Jones Lang Lasalle Management Services Ltd v. Moretide Investments Ltd
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HCA 260/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 260 OF 2015 ____________
_______________ D E C I S I O N 1.The facts of this case are simple. The plaintiff is the management company of a mall. The defendant is the registered owner of shop numbers 16 and 17 on the 1st floor of the mall at Kingswood Richly Plaza Phase II (“the mall”). The defendant operates a supermarket there. There is no dispute that the defendant is subject to the DMC, Sub-DMC and Sub-sub DMCs (“the Deeds”) applicable to the mall. 2.It is alleged by the plaintiff that a complaint has been received by other tenants as to obstruction caused by the defendant at the mall in the use of the common area. It is also alleged that despite various warnings, the defendant has failed or refused to rectify the obstructive acts which constituted the alleged breach of the Deeds. 3.The plaintiff now seeks an interlocutory injunction. The principles are not in dispute. The plaintiff has to demonstrate a serious issue to be tried under the American Cyanamid principle. The court will also need to consider if damages are an adequate remedy, and also to consider the balance of convenience. 4.The defendant is prepared to give an undertaking not to maintain obstructions at the common area. The question before me is whether or not the court should impose an injunction or accept the defendant’s undertaking. 5.In the circumstances of this case, I am more inclined towards an injunction. The reason is that a complaint has been received from a tenant as far back as August 2014. 6.The plaintiff has given three warning letters to the defendant which met with no constructive reply. There was also a letter before action. The plaintiff’s affirmation made by Gilbert Wing Tak Tang shows that one Mr Lui of the defendant refused to comply with the demands of the plaintiff before action was commenced. 7.It is, in my view, necessary to impose an interim injunction on the defendant to bring home the importance of not causing obstruction to other users of the mall. 8.The defendant does not object to some restrictions along the lines of paragraph 1(a) of the summons. The question is whether or not some saving provisions need to be imposed to permit the defendant to use the common area for delivery. 9.In my view, adopting a common sense approach, no one can dispute the defendant’s right of using the common passage and common area for delivery of goods, packing and unpacking of those goods. However, they cannot occupy the common area to the inconvenience of other mall owners or users. 10.The saving provision proposed by Mr Tang, counsel for the defendant, is that the defendant be permitted to effect delivery on two occasions within a day, ie, from 8 to 9 am and 4 to 5 pm, each occasion of delivery not exceeding 30 minutes. Any obstructions erected and/or placed in the course of each delivery must be cleared within 15 minutes thereafter. 11.This proposal is not accepted by the plaintiff. This court also finds nothing in the Deeds that would permit the court to force these saving provisions upon the plaintiff. 12.Notwithstanding the past practice of the defendant since 2009 over the mode of delivery, that does not give rise to any right to use the common areas in the way that the defendantproposed. Furthermore, the problem of these proposed saving provisions is that such occupation of the common area for approximately 45 minutes on two occasions in a day for the defendant’s own business has not been shown to be permitted by the Deeds, and it will also require the plaintiff to engage supervisory manpower two times a day to ensure that the defendant does not breach these saving provisions. 13.I therefore decline to accept the proposed saving provisions. The defendant will have to adjust its mode of delivery and to use its own business premises for the delivery of goods, packing and unpacking and keeping of waste materials. 14.I understand this is an interim measure pending trial. Notwithstanding the practice of the defendant allegedly since 2009, on the facts of this case there is no justification for it to continue even on an interim basis. There is a serious question to be tried as to whether or not the defendant has breached the Deeds. On balance, for the lack of right to use the common area in the way the defendant has been using in the past few years, I do not consider it appropriate to accept the saving provisions. 15.I therefore grant an interim injunction along the terms of paragraph 1(a) of the summons. Paragraph 1(b) is drafted in a very vague manner, and in too broad terms. In any case, I do not see anything in paragraph 1(b) of the summons which is not already covered by paragraph 1(a), and so I make no order in terms of paragraph 1(b). (Discussion re court and counsel) 16.Costs of this application be in the cause. 17.I make an order in terms of counsel’s draft terms as amended.
Mr Henry L W Fung, instructed by Wong Poon Chan Law & Co, for the plaintiff Mr Edward H M Tang, instructed by T K Tsui & Co, for the defendant | ||||||||||||||||||||||