KIU LOK SERVICE MANAGEMENT COMPANY LTD v. MIGHTYTON LTD

HCMP 2307/2025

[2026] HKCFI 796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2307 OF 2025

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D E C I S I O N

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1.  This is the Plaintiff’s application for an interim injunction that pending the determination of the Originating Summons, the Defendant should (1)  forthwith deliver to the Plaintiff possession of the club houses of a residential estate called Redhill Peninsula (“Estate”), and (2)  be restrained from interfering with or disturbing the Plaintiff’s or the Estate owners’ full and unrestricted access, use, occupation and enjoyment of the club houses.

A.   THE FACTUAL BACKGROUND

2.  The Plaintiff became the manager of the Estate from 1 October 2025.  The Defendant is the developer of the Estate.

3.  The Estate is divided into Sites A, B, C and D.  There are two club houses: one is found in Site A with 5 storeys (“Site A Club House”)  and the other one is in Site D with 2 storeys (“Site D Club House”)  (collectively “the Club Houses”).

4.  On 28 September 1990, the principal deed of mutual covenant of the Estate (“Principal DMC”)  and the sub-deed of mutual covenant of Site D (“Site D Sub-DMC”)  were executed.  In the Site D Sub-DMC, the Site D Club House was allocated 280 undivided shares.  The Defendant is the owner of such undivided shares.

5.  Under the Principal DMC, the Defendant appointed Mightyton Property Management Limited (“MPML”)  as the manager to manage the Estate.  According to the Defendant, from 1990 (until 30 September 2025), Protech Property Management Limited (“Protech”), an affiliate of the Defendant and MPML, had acted as management agent of MPML to undertake day-to-day management of the Estate and perform the functions of the manager. 

6.  The Occupation Permit for Site D Club House was issued on 23 November 1990.  According to the building plans, Site D Club House is around 10,265 square feet in size which comprises billiard room, children playground, fitness machine room, male and female changing rooms and toilets, multi-purpose room, sauna, 2 security control rooms, tennis court, sport lounge and squash court.

7.  In 1991, the Site D Club House was opened to the owners and residents for their use. 

8.  The Occupation Permit for Site A Club House was issued on 30 October 1992. According to the building plans, Site A Club House is around 165,404 square feet in size which comprises aerobic room, billiard room, children playground, game room, lounge, male and female changing rooms and toilets, multi-purpose function room, music room, pantry, reading room and library, sauna, squash court, swimming pool, tennis court, television room and whirlpool.

9.  On 9 March 1993, the sub-deed of mutual covenant of Site A (“Site A Sub-DMC”)  was executed. In the Site A Sub-DMC, the Site A Club House was allocated 243 undivided shares.  The Defendant is the owner of such undivided shares.

10.  In 1993, the Site A Club House was opened to the owners and residents for their use.

11.  On 10 April 2025, Protech issued a notice to all owners and residents of the Estate that the Club Houses would be closed from 16 April 2025 “for general safety review and emergency remedial works if necessary”.  The Club Houses were duly closed on 16 April 2025, and signages stating “Private Property” and “No Unauthorised Access” were displayed at their entrance.

12.  On 19 May 2025, Messrs Stephenson Harwood (“SH”), solicitors for the Estate Owner Committee (“EOC”), wrote to the Defendant, MPML and Protech and pointed out, amongst other things, that the owners of the Estate have an unfettered right to use and enjoy the Club Houses and that the EOC would demand for the Club Houses to be re-opened immediately.

13.  On 22 May 2025, Messrs Woo Kwan Lee & Lo (“WKLL”), solicitors for the Defendant, replied and rejected the claim made on behalf of the EOC.  It was also mentioned by WKLL that the closure of the Club Houses was occasioned by “the repairing works which were undertaken pursuant to [the EOC’s] complaints of disrepairs and defects to ensure safety” and that the Club Houses would be “re-opened as soon as the repairing works are completed”.

14.  By a letter dated 3 June 2025, SH again reiterated the EOC’s position and requested the Defendant to open the Club Houses.

15.  On 9 June 2025, an EOC meeting was held, during which Protech stated, amongst other things, that (1)  the repair works of the Club Houses were expected to be completed in two weeks, (2)  however, the Defendant would keep the Club Houses closed because it needed to apply for a club licence, (3)  Protech had been operating the Club Houses without a licence for 30 years because they were common areas which did not require a licence, and (4)  the Defendant wanted The Redhill Peninsula Club Ltd (“RPCL”)  to manage the Club Houses and RPCL would have to apply for a licence.

16.  On 27 June 2025, an EGM of the owners was held and a resolution was passed to elect the Plaintiff as the new manager of the Estate.

17.  On 1 July 2025, the EOC served the requisite 3-month notice on MPML for the termination of its management agreement.

18.  On 1 October 2025, MPML’s management agreement was terminated, and the Plaintiff was appointed as manager of the Estate.

19.  By the Originating Summons issued on 25 November 2025, the Plaintiff seeks against the Defendant, amongst other things:

(1)  a declaration that (a)  the Club Houses and the facilities therein constitute part of the “Estate Common Areas and Facilities” under the Principal DMC and/or common parts under the Building Management Ordinance (Cap 344)  (“BMO”), (b)  the Owners are entitled to full and unrestricted access, use, occupation and enjoyment of the Club Houses, and (c)  the Plaintiff is entitled as property manager to full and unrestricted access of the Club Houses for the purposes of providing property management services of the Estate Common Areas and Facilities; 

(2)  further or alternatively, a declaration that the Defendant is estopped by convention from denying that the Club Houses and the facilities therein constitute part of the Estate Common Areas and Facilities under the Principal DMC and/or are common parts under the BMO and for corresponding declarations in (1)(b)  and (1)(c);

(3)  injunctive relief for vacant possession of the Club Houses and the facilities therein.

20.  The Plaintiff issued its summons for injunctions also on 25 November 2025.

B.  APPLICABLE PRINCIPLES ON INTERLOCUTORY INJUNCTIONS

21.  The principles derived from American Cyanamid Co v Ethicon Ltd [1975] AC 396 are applicable in an application for an interlocutory injunction.  They involve three major considerations: (1) whether the plaintiff has established a serious issue to be tried, (2) whether damages would be an adequate remedy for the plaintiff if the plaintiff were correct at trial, or for the defendant under the plaintiff’s undertaking if the injunction were granted and if the defendant were successful at trial, and (3)  where the balance of convenience lies.

22.  The American Cyanamid principles are applicable whether the injunction sought is prohibitory or mandatory.  In Re Chime Corp Ltd [2003] 2 HKLRD 905, Rogers VP at [13] said:

“… [the American Cyanamid] principles are applicable whether the relief sought is a mandatory or a prohibitory injunction. The judgment of Hoffmann J (as he then was)  in Films Rover International Ltd v Cannon Film Sales Ltd (No 1) [1987] 1 WLR 670 makes clear that, in considering the grant or refusal of an interlocutory injunction, the court must consider where the balance of justice lies. Obviously in many cases, mandatory injunctions may entail a consequence which cannot be remedied in future. What has to be considered is the effect of the grant or refusal of the particular injunction sought.”

23.  Similarly, Lord Hoffmann in National Commercial Bank Jamaica Ltd v Olint Corp Ltd [2009] 1 WLR 1405 at [19] said:

“There is however no reason to suppose that, in stating these principles, Lord Diplock was intending to confine them to injunctions which could be described as prohibitory rather than mandatory. In both cases, the underlying principle is the same, namely, that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other ... What is true is that the features which ordinarily justify describing an injunction as mandatory are often more likely to cause irremediable prejudice than in cases in which a defendant is merely prevented from taking or continuing with some course of action: see Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670, 680. But this is no more than a generalisation. What is required in each case is to examine what on the particular facts of the case the consequences of granting or withholding of the injunction is likely to be. If it appears that the injunction is likely to cause irremediable prejudice to the defendant, a court may be reluctant to grant it unless satisfied that the chances that it will turn out to have been wrongly granted are low; that is to say, that the court will feel, as Megarry J said in Shepherd Homes Ltd v Sandham [1971] Ch 340, 351, ‘a high degree of assurance that at the trial it will appear that the injunction was rightly granted’.”

24.  As the passages quoted above suggest, it is not in every case where a mandatory injunction is sought that the plaintiff must demonstrate “a high degree of assurance” of his success at the trial. 

(1)  Where the mandatory injunction sought may have the effect of causing irremediable prejudice to the defendant, or may carry a higher risk of injustice if granted at an interlocutory stage, the plaintiff would ordinarily be expected to show a “high degree of assurance” that he would be able to establish his right at the trial: Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 at 680G-H (Hoffmann J); National Commercial Bank Jamaica Ltd (above)  at [19] (Lord Hoffmann).

(2)  In Films Rover International Ltd, Hoffmann J at 681B-D referred to the case where Megarry J first adopted the “high degree of assurance” threshold, and said:

“In Shepherd Homes Ltd v Sandham, Megarry J spelled out some of the reasons why mandatory injunctions generally carry a higher risk of injustice if granted at the interlocutory stage: they usually go further than the preservation of the status quo by requiring a party to take some new positive step or undo what he has done in the past; an order requiring a party to take positive steps usually causes more waste of time and money if it turns out to have been wrongly granted than an order which merely causes delay by restraining him from doing something which it appears at the trial he was entitled to do; a mandatory order usually gives a party the whole of the relief which he claims in the writ and makes it unlikely that there will be a trial.”[1]

(3)  On the other hand, if it appears to the court that withholding a mandatory interlocutory injunction would carry a greater risk of injustice than granting it, the injunction should not be withheld even though the court does not feel a “high degree of assurance”: Films Rover International Ltd at 681A-B (Hoffmann J); Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041 at [12(g)] (Ma J).

25.  In other words, in an application for a mandatory injunction, whether or not a plaintiff must show a high degree of assurance of success at the trial depends on the particular circumstances of the case, and the likely practical consequences of granting or withholding of the injunction.  Ultimately, the basic principle concerning interlocutory injunctions is that “the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other”: National Commercial Bank Jamaica (above)  at [17] (Lord Hoffmann); Success Lane Development Ltd v Fergurson Hong Kong Limited [2024] HKCA 839 at [27] (G Lam JA).  The court should “take whichever course appears to carry the lower risk of injustice if it should turn out that it is wrong”: Music Advance Ltd (above)  at [12(d)] (Ma J).

C.  SERIOUS ISSUE TO BE TRIED

26.  In this section, I will first examine whether the Plaintiff has demonstrated a serious issue to be tried in respect of its claims.  The issue of whether there is a need in the present case to show a high degree of assurance of success will be discussed in the section below when examining the balance of convenience between the parties.

C1.  Whether the Club Houses are Common Parts of the Estate

27.  The Plaintiff contended that the Club Houses are common parts of the Estate.  It submitted that the Club Houses are common parts under s.2 of the BMO.  It also submitted that the cumulative effect of the Principal DMC, when construed together with the Conditions of Sale and the relevant building plans, is that the Club House are for the exclusive use, occupation and enjoyment of all the owners of the Estate.  Specifically, the Plaintiff argued as follows.

(1)  Under s.2 of the BMO, “common parts” means “(a)  the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and (b)  unless so specified or designated, those parts specified in Schedule 1”.  Further, the common parts specified in Schedule 1 include “[l]awns, gardens and playgrounds and any other recreational areas” (§12), “[s]wimming pools, tennis courts, basketball courts, squash courts and premises containing or housing any other sporting and recreational facilities” (§13), and “[c]lubhouses, gymnasiums, sauna rooms and premises containing health or leisure facilities” (§14).  There is nothing in the DMCs of the Estate to designate the Club Houses as being for the exclusive use, occupation or enjoyment of an owner.

(2)  In the Principal DMC, the term “Estate Common Areas” is defined to mean “those parts of the Estate not otherwise … assigned to or for the exclusive use of any one or more Owners …”.  The Club Houses have never been assigned to or for the exclusive use of any of the owners, including the Defendant.

(3)  Paragraph 4 of Section II of the Principal DMC provides that “[t]he Club House facilities shall be used only by members of the [RPCL] who shall abide by the rules, regulations and by-laws of [RPCL]”.  Section IV.D of the Principal DMC further provides that “[e]very owner shall be entitled, on completion of the sale and purchase of his Unit, to become a member of [RPCL] and he shall abide by the rules and regulations of [RPCL] including paying usage fees for the facilities provided by [RPCL]”.  The owners are therefore entitled to use the Club Houses.

(4)  Clause 9(a)  of the Special Conditions of Sale dated 2 January 1981 provides that “[s]uch recreational facilities (including open-air swimming pools, squash courts)  and such ancillary facilities as may be approved in writing by the said Director shall be erected, constructed, provided and maintained upon the lot. … The said facilities will not be taken into account for the purpose of calculating the total gross floor area and the total site coverage referred to in Special Condition No. (8)(b)  hereof, and shall not be used other than by the residents of the buildings erected or to be erected on the lot and their visitors.”

(5)  Clause 10(a)  of the Special Conditions of Sale provides “[o]ffice accommodation for watchmen or caretakers which in the opinion of the said Director is essential to the safety, security and good management of the buildings erected or to be erected on the lot may be provided and maintained on the lot….”

(6)  Clause 16 of the Site A General Plan filed with the Buildings Department in 1989 states that “PROPOSED CLUB HOUSE AND MINI MARKET ARE FOR THE EXCLUSIVE USE OF THE RESIDENTS LIVING IN THE RED HILL DEVELOPMENT”.

(7)  According to the “Club House Level 59.15 Floor Plan” approved by the Buildings Department on 8 April 1992, there are two management offices located in the Site A Club House.  According to a “Site D General Plan”, there is also a security control room located in the Site D Club House.

28.  In opposing the present injunction application, the Defendant’s primary contention was that the undivided shares for the Club Houses have been allocated under the Site A and Site D Sub-DMCs to the Defendant, and that the Defendant as the owner of such undivided shares is entitled to the exclusive possession or occupation of the Club Houses.[2] The Defendant advanced a number of arguments to support its contention.  I now examine each of them in turn.

29.  First, the Defendant submitted that clause 2 of Section II of the Principal DMC, clause 2 of Section II of the Site D Sub-DMC, and clause 2.02 of the Site A Sub-DMC would have the effect of conferring the right of exclusive possession and occupation of the Club Houses on the Defendant as the owner of the undivided shares allocated to the Club Houses. 

30.  Clause 2 of Section II of the Principal DMC provides that “[e]ach Owner shall hold his Share and the full and exclusive right and privilege to hold use, occupy and enjoy his Unit subject to and with the benefit of the easements, rights, privileges, obligations, covenants, terms and conditions set out in this Deed and any relevant Sub-Deed”.  “Unit” is defined to mean “a part of any Village in respect of which the full and exclusive right and privilege to hold use occupy and enjoy has been or is intended to be assigned to an Owner…”.

31.  In my view, there is a serious issue to be tried as to whether this clause in the Principal Sub-DMC has the effect of conferring the owner of a share the right to exclusive possession and occupation of the area attributable to the share.  As pointed out by the Plaintiff, this is not what the clause says.  Further, the clause refers to “Unit”, and may not be applicable to “Club House”, which is separately defined in the Principal DMC to mean “the building complex constructed on the Lot designated “Club House” on the Master Plans and shall include tennis courts, swimming pools and other facilities within its compound”. Moreover, there are serious arguments as to whether “the full and exclusive right and privilege to hold use occupy and enjoy” the Club Houses have been assigned to the Defendant.

32.  Clause 2 of Section II of the Site D Sub-DMC provides that “[e]ach Share in the Village and the full and exclusive right and privilege to hold use, occupy and enjoy any part of the Village shall be held by the person or persons from time to time entitled thereto subject to and with the benefit of the easements, rights, privileges, obligations, covenants, terms and conditions set out in this Sub-Deed and the Principal Deed”.  There is again a serious argument as to whether this clause, even when read together with the Principal DMC, gives the Defendant the right to exclusive possession and occupation of the Site D Club House.

33.  It is right to point out that apart from the parcel of undivided shares allocated to the Site D Club House, 100 undivided shares were allocated to the “Common Areas” in the Site D Sub-DMC, which are also owned by the Defendant.  The Plaintiff submitted that if the Defendant’s contention were correct, the Defendant would have been conferred the right to exclusive possession and occupation of the “Common Areas” as well, which would be an absurd result.  The Defendant countered such an argument by pointing to clause 1 of Section II of the Site D Sub-DMC, and argued that such a clause would neutralise the effect of clause 2 of the same section.  I observe that clause 1 of Section II refers to “the Village Common Areas”, which is defined to mean “all those parts of [Site D] as shall be designated as such by [the Defendant] from time to time in accordance with the provisions of this Sub-Deed”.  There does not appear to be any evidence before this Court that the Defendant has designated the “Common Areas” of Site D to be the “Village Common Areas” for the purpose of the Site D Sub-DMC.

34.  Further, clause 4 of Section II and Sub-section D of Section IV of the Principal DMC appear to indicate that the Defendant was not intended to have exclusive use or enjoyment of the Club Houses.  The fact that the residents are entitled to become members of RPCL also appears to suggest that the Club Houses were intended to be for common use of the residents.

35.  Although the Defendant submitted that the Principal DMC and the Site A and Site D Sub-DMCs should be construed together, it is not clear whether that must necessarily be so given that the Site A Sub-DMC was executed some 3 years after the execution of the Principal DMC and the Site D Sub-DMC.  This is an argument as to whether it is correct to construe the Principal DMC and the Site D Sub-DMC by reference to a subsequent document.  It is not presently clear whether clause 3.01(v)  of the Site A Sub-DMC can be relied upon to support the Defendant’s contention. 

36.  The Defendant relied on the first assignment of a house in Site D between the Defendant and two individuals dated 28 September 1990 (“Site D First Assignment”)  to further support its contention.  In clause 1(B)(1)(iii)  of Schedule 2 of that assignment, there was a reservation clause to reserve to the Defendant the sole and exclusive right and privilege to hold use occupy and enjoy the Site D Club House.  However, a reservation of a right of exclusive use does not operate as a grant of such a right: Donora Co Ltd v Tsuen Kam Centre (IO) (2024)  27 HKCFAR 166 at [43]-[46], [51]-[52], [56] (Lam PJ). Even when the Principal DMC and the Site D Sub-DMC are read together with the Site D First Assignment, it is questionable whether they conclusively show that the Defendant has the right to exclusive possession and occupation of the Site D Club House.

37.  In the light of the above, it is sufficient for me to say at this interlocutory stage that there is at least an issue to be tried on the question of whether the Club Houses form part of the common parts of the Estate. 

C2.  Easement and Quasi-Easement

38.  The Plaintiff contended that even if the Defendant enjoys exclusive use and enjoyment of the Club Houses (which the Plaintiff denies), the owners enjoy a quasi-easement (in the case of owners in Sites A and D)  and an easement (in the case of owners in Sites B and C)  for the use of the Club Houses.

39.  For the Sites A and D owners, the Plaintiff relied on a contractual quasi-easement from the terms of the Principal DMC, or alternatively a quasi-easement arising upon the subdivision and grant to a co-owner of part of the co-owned land by assignment of undivided shares.

(1)  The rights of co-owners over the common parts described in the DMC are a type of a contractual quasi-easement.  They are not real easements but function for all practical purposes as if they were easements.  Contractual quasi-easements are rights arising between or among co-owners as a matter of contract which mirror the rights which the owner of a dominant tenement would enjoyment by way of an easement over a servient tenement.  See Kung Ming Tak Tong Co Ltd v Park Solid Enterprises Ltd (2008)  11 HKCFAR 403 at [41], [42] & [50] (Li CJ).

(2)  The Plaintiff relied on its submissions on why the Club Houses are common parts to support its case of contractual quasi-easement.[3] Indeed, such contractual quasi-easement is expressly recognised in Sub-sections A and B of Section IV of the Principal DMC. 

(3)  There is a second type of quasi-easement.  A right under the second type may “arise either on the subdivision of a unit and the assignment of part, or on the assignment of one unit by the owner of two or more units (by assignment of undivided shares subject to mutually covenanted right to exclusive possession)”.  In such a case, “the court implies an intention to convey as part of the assignment, continuous and apparent quasi-easements which are at ‘at the time of the grant obviously necessary for the reasonable enjoyment of the land conveyed’ given the purpose for which the land is to be used”.  See Kung Ming Tak Tong Co Ltd (above)  at [45]-[47], [51] (Li CJ).

(4)  The Plaintiff submitted that the rights to use recreational facilities in the Club Houses are necessary for the reasonable enjoyment of the Estate, and that any assignment to each individual owner conveyed with it the grant of a quasi-easement to use the Club Houses.

40.  For the Sites B and C owners, the Plaintiff relied on an easement by way of the doctrine of lost modern grant over the Club Houses, which is essentially a prescription claim to an easement.  As Lord Millett NPJ held in China Field Ltd v Appeal Tribunal (Buildings)  (No 2) (2009)  12 HKCFAR 342 at [86], an easement over land can be acquired by prescription by the fiction of lost modern grant under Hong Kong law.  The Plaintiff submitted that the Club Houses have been continuously used by the owners and residents since 1991 and 1993 for at least 20 years, and such use was not by force, stealth or licence of the owner of the Defendant.

41.  The Defendant raised a pleading objection and complained that the Plaintiff failed to mention the claim of easement and quasi-easement in the Originating Summons in non-compliance of RHC O.7 r.3.  O.7 r.3(1)  provides that every originating summons must include “a concise statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims that relief or remedy”.  It is plain that the Plaintiff has spelt out the remedies it seeks against the Defendant in the Originating Summons.  The Defendant’s complaint can therefore only relate to the lack of “sufficient particulars”.  However, given that the Defendant has fully responded to the Plaintiff’s claim of easement and quasi-easement in writing and during the hearing without suggesting any prejudice occasioned by the insufficient particulars, I do not think there is any merit in the pleading objection.

42.  As to contractual quasi-easement, if (as I have held above)  there is a serious issue to be tried as to whether the Club Houses are common parts, it follows that there must equally be a serious issue to be tried on whether the owners have a contractual quasi-easement over the Club Houses.

43.  As to the second type of quasi-easement (in the Wheeldon v Burrows sense), the Defendant submitted that there is no basis to suggest that the use of the Club Houses is necessary for the reasonable enjoyment of the units in the Estate, given that many high value luxurious developments function properly without any club house.  The easement that is necessary to the reasonable enjoyment of the property granted does not mean an easement of necessity (i.e. an easement without which the property cannot be enjoyed at all), but “simply that reasonable use of the property cannot be had without the easement”: Wheeler v JJ Saunders Ltd [1996] Ch 19 at 25D (Staughton LJ), 31D-F (Peter Gibson LJ).  In Recital (5)  of the Principal DMC, it was recorded, amongst other things, that “certain installations, services, facilities and other things constructed or to be constructed on the Lot in accordance with the Crown Grant and the Master Plans should serve and be available for the use and benefit of the Owners”.  In these circumstances, there is in my view a serious issue to be tried on whether there existed a quasi-easement (in the Wheeldon v Burrows sense)  enjoyed by the owners over the Club Houses, which, according to the Crown Grant (referring to recreational facilities)  and the building plans (referring to the Site A Club House), were intended to be used by the residents of the Estate.

44.  As to easement from the lost modern grant, the Defendant submitted that the owners were the Defendant’s sub-licencees and have to become members of RPCL to use the Club Houses, and therefore could not satisfy the “as of right” requirement.  On the other hand, the Plaintiff pointed to the fact that RPCL had been dormant since 1999 and that any easement would have been acquired by 2019 at the latest.  Further, the Plaintiff argued that the debit of “licence fee” by Protech in the management accounts throughout the years would not constitute the grant of a licence by the Defendant to the owners for the use of the Club Houses.  In any event, the Plaintiff submitted that an easement could still be granted for a consideration which consisted of a periodic payment during the period of the easement.  Having considered the various arguments, I consider that there is also a serious issue to be tried on whether there existed an easement over the Club Houses created by lost of modern grant.

C3.  Estoppel by Convention

45.  I have already come to the view that there is a serious issue to be tried on the questions of whether the Club Houses are part of the common parts of the Estate, and whether there existed a quasi-easement and easement over the Club Houses.  For the purpose of determining the present interlocutory injunction application, it is unnecessary to proceed further to consider whether there is a serious issue to be tried on the issue of estoppel by convention.

D.  PREJUDICE OF THE PARTIES AND ADEQUACY OF DAMAGES

46.  The Plaintiff has adduced evidence to show how the owners of the Estate would suffer a number of prejudice if the injunctions sought are not granted.

47.  First, the closure of the Club Houses has significantly affected the quality of life of the owners and residents of the Estate.  There was fairly extensive evidence in the form of letters and petition from numerous individual owners/residents to explain how:

(1)  residents have been unable to have access to essential facilities (such as gym, tennis courts, swimming pool)  to manage their healthcare maintenance requirements, thus materially affecting and disrupting their daily routines;

(2)  children have been deprived of opportunities to use the Club Houses in library, sports, music, after-school training and other extra-curricular activities, which are essential for their physical and social development;

(3)  residents and families have not been able to use the Club Houses at a location conveniently close to their home to rest and relax, or pursue different social and recreational activities; and

(4)  the Club Houses have been served as a hub for community engagement and fostering connections amongst neighbours, and that their closure have led to emotional and physical distress amongst the residents.

48.  In my view, it is self-evidently difficult, if not impossible, to quantify the above prejudice in monetary terms.  Matters involving quality of life cannot always be measured financially by cost.  I am therefore unable to accept the Defendant’s submission that the prejudice of the owners and residents can all be compensated by damages. 

49.  Second, over 150 security cameras have been installed around the Estate in order to ensure the security of the residents.  Such cameras are wired underground to monitors installed in two security control rooms inside the Club Houses.  The first security control room is adjacent to the Site A Club House (about 168 square feet)  and is equipped with CCTV monitors, digital video recorders and a lift control panel.  The second security control room is in the Site D Club House (about 490 square feet)  with over 100 CCTV cameras covering the public areas of Sites B, C and D.  This room was previously manned by a duty controller around the clock.  The security control rooms cannot be set up elsewhere because of the way the underground wires are connected and because there is no alternative venue to house any replacement equipment.  The Defendant has denied the Plaintiff access to the Estate’s security equipment (including after the occasion when there was an attempted burglary in the Estate on 6 October 2025). 

50.  The Defendant suggested that the current CCTV system can be re-routed or revamped, and that it is just a matter of costs to buy and install appropriate new equipment.  This suggestion is not fully borne out by the quotation exhibited in the Defendant’s affirmation evidence, which relates only to 18 cameras installed at certain parts of the Site A car park and connected to the CCTV monitors installed in the management office in the Site A Club House.  Further, there are 110 to 120 other CCTV cameras installed in various parts of Sites B, C and D, which are wired underground to the CCTV monitors installed in the larger security control room inside the Site D Club House.  In any event, the Defendant’s suggestion ignores the fact that any reinstallation process would necessarily take time, particularly in view of the scale of the Estate, and that the owners will continue to be exposed to security risks during the installation process. Moreover, as the Plaintiff’s evidence shows, the Estate consists of 246 houses, 248 apartment units across 10 towers, and 563 car parking spaces.  It is not practically feasible to employ a large team of security guards to cover the entire Estate at all times.  Further, it is not currently possible for the Plaintiff to “maintain security installations” in the Estate, which the Plaintiff is obliged to do under Sub-section B(17)  of Section VI of the Principal DMC.

51.  In these circumstances, it seems to me that the denial of the Plaintiff’s access to the Club Houses would materially heighten the Estate’s security risks and compromise the security standard of the Estate.  This is again not something that can be measured by money.

52.  Third, apart from the security control rooms, the Estate has two management offices within Site A Club House.  The first is about 271 square feet and was previously used as an office by four club house staff.  The second is a converted space of about 425 square feet and can accommodate up to 13 staff.  As the Club Houses are now shut, it has become necessary for the Plaintiff to rent a temporary office in Redhill Plaza, which is a 20-minute walk away from the Estate. 

53.  Further, the Plaintiff needed to install mobile toilets inside the refuse chamber for its staff.  Such mobile toilets have presented hygiene and odour issues.  They are an eyesore in the Estate and are entirely inconsistent with its character as a luxury residential development.  The Plaintiff’s evidence is that if the Club Houses are reopened, the Plaintiff would open some toilets in the Club Houses for use by its staff and the staff of various contractors. 

54.  It is not difficult to see that the lack of an onsite management office and toilets has negatively affected the effective management, appearance and hygiene of the Estate, which in turn would affect the use and enjoyment of the Estate by the owners and residents.  These matters are not something that can be measured in monetary terms.

55.  Fourth, the inability of the owners and residents to use the Club House facilities has a direct impact on the attractiveness of the Estate to potential purchasers and tenants.  Leaving aside the question of whether the value of the Estate has been diminished as a result, the absence of Club House facilities would clearly play an important part in the owners’ decision as to whether and when to dispose of or rent out his/her property, leaving them with uncertainty and anxiety as mentioned in the evidence.

56.  If the Plaintiff were to succeed at the trial, it seems to me plain that the owners would not be adequately compensated by an award of damages for the loss they would have sustained as a result of the Defendant’s refusal to allow the owners to enjoy the facilities in the Club Houses between the time of this application and the time of the substantive hearing of the Originating Summons. None of the prejudice mentioned above can be sufficiently addressed by the Defendant’s response that it intends to re-open the Club Houses upon obtaining a certificate under the Clubs (Safety of Premises)  Ordinance (Cap 376)  (“CSPO”)  by the first quarter of 2027.  By then, the owners and residents would have been deprived of the use of Club House facilities for almost two years since their closure in April 2025.

57.  On the other hand, the Defendant argued that it will commit an offence under s.4 of the CSPO if the injunctions were granted. 

(1)  S.4(1)  of the CSPO provides that “[a]ny person who on any occasion operates, keeps, manages or otherwise has control of a club-house in respect of which neither of the conditions indicated in subsection (2)  has been satisfied commits an offence and is liable on conviction to a fine of $200,000 and to imprisonment for 2 years and to a fine of $20,000 for each day during which the offence continues”.

(2)  S.4(2)  of the CSPO relates to the issue of a certificate of exemption or a certificate of compliance in respect of the club-house.

(3)  “Club-house” is defined in s.2 to mean “any premises of part thereof exclusively set aside for use permanently or temporarily by a club and its members”.

(4)  “Club” is defined in s.2 to mean “any corporation or association of persons formed for the purpose of affording its members facilities for social intercourse or recreation and which (a)  provides services for its members (whether or not for the purpose of gain); and (b)  has a club-house of which only its members and their accompanied guests have a right of use”.

58.  In particular, the Defendant submitted that RPCL is a “club” and that the Club Houses are “club-houses” for the purpose of the CSPO. 

59.  It is necessary to consider the Defendant’s submission that it will commit a criminal offence under the CSPO, and will therefore suffer prejudice that cannot be compensated by damages, if the interlocutory injunctions were granted.

60.  If possession of Club Houses is delivered by the Defendant to the Plaintiff pursuant to the interlocutory injunctions sought, the Club Houses will be re-opened and will thereafter be operated and managed by the Plaintiff on behalf of the owners.  The fact that the Defendant is the registered owner of the undivided shares allocated to the Club Houses does not mean that it will be treated as the person operating, keeping, managing or otherwise having control of the Club Houses after their possession is delivered to the Plaintiff. 

61.  Further, after possession of Club Houses is delivered by the Defendant to the Plaintiff pursuant to the interlocutory injunctions sought, it does not appear that RPCL will have any role to play in the operation and management of the Club Houses. It is unclear how the Defendant will become liable under the CSPO just because RPCL is named in the Principal DMC as the party originally envisaged to manage and run the Club Houses.

62.  In any event, I am not persuaded that the risk of prosecution is as definitive as the Defendant sought to portray. 

(1)  In the Supplementary Guidelines for Applying Certificate of Compliance for Residents’ Club issued by the Office of Licensing Authority dated 4 August 2011 (“Supplementary Guidelines”), it is provided:

“If the mode of operation of a residents’ club and its club-house fulfils the following requirements, it does not within the purview of the [CSPO] and therefore a certificate of compliance is not required:-

(a)  the residents’ club-house should be designated as the common areas of the parent development under a Deed of Mutual Covenant;

(b)  the residents’ club-house should be for the exclusive use of the owners and residents of the residential accommodation of the parent development and their bona fide visitors;

(c)  the participation of owners of the residential accommodation in general owners’ meetings is for the multi-purposes of management of the common areas including the club-house of the parent development; and

(d)  the residents’ club does not operate independently from the management of the common areas of the parent development (i.e. the residents’ club and the other common areas are under the same management; it does not have its own staff and does not rent the club-house from the management).”

(2)  If the interlocutory injunctions are granted, the Plaintiff has confirmed that the Club Houses will be managed and operated in accordance with the requirements in the Supplementary Guidelines.  There does not appear to be much basis to think that either the Plaintiff or the Defendant is likely to be prosecuted for not obtaining a certificate of exemption or compliance under s.4 of the CSPO.

(3)  In any event, during the time when the interlocutory injunction is in force, the Plaintiff will be operating and maintaining the Club Houses.  On that footing, it is unclear whether there will be any “club” or “club-house” within the meaning of the CSPO.

(4)  I further note that neither the Defendant, RPCL nor Protech had ever obtained a licence for the Club Houses under the CSPO and none of them has ever been prosecuted.

63.  For the above reasons, I am not persuaded that any non-financial prejudice is likely to be suffered by the Defendant if the interlocutory injunctions were granted.

64.  In any event, if the Defendant were to succeed at the substantive hearing of the Originating Summons, and even if some (unspecified)  financial loss is caused to the Defendant by not re-opening Club Houses between the time of this application and the time of the substantive hearing, I do not see any basis to suggest that such financial loss cannot be adequately compensated under the Plaintiff’s undertaking as to damages.

E.  BALANCE OF CONVENIENCE

65.  In the previous section, I have considered the practical consequences of granting or withholding the injunction from the point of view of the parties.  Taking whichever course seems likely to cause the least irremediable prejudice to one party or the other, I am of the view that the balance falls very clearly in favour of granting the interlocutory injunctions.  That course plainly seems to me to carry the lower risk of injustice if the court should turn out to be wrong in granting the injunctions.  In my view, the granting of the interlocutory injunctions is more likely to produce a just result.

66.  The status quo may be said to be the course of conduct which was pursued before the occurrence of the acts or omissions which provoke the litigation:  Hong Kong Civil Procedure 2026 Note 29/1/29.  Given that this is not a case where the relevant factors appear to be evenly balanced, it is not strictly necessary to consider taking any measures to preserve the status quo.  Be that as it may, I note that the effect of granting the interlocutory injunctions reverts to, and does not go further than, the status quo in the present case, namely that the owners and residents of the Estate would have full access and use of the Club Houses and the facilities therein. 

67.  Finally, as far as the mandatory injunction sought by the Plaintiff is concerned, my view is that it does not have the effect of causing irremediable prejudice to the defendant, and does not carry a higher risk of injustice if granted at an interlocutory stage.  The mandatory injunction merely requires the Defendant to deliver vacant possession of the Club Houses to the Plaintiff, which is a simple, reversible and un-intrusive act, and does not involve the Defendant incurring any time and money to do so.  In the circumstances, this is not one of those cases where the court needs to feel a high degree of assurance that a plaintiff will succeed at the substantive hearing before it should grant the mandatory injunction.

F.  DISPOSITION

68.  For all of the above reasons, I am satisfied that I should exercise my discretion to grant the interlocutory injunctions in favour of the Plaintiff.  I make an order in terms of paragraph 1 of the Plaintiff’s summons dated 25 November 2025.

69.  As to costs, I have considered the commentary made in Hong Kong Civil Procedure 2026 Note 29/1/55.  Given that it was unnecessary for me to have fully investigated into and explored the merits in determining this interlocutory injunction application, it seems to me that a fair costs order would be for the Plaintiff to be given its costs in the cause.  I make a costs order nisi that the costs of and occasioned by the Plaintiff’s summons dated 25 November 2025 are in the Plaintiff’s costs in the cause, with a certificate for two counsel.