Injunction to restrain threatened nuisance and trespass

In Billion Star Development Ltd v Wong Tak Chuen ([2013] 2 HKLRD 714, CA) P owned property within the Mei Foo estate. P had the benefit of a right of way over the estate roads for the purpose of access to and egress from the property. P intended to build a block of flats on the property. Some residents of Mei Foo objected. They organised a protest group. Some of the protest group would block the estate road leading to the property whenever vehicles associated with the construction project attempted to gain access to the property. Some protesters also trespassed on the property. P sought an injunction to restrain future infringements of its rights. The court at first instance found that P had the benefit of a right of way that entitled construction vehicles to use the estate roads to get to the property and that the acts engaged in amounted to nuisance and trespass.

The Court of Appeal had to consider whether it had been appropriate to grant an injunction against one named defendant (D8) who had identified himself as a member of the group belonging to D7:

‘Persons entering or remaining without the consent of the plaintiff at [the Property] and other persons interfering with the plaintiff’s right of way over the private roads in Mei Foo Sun Chuen in connection with the protests against the plaintiff’s proposed development of the said properties.’

D8 argued that there was no basis for the grant of a quia timet injunction to restrain any future breach by him. It was accepted that he personally had not committed any wrongful act in the past. D8 argued that there was no basis for saying that he had threatened a breach in the future. The Court of Appeal disagreed. D8’s participation in these proceedings showed that he had associated himself with D7. P had shown that what was threatened and intended would cause imminent and substantial damage to him. The burden was therefore on D8 to show that he did not intended to participate in future acts that would interfere with P’s rights. D8 had not given any undertaking or made any statement renouncing any such intention and this was relevant ([48] per Fok JA). Identifying himself with D7, by contrast, suggested an intention to be party to future breaches ([51]).

D8’s other defence was that his actions were an exercise of his right of freedom of speech and assembly. Such rights, however, could not justify an infringement of P’s property rights ([62]).

Lam JA commented on whether it was appropriate to address an injunction to a defendant who is defined (as D7 was defined) rather than named. He said that this practice could validly be adopted subject to safeguards:

‘(a) The proper description of the unnamed defendants to satisfy the above test of certainty [the description used must be sufficiently certain as to identify both those who are included and those who are not];

(b) The Court must be satisfied that the nomenclature of defendants in such a manner would not prejudice the rights of those potentially affected by whatever orders the Court may make from being notified about the court proceedings and from appearing in court to defend their rights if they so wish;

(c) Proper directions must be given for proper service of the proceedings and notification to those who may be affected of the time frame for joining in as named parties and to put forward their defences;
(d) If no-one comes forward to resist the application of the plaintiff against a group of unnamed defendants, the Court should consider whether caveats similar to those in O.15 r.12(3) to
(6) should be built into any relief it may grant (including order of costs) other than orders for injunctive relief.’ ([74])

Michael Lower

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