CHEUNG CHURK HUNG AND ANOTHER v. MOK CHI CHEONG AND OTHERS

CHEUNG CHURK HUNG AND ANOTHER v. MOK CHI CHEONG AND OTHERS

On the evidence the plaintiffs established a serious issue to be tried in trespass and in private nuisance; consent under section 15 New Territories Ordinance was not required on these facts; defendants' factual assertions (including Joint Fortune's asserted rights and alleged pollution/feng shui harm) lacked substance; applying American Cyanamid the plaintiffs showed irreparable harm and a favourable balance of convenience. Accordingly an interlocutory injunction was granted to the plaintiffs and the defendants' summonses (primarily of 10 and 14 August 2012) were dismissed, with the consolidation summons adjourned.

Citation
CHEUNG CHURK HUNG AND ANOTHER v. MOK CHI CHEONG AND OTHERS
Parties
Plaintiff: 1st Plaintiff; Plaintiff: 2nd Plaintiff; Affiant / Plaintiff Representative: Cheung Churk Hung; 16th Defendant / Defendant Representative: Man Cheung Lam; Proposed Co Defendant: Joint Fortune Corporation Limited; Owner (2nd Lots): Tang Wai Son Tong; Sub Lessor / Owner Representative: Tang Nim Pui; Owner (1st Lot): Tang Sam On; Owner (1st Lot): Tang Sum Yuen; Owner (1st Lot): Tang Sam Mun; Executor / Owner Representative: Tang Ka Hung Robert
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
20 May 2013
Case Number
DCCJ2642/2012
Procedural Posture
Civil Injunction (interlocutory) / Inter Partes Hearing and Interlocutory Decision (16 August 2012)
Outcome
Interlocutory injunction granted to plaintiffs; defendants' summonses of 10 and 14 August 2012 dismissed with costs to plaintiffs; defendants' summons of 15 August 2012 (consolidation) adjourned.
Legal Topics
Trespass to Land, Private Nuisance, Interlocutory Injunction, New Territories Ordinance S15, Service of Process, Joinder and Consolidation
Source Language
EN
Property Tort Civil Procedure Equity Trespass to Land Private Nuisance Interlocutory Injunction New Territories Ordinance S15 +2 more

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Parties

1st Plaintiff

Plaintiff

2nd Plaintiff

Plaintiff

Cheung Churk Hung

Affiant / Plaintiff Representative

Man Cheung Lam

16th Defendant / Defendant Representative

Joint Fortune Corporation Limited

Proposed Co Defendant

Tang Wai Son Tong

Owner (2nd Lots)

Tang Nim Pui

Sub Lessor / Owner Representative

Tang Sam On

Owner (1st Lot)

Tang Sum Yuen

Owner (1st Lot)

Tang Sam Mun

Owner (1st Lot)

Tang Ka Hung Robert

Executor / Owner Representative

Procedural Posture

Civil Injunction (interlocutory) / Inter Partes Hearing and Interlocutory Decision (16 August 2012)

Legal Issues

  1. 1 Whether plaintiffs established a serious issue to be tried in trespass
  2. 2 Whether plaintiffs established a serious issue to be tried in nuisance
  3. 3 Whether consent under section 15 New Territories Ordinance was required for the tenancies

Ratio Decidendi

On the evidence the plaintiffs established a serious issue to be tried in trespass and in private nuisance; consent under section 15 New Territories Ordinance was not required on these facts; defendants' factual assertions (including Joint Fortune's asserted rights and alleged pollution/feng shui harm) lacked substance; applying American Cyanamid the plaintiffs showed irreparable harm and a favourable balance of convenience. Accordingly an interlocutory injunction was granted to the plaintiffs and the defendants' summonses (primarily of 10 and 14 August 2012) were dismissed, with the consolidation summons adjourned.

Court Disposition

Interlocutory injunction granted to plaintiffs; defendants' summonses of 10 and 14 August 2012 dismissed with costs to plaintiffs; defendants' summons of 15 August 2012 (consolidation) adjourned.

Orders

  • Interlocutory injunction restraining all defendants from trespassing, unlawful interference with use and enjoyment of the four Lots and from committing nuisance on the Lots
  • Dismissal of defendants' summons dated 10 August 2012 (including cross-injunction and declarations) with costs to plaintiffs and certificate for counsel