ON LOONG INVESTMENT CO LTD AND ANOTHER v. THE INCORPORATED OWNERS OF WAH LUEN INDUSTRIAL CENTRE AND OTHERS

ON LOONG INVESTMENT CO LTD AND ANOTHER v. THE INCORPORATED OWNERS OF WAH LUEN INDUSTRIAL CENTRE AND OTHERS

The court found triable issues of fact and law as to whether D1 and D2 committed or authorised trespass and whether a tenancy at will existed, and therefore refused summary judgment against the IO defendants and granted them leave to defend; the court entered summary judgment against D3 (unidentified trespassers) for possession and mesne profits; on the legal issue determined under Order 14A the court held as a matter of law that building owners and their agents are not entitled by implied non-derogation to use the plaintiffs' designated Properties for loading and unloading, and accordingly struck out the parts of the defence and counterclaim asserting non-derogation from grant as plainly...

Citation
ON LOONG INVESTMENT CO LTD AND ANOTHER v. THE INCORPORATED OWNERS OF WAH LUEN INDUSTRIAL CENTRE AND OTHERS
Parties
1st Plaintiff: ON LOONG INVESTMENT COMPANY LIMITED; 2nd Plaintiff: YAU FOOK HONG COMPANY LIMITED; 1st Defendant: THE INCORPORATED OWNERS OF WAH LUEN INDUSTRIAL CENTRE; 2nd Defendant: URBAN PROPERTY MANAGEMENT LTD; 3rd Defendant: PERSONS ENTERING OR REMAINING WITHOUT THE CONSENT OF THE PLAINTIFFS, OR ANY OF THEM, AT PARKING SPACES NOS. 13-17, 27-31, 43-47, 59-63 AND CONTAINER CAR PARK NOS. 34 AND 41, ON 1/F, WAH LUEN INDUSTRIAL CENTRE, NOS. 15-21 WONG CHUK YEUNG STREET, SHATIN, NEW TERRITORIES, HONG KONG
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 January 2016
Case Number
HCA341/2014
Procedural Posture
Civil Action Trespass, Injunction, Summary Judgment, Strike Out, Order 14 a Determination / Judgment (court of First Instance)
Outcome
Judgment: D1 and D2 given unconditional leave to defend; summary judgment entered against D3 for trespass since 1 October 2011; paragraphs of D1 and D2 defence/counterclaim on non-derogation struck out; Order 14A question answered in the negative; costs orders made.
Legal Topics
Trespass, Non Derogation From Grant, Implied Terms, Summary Judgment (order 14), Striking Out (order 18 R.19), Order 14 a Determination, Injunction
Source Language
EN
Property Land Law Contract Civil Procedure Equity Trespass Non Derogation From Grant Implied Terms +4 more

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Parties

ON LOONG INVESTMENT COMPANY LIMITED

1st Plaintiff

YAU FOOK HONG COMPANY LIMITED

2nd Plaintiff

THE INCORPORATED OWNERS OF WAH LUEN INDUSTRIAL CENTRE

1st Defendant

URBAN PROPERTY MANAGEMENT LTD

2nd Defendant

PERSONS ENTERING OR REMAINING WITHOUT THE CONSENT OF THE PLAINTIFFS, OR ANY OF THEM, AT PARKING SPACES NOS. 13-17, 27-31, 43-47, 59-63 AND CONTAINER CAR PARK NOS. 34 AND 41, ON 1/F, WAH LUEN INDUSTRIAL CENTRE, NOS. 15-21 WONG CHUK YEUNG STREET, SHATIN, NEW TERRITORIES, HONG KONG

3rd Defendant

Procedural Posture

Civil Action Trespass, Injunction, Summary Judgment, Strike Out, Order 14 a Determination / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the IO defendants committed trespass by permitting or facilitating use of the plaintiffs' car parking spaces after termination
  2. 2 Whether a tenancy at will existed between the plaintiffs and the IO defendants after 30 September 2011
  3. 3 Whether the IO defendants are liable for procuring or facilitating third parties' trespass

Ratio Decidendi

The court found triable issues of fact and law as to whether D1 and D2 committed or authorised trespass and whether a tenancy at will existed, and therefore refused summary judgment against the IO defendants and granted them leave to defend; the court entered summary judgment against D3 (unidentified trespassers) for possession and mesne profits; on the legal issue determined under Order 14A the court held as a matter of law that building owners and their agents are not entitled by implied non-derogation to use the plaintiffs' designated Properties for loading and unloading, and accordingly struck out the parts of the defence and counterclaim asserting non-derogation from grant as plainly...

Court Disposition

Judgment: D1 and D2 given unconditional leave to defend; summary judgment entered against D3 for trespass since 1 October 2011; paragraphs of D1 and D2 defence/counterclaim on non-derogation struck out; Order 14A question answered in the negative; costs orders made.

Orders

  • Unconditional leave to D1 and D2 to defend the action; on a nisi basis 50% of the costs of the summons to be costs in the cause
  • Judgment entered against D3 for trespass (since 1 October 2011) for possession of the Properties with mesne profits to be assessed and interest thereon