WONG CHUNG MING DEVELOPMENT FUND CO LTD v. PROFIT SURPLUS LTD

WONG CHUNG MING DEVELOPMENT FUND CO LTD v. PROFIT SURPLUS LTD

The court found a serious question to be tried and a high degree of assurance that the defendant would succeed on the evidence of certified 1960 plans, historical use and DSD correspondence; damages were inadequate because the defendant faced substantial and irreparable loss if prevented from connecting and the balance of convenience weighed in favour of granting the mandatory interlocutory relief subject to DSD satisfaction.

Citation
WONG CHUNG MING DEVELOPMENT FUND CO LTD v. PROFIT SURPLUS LTD
Parties
Plaintiff: Plaintiff; Defendant: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 August 2008
Case Number
HCA335/2008
Procedural Posture
Interlocutory Application for Mandatory Injunction / Inter Partes Pending Trial or Further Order
Outcome
Mandatory interlocutory injunction granted in terms of paragraphs 1(1),(2) and (3) of the defendant's summons pending trial or further order; works to be carried out to the satisfaction of the Drainage Services Department; costs nisi to the defendant in the cause.
Legal Topics
Prescriptive Right, Easement by Presumed Grant, Mandatory Interlocutory Injunction, Status Quo, Balance of Convenience
Source Language
EN
Property Law Civil Procedure Easements Administrative Approvals Prescriptive Right Easement by Presumed Grant Mandatory Interlocutory Injunction Status Quo +1 more

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Parties

Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Interlocutory Application for Mandatory Injunction / Inter Partes Pending Trial or Further Order

Legal Issues

  1. 1 Whether a private sewage drain existed running across the rear of the properties to Cochrane Street
  2. 2 Whether the defendant has a prescriptive or other easement/right to connect into and use that drain
  3. 3 Whether an interlocutory mandatory injunction should be granted pending trial

Ratio Decidendi

The court found a serious question to be tried and a high degree of assurance that the defendant would succeed on the evidence of certified 1960 plans, historical use and DSD correspondence; damages were inadequate because the defendant faced substantial and irreparable loss if prevented from connecting and the balance of convenience weighed in favour of granting the mandatory interlocutory relief subject to DSD satisfaction.

Court Disposition

Mandatory interlocutory injunction granted in terms of paragraphs 1(1),(2) and (3) of the defendant's summons pending trial or further order; works to be carried out to the satisfaction of the Drainage Services Department; costs nisi to the defendant in the cause.

Orders

  • Interlocutory mandatory injunction granted in terms of paragraphs 1(1),(2) and (3) of the defendant's summons pending trial or further order
  • All works to effect the connection and upgrades to be carried out to the satisfaction of the Drainage Services Department