Archive for the ‘injunction’ Category

Alleged trespass: refusal of interim injunction

September 12, 2013

In Turbo Top Ltd v Lee Cheuk Yan ([2013] 3 HKLRD 41, CFI) P was the grantee of land on which there was both a building and an open space. P and the Financial Secretary were co-owners of the land. The Conditions of Exchange and the Deed of Mutual Covenant each provided that the open space was to be open to all members of the public for all lawful purposes (but the Conditions of Exchange made it clear that neither party intended to dedicate the open space to the public nor consented to any such dedication). The defendants were protesting outside the office in connection with an industrial dispute. P sought an interlocutory injunction requiring them to leave.

Godfrey Lam J said that ordinarily an injunction was available almost as of right to restrain a trespass ([17]). This, however, was not necessarily an ordinary case. It was plausible that the protesters as members of the public had a licence to use the open space as a result of the provisions in the Conditions of Exchange and Deed of Mutual Covenant. This could not be unilaterally revoked by one co-owner without the consent of the other ([26] – [27]).

Further:

‘In any event, when it comes to the question of the exercise of the rights of assembly and of demonstration (to which I refer below), it is the substantial character and practical function of the place that matters. From that perspective, it seems to me at this stage that, irrespective of the niceties concerning the precise legal status of the land in question, the Open Space has taken on the character of public space accessible to every person in Hong Kong without let or hindrance. It lies, in my view, towards the public end of the “spectrum” of the character of a place’. ([30] per Godfrey Lam J).

It had not been shown that the protesters were using the open space other than for lawful purposes. Thus, it was not appropriate to grant an interlocutory injunction requiring the protesters to leave the open space.

Michael Lower

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Injunction to restrain threatened nuisance and trespass

August 13, 2013

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

Uncontroverted claim of breach of DMC: grant of an injunction

March 18, 2013

In Park Vale (Management) Ltd v Tang Wing Kin ([2013] HKEC 342, LT) Park Vale was the manager of a residential estate and T was the owner of one of the flats on the estate. Park Vale adduced evidence to show that T was in breach of the DMC (through installations T had added to the external walls of the flat and adjoining terraces that formed part of the common parts). Park Vale’s letters to T had not resulted in an end to the breaches. T had not opposed Park Vale’s application. Park Vale was granted the injunctions it sought requiring T to remedy the breaches and not to commit them in the future.

Licence coupled with a grant: injunction available

January 16, 2013

In James Jones & Sons Ltd v Earl of Tankerville ([1909] 2 Ch. 440) D entered into a contract with P under which P had the right to cut trees on D’s land and remove the timber. D repudiated the contract and took back possession. P sought an injunction restraining D from preventing due execution of the contract. The question was whether this was possible or whether P was restricted to damages only. The injunction was granted:

‘A licence to enter a man’s property is prima facie revocable, but is irrevocable  even at law if coupled with or granted in aid of a legal interest conferred on the purchaser, and the interest so conferred may be a purely chattel interest or an interest in realty.’ (Parker J. at 442)

The same applies even where the interest was not created under seal so that the interest is purely equitable (443). In any event, it was arguable that P had a legal interest in the timber (444).

Building contract: interim injunction allowing employer to recover possession in response to alleged breach of contract

January 15, 2013

In Yau Fook Hong Co Ltd v Man Cheong Construction Co ([1981] HKLR 60, HC) Y (the employer) engaged the services of M (the contractor) under the terms of a building contract providing for the construction of a block of flats. Y purported to terminate the contract in response to M’s failure to make adequate progress (the contract conferred such a right of termination). M refused to give back possession of the site. Y sought, inter alia, an interim injunction requiring M to give back possession. M disputed Y’s right to serve a notice to terminate the contract, that the purported notice had been duly served and that Y was entitled to an interim injunction. The injunction was granted since there was a serious question to be tried and damages would be an adequate remedy for the contractor but not for the employers. The employers would be able to honour the undertaking to pay damages should they fail at trial.

Fuad J. thought that it might be difficult for the contractor to persuade the court to follow the line taken by Megarry J. in Hounslow Borough Council v Twickenham Garden Developments Ltd to the effect that there might be an implied covenant not to terminate a contractual licence early and that, if this were present, the court could grant an injunction to prevent premature revocation.

Alleged ouster of co-owner: injunction?

December 20, 2012

Khan v Mansoori ([2012] 5 HKLRD 637, CFI) concerned a dispute between P and D1 and D2 who were tenants in common of property in Kowloon. P lived in the USA. D1 and D2 changed the locks at the property. P alleged that he had been ousted from possession. D1 and D2 contended that P1 had no beneficial interest in the property but held his share as nominee for D1 and D2. The question at this stage was whether P should have an injunction pending the trial to restrain any actions by D1 and D2 ousting him from possession. The injunction was not granted. The balance of convenience weighed in favour of damages being the appropriate remedy should P succeed in the trial. P lived in the US, rarely visited Hong Kong and had no practical need to enter the property.

When can incorporated owners be made to bring proceedings?

May 22, 2012

In Estoril Court (IO) v Cheer Rich Enterprises Ltd ([2012] HKEC 694) C, an owner of undivided shares in a development, complained that the incorporated owners had failed to enforce the Deed of Mutual Covenant against owners who had committed breaches of it. C referred to the obligation in section 18(c) of the Building Management Ordinance to ‘do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant’. The Lands Tribunal held that the burden was on C to show that there is evidence suggesting a breach of the DMC (this seems not to be the same as proof that there has been such a breach). The question here was whether a reasonable incorporated owner would take action (or further action). If C could meet this burden then it would be for the incorporated owner to show why there should not be an injunction requiring it to take action. One relevant factor here would be the possibility of proceedings brought by the complaining co-owner personally ([29] – [30]). Further, it may be that the injunction sought would be excessive (eg requiring court proceedings when a warning letter would do) ([31]).

In this case, the Lands Tribunal rejected most of C’s complaints but did require it to take action against the owner of an illegally parked car. Hundreds of warnings letters had gone unheeded and the incorporated owners had to take more forceful action.

Incorporated owners caught in the middle of a dispute between neighbours

January 11, 2012

In Kai Hing Metal Products Factory Co Ltd v Incorporated Owners of Sunderland Estate ([2011] HKEC 1580, LT) K parked three cars in a space intended for one car. H, a neighbour, objected since it meant that even pedestrian access to its apartment building was sometimes obstructed. H brought proceedings against the Incorporated Owners seeking an injunction  requiring the Incorporated Owners to take action in respect of the triple parking. This was settled and as part of a settlement railings were erected that ensured pedestrian access but reduced the possibility of using K’s space for parking more than one car. K then brought proceedings against the Incorporated Owners seeking an injunction requiring the railings to be removed and various declarations. The Lands Tribunal ordered the removal of the railings (since K had not had the opportunity to argue her case for triple parking) but refused to grant all of the other orders sought. This was because K did not come with clean hands (it seems that this conclusion was reached because of her triple parking and disregard for the interests of her neighbours).

When is a contractual licence irrevocable? Is an injunction available to restrain unlawful revocation?

February 2, 2011

A contractual licence is not irrevocable simply because there is no express provision concerning revocation. It depends on the intention of the parties. If need be, a term concerning revocation can be implied to give efficacy to the agreement.

Winter Garden Theatre (London) Limited v Millenium Productions Limited ([1948] AC 173, HL) concerned a contractual licence of a theatre. It contained no term that would allow the licensor to revoke it and no stated term date. The licensor gave the licensee one month’s notice to leave the theatre. The licensee sought a declaration that the licensor was not entitled to revoke the licence. The House of Lords held that, on its true construction, the licence was revocable.  It was a case of finding the true construction of the document from its terms and the circumstances underlying the transaction. Obiter, Lord Uthwatt said that an injunction is a possible remedy where there is an attempt to revoke in breach of contract (at 202).

Equitable remedies are available to compel a licensor to honour a contractual licence

February 1, 2011

The equitable remedies of specific performance and injunction are available to compel a contractual licensor to honour his bargain, whether or not the licensee is yet in possession.

Verrall v Great Yarmouth Borough Council ([1981] QB 202, CA (Eng)) concerned a licence that the council had granted to the National Front to allow the latter to hold its annual conference in council-owned premises. Before the conference began, the council revoked the licence. The National Front sought specific performance of the licence. This was awarded. The important message from this case is that in appropriate circumstances equity will award specific performance or injunction to compel a contractual licensor to honour its bargain.

Damages would not be an adequate remedy. The National Front would not be able to find an alternative venue for its conference anywhere in England or Wales. Freedom of speech was at stake. The National Front was entitled to the freedoms of speech and of assembly provided they were exercised peaceably. In general, specific performance would be appropriate if a licensor sought to revoke a license in circumstances where many people would be affected and the revocation would have important consequences.