XCHRX LO CHUN NIN EDDY v. TAM YIU CHI

HCA20869/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 20869 OF 1998

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(by counterclaim)

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REASONS FOR DECISION

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1. In the course of counsel's argument I have made my observations of the proper way in which the dispute should be resolved. I do not wish to make any further comment on that. Suffice for me to say that the matter could have been disposed of in a much more proper and convenient manner than the way in which this litigation is being conducted.

2. Having said that, I must not lose sight of the application before me which is for a mandatory interim injunction forcing the defendant from the premises in question. There is an alternative claim for interim payment of means profit arising out of the defendant's occupation of the premises in question but as Mr CHU, on behalf of the plaintiff, concedes that as the notice for claiming interim payment is not within time and therefore they are not going to pursue this aspect. I must therefore confine my attention to the sole issue before me, namely whether a mandatory interim injunction forcing the defendant from the premises in question ought to be granted.

3. There is no dispute that the property in question, is the subject matter of a sale and purchase agreement between the parties. There is no dispute that the purchaser in that particular agreement, the defendant, had paid a 35 per cent deposit, amounting to $661,000. There is also no dispute that completion did not take place in accordance with the agreement because the parties have dispute as to whether the plaintiff, as the vendor, had properly and satisfactorily answered the requisitions raised by the defendant.

4. Mr CHU, on behalf of the plaintiff, suggests that those requisitions are not properly raised, in fact the suggestion is that those requisitions do not stand any chance of being upheld if the matter were to be properly studied and examined.

5. On this aspect I cannot ignore that the claim was made many months ago, a defence and counter-claim had been filed and the matter progressed in accordance with what the plaintiff wished the matter to progress namely by way of a writ over the various disputes between the parties.

6. If it is the plaintiff's case that the matter pertaining to the requisitions on the title was unreasonably made by the defendant and that they do not stand any chance of success then perhaps attempts should have been taken to strike out those matters. Although it has not been done I do not consider it right for me at this stage to really go into the details of the merit of the parties' claims or assertions in this particular dispute. Since the parties have chosen the form in which this litigation is to be conducted, then those matters can only properly be sorted out at the trial.

7. Although the plaintiffs seek to rely on cases where injunction relief is granted in favour of a land owner against certain trespassers, I do not consider those authorities are authorities that I should have too much regard in resolving this particular dispute before me. The defendant is not the sort of trespassers that the other cases are concerned with.

8. We are talking about a situation whereby there is no dispute that the defendant is the intended purchaser of these premises. There is no dispute that very substantial sums of money had been paid. There is no dispute that there was a lease pursuant to some form of agreement between the parties that the defendant moved into the premises before completion, although the exact nature of such agreement is in dispute.

9. In my view the defendant, at least, if their assertion is correct, would acquire some equitable interest in the property in question. I am of the view that it would be wrong for me to resolve for the purpose of the present application on the merit of the parties insofar as their respective claims or assertions are concerned. That being the case, the matter must progress on the basis that there is a serious question to be tried.

10. Insofar as the balance of convenience is concerned, I have no hesitation, in fact a point that Mr CHU, though not directly but indirectly conceded, in concluding that it must be a point in favour of the defendant, the defendant having treated the premises virtually as their home, having moved in some six or seven months ago.

11. I have also taken into consideration of my observation in the course of counsel's argument that damages must be an adequate relief even if the plaintiff were to be successful at the end of the day. Bearing in mind that a deposit of $661,000, which is 35 per cent of the price of the property in question had been paid to the plaintiff, the plaintiff's position insofar as the question of damages is concerned, had been adequately protected when even on the plaintiff's own case they are not entitled to forfeit this deposit, being one of 35 per cent of the purchase price.

12. I have, of course, also mentioned the question of delay which suggests that there is absolutely no urgency whatsoever in this particular matter when the delay has not been explained. In my view, it is not a proper case at all to grant the mandatory interlocutory injunction in favour of the plaintiff. After all, an injunction of this nature can and should only be granted in very exceptional circumstances and I am not satisfied that such standards of threshold have been achieved in this particular case.

13. In the circumstances the application for a mandatory interlocutory injunction forcing the defendant to vacate the premises in question is refused.