THE INCORPORATED OWNERS OF WAH CHI MANSION also known as THE INCORPORATED OWNERS OF NO. 18 SHAN KWONG ROAD v. NEWICK LTD AND ANOTHER

HCA 57/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 57 OF 2010

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D E C I S I O N

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1.  This application for an interlocutory injunction has resolved itself after, I might say, a great deal of leaning by the court indicating that it was most unlikely that this court was going to grant an injunction this morning.  I have to say that, in doing so, I refused an application which had been made on Tuesday for an adjournment because I did not consider it right that an application like this should be left in abeyance with an application for an interlocutory injunction pending.

2.  The important facts, as far as I am concerned in this case, are that there is a substantial development of a block of flats at the back and the land upon which that block of flats is being built is held under a lease in which there is a specific provision which gives the leaseholders of that piece of land a right of passage down the side of what is really the block in front.  That means that there has always got to be a roadway there and it is a reasonably wide roadway.  It is wide enough that cars can swing in and out of the plaintiff’s land, that is the car park of the plaintiff’s block of flats.

3.  Obviously, the other important factor is that it seems, and it would be quite obvious to anybody who looks at the site, that the various service pipes and so forth for the defendants’ premises go along underneath the passageway.  That is basically the only way that electricity, gas, sewage and so forth can get to the defendants’ land which is at the back.  The evidence now quite clearly establishes that those sorts of pipes have been there for 40 years and the gas pipes have probably been renewed in the last few years because they are new gas pipes.  One can observe there is a photograph of it which shows them looking pretty new.

4.  So it is quite obvious that there is some kind of loss of ground, or whatever, which entitles the defendants to have gas pipes there and it is no answer to say that they can keep the old gas pipes there but they cannot renew them.  They cannot put new ones there and they cannot put ones there.

5.  It is very inconvenient, I accept, for the occupants of plaintiff’s block to have this building work going on.  Anybody who has been anywhere near construction work knows exactly how bad it is.  It has caused cracking to their garage premises and I do have a great deal of sympathy for them but we still have to come down to the practical reality of living in Hong Kong.  The practical reality of living in Hong Kong, in this situation, is that that is where the gas pipes have to go, that is where the electricity pipes are going to have to go and that is where the telephone pipes are going to have to go.  On the basis of the evidence that is before me, that is absolutely clear.

6.  Whether or not the plaintiff can extract some payment for the inconvenience which they have suffered is quite another matter, but that is not a matter for an interlocutory injunction.  An interlocutory injunction, in this case, would have disrupted the defendants’ building work and the new block of flats that is on the defendants’ land is, in colloquial terms halfway up, it has reached a substantial height already.  The critical path analysis which the defendants have put in their evidence shows that work has got to go on right now in putting in the various services and it is obviously so.

7.  As far as an interlocutory injunction is concerned, I regret to say that I consider it as dead in the water.  I have ordered a speedy trial simply so that this matter can get resolved as quickly as possible.

8.  In the case of Steepleglade Ltd v Stratford Investments Ltd, which involved an interlocutory injunction, the court indicated that it was not bound by any rule that the costs had to be the plaintiff’s costs in the cause or the defendants’ costs in the cause.  My attention has been drawn to paragraph 29/1/44 in the Hong Kong Civil Procedure 2010, which sets out the traditional practice in relation to interlocutory injunctions and as to how that was queried.  It goes on to indicate that, in circumstances where the plaintiff withdraws its application for an interlocutory injunction, it may be the proper exercise of the court’s discretion to award the defendant his costs of the application in any event.  Then it goes on, “and in appropriate circumstances to order taxation of costs forthwith,” which is a different type of order.

9.  In my view, it is appropriate in this case to order that the defendants should have their costs in any event, which means that there is no immediate taxation but it means that I have indicated where the costs should lie.  I consider that is appropriate in this case, so that the parties, when hopefully they can resolve their matters, will have that as a basis for going forward.  I do that simply because, as I said, as far as I was concerned this application was really dead in the water and it seems that my own views of the matter coincide with the judge who dealt with the matter about 10 days ago and so I shall make that order.

10.  Defendants' costs in any event.