HCA 1380/2012




ACTION NO 1380 OF 2012





also known as
2nd Defendant

Before: Deputy High Court Judge Sakhrani in Chambers

Date of Hearing: 29 October 2012

Date of Judgment: 29 October 2012




1. These proceedings concern the property known as Workshop Unit No. 3, 12th Floor, Guardforce Centre, 3 Hok Yuen Street East, Kowloon(“the workshop”).

2. The plaintiff, the 1st defendant and the 2nd defendant, who are brothers, are the registered co‑owners of the workshop, each holdingone-third share as tenants-in-common.

3. There has been a falling-out in the relationship between the parties, with the plaintiff on one side and the 1st and 2nd defendantson the other side.

4. The plaintiff and the 1st defendant are also partners in a business known as Gem Lustre Company (“Gem Lustre”) which, untilrecently, carried on business at the workshop.

5. On 9 July 2012, the registered address of Gem Lustre was changed by the 1st defendant to a residential address at Windsor Mansion,Tsim Sha Tsui, without the knowledge of the plaintiff. The 1st defendant also changed the lock to the workshop. The plaintiff previouslyhad a key to the workshop, but he was unable to gain entry to the workshop after the lock had been changed.

6. The 1st defendant has refused to let the plaintiff enter the workshop as from July 2012.

7. The plaintiff brings this action seeking an order for sale of the workshop under the Partition Ordinance, Cap. 352. He also seeks an order against the 1st defendant prohibiting him from having access to and using the workshop insofaras his use of the same is reasonable and from doing any act to oust him from the workshop. He also claims damages.

8. In the application before me by summons dated 6 August 2012, the plaintiff seeks an interlocutory injunction restraining the 1stdefendant from prohibiting him from having access to and using the workshop insofar as his use of the same is reasonable and fromdoing any act to oust him from the workshop.

9. On the evidence before the court I am satisfied that there is a serious question to be tried as to whether the plaintiff is a beneficialowner of the workshop or whether he is a mere nominee of the 1st and 2nd defendants as they allege. This is a matter to be resolvedat trial. Suffice it to say, I am satisfied that there is a serious question to be tried as to this.

10. I go on to consider the balance of convenience.

11. As to the balance of convenience, the governing principle is that the court should first consider whether, if the plaintiff wereto succeed at trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damagesfor the loss he would have sustained as a result of the defendants continuing to do what was sought to be enjoined between the timeof the application and the trial. If damages in the measure recoverable at common law would be adequate remedy and the defendantwould be in the financial position to pay them, no interlocutory injunction should normally be granted however strong the plaintiff’sclaim appeared to be at that stage (per Lord Diplock in American Cyanamid v Ethicon Limited [1975] AC 396 at 408).

12. The evidence shows that since the acquisition of the workshop in September 2006 the plaintiff has only visited the workshop twice,once in 2008 and the other occasion in 2010. It is common ground that the plaintiff lives in the USA and he has not been a frequentvisitor to Hong Kong.

13. The registered address of Gem Lustre has already been moved to the address where the plaintiff temporarily stays when he is in HongKong. The evidence also shows that there are two other businesses which are operating at the workshop, namely NB Diamonds and ARJewels. The plaintiff has no interest in these two businesses.

14. The plaintiff asserts a right to enter the workshop as a co‑owner. He has been ousted by the 1st defendant from entering theworkshop as from July 2012. Despite Mr Chan’s submissions, I am unable to see why damages would not be an adequate remedy for theplaintiff should he succeed in his claims at trial. He would then be entitled to damages for being ousted.

15. Where a co‑owner ousts another co-owner from the property they co‑own, he will be liable for an occupation rent (see paragraph53 of the judgment of Woo J., as he then was, in Tang Yin Ling v Wong Sai, HCMP No. 2527 of 1992, 22 July 1994). I do not see any difficulty in engaging experts to give their valuation on market rent forthe purpose of assessing damages in the event the plaintiff succeeds at trial.

16. I would also observe that there is no evidence in the material before me to suggest that the plaintiff has any real need to enterthe workshop between now and the time of trial. As I have said, the registered address of Gem Lustre has already been moved elsewhereto where the plaintiff resides when he is in Hong Kong. The remaining businesses operating at the workshop are businesses in whichthe plaintiff has no interest.

17. I am satisfied that damages would be an adequate remedy for the plaintiff should he succeed at trial. That being so, I dismissthe plaintiff’s application by summons dated 6 August 2012.

(Arjan H Sakhrani)
Judge of the Court of First Instance,
High Court

Mr P K Chan, instructed by Eric Yu & Co, for the plaintiff

Ms Janine Cheung, instructed by Dissanayake & Associates, for the 1st defendant