Tao Kin Lun, The Manager of Nam Ti Tai Tsung v. Wong Kwok Man and Others

DCCJ 2151/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2151 OF 2013

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BETWEEN

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D E C I S I O N

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1.The plaintiff alleges in this action that the defendants have committed trespass by protruding “pipes, windows, air‑conditioners, exhaust fans, canopies and other structures, fixtures and/or appliances” onto their land.

2.The 1^st and 2^nd defendants have not entered an appearance.  The 3^rd defendant has filed a defence alleging easements.

3.By the summons filed in June and amended in October 2013, the plaintiff applied for interlocutory injunction to oblige the defendants to remove the things complained of.  Both the plaintiff and the 3^rd defendant have filed affidavit evidence and the application is scheduled for a 3-hour argument on 23 January 2014.

4.The plaintiff has now come back to seek leave to withdraw their amended summons.  Three reasons were given:

(1) There is no urgency as the defendants will be unlikely to complete the demolition work by the forthcoming Chinese New Year even if the court grants the injunction;

(2) The time limit for the 1^st defendant to file a defence has not yet expired; and

(3) It is said that the 3^rd defendant deliberately concealed the identity of the executor of the 1^st defendant’s estate causing delay in this action.

5.Only the 3^rd defendant of all the defendants turns up at this hearing.  The 3^rd defendant does not really object to the withdrawal, but accuses the plaintiff of delay and trying to escape an inevitable defeat by the side door.  The 3^rd defendant asks that condition be imposed for the withdrawal so that the plaintiff may not take out the same or similar application again.

6.In my view, the cross-accusations are wholly unnecessary.  As pointed out by the 3^rd defendant, the 3^rd defendant has no duty to assist the plaintiff.  Given the complication in dealing with a deceased’s estate (ie the 1^st defendant), the subsequent joinder application of the 3^rd defendant, and the need to file affidavit evidence for the application for interlocutory injunction, I am not surprised that the application has taken about 6 months to reach argument.  I do not see any delay on the part of the plaintiff in prosecuting the amended summons, and there is no cause to impose any condition for its withdrawal.  In my view, the application for interlocutory injunction has simply been overtaken by subsequent events.  It is only sensible that the plaintiff does not now press for interlocutory injunctive relief.

7.The plaintiff has conceded on costs, but the affidavit evidence filed can be reused for the trial of this action.  In the premises, I shall only grant costs of the summonses, the costs of the two hearings (totalling 41 minutes) and the costs of the 3^rd defendant’s written submission for today to the 3^rd defendant, summarily assessed at $6,500.

8.In the circumstances, I make an order in terms of paragraphs 1 and 2 of the summons.  The plaintiff do pay the 3^rd defendant’s costs summarily assessed at $6,500 forthwith.

Mr Wong Ka-hing of Wong & Co, for the plaintiff.

The 1st and 2nd defendants in person, absent.

Mr K Y Au of Benjamin Au & Billy Chan, for the 3rd defendant.