KING LUCKY DEVELOPMENT LTD AND ANOTHER v. NICEWAY CONSULTANTS LTD AND ANOTHER

KING LUCKY DEVELOPMENT LTD AND ANOTHER v. NICEWAY CONSULTANTS LTD AND ANOTHER

Application dismissed because plaintiffs failed to demonstrate the requisite strong prima facie case of 20 years' continuous use to establish a prescriptive right of way and failed to prove that the defendants' fence substantially interfered with the alleged easement; additionally the balance of convenience favored defendants given their undertaking and the trivial nature of the alleged injury.

Citation
[2020] HKCFI 524
Parties
1st Plaintiff: KING LUCKY DEVELOPMENT LIMITED; 2nd Plaintiff: WING SMART CONSTRUCTION LIMITED; 1st Defendant: NICEWAY CONSULTANTS LIMITED; 2nd Defendant: GOLDEN TARGET INVESTMENT (GROUP) LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 April 2020
Case Number
HCA771/2019
Procedural Posture
Civil Interlocutory Injunction Application (property/easement Dispute) / Chambers Hearing on Interlocutory Application (application Dismissed)
Outcome
Present Application dismissed
Legal Topics
Right of Way, Interlocutory Injunction, Mandatory Injunction, Prescription (lost Modern Grant), Balance of Convenience
Source Language
EN
Property Equity Civil Procedure Right of Way Interlocutory Injunction Mandatory Injunction Prescription (lost Modern Grant) Balance of Convenience

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

KING LUCKY DEVELOPMENT LIMITED

1st Plaintiff

WING SMART CONSTRUCTION LIMITED

2nd Plaintiff

NICEWAY CONSULTANTS LIMITED

1st Defendant

GOLDEN TARGET INVESTMENT (GROUP) LIMITED

2nd Defendant

Procedural Posture

Civil Interlocutory Injunction Application (property/easement Dispute) / Chambers Hearing on Interlocutory Application (application Dismissed)

Legal Issues

  1. 1 Whether plaintiffs acquired a prescriptive easement/right of way by continuous use for at least 20 years prior to acquisition by defendant
  2. 2 Whether defendants' maintenance and extension of a system of fence substantially interfered with any alleged right of way
  3. 3 Whether a mandatory interlocutory injunction should be granted (higher standard)

Ratio Decidendi

Application dismissed because plaintiffs failed to demonstrate the requisite strong prima facie case of 20 years' continuous use to establish a prescriptive right of way and failed to prove that the defendants' fence substantially interfered with the alleged easement; additionally the balance of convenience favored defendants given their undertaking and the trivial nature of the alleged injury.

Court Disposition

Present Application dismissed

Orders

  • Present Application dismissed
  • Order nisi that the costs of the Present Application, including the costs of the hearing, be to the defendants, to be taxed if not agreed