CHEUNG SIU LING, the intended personal representative of the estate of Cheung Yin Kwong, deceased AND OTHERS v. TSE YUK LIN AND ANOTHER

CHEUNG SIU LING, the intended personal representative of the estate of Cheung Yin Kwong, deceased AND OTHERS v. TSE YUK LIN AND ANOTHER

The court found there was a serious question to be tried on competing factual and legal claims to the right of way and that it was premature to decide merits on affidavits; the defendants' undertaking provided interim access and preserved the plaintiffs' position, so no interlocutory order was made on the amended...

Source-derived case information.

Citation
[2021] HKDC 1290
Parties
1st Plaintiff (intended Personal Representative of the Estate of Cheung Yin Kwong, Deceased): CHEUNG SIU LING; 2nd Plaintiff (intended Personal Representative of the Estate of Cheung Lun, Deceased and in His Personal Capacity): CHEUNG WAI WING; 3rd Plaintiff: CHEUNG WAI KEI; 1st Defendant: TSE YUK LIN; 2nd Defendant: CHEUNG KIM MAN (also known as CHEUNG CHUN NIN)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
29 October 2021
Case Number
DCCJ759/2021
Procedural Posture
Civil Easement/right of Way Dispute in District Court / Interlocutory Hearing on Injunction and Representation Summons (pre Trial)
Outcome
Consent orders for time and statement of claim amendment granted; injunction amendment ordered as agreed; defendants' undertaking accepted and no interlocutory injunction made on the amended injunction summons; representation relief granted permitting substitution/appointment of estate representatives; costs orders...
Legal Topics
Interlocutory Injunction, Right of Way/easement, Prescription and Lost Modern Grant, Wheeldon V Burrows and Implied Grants, Easement of Necessity, Proprietary Estoppel, Representation of Estates, Locus of Intended Personal Representatives
Source Language
en
Property Law Civil Procedure Equity Administrative of Estates Interlocutory Injunction Right of Way/easement Prescription and Lost Modern Grant Wheeldon V Burrows and Implied Grants +4 more

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Parties

CHEUNG SIU LING

1st Plaintiff (intended Personal Representative of the Estate of Cheung Yin Kwong, Deceased)

CHEUNG WAI WING

2nd Plaintiff (intended Personal Representative of the Estate of Cheung Lun, Deceased and in His Personal Capacity)

CHEUNG WAI KEI

3rd Plaintiff

TSE YUK LIN

1st Defendant

CHEUNG KIM MAN (also known as CHEUNG CHUN NIN)

2nd Defendant

Procedural Posture

Civil Easement/right of Way Dispute in District Court / Interlocutory Hearing on Injunction and Representation Summons (pre Trial)

Legal Issues

  1. 1 Whether plaintiffs have acquired a right of way over Lots A and B (Front Path and Verge Space) by prescription, implied grant (Wheeldon v Burrows or parties' intention), necessity or proprietary estoppel
  2. 2 Whether interlocutory injunction should be granted to prevent defendants obstructing access
  3. 3 Whether intended personal representatives (executrix/executor or administrator) have locus to sue or be permitted to represent estates before grant or appointment

Ratio Decidendi

The court found there was a serious question to be tried on competing factual and legal claims to the right of way and that it was premature to decide merits on affidavits; the defendants' undertaking provided interim access and preserved the plaintiffs' position, so no interlocutory order was made on the amended injunction summons; the court exercised its discretion to allow procedural relief to enable the estates to participate (substitution of the executrix and appointment of a representative administrator) because there was no real prejudice to defendants and it was necessary to safeguard estate proprietary interests pending trial.

Court Disposition

Consent orders for time and statement of claim amendment granted; injunction amendment ordered as agreed; defendants' undertaking accepted and no interlocutory injunction made on the amended injunction summons; representation relief granted permitting substitution/appointment of estate representatives; costs orders...

Orders

  • Order made in terms of the consent Time Summons (relief from sanction) and SOC Amendment Summons
  • Order made in terms of paragraphs 2-3 of the Injunction Amendment Summons as agreed and costs of that application awarded to the defendants