KO SHUN v. ROYAL MORTGAGE LTD AND ANOTHER

KO SHUN v. ROYAL MORTGAGE LTD AND ANOTHER

The summons for an interlocutory mandatory injunction is dismissed because there is no serious question to be tried on the claimed vehicular right of way (the owners of the servient tenements are not parties and the plaintiff as a licensee lacks locus for lost modern grant), public nuisance was not pleaded and private nuisance was not demonstrated; the plaintiff has not shown the high degree of assurance of success required for a mandatory injunction and delay plus available interim parking arrangements undermine any claim of irreparable harm, so the balance of convenience favors the defendants.

Citation
[2019] HKDC 85
Parties
Plaintiff: KO SHUN; 1st Defendant: ROYAL MORTGAGE LIMITED; 2nd Defendant: YEUNG HO KEUNG
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
18 January 2019
Case Number
DCCJ5242/2018
Procedural Posture
Civil Interlocutory Injunction / Interlocutory Hearing and Decision (summons Dismissed)
Outcome
Summons dismissed
Legal Topics
Right of Way, Easement, Interlocutory Mandatory Injunction, Public Nuisance, Private Nuisance, Mortgagee in Possession, Prescription (lost Modern Grant), Delay / Laches
Source Language
EN
Property Equity Tort Civil Procedure Company Law Right of Way Easement Interlocutory Mandatory Injunction +5 more

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Parties

KO SHUN

Plaintiff

ROYAL MORTGAGE LIMITED

1st Defendant

YEUNG HO KEUNG

2nd Defendant

Procedural Posture

Civil Interlocutory Injunction / Interlocutory Hearing and Decision (summons Dismissed)

Legal Issues

  1. 1 Whether there is a serious question to be tried on the existence of a vehicular right of way over the Subject Way
  2. 2 Whether plaintiff has locus to claim an easement by lost modern grant given she is a licensee not owner
  3. 3 Whether public nuisance was properly pleaded and whether private nuisance established

Ratio Decidendi

The summons for an interlocutory mandatory injunction is dismissed because there is no serious question to be tried on the claimed vehicular right of way (the owners of the servient tenements are not parties and the plaintiff as a licensee lacks locus for lost modern grant), public nuisance was not pleaded and private nuisance was not demonstrated; the plaintiff has not shown the high degree of assurance of success required for a mandatory injunction and delay plus available interim parking arrangements undermine any claim of irreparable harm, so the balance of convenience favors the defendants.

Court Disposition

Summons dismissed

Orders

  • Summons dismissed
  • Costs to the 1st defendant (Royal Mortgage Limited) and the 2nd defendant (Yeung Ho Keung) forthwith with a certificate for counsel, to be taxed if not agreed