SHING LUEN FAT v. SHING CHI PING

SHING LUEN FAT v. SHING CHI PING

The court found there was a serious question to be tried on adverse possession and prescriptive right of way and that the balance of convenience favoured the Plaintiff because access to his main entrance was blocked by the iron scaffold, the Defendant had no imminent use for the land, removal of the scaffold would not be irreversible or substantially costly, and the risk of injustice to the Defendant was outweighed by the interim prejudice to the Plaintiff; accordingly an interlocutory injunction restraining interference and a mandatory order to remove the iron scaffold within 48 hours were granted, with costs allocated as stated.

Citation
SHING LUEN FAT v. SHING CHI PING
Parties
Plaintiff: Shing Luen Fat; Defendant: Shing Chi Ping
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
14 March 2011
Case Number
DCCJ3789/2010
Procedural Posture
Civil Action Property Dispute (adverse Possession / Easement) / Interlocutory Hearing and Decision on Interlocutory Injunction (pre Trial)
Outcome
Interlocutory injunction granted; mandatory order to remove iron scaffold granted; costs and procedural directions ordered
Legal Topics
Adverse Possession, Prescriptive Easement / Right of Way, Interlocutory Injunction, Mandatory Interlocutory Injunction, Limitation Ordinance
Source Language
EN
Property Law Civil Procedure Equity Limitation Law Adverse Possession Prescriptive Easement / Right of Way Interlocutory Injunction Mandatory Interlocutory Injunction +1 more

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Parties

Shing Luen Fat

Plaintiff

Shing Chi Ping

Defendant

Procedural Posture

Civil Action Property Dispute (adverse Possession / Easement) / Interlocutory Hearing and Decision on Interlocutory Injunction (pre Trial)

Legal Issues

  1. 1 Whether there is a serious question to be tried on the Plaintiff's claim to possessory title by adverse possession and/or prescriptive right of way
  2. 2 Whether the balance of convenience favours granting interlocutory relief restraining interference with Plaintiff's occupation
  3. 3 Whether a mandatory interlocutory injunction should be granted to remove the iron scaffold blocking access

Ratio Decidendi

The court found there was a serious question to be tried on adverse possession and prescriptive right of way and that the balance of convenience favoured the Plaintiff because access to his main entrance was blocked by the iron scaffold, the Defendant had no imminent use for the land, removal of the scaffold would not be irreversible or substantially costly, and the risk of injustice to the Defendant was outweighed by the interim prejudice to the Plaintiff; accordingly an interlocutory injunction restraining interference and a mandatory order to remove the iron scaffold within 48 hours were granted, with costs allocated as stated.

Court Disposition

Interlocutory injunction granted; mandatory order to remove iron scaffold granted; costs and procedural directions ordered

Orders

  • Until trial the Defendant is restrained from interfering with the Plaintiff's use and occupation of the Plaintiff's Property and the Property coloured pink in the Plaintiff's affirmation dated 25 January 2011 including the Pathway and Plaintiff's properties kept there (excluding any structural works)
  • The Defendant must within 48 hours dismantle the Iron Gate/Iron Scaffold erected on the Pathway in front of the Plaintiff's Property, failing which the Plaintiff may dismantle and dispose of it