Tai Sang Feeds Co Ltd and Others v. Sharply Development Ltd

HCA 1314/2020

[2020] HKCFI 2105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1314 OF 2020

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Before:  Hon Anthony Chan J in Chambers

Date of Hearing:  14 August 2020

Date of Decision:  14 August 2020

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D E C I S I O N

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1.This is yet another interim-interim injunction application. By a 30 minute Summons served on the Defendant 7 days ago, the Plaintiffs seek an interlocutory injunction to restrain the Defendant from substantial interference with their alleged right of way over the Defendant’s land. There is a mandatory component of the injunction in that the Defendant is required to remove the fence and gate installed on its land which hinder the said right of way.

2.The alleged right of way is disputed by the Defendant, who has not had sufficient opportunity to marshal its evidence to oppose this application.  Hence, the Plaintiffs seek an interim-interim injunction.

3.Recent authorities affirm that the grant of an interim-interim injunction requires extreme urgency.  That aside, there is evidence before the court by way of a surveyor’s report adduced by the Defendant that apart from access over the Defendant’s land, there are alternative routes open to the Plaintiffs by way of which vehicular traffic from the Plaintiffs’ land can reach the main road.

4.The Plaintiffs say that the evidence is misleading.  How that is so is not clear when the evidence is supported with photographs and plans.  Unless the evidence is rejected, it undermines the Plaintiffs’ case on irreparable damage as well as urgency, which are essential requirements for the grant of interlocutory injunction.  Indeed, if accepted, the evidence will falsify the Plaintiffs’ allegation that their businesses have come to a standstill. 

5.The Plaintiffs’ submission that Ha San Wai Road, which appears to be the main artery of the alternative routes, is merely a dirt path over which vehicles could not pass is not only unsupported by evidence, but is contradicted by the aerial photograph (B II/266) adduced by themselves as well as the photograph marked Figure 3 on page 5 of the Defendant’s surveyor’s report.

6.The Plaintiffs also complain that the alternative routes would entail “considerable and lengthy travel”.  With respect, such a complaint can hardly constitute proper support for an interlocutory injunction, let alone an interim-interim injunction.  With the benefit of the plans, it appears that the additional travel required by using the alternative routes is exaggerated by the Plaintiffs. 

7.It is not possible to resolve the issue of alternative routes and the other arguments in this hearing.  Directions will be given for the further conduct of this application.    

8.I am not satisfied that there is sufficient urgency to justify an interim-interim injunction.  In any case, the Defendant has agreed to pay into court a sum of HK$100,000 on account of the additional fuel costs in the event that the court holds that it had infringed the Plaintiffs’ right of way.

9.I decline to grant an interim-interim injunction. 

Mr K M Chong and Ms Vivian Li, instructed by C&Y Lawyers, for the 1^st to 6^th Plaintiffs

Mr Victor Luk and Mr Chan Wa Shing, instructed by Johnnie Yam, Jacky Lee & Co, for the Defendant