HCCT7/2003 CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LTD. v. CHERRY CITY CONTRACTORS LTD. AND OTHERS - LawHero
HCCT7/2003
高等法院（建築及仲裁）Deputy High Court Judge A Cheung23/1/2003
HCCT7/2003
由此
A A
B B
HCCT 7/2003
C C
IN THE HIGH COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E E
CONSTRUCTION AND ARBITRATION PROCEEDINGS
F NO. 7 OF 2003 F
____________
G G
BETWEEN
H CHINA STATE CONSTRUCTION Plaintiff H
ENGINEERING (HONG KONG) LIMITED
I I
and
J J
CHERRY CITY
CONTRACTORS LIMITED 1st Defendant
K K
HO SIU PO 2nd Defendant
L L
rd th
OTHERS SHOWN ON SCHEDULE 1 3 -85 Defendants
M M
____________
N N
Before: Deputy High Court Judge A Cheung in Chambers
O
Date of Hearing: 24 January 2003 O
Date of Judgment: 24 January 2003
P P
_______________
Q Q
JUDGMENT
R _______________ R
S S
1. This is an application to continue an ex parte injunction
T granted in favour of the Plaintiff restraining the Defendants from entering T
or remaining in a construction site of which the Plaintiff is the main
U U
V V
由此
A -2- A
B B
contractor and the 1st Defendant used to be the sub-contractor. The 2nd
C
Defendant is the director of the 1st Defendant whereas the other individual C
Defendants were workers working on the site. There can be no dispute that
D D
rightly or wrongly the sub-contract has been terminated, and in those
E circumstances there really is no further right or licence for the various E
Defendants to remain on the site which they did try to do prior to the grant
F F
of the ex parte injunction.
G G
2. At today’s hearing, counsel appearing for the 1st Defendant
H H
does not contest the continuation of the injunction and in any event I can
I see no real ground for anybody to oppose the continuation of the injunction I
in question. Counsel suggests some modifications to the terms. In my
J J
judgment, the ex parte injunction should be continued subject to the
K following modifications. In other words, paragraph 1 of the order made by K
the Honourable Madam Justice Chu on 20 January 2003 be continued until
L L
the earliest of:
M (1) the Plaintiff vacating the site; M
(2) the completion or earlier determination of the main contract
N N
between the Government and the Plaintiff;
O (3) the final determination of the issues between the parties herein; O
or
P P
(4) further order.
Q Q
3. For the avoidance of doubt, the continuation of the injunction
R R
is subject to the first two undertakings given by the Plaintiff through
S counsel that were set out in the original ex parte order. S
T T
U U
V V
由此
A -3- A
B B
4. Further, I make an order substantively in terms of paragraph
C
5.2 of the 2nd Affirmation of Chong Wai Sun dated 24 January 2003 relating C
to the amendment of the names of some of the Defendants, the omission of
D D
some other Defendants from this action and the joinder of one further party
E to the action. For the avoidance of doubt, the injunction order that I E
continued just now should not apply to the new Defendant that I have just
F F
ordered to be joined, i.e. Kwok Kam Tung Super Rich Marine Services Ltd.,
G or the three Defendants (i.e. 5th, 8th and 11th Defendants) who have now G
been omitted from this action.
H H
I 5. On the question of costs, I have fully borne in mind counsel’s I
submissions as well as an authority cited to me by counsel for the 1 st
J J
Defendant, namely, Chermar Productions Proprietary Limited v. Prestest
K Proprietary Limited (1991) 7 B.C.L. 46. The facts in that case are similar K
to ours, but I do bear in mind the correspondence referred to during the
L L
course of argument by Mr Westbrook SC appearing for the Plaintiff
M regarding the repeated warnings given by the Plaintiff to the Defendants to M
vacate the site. I bear in mind the facts in the present case, and the
N N
behaviour of the Defendants including the blockade of the site thereby
O preventing the contract work in question from being carried on after the O
termination of the sub-contract in question.
P P
Q 6. I also bear in mind that the hearing of the ex parte application Q
on notice was actually attended by the 1st and 2nd Defendants’
R R
representatives and submissions were indeed made by their counsel in
S relation to the application by the Plaintiff. S
T T
U U
V V
由此
A -4- A
B B
7. I also bear in mind that in this type of disputes, more often
C
than not, there will not be a trial eventually. If I were to make an order C
reserving costs or make an order on costs that depends on the eventual
D D
outcome of the dispute between the parties at trial, that could lead to the
E undesirable result of either compelling the parties to have a trial in order to E
determine the question of costs or forcing the party who deserves to receive
F F
the costs of this application to abandon his entitlement because it is deemed
G not worthwhile to have a trial just for the purpose of getting costs. G
H H
8. I further bear in mind that in my judgment, the Defendants
I simply had no arguable case or right to remain at the site after the I
termination of the sub-contract. I can well understand why they wanted to
J J
remain at the site or even hinder the construction work pending the
K negotiations between the parties, but that cannot give them any excuse to K
remain on someone else’s land particularly when construction work is being
L L
performed on the land.
M M
9. So for all these reasons, I make an order, in the exercise of my
N N
discretion, that the costs of the present application (including the ex parte
O on notice application) be paid by the 1st and 2nd Defendants, the Plaintiff O
having through counsel informed the Court that it is not seeking costs
P P
against the other Defendants, to the Plaintiff, such costs to be taxed if not
Q agreed. As between the 1st and 2nd Defendants and the other Defendants, on Q
the question of costs, I give the parties liberty to apply.
R R
S S
(Andrew Cheung)
T T
Deputy Judge of the Court of First Instance
High Court
U U
V V
由此
A -5- A
B B
Mr Simon Westbrook SC, instructed by Messrs Herbert Smith, for the
Plaintiff
C C
st
Mrs Dora Chan, instructed by Messrs Cheng, Yeung & Co., for the 1
D Defendant D
E 2nd to 85th Defendants, absent E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
由此
A -6- A
B B
Schedule 1
C Defendants C
D (3) Luck Silk Development Ltd D
(4) Hong Kong Dredging Ltd
E (5) [omitted] E
(6) Daily Active Ltd [as amended]
(7) Top Regal Investment Ltd
F F
(8) [omitted]
(9) Multi-Strategic Investments Ltd [as amended]
G (10) Wing Fat Motor Boat Tug Company [as amended] G
(11) [omitted]
H (12) Sin Shu Kei 冼樹基 H
(13) Lam Tak Po 林特波
I (14) Wong Yuk Hei 黃玉喜 I
(15) Tsui Hei Kuen 徐悕權
J (16) Peter, C. F. Chan 陳財發 J
(17) Gregory K. P. Wong 黃家鵬
K (18) Wong Lam Lion 黃淦良 K
(19) Chung Kwok Ki 鍾國基
L L
(20) Kok Wing Sum 郭永森
(21) Yeung Kwok Keung 楊國強
M M
(22) Leung Koon Sing 梁冠星
(23) Lam Ling 林靈
N N
(24) Leung Bing Chin 梁炳前
(25) Sumuwar, Raju
O O
(26) Yeung Chi Wai 楊志偉
(27) Ng Mou Wa 吳茂華
P P
(28) Lin Yuen Fai 連遠輝
(29) Tse Yik Man 謝翼民
Q Q
(30) Chan Yim 陳染
(31) Chui Yui Wo 徐銳戈
R R
(32) Law Wai Hung 羅惠雄
(33) Chan Kin Shing 陳健誠
S S
(34) Yeung Shu Ching 楊樹清
(35) Chan Chung Yin 陳仲賢
T T
(36) Li Ting Yuen 李鼎元
(37) Luk Chi Ching 陸智禎
U U
V V
由此
A -7- A
B B
(38) Chan Sau Chu 陳秀珠
(39) Tsui Ka Kei 崔嘉冀
C C
(40) Wong Fok Yau 黃福有
(41) Lee Wah Sun 李華新
D D
(42) Ho Kam Mun 何金滿
(43) Chan Mok Shui 陳木水
E E
(44) Cheng Ar Chu 鄭亞珠
(45) Chan Fok Chai 陳福仔
F F
(46) Cheng Fok Loi 鄭福來
(47) Lo Yung Bo 羅容保
G G
(48) Sin Chi Fai 冼志輝
(49) To Au Chai 杜牛仔
H H
(50) Yeung Pak 楊北
I
(51) Wong Wah Geng 黃華根 I
(52) Leung Tai Hay 梁帶喜
J
(53) Chan Yung Hay 陳容喜 J
(54) Chan Kam Fok 陳金福
K (55) Leung Wah Sing 梁華勝 K
(56) Leung Ka Fai 梁家輝
L (57) Lai Yee 黎義 L
(58) Cheng Kam Tong 鄭錦棠
M (59) Fan Sai Fok 樊細福 M
(60) Cheng Bak Hei 鄭北喜
N (61) Lam Tai Shing 林帶勝 N
(62) Leung Chi Keung 梁志強
O (63) Cheung Wah Ken 張華根 O
(64) Lai Wah Sing 黎華勝
P (65) Lai For Sing 黎火勝 P
(66) Chan Yiu Wah 陳耀華
Q (67) Lai To 黎桃 Q
(68) Leung Sin Ping 梁善平
R (69) Leung Kam Sheung 梁錦常 R
(70) Yeung Wah Chai 楊華仔
S (71) Kwok Wing Sum 郭永森 S
(72) Chan Hon Wing 陳漢榮
T (73) Kwok See Lok 郭思樂 T
(74) Wong Sing 黃勝
U U
V V
由此
A -8- A
B B
(75) Ma Kam Tai 馬金帶
(76) Leung Ah Chung 梁亞祥
C C
(77) Cheung Sai To 張世道
(78) Lai Tak Hong 黎得康
D D
(79) Fong Kam Shui 馮金水
(80) Lai Mok Sing 黎木勝
E E
(81) Cheung Hung Chai 張洪仔
(82) Wen Lo 溫佬
F F
(83) Cheng To 鄭桃
(84) Ho Chi Kwong 何志光
G G
(85) Yeung Mok Geng 楊木根
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LTD. v. CHERRY CITY CONTRACTORS LTD. AND OTHERS
由此
A A
B B
HCCT 7/2003
C C
IN THE HIGH COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E E
CONSTRUCTION AND ARBITRATION PROCEEDINGS
F NO. 7 OF 2003 F
____________
G G
BETWEEN
H CHINA STATE CONSTRUCTION Plaintiff H
ENGINEERING (HONG KONG) LIMITED
I I
and
J J
CHERRY CITY
CONTRACTORS LIMITED 1st Defendant
K K
HO SIU PO 2nd Defendant
L L
rd th
OTHERS SHOWN ON SCHEDULE 1 3 -85 Defendants
M M
____________
N N
Before: Deputy High Court Judge A Cheung in Chambers
O
Date of Hearing: 24 January 2003 O
Date of Judgment: 24 January 2003
P P
_______________
Q Q
JUDGMENT
R _______________ R
S S
1. This is an application to continue an ex parte injunction
T granted in favour of the Plaintiff restraining the Defendants from entering T
or remaining in a construction site of which the Plaintiff is the main
U U
V V
由此
A -2- A
B B
contractor and the 1st Defendant used to be the sub-contractor. The 2nd
C
Defendant is the director of the 1st Defendant whereas the other individual C
Defendants were workers working on the site. There can be no dispute that
D D
rightly or wrongly the sub-contract has been terminated, and in those
E circumstances there really is no further right or licence for the various E
Defendants to remain on the site which they did try to do prior to the grant
F F
of the ex parte injunction.
G G
2. At today’s hearing, counsel appearing for the 1st Defendant
H H
does not contest the continuation of the injunction and in any event I can
I see no real ground for anybody to oppose the continuation of the injunction I
in question. Counsel suggests some modifications to the terms. In my
J J
judgment, the ex parte injunction should be continued subject to the
K following modifications. In other words, paragraph 1 of the order made by K
the Honourable Madam Justice Chu on 20 January 2003 be continued until
L L
the earliest of:
M (1) the Plaintiff vacating the site; M
(2) the completion or earlier determination of the main contract
N N
between the Government and the Plaintiff;
O (3) the final determination of the issues between the parties herein; O
or
P P
(4) further order.
Q Q
3. For the avoidance of doubt, the continuation of the injunction
R R
is subject to the first two undertakings given by the Plaintiff through
S counsel that were set out in the original ex parte order. S
T T
U U
V V
由此
A -3- A
B B
4. Further, I make an order substantively in terms of paragraph
C
5.2 of the 2nd Affirmation of Chong Wai Sun dated 24 January 2003 relating C
to the amendment of the names of some of the Defendants, the omission of
D D
some other Defendants from this action and the joinder of one further party
E to the action. For the avoidance of doubt, the injunction order that I E
continued just now should not apply to the new Defendant that I have just
F F
ordered to be joined, i.e. Kwok Kam Tung Super Rich Marine Services Ltd.,
G or the three Defendants (i.e. 5th, 8th and 11th Defendants) who have now G
been omitted from this action.
H H
I 5. On the question of costs, I have fully borne in mind counsel’s I
submissions as well as an authority cited to me by counsel for the 1 st
J J
Defendant, namely, Chermar Productions Proprietary Limited v. Prestest
K Proprietary Limited (1991) 7 B.C.L. 46. The facts in that case are similar K
to ours, but I do bear in mind the correspondence referred to during the
L L
course of argument by Mr Westbrook SC appearing for the Plaintiff
M regarding the repeated warnings given by the Plaintiff to the Defendants to M
vacate the site. I bear in mind the facts in the present case, and the
N N
behaviour of the Defendants including the blockade of the site thereby
O preventing the contract work in question from being carried on after the O
termination of the sub-contract in question.
P P
Q 6. I also bear in mind that the hearing of the ex parte application Q
on notice was actually attended by the 1st and 2nd Defendants’
R R
representatives and submissions were indeed made by their counsel in
S relation to the application by the Plaintiff. S
T T
U U
V V
由此
A -4- A
B B
7. I also bear in mind that in this type of disputes, more often
C
than not, there will not be a trial eventually. If I were to make an order C
reserving costs or make an order on costs that depends on the eventual
D D
outcome of the dispute between the parties at trial, that could lead to the
E undesirable result of either compelling the parties to have a trial in order to E
determine the question of costs or forcing the party who deserves to receive
F F
the costs of this application to abandon his entitlement because it is deemed
G not worthwhile to have a trial just for the purpose of getting costs. G
H H
8. I further bear in mind that in my judgment, the Defendants
I simply had no arguable case or right to remain at the site after the I
termination of the sub-contract. I can well understand why they wanted to
J J
remain at the site or even hinder the construction work pending the
K negotiations between the parties, but that cannot give them any excuse to K
remain on someone else’s land particularly when construction work is being
L L
performed on the land.
M M
9. So for all these reasons, I make an order, in the exercise of my
N N
discretion, that the costs of the present application (including the ex parte
O on notice application) be paid by the 1st and 2nd Defendants, the Plaintiff O
having through counsel informed the Court that it is not seeking costs
P P
against the other Defendants, to the Plaintiff, such costs to be taxed if not
Q agreed. As between the 1st and 2nd Defendants and the other Defendants, on Q
the question of costs, I give the parties liberty to apply.
R R
S S
(Andrew Cheung)
T T
Deputy Judge of the Court of First Instance
High Court
U U
V V
由此
A -5- A
B B
Mr Simon Westbrook SC, instructed by Messrs Herbert Smith, for the
Plaintiff
C C
st
Mrs Dora Chan, instructed by Messrs Cheng, Yeung & Co., for the 1
D Defendant D
E 2nd to 85th Defendants, absent E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
由此
A -6- A
B B
Schedule 1
C Defendants C
D (3) Luck Silk Development Ltd D
(4) Hong Kong Dredging Ltd
E (5) [omitted] E
(6) Daily Active Ltd [as amended]
(7) Top Regal Investment Ltd
F F
(8) [omitted]
(9) Multi-Strategic Investments Ltd [as amended]
G (10) Wing Fat Motor Boat Tug Company [as amended] G
(11) [omitted]
H (12) Sin Shu Kei 冼樹基 H
(13) Lam Tak Po 林特波
I (14) Wong Yuk Hei 黃玉喜 I
(15) Tsui Hei Kuen 徐悕權
J (16) Peter, C. F. Chan 陳財發 J
(17) Gregory K. P. Wong 黃家鵬
K (18) Wong Lam Lion 黃淦良 K
(19) Chung Kwok Ki 鍾國基
L L
(20) Kok Wing Sum 郭永森
(21) Yeung Kwok Keung 楊國強
M M
(22) Leung Koon Sing 梁冠星
(23) Lam Ling 林靈
N N
(24) Leung Bing Chin 梁炳前
(25) Sumuwar, Raju
O O
(26) Yeung Chi Wai 楊志偉
(27) Ng Mou Wa 吳茂華
P P
(28) Lin Yuen Fai 連遠輝
(29) Tse Yik Man 謝翼民
Q Q
(30) Chan Yim 陳染
(31) Chui Yui Wo 徐銳戈
R R
(32) Law Wai Hung 羅惠雄
(33) Chan Kin Shing 陳健誠
S S
(34) Yeung Shu Ching 楊樹清
(35) Chan Chung Yin 陳仲賢
T T
(36) Li Ting Yuen 李鼎元
(37) Luk Chi Ching 陸智禎
U U
V V
由此
A -7- A
B B
(38) Chan Sau Chu 陳秀珠
(39) Tsui Ka Kei 崔嘉冀
C C
(40) Wong Fok Yau 黃福有
(41) Lee Wah Sun 李華新
D D
(42) Ho Kam Mun 何金滿
(43) Chan Mok Shui 陳木水
E E
(44) Cheng Ar Chu 鄭亞珠
(45) Chan Fok Chai 陳福仔
F F
(46) Cheng Fok Loi 鄭福來
(47) Lo Yung Bo 羅容保
G G
(48) Sin Chi Fai 冼志輝
(49) To Au Chai 杜牛仔
H H
(50) Yeung Pak 楊北
I
(51) Wong Wah Geng 黃華根 I
(52) Leung Tai Hay 梁帶喜
J
(53) Chan Yung Hay 陳容喜 J
(54) Chan Kam Fok 陳金福
K (55) Leung Wah Sing 梁華勝 K
(56) Leung Ka Fai 梁家輝
L (57) Lai Yee 黎義 L
(58) Cheng Kam Tong 鄭錦棠
M (59) Fan Sai Fok 樊細福 M
(60) Cheng Bak Hei 鄭北喜
N (61) Lam Tai Shing 林帶勝 N
(62) Leung Chi Keung 梁志強
O (63) Cheung Wah Ken 張華根 O
(64) Lai Wah Sing 黎華勝
P (65) Lai For Sing 黎火勝 P
(66) Chan Yiu Wah 陳耀華
Q (67) Lai To 黎桃 Q
(68) Leung Sin Ping 梁善平
R (69) Leung Kam Sheung 梁錦常 R
(70) Yeung Wah Chai 楊華仔
S (71) Kwok Wing Sum 郭永森 S
(72) Chan Hon Wing 陳漢榮
T (73) Kwok See Lok 郭思樂 T
(74) Wong Sing 黃勝
U U
V V
由此
A -8- A
B B
(75) Ma Kam Tai 馬金帶
(76) Leung Ah Chung 梁亞祥
C C
(77) Cheung Sai To 張世道
(78) Lai Tak Hong 黎得康
D D
(79) Fong Kam Shui 馮金水
(80) Lai Mok Sing 黎木勝
E E
(81) Cheung Hung Chai 張洪仔
(82) Wen Lo 溫佬
F F
(83) Cheng To 鄭桃
(84) Ho Chi Kwong 何志光
G G
(85) Yeung Mok Geng 楊木根
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V