TAM YU MAN AND OTHERS v. CHEUNG SUET FONG, the executrix of the last Will of CHAN YUK, deceased

TAM YU MAN AND OTHERS v. CHEUNG SUET FONG, the executrix of the last Will of CHAN YUK, deceased

The court found plaintiffs demonstrated serious issues to be tried and a strong prima facie case, rejected defendant's allegations of deliberate nondisclosure and irreparable harm, found insufficient evidence of a radical change in the burden on the servient land to extinguish any easement, and concluded the balance of convenience favors preserving the status quo; accordingly the interim injunction was continued (with amended plan A) until trial and judgment and costs were awarded to the plaintiffs.

Citation
[2023] HKDC 1124
Parties
1st Plaintiff: TAM YU MAN (譚裕民); 2nd Plaintiff: TAM YU HONG (譚裕康); 3rd Plaintiff: TAM YU WING (譚裕榮); Defendant (executrix of the Last Will of Chan Yuk): CHEUNG SUET FONG (張雪芳)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
13 July 2023
Case Number
DCCJ1990/2022
Procedural Posture
Civil Action Injunction and Property Dispute / Substantive Hearing for Continuation of Interim Injunction (chambers)
Outcome
Interim injunction continued until trial and judgment; costs awarded to plaintiffs
Legal Topics
Right of Way, Easement by Long User and Necessity, Adverse Possession, Interim Injunction, Balance of Convenience, Non Disclosure in Injunction Applications
Source Language
EN
Property Law Equity Civil Procedure Town Planning Right of Way Easement by Long User and Necessity Adverse Possession Interim Injunction +2 more

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Parties

TAM YU MAN (譚裕民)

1st Plaintiff

TAM YU HONG (譚裕康)

2nd Plaintiff

TAM YU WING (譚裕榮)

3rd Plaintiff

CHEUNG SUET FONG (張雪芳)

Defendant (executrix of the Last Will of Chan Yuk)

Procedural Posture

Civil Action Injunction and Property Dispute / Substantive Hearing for Continuation of Interim Injunction (chambers)

Legal Issues

  1. 1 Whether to continue interim injunction preserving access over part of Lot 380
  2. 2 Whether plaintiffs have or will establish easement by long use or necessity
  3. 3 Whether plaintiffs have or will establish possessory/adverse title to Lot 380

Ratio Decidendi

The court found plaintiffs demonstrated serious issues to be tried and a strong prima facie case, rejected defendant's allegations of deliberate nondisclosure and irreparable harm, found insufficient evidence of a radical change in the burden on the servient land to extinguish any easement, and concluded the balance of convenience favors preserving the status quo; accordingly the interim injunction was continued (with amended plan A) until trial and judgment and costs were awarded to the plaintiffs.

Court Disposition

Interim injunction continued until trial and judgment; costs awarded to plaintiffs

Orders

  • Continue the injunction in terms of the plaintiffs' summons with plan A replaced by the amended plan A submitted by the plaintiffs
  • Injunction to continue until conclusion of trial and delivery of judgment or until further order of the court