Read the full judgment text of HCA 708/2011 on BabelCite. This Court of First Instance judgment was delivered on 10 February 2012 before Thomas Au.
Civil practice – injunction – trespass to land – interference with right of way – private roads in Mei Foo Sun Chuen – Plaintiff developer of 20-storey residential building on Remaining Portion of New Kowloon Marine Lot No 25 and Section B of New Kowloon Marine Lot No 25 – only vehicular access via Broadway South-West bound (the Access Road), a private road owned by Broadway-Nassau Investments Ltd – whether Plaintiff has right of way over private roads in Mei Foo for all purposes connected with proper use of the Property including construction works – whether right of way under 1983 Assignment is confined to existing use of Property as LPG plant – whether right of way by necessity where Property is landlocked – whether constitutional rights of freedom of speech and assembly protect protest activities blocking private Access Road and trespassing onto private Property – whether unidentified persons blocking Access Road and trespassing Property can be joined as a defendant by general description rather than by name – application of John Doe practice and Bloomsbury Publishing plc v News Group Ltd – compatibility with Hong Kong's CJR and Rules of High Court O1A rr 1(a)-(c) and 2, and O2 r1 – quia timet injunction available where defendant's statements and actions evince intention to commit wrongful acts – Plaintiff being registered owner of Property has locus standi – injunction to restrain trespass and substantial interference with right of way is prima facie available and damages unlikely to be sufficient remedy – defences of illegality of building plans (rejected by Lam J in HCAL 51/2011), prescriptive right of way (insufficient evidence of user as of right without permission), construction of 1983 Assignment (right of way in wide and general terms), and constitutional rights (rights stop at boundary of private property per HKSAR v Au Kwok Kuen) all rejected – 1st to 6th Defendants consented to final injunction and to pay costs by consent orders of 13 December 2011 and 12 January 2012 – Court of Appeal had earlier refused Plaintiff's appeal against refusal of interim injunction by Deputy High Court Judge Au-Yeung on 30 June 2011 – interlocutory injunction granted against 7th and 10th Defendants, final injunction granted against 8th and 9th Defendants, with costs to Plaintiff with certificate for two counsel in relation to all remaining Defendants.
Legal issues: Whether the Plaintiff has a right of way over the private roads in Mei Foo including the Access Road · Whether the 7th Defendant can be named by general description · Whether the four defences initially raised by the 1st to 6th Defendants have arguable merit · Whether the 8th to 10th Defendants have shown a real risk of future infringement justifying a quia timet injunction · Whether constitutional rights of freedom of speech and assembly protect the protest activities on the private Access Road
Outcome: Plaintiff's applications against the 7th to 10th Defendants succeeded. Interlocutory injunction granted against the 7th and 10th Defendants; final injunction granted against the 8th and 9th Defendants.
Cited by 3 cases · Cites 3 cases