Chan Shiu Chick v. Leung Lee Kwai Fong and Another

HCA005790/1979

Alleged wrongful dispossession for 9½ months and 4 months respectively --- application for interim injunction defeated by inordinate delay, but for which, the action could have been diligently prosecuted to conclusion --- such delay has cast considerable doubt on the real need for an imminent judicial intervention in equity.

IN THE SUPREME COURT OF HONG KONG

High Court Action No. 5790 of 1979

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Coram: Mr Commissioner Liu, Q.C. in Chambers

Date of Judgment: 25th March 1980

Application by Summons Inter Partes for injunction filed by the Plaintiff on the 21st February 1980.

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JUDGMENT

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1. The plaintiff was a protected domestic tenant of premises including a car park in a post-war building. The adjoining premises were occupied by the 2nd defendant. In early 1979, a scheme was proposed, whereby the 2nd defendant's adjoining premises would be enlarged by the incorporation of the front portion of the plaintiff's premises. The exercise would entail the demolition of the partition was between the 2nd defendant's premises and the front portion of the plaintiff's premises as well as the erection of a new dividing wall between the front and rear portions in the plaintiff's own premises. Consent of the 1st defendant, owner of the plaintiff's premises, was duly obtained, and these structural alterations were executed. For the implementation of the said scheme, the plaintiff caused to be cancelled his tenancy agreement with the owner, the 1st defendant. The said scheme envisaged a new letting of the plaintiff's premises in their entirety to the 2nd defendant to be followed by a subletting of the rear portion with allegedly the said car park to the plaintiff. Principally on account of the said car park, the relationship of the plaintiff and the 2nd defendant fell foul. In the result, no subletting materialised, and the plaintiff claims to have retained statutory protection of as well the rear portion as the said car park on the basis that no vacant possession thereof has been delivered up.

2. A deadlock soon developed. The plaintiff was said to have been excluded from the rear portion and the said car park. On the 15th January 1980, the plaintiff became aware that the newly erected partition wall between the front and rear portions had been removed.

3. Whilst the plaintiff claims to have retained, in part, vacant possession within the meaning of S.53(1) (a) of the Landlord and Tenant (Consolidation) Ordinance, the 2nd defendant craves in aid a change of identity under S.52(1) & (2). On the authority of Capital Land Investment Company Limited v. Madam Se Mong Kai⁽¹⁾, it was contended that by virtue of his continued occupation, the plaintiff remains a protected domestic tenant of the rear portion and the said car park holding under the 1st defendant owner. The 2nd defendant advocated, in the main, a cessation of the plaintiff's statutory protection brought about by operation of law in an identity change. The 1st defendant owner was content to take no stand in this encounter. At this juncture, the Court is not called upon to resolve factual issues or construe provisions in a much debated legislation. Suffice it for me to say that a serious question to be tried has arisen.

4. The summary given by Sir John Pennycuick in Fellowes v. Fisher⁽²⁾ of the general principles for granting an interlocutory injunction as expounded in American Cyanamid Co. v. Ethicon Ltd.⁽³⁾ was cited with approval by Huggins J., as he then was, in J.C. Penney Co. & another v. Penneys Ltd. & another⁽⁴⁾. With these principles, the parties were in agreement. Thus, "balance of convenience", as judged primarily on the adequacy of compensation for the plaintiff between this application and the trial in the light of inordinate delay, became the focal point at the hearing of his contested summons.

5. The plaintiff has allegedly been deprived of the use of his said car park as from the 1st May 1979, and he was said to have been excluded from the rear portion since the 22nd October 1979. Proceedings were instituted on the 31st December 1979, and it was not until one month and three weeks thereafter that the present summons filed on the 21st February 1980 was issued to enjoin the 2nd defendant. As between the commencement of this action and the issuance of the summons under consideration, on the 15th January 1980, the plaintiff through his wife came to be aware of the demolition of the newly erected partition wall between the front and rear portions. Such alleged conduct in violation of the plaintiff's asserted legal rights formed the basis of his prayer for an interlocutory injunction.

6. As at the date of the present summons, the plaintiff had been kept out of his said car park for more than nine and half months and the rear portion for four months. The summons itself was caused to be filed a month and three weeks after the writ and some five weeks after the discovery of the disappearance of the partition wall.

7. The 1st defendant owner was drawn in as a Third Party by the 2nd defendant, but the issues in the action proper seem to have been well defined by the 2nd defendant's Defence and Counterclaim. Close of Pleadings is not expected to be deferred for any great length of time. The action proper may be set down and brought to trial in the not too distant future.

8. The 2nd defendant has at all material times been and still is ready and willing to return all of the plaintiff's possessions in the rear portion. The plaintiff and his family moved into their Clear Water Bay residence in January 1979, and the rear portion was described as "a place in town". The alleged facilities hitherto provided by the rear portion and the said car park cannot be said to be beyond duplication at a reasonable outlay. The plaintiff's children are students of schools in Kowloon, but their alleged use of the rear portion for, inter alia, rest and revision has also been disrupted for over four months since the 22nd October 1979. The aggravation in these former neighbours is such that a forced reinstatement of the partition wall would offer little assurance of tranquility conducive to quiet enjoyment of the rear portion.

9. In my judgment, the plaintiff could be adequately compensated in damages in the circumstances. Whatever compelling causes existed for the immediate restoration of his alleged legal rights in or to the rear portion, their prominence has been eroded in the course of delay. Moreover, there seems to be no conceivable reason for the plaintiff's tested patience to come to an abrupt end, particularly when the action proper may be diligently prosecuted to conclusion in a time possibly shorter than the already nine and a half months' and four months' delay. Such delay has not been satisfactorily accounted for, and apart from giving a somewhat different complexion to the utility aspect of the rear portion, delay has cast considerable doubt on the real need for an imminent judicial intervention in equity. In the instant case, not only has delay tipped the scale of "convenience" in favour of the 2nd defendant, but it is of sufficient gravity to dissuade me from coming to the plaintiff's aid. For all these reasons, I feel constrained to exercise my discretion adverse to the plaintiff.

10. Paragraph 3 of the prayer has never been, in substance, made a live issue. The summons is therefore dismissed with costs to both defendants.

Representation:

Mr Philip Lee instructed by C.C. Lee & Co. for Plaintiff/Applicant

Mr C.Y. Lee instructed by Deacons for 1st Defendant

Mr Ronny Wong instructed by Stevenson Low & Co. for 2nd Defendant

(1) 1973 HKLR 371

(2) (1975) 3 W.L.R. 184 at p.199

(3) (1975) 2 W.L.R. 316

(4) 1975 HKLR 598