Law Kwong Chuen and Others v. Billion Food Service Ltd t/a Cannes Cuisine

DCCJ 5665/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5665 OF 2016

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REASONS FOR DECISION

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1.By a summons dated 7 March 2017 (“the summons”), the plaintiffs apply for a default judgment for an injunction requiring the defendant forthwith to (i) remove the articles that installed on the exterior part of the Western Wall (as defined in the statement of claim) and (ii) reinstate the exterior appearance of the Western Wall, and for damages for trespass until possession is delivered up to be assessed. The application is made pursuant to the Rules of the District Court, Order 19, rule 7.

2.The plaintiffs have filed affirmations to show that the writ and the statement of claim have been served on the defendant by sending the same to the registered office of the defendant by post.  The defendant has not filed any notice of intention to defend or any defence.

3.In the hearing before me on 7 April 2017, Mr Anthony L K Ko, counsel for the plaintiffs, told the court that it would not be necessary for the plaintiffs to apply for the injunction.  The plaintiffs only pursued the application for a default judgment on liability of trespass with damages to be assessed.  After hearing Mr Ko’s submissions, I dismissed the summons with no order as to costs.  These are my reasons.

The plaintiffs’ case as per the statement of claim

4.A default judgment would only be given on the pleaded case and no evidence is permitted.  This principle has been emphasized again recently by DHCJ Paul Lam SC in Leung Pak Ki v. Pang Kau (HCA 624/2009, 1 March 2016) at [5].

5.Accordingly, for the purpose of determining the summons, it would be necessary to consider the case pleaded by the plaintiffs, and only the pleaded case should be considered.  The plaintiffs’ pleaded case as per the statement of claim is as follows:-

“1.  The Plaintiffs were and still are owners of Shop Nos. A and B, Ground Floor, Holly Building, No. 33 Sau Fu Street, Yuen Long, New Territories (the “Property”) which is shown for identification purpose coloured pink on the Floor Plan 122 at the Annex hereof (“the Plan”).

Billion Food Service Limited (the “Defendant”) was and still is the owner of a restaurant named Cannes Cuisine (the “Restaurant”). The Restaurant was and still is located Shop Q, G/F, Holly Building, 33 Sau Fu Street, Yuen Long, N.T. where is adjacent to the eastern part of the Private Lane that is owned by Holly Building. The Property is shown for identification purpose coloured blue on the Plan. The Defendant’s trespass

2.  At all material times before 1979, the Property had two entrances; one of the entrances on the western part of the Property was adjacent to the said private lane. In or about early 90’s, the Plaintiffs’ former tenant converted the said entrance into a brick wall (the “Western Wall”).

3.  Since August 2016 or thereabout the Defendant by itself its servants and agents has on many occasions trespassed upon the exterior part of the Western Wall.

PARTICULARS

(i) Installing the Restaurant’s signboard on the exterior part of the Western Wall;

(ii) Installing multiple TV screen(s) and/or display devices on the exterior part of the Western Wall;

(iii) Installing ledges and/or other articles on the exterior part of the Western Wall; and

(iv) Converting the exterior appearance of the Western Wall by installing wooden boards on the Western Wall.

4. By reason of matters aforesaid, the Plaintiff suffered loss and damage.

5.  The Plaintiffs have requested the Defendant (1) to remove the aforesaid TV screens, signboard, display devices, ledges, other articles and the wooden boards, and (2) reinstate the exterior appearance of the Western Wall to its original condition but the 1^st Defendant has refused to do so.  The Defendant threatens and intends, unless restrained by the court, to continue trespass upon the Property as aforesaid.”

6.A copy of the Plan is annexed hereto.

Lack of preciseness as to the location of the Western Wall

7.Reading the statement of claim, I have difficulties in identifying the exact location of the Western Wall.  As per §2 of the statement of claim, the entrance on the western part of the Property adjacent to the private lane (which is the “PRIVATE LAND” immediately below the pink area as shown in the Plan) was converted to the Western Wall in or about the early 90s’.  However, the exact location of the said entrance is not known and hence the exact location of the Western Wall is unclear.

8.Looking at the Plan, there is a solid line between the pink area and the private lane.  The solid line may well be a wall.  However, it is not known whether that entire wall is the Western Wall, or only part of it is the Western Wall.

9.During the hearing, I asked Mr Ko to tell me the exact location of the Western Wall.  After taking instructions, Mr Ko put down a cross on a copy of the Plan and handed up that copy.  As shown in that copy, the Western Wall in fact is only a point on the solid line between the pink area and the private lane.  Mr Ko conceded that the location of the Western Wall had not been set out in the statement of claim with sufficient clarity.

10.The trespass complained by the plaintiffs concerns the Western Wall only and has nothing to do with any other area.  In order to get a judgment on liability for the trespass, the plaintiffs must pinpoint the location of the Western Wall without any ambiguity.  As the plaintiffs have failed to do so, their application for default judgment must be refused.

Ownership of the exterior part of the Western Wall

11.The gist of the plaintiffs’ complaint is set out in §2 of the statement of claim, which is the defendant’s trespass on many occasions upon the exterior part of the Western Wall (“the exterior part”).  I understand that the exterior part means the surface facing the private lane.

12.The plaintiffs plead in §1 of the statement of claim that “the Private Lane is owned by Holly Building”.  I understand that means the private lane is owned by all the co-owners of the building and is a common area.

13.The Western Wall must stand on a piece of land.  It is not known whether the Western Wall is entirely within the pink area, and therefore it is not known whether the plaintiffs are the rightful owner (ie the one having the right to exclusive possession) of the exterior part.  There are 3 possible scenarios:-

(a)  The Western Wall is entirely within the pink area.  In this case, it would be clear that the plaintiffs are the owner of the exterior part.

(b)  The Western Wall is entirely outside the pink area.  In other words, the entire Western Wall is occupying part of the private lane.  In this case, prima facie, the exterior part would be a common part of Holly Building.  There is no basis pleaded in the statement of claim by which the plaintiff may claim a right to exclusive possession of the exterior part.

(c)  Part of the Western Wall is standing inside the pink area, and part of it is standing on the private lane.  In this case, prima facie, the exterior part would also be a common part of Holly Building.  Same as (b) above, there is no basis pleaded in the statement of claim which would enable the plaintiffs to claim a right to exclusive possession of the exterior part. 

14.As shown above, the statement of claim does not clearly show that the plaintiffs are the rightful owner of the exterior part.  This is another crucial defect of the statement of claim.

15.In my judgment, the plaintiffs would not be able to get a default judgment on the basis of this statement of claim.

Disposition

16.For the reasons above, I dismissed the summons.

17.Since the defendant has not taken any part in this application, I made no order as to costs.

18.I thank Mr Anthony L K Ko for the assistance provided.

Mr Anthony Ko of T K Tsui & Co, for the plaintiffs

Defendant was not represented and did not appear