Billion Star Development Ltd v Wong Tak Chuen
Court of Appeal
Civil Appeal No 49 of 2012
Kwan, Fok and Lam JJA
Land Law
26 February, 8 March 2013

Practice of describing defendant as group of unnamed persons —quia timet injunction

The plaintiff (“P”) owned land in a large estate on which a proposed block of flats was to be built. Some residents of the estate opposed this and blocked the only vehicular access within the estate. P sought an injunction against the defendants (“D1–7”).

A number of persons claimed to be D7 and three were joined as parties (“D8–10”). At the hearing for injunctive relief against D7–10, the judge in the lower court rejected D8’s defences, inter alia, that there was a prescriptive right of way over the land including a public pedestrian pavement and that Ds’ presence on the road was an exercise of their constitutional rights. Exercising his discretion, the judge granted an interlocutory injunction against D7 and D10 and a final quia timet injunction against D8–9. D8 now appealed.

Held, dismissing the appeal, that, inter alia:

P had discharged its prima facie burden for the injunction. It was then for D8 to adduce contrary evidence to demonstrate that his intention was otherwise than to continue to participate in acts to interfere with P’s right of reasonable use of the access road. It could also not be either necessary or proportionate for D8 to insist on infringing P’s private property rights where the effect would be to prevent P’s lawful exploitation of the land by its development.

In obiter, there was no reason why Hong Kong should not adopt the practice of referring to a defendant by a generic description of a group of persons without naming any individuals, when the circumstances demanded legal redress of a plaintiff’s interest against a large number of unidentified persons by way of injunctive relief. This could be useful in such an application, subject to certain safeguards.
 

Jurisdictions: 

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