The Incorporated Owners of Jade Plaza v. Lam Chau Shing and Others

HCA2331/2004

IN THE HIGH COURT OF THE

HONG KONG ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2331 OF 2004

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BETWEEN

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Before:  Deputy High Court Judge Saunders in Chambers

Date of Hearing:  28 June 2005

Date of Ruling:  28 June 2005

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R U L I N G

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1.This is an application for a mandatory injunction and for an Order 14 judgment by the Plaintiff against the four Defendants.  The matter has reached agreement, except as to costs during the course of the hearing.

2.As far as the proceedings between the Plaintiff and the 1st to 3rd Defendants are concerned, the proceedings are adjourned sine die, to be brought on at 7 days’ notice if required, on counsel’s advice to me that a consent summons will be put before me which will resolve all matters between the parties.  As to the 4th Defendant, leave is given to the Plaintiff to amend both summonses as indicated during the course of the hearing and as recorded by me in red at the appropriate places in the bundle.  By consent, there will be judgment for the Plaintiff against the 4th Defendant in terms of both summons, as amended, save as to costs.

3.I have heard counsel as to costs.  The situation is that the Plaintiff sought an injunction restraining the 4th Defendant from occupying any part of the footpath at the front of his shop, which footpath is common ground to all owners of Jade Plaza.

4.It is plain from the position adopted by the 4th Defendant in his affidavit dated 5 November 2004, and in the defence that he has filed, that he would have been content if the terms of a meeting held on 30 July 2004, at which there seemed to have been a general agreement between shop owners that they should be able to occupy one-third, or a maximum of 3 feet of the footpath, was put into effect.  The Plaintiff held the meeting for the purposes of ascertaining the intentions of the owners.  The recommendation was made, but the Plaintiff has taken no steps to put the recommendation into effect.

5.At the beginning of the hearing in the course of his submissions, Mr Mak indicated to me that the Plaintiffs were prepared to allow a “margin” in respect of the occupants of the footpath.  That was quite inconsistent with the terms of the injunction sought which sought to clear the whole footpath.  The margin that the Plaintiff was prepared to allow was that discussed in the meeting to which I have referred.  A discussion between the parties followed and resulted in the amendment being made.  The 4^th Defendant then sensibly agreed to judgment against himself.

6.Had it been made plain to the 4th Defendant at an earlier stage than today that the Plaintiff was prepared to allow the one-third of the footpath, up to 3 feet, to be used, there would have been no need for today’s hearing.  I have listened carefully to what Mr Mak has had to say.  I do not accept that it can in any way, be taken from the 4th Defendant’s affidavits or pleadings, that he was asserting a right to use the whole of the footpath.

7.I am satisfied that justice will be done if there is no order for costs between the parties, save as to the costs of today to the 4th Defendant, to be taxed on a party-and-party basis.

Mr Andrew Mak, instructed by Messrs Chan & Associates, for the Plaintiff

Mr Raymond Lau, instructed by Messrs Woo, Kwan, Lee & Lo, for the 1st to 3rd Defendants

Mr Dominic Yeung, instructed by Messrs Ford, Kwan & Co., for the 4th Defendant