COGI ENTERPRISES LTD. AND ANOTHER v. AU YEE MING AND OTHERS

HCA 488/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 488 OF 2002

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J U D G M E N T

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1. In these proceedings the plaintiffs bring proceedings against the defendants for trespass in respect of two parts of premises situate at No. 509 Jaffe Road, Wan Chai. For convenience I will refer to the two separate parts as "the toilets" and as "the storeroom". It is the claim of the plaintiffs that they are in possession of both the toilets and the storeroom and that the defendants have trespassed upon them.

2. The evidence establishes that the alleged trespass occurred some time between 24 November 2001 and 12 December 2001, soon after the second incident the matter being reported to the police.

3. On 29 January letters were written by the plaintiffs' solicitors to the various defendants and the writ was issued in February.

4. On 14 March application was made for a default judgment and leave was given to file of a statement of defence but no defence has yet been filed.

5. On 9 April a summons under Order 14 was filed for summary judgment. That was supported by an affidavit from the plaintiff, the summons and the affidavit being served on 10 April.

6. The 1st defendant replied on behalf of all of the defendants on 23 April. On 24 April on a call-over before Judge Gill, leave was given to the plaintiff to reply with 21 days and there was an order that no further affidavits were to be filed without leave.

7. On 10 May affidavits in reply by three persons were filed on behalf of the plaintiff and until just before the hearing before me no application was made for leave to file any further affidavits.

8. Shortly before the Order 14 summons was to come on for hearing, the plaintiff moved, on a braces and belt basis, in the alternative for interim relief pending the trial. That application, however, did not change anything at all because the interim relief sought was simply interim relief in terms of the permanent injunctions that were sought in the writ.

9. The affidavit filed by Mr Au on behalf of the defendants is an affidavit which may at very best be described as evasive. It patently fails to comply with the provisions of Order 14, rule 4. It does not properly join issues. It does not - to use the ancient words that are repeated in the White Book - in any way condescend upon particulars.

10. Having taken that position as early as April, the defendant then sought to file further affidavits changing the position on the day of the hearing. His counsel was unable to offer to me any explanation as to why such an evasive position should have been taken in the first place. Nothing had changed with the filing of the application for interim relief. There is no basis upon which a defendant should be allowed to respond to an Order 14 summons in an evasive way and then come along on the day of the hearing, changing his stand completely and expect to be heard.

11. For those reasons I decline leave to file the further affidavits.

12. I am satisfied from the affidavits that have been filed by the plaintiff and from the certified copies of the Land Registry documents that have been put in by Mr Hingorani that the plaintiffs are entitled to possession of both the toilets and of the storeroom. Indeed, the documents put in almost certainly show that the plaintiffs are the owners of those portions of the building and there is nothing in the documents to show that the defendants have any rights over either piece of the building.

13. I am satisfied that the plaintiffs have possession of both parts of the building and that gives them standing, and the court jurisdiction to find in appropriate circumstances that there has been a trespass.

14. Mr Au's affirmation, as I have said, is quite evasive. In respect of the toilets he says, "It was not possible for anybody to have gone there because there are no doors." The implication from that is that neither he nor any of the other defendants have entered into the toilet area. That, I suppose, has to be characterised as a denial of the trespass. As to the storeroom, they admit entry saying, first, they entered different premises although it is plain from the papers that they did in fact enter the storeroom, and in respect of the storeroom they say their entry was justified.

15. If there has been no entry that is a defence to an action in trespass. If there has been an entry but the entry is justified, that too is a defence to a claim for trespass.

16. It is with some degree of reluctance in the face of a very evasive affidavit that I am forced to conclude that the defendants' position is not one which can be said, to adopt the immortal words of Godfrey J, to be moonshine, but they do have an argument that at law they may not have trespassed and they therefore ought to be able to have leave to defend.

17. Costs to be costs in the cause.