Archive for the ‘Trespass’ 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

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

Disputed possessory title: still good enough to see off a trespasser

July 9, 2013

In Bridam Ltd v Sa Sa Cosmetic Co Ltd ([2013] HKEC 1020, CFI) L granted a lease of premises to T. The lease also gave T the right to use the signage on the external wall. L claimed to have possessory title to the signage space. T’s tenancy expired and it gave back possession of the property and the signage space. Shortly afterwards, however, it reinstated its own signage. It did not claim that it had any right to do so but, rather, that L had no title and was not entitled to recover possession. This argument failed and T was ordered to remove its sign.

The fact that L did not have the benefit of a declaration confirming its possessory title was irrelevant; this would declare, not confer, the title ([9] per L Chan J.). In any event, T plainly had no title and allowing it to succeed would be a recipe for chaos ([13]). The court stressed that its judgment had no effect on the rights, if any, of the registered owners ([15]).

Michael Lower

Breach of DMC: landlord’s liability for tenant’s use of common areas

April 11, 2013

In 海怡閣(成和道) 業主立案法團v 泓璟集團有限公司 ([2013] HKEC 345, LT) L was the registered owner of shops forming part of a building. It permitted its tenant to use the adjoining common parts (though it did not purport to include them in the lease). The landlord and the tenant were each liable to the incorporated owners in trespass ([109] – [111]). The tenant was ordered to pay damages in respect of its use of the common parts assessed by reference to the market value for the rights that it exercised.

Injunction to prevent nuisance can apply to defendants identified by description rather than name

April 18, 2012

An injunction can be granted against a person or group identified by description rather than by name provided that the description is sufficiently precise. An injunction is normally available to prevent nuisance (here unlawful interference with a right of way) and trespass. An injunction will only be denied in special circumstances.

In Billion Star Development Ltd v Wong Tak Chuen ([2012] 2 HKLRD 85) 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.

The court had no doubt that P had the benefit of a right of way that entitled construction vehicles to use the estate roads to get to the property nor that the acts engaged in amounted to nuisance and trespass. P was entitled to an injunction unless there were special circumstances indicating that only damages should be available. The facts that no damage has been caused or that the acts complained of are relatively trivial are not special circumstances for this purpose ([38]).

Amongst the defendants was D7 (unidentified individuals trespassing on the property or interfering with the plaintiff’s right of way over the private roads in Mei Foo). The court held that it was possible to identify defendants in this way:

‘The Court has power to grant an injunction against a defendant described not by name but by reference to his conduct provided that the description is sufficiently certain to identify only those who are necessarily included and exclude those who are not.’ ([54]).

Some defendants argued that they were exercising their human rights of peaceful assembly and freedom of expression. This was rejected since the acts took place on private property and were essentially concerned with competing claims to property rights ([61]). Some defendants argued that their actions had not taken place at a time when construction work was being attempted and, since they had not infringed the relevant property rights, it was inappropriate to restrain them by injunction. This was rejected since their words and conduct made it clear that there was a real risk that they would attempt to interfere with the right of way ([69]).

Failure to leave when a licence is revoked is trespass

April 5, 2011

When a licence is revoked (even in breach of contract) the licensee becomes a trespasser if he does not leave the property.

In Thompson v Park ([1944] KB 408, CA (Eng)) Thompson and Park agreed to amalgamate their schools and Thompson granted Park a licence to enter his school with the boys from Park’s school. Thompson then revoked the licence (possibly in breach of contract but this point was not relevant to the proceedings). He asked Park to remove his property from the school premises. When Park failed to do so, Thompson removed it. Park and a group of men forced their way back into the school. Thompson was granted an injunction requiring Park to leave. Once the licence was revoked (whether or not in breach of contract) Park’s refusal to leave was a trespass.