the slightest doubt that the case would have been decided differently.

15. Indeed, the general rule has always been that a landowner is entitled as of right to an injunction to restrain trespass on his land, even if the trespass does not harm him. In Patel and Others v. W.H. Smith (Eziot) Ltd and Another [1987] 1 WLR 853, the defendants had a right of way over the yard of the plaintiff's predecessor for parking vehicles for loading and unloading purposes. When the plaintiffs became owners of the yard in 1978, they objected to the defendants' use of the yard for parking but took no action until 1986. The judge refused the plaintiffs' application for interlocutory injunction. In allowing the appeal, the English Court of Appeal held that a landowner whose title was not disputed was prima facie entitled to an injunction to restrain trespass on his land, even if the trespass did not harm him.

16. Patel and Others v. W H Smith (Eziot) Ltd and Another was followed by the local Court of Appeal in Lea Tai Property Development Ltd v. Incorporated Owners of Leapoint Industrial Building [1996] 1 HKC 193, in which Godfrey JA, as he then was, held that in the ordinary case, an owner of a property who complained of a trespass was entitled almost as a matter of course to an injunction to restrain the continuance of the trespass.

17. It has always been our law that a landowner is entitled to enjoy the use of his land free from interference. If someone trespasses on the property of another, the landowner is always entitled to require him to leave. If there is a real threat of repeated trespass, the law will come to the assistance of the landowner by restraining the trespasser from future interference with the right of the landowner. In this regard, I also reject Mr Hung's submission that where the interference is trivial damages are adequate and the remedy of injunction is not available to the landowner. For past acts of trespass, the remedy is damages. If the interference is trivial, the plaintiff would be entitled to nominal damages only. The position is different with respect to acts of trespass in the future or threats of trespassing. It cannot be right that because of the trivial nature of the interference that a landowner must suffer repeated infringement to his proprietary right against his will and be paid a monetary compensation. In the case of trespass as distinct from nuisance, there is no need for the court to balance the interest of the landowner in the enjoyment of his land against the right of his neighbour landowner not to be interfered with. For the court to hold otherwise would amount to a judicial licence to a wrongdoer to trespass on the property of another for a fee determined by the court against the will of the landowner. Wherever possible, the court should restrain a threat to commit a wrong than to authorise a wrong with an order for compensation. An injured party can seldom be restored to exactly the same position as if no wrong had been committed. It is therefore more desirable that a wrong be prevented than compensated for. As was held in Patel and Others v. W H Smith (Eziot) Ltd and Another, triviality or the absence of harm to the plaintiff as such does not constitute any special circumstances. The trivial nature of the interference with the plaintiff's right is just one of the factors to be considered in determining whether special circumstances exist as to justify a departure from the general rule. Cases where special circumstances were held to exist must be very rare. The decision in Armstrong v. Sheppard & Short Ltd must be understood in the light of its peculiar facts.

18. In the present case, the Plaintiff's complaint is trespass by the Defendant's contractors, its workmen and heavy construction vehicles on the surface area within the confines of Fu Fai Court, other than the right of way. According to the 1st Affidavit of John Chuan and the photographs exhibited therein, despite repeated requests and warnings, the workmen of the Defendant's contractors trespassed on the surface area of Fu Fai Court repeatedly and at will for the purposes of loading and unloading construction material. At times, the residents of the Plaintiff could not even park their cars within the confines of their property. Not only were the acts of the Defendant's contractors causing inconvenience, they post hazard to the residents of Fu Fai Court. These acts of trespass are denied by the project manager of the Defendant in his affirmation and he offered an explanation for the events on 17 and 29 July 2003 which I have referred to above.

19. It is not for me to make any finding of fact on the basis of the conflicting affirmations. There is no dispute that the Plaintiff is the owner of Fu Fai Court. Since a landowner is prima facie entitled to an injunction to restrain trespasses on his land and since the Defendant is not seeking to argue it has any right to be on the Plaintiff's property, there is no need for me to consider where the balance of convenience lies. It is also unnecessary for me to consider whether damages would be an adequate remedy to the Plaintiff. On the basis of John Chuan's 1st affidavit, the Plaintiff's proprietary right is being infringed, that the interference is not trivial and that unless restrained, the Defendant's contractors or workmen will continue to trespass on the Plaintiff's property. Therefore, the Plaintiff is entitled to the injunction it asked for.

20. I do not think the Defendant's offer of undertaking realistic and practicable. The Plaintiff has no control over the Defendant's contractors and workmen who, according to John Chuan's 1st Affidavit, have repeatedly ignored the Plaintiff's warnings and requests not to trespass on the Plaintiff's property. It would not be difficult to envisage that the construction workers would be more concerned for their own safety and convenience and in getting the work done than in the Plaintiff's concern about trespass to its property. What is needed is a court order and the sanction such an order brings to impress upon the contractors and their workmen the need to abide by the terms of the injunction and upon the Defendant the obligation to ensure compliance with the order by its contractors over whom it has control and supervision.

21. The Plaintiff does not find the Defendant's proposal of fencing the right of way from the rest of Fu Fai Court acceptable. By the Consent Order, the Defendant has acquired an excessive user of the right of way. The effect of the proposal is to enlarge that excessive user to an exclusive user of the right of way to the exclusion of the Plaintiff. This is understandably unacceptable to the Plaintiff. The residents of Fu Fai Court are no less entitled than the Defendant to use the right of way for manoeuvring their vehicles. The land on which the right of way was created belongs to the Plaintiff. What was reserved unto the Defendant's predecessor in title was a right to pass and re-pass over the land only. There is no justification that the Plaintiff should be deprived of the use of the right of way altogether and confine its vehicular movements to the other areas of Fu Fai Court, not at least without a price being paid to the Plaintiff.

22. Mr Hung submitted that the Plaintiff misled the court as to urgency and repeated his complaint that the ex parte application should have been made on notice to the Defendant. He submitted that had the court been fully aware of all the circumstances, the ex parte injunction would not have been ordered. I think the point raised by counsel is academic as the order has now expired and technically, the application now before me is an inter parte application. It is, of course, trite law that ex parte relief should only be applied for in case of urgency or where it is necessary to keep the proceedings secret at the ex parte stage. As Rogers J, as he then was, said in Seapower Resources International Limited and Others v. Lau Pak Shing and Others, HCA No. 10715/1993 at page 6 that for an application to be made ex parte, it has to be so urgent that the applicant cannot give even five minutes warning to the other side. I think there is some degree of urgency in the Plaintiff's application. The right is being repeatedly infringed and the Plaintiff now complains of inconvenience and hazard.

23. The ex parte injunction was granted primarily because the Plaintiff has an undoubted proprietary interest in Fu Fai Court and is prima facie entitled to an injunction as of right to restrain any trespass to its property. Having heard counsel from both sides, I am satisfied that the above legal proposition is correct. Even if the Plaintiff had erred in its assessment of urgency and erred in taking out an ex parte application and hence misled the court, that could not be a reason to deprive them of its undoubted right to the injunctive relief at an inter parte hearing.

Conclusion

24. For the above reasons, I grant the Plaintiff an interlocutory injunction in the terms it sought until trial or further order with liberty to apply. I also make an order that costs be in the cause.