Tlc Trade Co Ltd v. Samuel N. & Co Ltd

HCA 1861/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1861 OF 2004

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BETWEEN

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Before: Deputy High Court Judge Saunders in Chambers

Dates of Hearing: 27 August 2004

Date of Judgment: 3 September 2004

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REASONS   FOR   JUDGMENT

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1.This is an application by the Plaintiff company for an interlocutory injunction to restrain the Defendant, by itself or its servant or agents or otherwise howsoever, from placing, erecting, on or across a right of way, anything that will substantially restrict, prevent or otherwise interfere with the reasonable enjoyment of the right of way by the Plaintiff, its tenants, invitees, servants, workmen and persons whose entry is authorised by the Plaintiff.  At the hearing on Friday, 27 August 2004, I declined to grant the injunction.  I now give my reasons.

2.The Plaintiff has recently purchased a property at the rear of a block of land in Oxford Road, Kowloon Tong.  It is known as No. 12 Oxford Road.  The Defendant is the owner of a property at the front of the block.  That property is known as 14 Oxford Road, Kowloon.  A Director of the Defendant company, Mr Peter Ngan Koon Lam has resided in that property since at least 1957.

3.On the land two semi-detached houses are erected.  On the south side of the land, (the right as you face from the road), is a right of way which gives access to the rear of the property.  No. 14 Oxford Road constitutes the servient tenenment.  No. 12 Oxford Road is the dominant tenenment, however a small portion of the land on No. 12 Oxford Road constitutes a servient tenenment to No. 14 Oxford Road, thereby permitting a three-point turn to be made for a vehicle in order that it may lead the property headfirst.

4.At the entrance to the right of way, on Oxford Road, is a steel gate.  In the steel gate is a small door way known as a “whicker” door way.  This small gate opens and allows a pedestrian to enter into the right of way and thereby gain access to 12 Oxford Road, at the rear, but does not permit the access of any vehicle.  The evidence establishes that the Defendant has locked the steel gate with a combination lock.  He has refused to allow the Plaintiff to take vehicles enter the right of way although he has permitted the Plaintiff to use the whicker gate for entrance and exit by pedestrian traffic.

5.The Plaintiff intends to undertake renovations to the house he has purchased, and wishes to have vehicles to bring building materials onto the property and remove demolition materials.  Ultimately, the Plaintiff will wish to be able to take his own personal vehicles onto his property.

6.Mr Chain was obliged to concede that he was facing a formidable case, for the argument that the Plaintiff is able to take vehicles across the right of way is undoubtedly extremely strong.  There is a very strong case showing (a) that the right of way is a driveway intended for vehicles as well as foot traffic (b) that the Defendant is obstructing the Plaintiff’s lawful use of the right of way.

7.The ground of the right of way specifically provided that cars will not be parked on the servient tenenment which constitutes the Defendant’s portion of the land without the consent of the Defendant first having been obtained.  Having regard those words, it is virtually unarguable that the right of way was intended for motor vehicles.

8.There is plainly a serious question to be tried.  The balance of convenience plainly favours an interim injunction as it would preserve an existing right, pending the resolution of that right by the Court.  I reject the proposition that this is an interim injunction which would dispose of a substantial portion of the Plaintiff’s claim.  Its possible that at the final argument of the matter, the Defendant’s view of the interpretation of the grant of the right of way will be upheld and the Plaintiff enjoined from taking vehicles onto the land.  Although my preliminary view is that this is highly unlikely, it is a potential result.

9.In all of those circumstances, my preliminary view of the matter was that the interlocutory injunction ought to be granted.  It is with a great deal of reluctance that I have come to the conclusion this is not an appropriate case for an injunction because on the evidence there is a strong argument that damages may be a sufficient remedy.

10.In the statement of claim the Plaintiff alleges that by reason of his not being able to bring vehicles onto the property the period required for renovation would be extended by 20 days, during which the Plaintiff will be deprived of rent, in the sum of $70,000, he might otherwise had been able to earn.  He said further that the denial of vehicular access will increase the cost of the renovation work by $100,000.  On the face of it, the total damages of the Plaintiff are in the order of $170,000.  In the context of houses in Kowloon Tong, that is hardly a significant sum.  In those circumstances, damages is clearly an adequate remedy.  The Plaintiff is not completely prevented from carrying out his renovation work, he can proceed with it but will be delayed by 20 days.  If his view of the right of way is ultimately found to be correct the Defendant would be liable to the Plaintiff in damages.

11.For these reasons, I decline the application for an interlocutory injunction.

12.The matter is, however, one that must be heard promptly.  At the hearing I made an order for speedy trial with directions as set out in paragraph 9.1 of Practice Direction 5.3.  Costs are in the cause.

Ms Sylvia Siu of Messrs Sit, Fung, Kwong & Shum for the Plaintiff in the morning and Mr Samuel Wong Counsel for the Plaintiff at 2:30 pm

Mr Benjamin Chian instructed by Messrs Johnson, Stokes, and Master for the Defendant