Sit Kim Ming v. Growth Leader Ltd
Read the full judgment text of HCA 1055/2013 on BabelCite. This High Court CFI judgment was delivered on 2 April 2015.
1. This is the plaintiff’s application for an interlocutory injunction. Although no interim injunction was granted between the earlier hearing (21 June 2013) which took place some a year and 9 months ago, an undertaking (which has the effect of an injunction) was given by the defendant on that occasion.
Cites 3 cases
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HCA 1055/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1055 OF 2013 ____________
______________ D E C I S I O N Introduction 1.This is the plaintiff’s application for an interlocutory injunction. Although no interim injunction was granted between the earlier hearing (21 June 2013) which took place some a year and 9 months ago, an undertaking (which has the effect of an injunction) was given by the defendant on that occasion. 2.The reason why this application came to be heard so late is, in gist, the plaintiff has not fixed a hearing for the injunction earlier. The defendant opposes this application on the sole ground that it should be refused for gross, unexplained and inordinate delay. Background 3.The background leading to this application can be summarized as follows. 4.The plaintiff claims to be the lawful occupier of a piece of land in Yuen Long and has been occupying it since the early 1980s. He constructed a house there (in which his family resides, and his business is located). The defendant is the registered owner of a piece of land nearby (“the defendant’s land”). 5.The plank on which the plaintiff rests his case is a right of way over the defendant’s land which he contends was acquired (1) by way of prescription, and/or (2) by necessity, and/or (3) by adverse possession (“the plaintiff’s right of way”). The plaintiff’s right of way has been used for vehicular access by the plaintiff, who has no other means for vehicular access. 6.The plaintiff complains that the defendant wrongfully blocked the plaintiff’s right of way since about March 2013: a metal gate was installed, and large rocks, boulders and debris were deposited. 7.The defendant denies the plaintiff’s right of way, and in any event denies that it was responsible for the large rocks, boulders and debris. This application 8.The history of this action/application relied upon by the defendant is summarized below:
9.As stated above, the present hearing took place about 1 year and 9 months after the 21 June 2013 hearing (the plaintiff’s indication to fix the hearing was only made by him in November 2014). 10.The action did not progress with expediency either. Pleading having been closed, no other procedural steps have been taken so far. 11.In light of the above history, the defendant seeks the dismissal of this application on the ground of delay, relying on:
12.Based on the above, the defendant argues that the plaintiff’s delay more than justifies this application to be dismissed. 13.The parties do not dispute the principles summarized in Gee: Commercial Injunctions, 5th Ed (2004):
(emphasis supplied) (para 23.031 (p 726)). 14.The plaintiff’s explanation for the delay is in essence that the former solicitors did not explain to him the outcome of this application. But he accepts that, to his knowledge, the plaintiff’s right of way was still blocked by the metal gate and the other obstacles at all times. It was the plaintiff’s subsequent solicitors who informed him (in September 2014) nothing was done by the former solicitors. From December 2013 onwards, the plaintiff did not drive his cars using the plaintiff’s right of way. 15.I do not consider the above explanation to be a valid reason for the delay. Further, the plaintiff’s assertion that he was not a highly educated person does not provide a valid reason either: he was aware that the plaintiff’s right of way had not been cleared at any time, and in fact gave up using it from December 2013 (which was more than one year before this hearing). 16.As for the prejudice which may be caused to the plaintiff, it is noted that the plaintiff could tolerate the above state of affairs for a relatively lengthy period of time. This is so despite a medical emergency which the plaintiff allegedly has to endure as early as in November 2013. 17.On the other hand, the defendant has not adduced evidence that it had suffered actual prejudice as a result of the plaintiff’s delay. At least to some extent, it has not prevented the delay by proceeding with this summons earlier. 18.At the end, what tip the balance in the defendant’s favour are:
Conclusion 19.This summons is accordingly dismissed. 20.To avoid doubt, the defendant’s undertaking is deemed to extend to until judgment in this action or further order (whichever is the earlier). If however the defendant should indicate in writing within 7 days it is unwilling to give such an undertaking, this matter will be reconsidered afresh. Other matters 21.The parties’ written submissions also mentioned various other points. These have not been expressly set out or dealt with above. This is so only because of the need to balance between the length of the decision and its comprehension. It does not mean those other points are thought to be irrelevant (or have been overlooked). To avoid doubt, those other points have also been considered. Costs order 22.There will be an order that the costs of this summons are to be paid by the plaintiff to the defendant forthwith. I disagree with the plaintiff’s proposal for those costs to be made the defendant’s costs in the cause. In so concluding, I have taken into account:
23.I consider summary assessment of costs to be appropriate. The above costs shall thus be so assessed. For this purpose:
Mr Charles T C Wong, instructed by Phyllis K Y Kwong & Associates, for the plaintiff Mr Erik Shum, instructed by Wong, Hui & Co, for the defendant | ||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCA 1055/2013