SKYLARK LTD AND ANOTHER v. KUNG SUI WING AND ANOTHER

SKYLARK LTD AND ANOTHER v. KUNG SUI WING AND ANOTHER

The 1st Defendant failed to prove any lawful authority from the owner to manage Lot 695 or to block the Suit Road; the Plaintiffs established a right of way by presumed grant supported by maps, aerial photographs and contractor evidence; the defendant's changed and unsupported case was inherently incredible and abusive, warranting summary judgment for the Plaintiffs, striking out of the counterclaim, an injunction, and indemnity costs.

Citation
SKYLARK LTD AND ANOTHER v. KUNG SUI WING AND ANOTHER
Parties
1st Plaintiff: SKYLARK LIMITED; 2nd Plaintiff: LAM HAN CHUN LYDIA; 1st Defendant: KUNG SUI WING; 2nd Defendant (discontinued): HO YEE LING
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 June 2009
Case Number
HCA2607/2006
Procedural Posture
Civil Property Dispute (right of Way) / Decision on Summary Judgment Application
Outcome
Summary judgment entered for the Plaintiffs against the 1st Defendant; 1st Defendant's counterclaim struck out; injunction granted; costs awarded
Legal Topics
Right of Way, Presumed Grant, Summary Judgment, Injunction, Abuse of Process, Authority/agency, Forgery, Costs
Source Language
EN
Property Law Civil Procedure Tort (trespass) Equity (resulting Trust) Right of Way Presumed Grant Summary Judgment Injunction +4 more

Case Brief

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Parties

SKYLARK LIMITED

1st Plaintiff

LAM HAN CHUN LYDIA

2nd Plaintiff

KUNG SUI WING

1st Defendant

HO YEE LING

2nd Defendant (discontinued)

Procedural Posture

Civil Property Dispute (right of Way) / Decision on Summary Judgment Application

Legal Issues

  1. 1 Whether the 1st Defendant had authority from the registered/beneficial owner to manage Lot 695 and to erect the blockade
  2. 2 Whether the Plaintiffs have a right of way over Lot 695 sufficient to support injunction and damages
  3. 3 Whether the 1st Defendant's counterclaim is an abuse of process/frivolous or vexatious and should be struck out

Ratio Decidendi

The 1st Defendant failed to prove any lawful authority from the owner to manage Lot 695 or to block the Suit Road; the Plaintiffs established a right of way by presumed grant supported by maps, aerial photographs and contractor evidence; the defendant's changed and unsupported case was inherently incredible and abusive, warranting summary judgment for the Plaintiffs, striking out of the counterclaim, an injunction, and indemnity costs.

Court Disposition

Summary judgment entered for the Plaintiffs against the 1st Defendant; 1st Defendant's counterclaim struck out; injunction granted; costs awarded

Orders

  • Judgment entered against the 1st Defendant with damages to be assessed
  • The 1st Defendant, whether by himself or his agents or servants, is restrained from causing any obstruction to the free passage and/or access of the road as coloured orange on the lot index plan annexed to the Plaintiffs' summons dated 18 December 2008