TIMES SQUARE LTD v. LEE KWUN KIT (李冠傑) t/a JL MUSIC

TIMES SQUARE LTD v. LEE KWUN KIT (李冠傑) t/a JL MUSIC

Default judgment was appropriate because the 1st Defendant was debarred for non‑compliance and the 2nd Defendant filed no notice of intention to defend; the pleaded facts established that the contested busking and associated activities fell outside the Deed of Dedication's Permitted Purposes, breached express restrictive clauses (noise, obstructions, disturbance) and therefore constituted trespass, justifying permanent injunctions; declaratory relief was refused as unnecessary because the injunctions would achieve the requisite practical protection and a declaration would not serve a useful purpose.

Citation
[2020] HKCFI 438
Parties
Plaintiff: Times Square Limited; 1st Defendant: Lee Kwun Kit (李冠傑) trading as JL MUSIC; 2nd Defendant: Persons unlawfully occupying or remaining at the Open Piazza of Times Square by busking or any other form of street performance, or persons who cause, place or leave obstruction(s) at the Open Piazza in connection with the carrying out of such performances
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 March 2020
Case Number
HCA2244/2018
Procedural Posture
Civil Trespass and Injunction (busking Dispute) / Default Judgment Application/decision Under Order 19 R.7
Outcome
Permanent injunctions granted against the 1st and 2nd Defendants in respect of busking and related obstructive and disruptive conduct; declaratory relief refused; default judgment entered against the Defendants in part.
Legal Topics
Default Judgment Under Order 19 R.7, Deed of Dedication, Declaratory Relief, Busking/street Performance, Substituted Service
Source Language
EN
Property Law Civil Procedure Injunctions Tort (trespass) Default Judgment Under Order 19 R.7 Deed of Dedication Declaratory Relief Busking/street Performance +1 more

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Parties

Times Square Limited

Plaintiff

Lee Kwun Kit (李冠傑) trading as JL MUSIC

1st Defendant

Persons unlawfully occupying or remaining at the Open Piazza of Times Square by busking or any other form of street performance, or persons who cause, place or leave obstruction(s) at the Open Piazza in connection with the carrying out of such performances

2nd Defendant

Procedural Posture

Civil Trespass and Injunction (busking Dispute) / Default Judgment Application/decision Under Order 19 R.7

Legal Issues

  1. 1 Whether default judgment should be entered against the 1st and 2nd Defendants under Order 19 r.7
  2. 2 Whether permanent injunctive relief is appropriate to restrain busking and related conduct at the Open Piazza
  3. 3 Whether busking or street performance falls within the 'passive recreation' Permitted Purposes in the Deed of Dedication

Ratio Decidendi

Default judgment was appropriate because the 1st Defendant was debarred for non‑compliance and the 2nd Defendant filed no notice of intention to defend; the pleaded facts established that the contested busking and associated activities fell outside the Deed of Dedication's Permitted Purposes, breached express restrictive clauses (noise, obstructions, disturbance) and therefore constituted trespass, justifying permanent injunctions; declaratory relief was refused as unnecessary because the injunctions would achieve the requisite practical protection and a declaration would not serve a useful purpose.

Court Disposition

Permanent injunctions granted against the 1st and 2nd Defendants in respect of busking and related obstructive and disruptive conduct; declaratory relief refused; default judgment entered against the Defendants in part.

Orders

  • Permanent injunction restraining the 1st and 2nd Defendants from occupying or remaining at the Open Piazza of Times Square by busking or any other form of street performance
  • Permanent injunction restraining the 1st and 2nd Defendants from causing, placing or leaving obstructions at the Open Piazza in connection with the carrying out of busking or any other form of street performance