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Marspan Ltd v Chiu Margaret And Others

Judgment Cited in Precedent Map Related
JurisdictionHong Kong
Judgment Date06 January 2023
Neutral Citation[2023] HKCFI 241
Year2023
Judgement NumberHCMP968/2022
HCMP968/2022 MARSPAN LTD v. CHIU MARGARET AND OTHERS

HCMP 968/2022

[2023] HKCFI 241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 968 OF 2022

________________________

IN THE MATTER of all that piece or parcel of ground situate at Ngam Tau Sha, Clear Water Bay, Sai Kung, New Territories, Hong Kong comprising an area of 1,070 square metres or thereabouts as the same is for the purpose of identification shown coloured pink on the plan annexed to the Tenancy Agreement No. DLO/SK SX 1811 dated 4 February 1998 (the “Garden”)
AND
IN THE MATTER of Order 113 of the Rules of the High Court (Chapter 4A)

________________________

BETWEEN

MARSPAN LIMITED Plaintiff
AND
CHIU MARGARET (邱美琪) 1st Defendant
All other persons now in occupation of all that piece or parcel of ground situate at Ngam Tau Sha, Clear Water Bay, Sai Kung, New Territories, Hong Kong comprising an area of 1,070 square metres or thereabouts as the same is for the purpose of identification shown coloured pink on the plan annexed to the Tenancy Agreement No. DLO/SK SX 1811 dated 4 February 1998 2nd Defendant
TAN WAI KEE 3rd Defendant

________________________

Before: Hon K Yeung J in Chambers

Date of Hearing: 6 January 2023

Date of Decision: 6 January 2023

________________________

DECISION

________________________


1. This is the first hearing of the inter partes summons of 30 December 2022 (the “Summons”) taken out by the plaintiff (“P”) for an interim injunction against the 1st and 2nd defendants (“D1” and “D2”) in relation to the use and occupation of a piece of land of about 1,070 square meters (the “Garden”) surrounding a property at Lots 2 and 630 in DD 238 (the “Property”).

2. Only 15 minutes have been sought for the hearing. The matters have quite some history behind it. I am not prepared to deal with the Summons substantively without affording the defendants any chance to file evidence. Relevant to this also is the fact that the Originating Summons herein was issued on 21 July 2022, and the Summons was not taken out until more than 5 months later. The substantive hearing of the Summons will therefore have to be adjourned. But pending that substantive hearing, P seeks an interim-interim injunction in terms of the §§(1)(a) and (1)(b) of the Summons.

3. I recite the following core relevant facts.

4. D1 was adjudicated bankrupt in April 2020. She used to hold 999 of the 1,000 issued shares in P. Upon her bankruptcy, title to the shares passed to her trustees in bankruptcy (the “Trustees”). After a number of legal battles, the Trustees were finally in November 2021 registered as P’s shareholders.

5. P is the legal owner of the Property. It is also the leaseholder of the Garden under a short-term tenancy dated 4 February 1998 from the Government (No. SX1811, the “STL”).

6. The STL contains provisions governing the use of the Garden (confined to “private garden, storeroom and kitchen” – Clause 2(b) read with the First Schedule (the “Permitted Uses”)) and construction thereon (restricted in effect to the existing and specified ones except with prior approval – Clause 2(c) read with the Second Schedule, and Third Schedule Condition 2).

7. D1 used to occupied the Property. That was until July 2022 when she was evicted upon a number of enforcement and execution proceedings for possession of the Property.

8. However, upon eviction, D1 together with certain unknown persons continued to occupy the Garden. It is P’s case that D1 has been occupying the same as her residence, or at least not for the Permitted Uses.

9. On 21 July 2022, P commenced the present proceedings under Order 113 for possession of the Garden.

10. As observed by Lam VP (as the PJ...

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