THE POOL CO LTD v. SINO RISE REALTY LTD AND ANOTHER

HCA 1755/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1755 OF 2012

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D E C I S I O N
(Variation of Costs Order Nisi)

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Introduction

1.  On 26 September 2014, I handed down a judgment (“Judgment”) dismissing P’s Order 14 Summons which sought the following orders:

(a) final judgment for an injunction restraining the D1 and D2  from, among other things, causing, permitting or allowing any trespass or nuisance to P’s  property;

(b) interlocutory judgment on liability against Ds with damages to be assessed for trespass, nuisance, physical damage and loss of use and enjoyment of P’s property, in particular an open area working platform.

2.  In the Judgment, I made an order nisi that Costs of the Order 14 Summons be to Ds (“Order Nisi”).

3.  On 6 October 2014, D1’s solicitors wrote to the court seeking a direction from the court that the Order Nisi be varied to the extent that P to pay Ds’ costs of the Order 14 Summons with certificate for counsel forthwith to be assessed summarily.  D2 agreed to the direction sought by D1.

4.  On 16 October 2014, P took out a summons to seek a variation of the Order Nisi, and to seek an order that costs of the Order 14 Summons be costs in the cause.

Relevant Principles

5.  P’s Counsel, Mr Roy Lau, submitted that if the court were to find that a defendant had raised triable issues, the normal order for the court would be to grant unconditional leave to defend and that the usual order would be costs in the costs[1], although under Order 14 rule 7, the court could dismiss the application with costs in certain circumstances.

6.  Order 14 rule 7 of the RHC states as follows:

“If the plaintiff makes an application under rule 1 where the case is not within this Order or if it appears to the Court that the plaintiff knew that the defendant relied on a contention which would entitle him to unconditional leave to defend, then, without prejudice to Order 62 and in particular to rule 4(1) thereof, the Court may dismiss the application with costs and may require the costs to be paid by him forthwith.”

7.  As has been said by Mr Recorder Fok (as he then was) in Cyberworks Audio Video Technology Limited and Silver Kent Technology Limited HCA 2780/2006 (18 August 2009), the provisions of Order 14 rules 7 are not mandatory and under that rule, the court may (rather than must) dismiss the summons and award costs to a defendant where a plaintiff has issued his application having been made aware of the contention which would be relied upon in defence of the claim[2].

8.  The relevant principles on dismissing an application for summary judgment with costs to the defendant have also been set out by DHCJ Marlene Ng in Sin Yuk Hung v Sin Tung San, HCA 474/2013 (20 February 2014) who has referred to a number of authorities in her decision.

9.  DHCJ Ng had said in Sin Yuk Hung in relation to the court’s inherent power to dismiss an application for summary judgment as follows :

“I note that the court does not have to rely on the express power in Order 14 rule 7 of the RHC to dismiss an application for summary judgment for either of the two circumstances set out in the rule, which implicitly suggested that the court has broader powers of dismissal than just prevention of abuse of process[3].…”

10.  DHCJ Ng then went on to refer to what was stated in paragraph 14/7/1 of HKCP 2014 Vol 1, and cases referred thereunder, and in particular a more recent case Simba-Toys (Hong Kong) Limited v Fullmore Corporation Limited[4] where DHCJ A Chow, as he then was, had also said that the inherent power of the court to dismiss an Order 14 application was not limited to the two situations set out in Order 14 rule 7.

11.  There was no dispute in relation to what was stated by DHCJ A Chow or DHCJ Ng.  It was also not disputed between the parties that whether under Order 14 rule 7 or not, upon dismissal of the Order 14 application, the court is not bound to order costs against the unsuccessful plaintiff, and the court has a discretion to make other appropriate costs orders.

Submissions

12.  Mr Lau submitted that from the authorities the court’s discretion to dismiss a summary judgment with costs to the defendant would be exercised in the following 5 situations:

(i) The summons for summary judgment falls outside the rule of Order 14;

(ii) It is an abuse of process by the by the plaintiff to use the summary judgment application to compel or induce the defendant to disclose on oath the nature of his defence;

(iii) The plaintiff has made admission or acknowledgment of the defendant’s case that it is plain and obvious that the acknowledgment will lead to a clear defence;

(iv) The plaintiff’s own pleadings are defective or there are inherent problems with the plaintiff’s case;

(v) The plaintiff has no locus standi to sue or the case displays no cause of action.

13.  Mr Lau submitted that the present case did not fall within any of the above 5 situations, and that the court in the present case only found that there were triable issues and that in the circumstances, a more appropriate costs order in the circumstances should be costs in the cause.

14.  D1’s Counsel, Ms Elizabeth Cheung, submitted that what Mr Lau was seeking to argue was in fact that the Order 14 Summons should not have been dismissed.  It was Ms Cheung’s case that P plainly knew that D1 had relied on a contention which would entitle it to unconditional leave to defend, thus making the Order 14 procedure not the correct procedure.  She had referred to the case of Bang & Olufsen A/s v To Hok Chung t/a Mirage Electronics Industries Co HCA 2596/2005 (8 May 2006) where DHCJ Muttrie had said that the points the defendant relied on were all raised in the defence and thus the plaintiff knew the contention which would entitle the defendant to unconditional leave to defend[5].

15.  Ms Cheung also relied on what Stone J had said in Sterling Services Limited and Tan Kee Cheang and Patrick Ko Siu Shing HCCL 72 of 2002 (28 August 2003) where it was said that in embarking on the Order 14 application, the plaintiff knew the substance of the principal defence raised, given that the pleaded defence antedated the institution of the summary judgment application by almost 4 months[6].

16.  Counsel for D2, Ms Pauline Leung, made similar submissions, namely that the plaintiff knew the substance of the principal defence raised and  that:

(i) On the permanent injunction, there was no dispute that by the time the Order 14 Summons was taken out, all construction works had been completed and the last complaint of acts of trespass/nuisance was in July 2013, and that there was no sufficient evidence that the alleged wrongful acts would be repeated or continued to justify a final or permanent injunction;

(ii) On the interlocutory judgment with damages to be assessed, the court found that there were triable issues as to causation of water accumulation and flooding, factual disputes of wrongful acts after the interim injunction up to July 2013, and whether measures taken by D2 were reasonable.

Discussion   

17.  In the present case, P had issued the Order 14 Summons about two months after Ds filed their respective amended defences.   However, at the hearing of the Order 14 Summons, no Counsel had referred to Order 14 Rule 7 nor made any submissions thereunder, although Ms Leung, Counsel for D2, in her skeleton submissions had sought seek a dismissal order with costs, and Mr Lau, Counsel for P, had submitted at the hearing that in the event that the court was minded to grant leave to defend, then costs should be in the cause.  The court then indicated that either the costs would be reserved or a costs order nisi would be made.

18.  Thus, there were no submissions made at the hearing that the Order 14 Summons should be dismissed under Order 14 rule 7. 

19.  Both Ms Cheung and Ms Leung now sought to rely on Order 14 rule 7 and submitted that P knew that Ds would rely on a contention which would entitle them to unconditional leave to defence, their respective Defences antedated the Order 14 Summons.

D1’s Defence

20.  As I had said in the Judgment, D1’s position was quite different from D2’s, D1 being the owner KC Plaza and D2 was its independent contractor for the Construction Works on the Site.  However, in the ASOC, P’s case in the ASOC was pleaded against D1 and D2 without distinguishing their different positions.  In so far as D1 was concerned, the main issues were (a) whether D1 had “procured, caused, authorized, permitted or allowed” the alleged wrongful acts; (b) whether D1 “knew or ought to have known” the alleged wrongful acts of D1 and/or D2 or its employees, workers, contractors or subcontractors; and (c) whether D1 had failed to take reasonable steps to stop the alleged wrongful acts.

21.  There were three periods of time :

(i) Prior to the letters dated 5 September 2012 sent by P’s solicitors to Ds (“05.09.12 Letters”);

(ii) Between Ds’ receipt of the  05.09.12 Letters to the date of the interim junction on 28 September 2012;

(iii) From 28 September 2012 until the final construction phase in July 2013.

22.  D1’s defence was that it had acted reasonably in entrusting the Construction Works to D2, and it denied any knowledge of those alleged wrongful acts or problems/incidents alleged by P, or that it had “procured, caused, authorized permitted or allowed” any of the wrongful acts pleaded by P in the ASOC[7].

23.  The majority of D1’s amended defence consisted of denials and or non-admissions, except that there were particulars set out in D1’s defence in relation to (i) reasonable steps in entrusting the Construction Works to D2; (ii) reasonable measures taken to prevent any wasted construction materials falling to FP Platform after receipt of the 05.09.12 Letters from P, namely posting and issuing notices.  D1 said it had acted responsibly and reasonably after D2 was engaged and if there was any damage suffered by P, then it would be D2 that was liable and not D1.

24.  In D1’s director Mr Lee’s affirmation filed on 14 March 2014 in opposition to the Order 14 Summons, there was additional evidence produced by D1, disclosing other measures/steps after receiving P’s 05.09.12 Letter, such as reminders to D2’s representatives at weekly Friday meetings and letters sent by D1’s architect to D2.

25.  No affirmation had been filed on behalf of P to challenge what Mr Lee had said in his affirmation.  There was no real challenge from P that D1 had acted reasonably in entrusting the Construction Works to D2[8].

26.  Mr Lau had submitted at the hearing of the Order 14 Summons that it was futile for D1 to argue that D2 was carefully selected as an independent contractor, as it was clear that the alleged wrongdoings of D2 were totallyforeseeable in an construction site and would result in nuisance to its neighbour and that D1 took no reasonable action to prevent or stop D2 from creating the nuisance to P.  I have set out in the Judgment circumstances in which a person will be liable for nuisance[9], and in the case of nuisance created by an independent contractor, it would depend on whether a person could reasonably have foreseen that the work he had instructed the independent contractor to do was likely to result in a nuisance.

27.  In the Judgment, I concluded that whether D1 could reasonably have foreseen that the Construction Works would likely to result in a nuisance and whether D1 had taken reasonable steps after the Interim Injunction were disputed factual matters which should be allowed to go to trial.

28.  In the present case, what P had pleaded in the ASOC was that D1 “ought to have known” the alleged wrongful acts.  This was simply denied by D1 in its Amended Defence, with no particulars.  D1 did not make any request for P to provide further and better particulars either.   Having said this, that the alleged wrongful acts of D2 ought to have been reasonably foreseen by D1 was not specifically pleaded by P in the ASOC, and hence not addressed in the Amended Defence.    

29.  Although I will not go to the extent of saying that P’s pleadings against D1 were defective, in my view there were ambiguities in P’s ASOC as to P’s case against D1, without distinguishing D1’s position from D2’s.  Having considered all the above circumstances, I maintain the view that P should pay D1’s costs of the Order 14 Summons, but I decline to order P to pay D1’s costs forthwith.  I am only prepared to vary the Order Nisi to that P shall pay D1 the costs of the Order 14 Summons in any event, and that such costs are to be taxed on party and party basis, if not agreed, with certificate for counsel.  As P has not succeeded in his variation application as against D1, I will also order that costs of the variation application be to D1 in any event.

D2’s Defence

30.  So far as D2 was concerned, I declined to grant the permanent injunction mainly because it was no longer necessary as the Constructions Works had been completed after July 2013, and that damages would provide an adequate remedy.  

31.  P had in its ASOC alleged various wrongful acts of D2 and as a result there were various incidents which caused loss and damage to P.  

32.  D2’s Amended Defence consisted entirely of bare denials and/or non-admissions, and there were no particulars.  D2 had served a request for further and better particulars on P and had reserved its right to plead further after P’s provision of the further and better particulars.  In its request, in particular, D2 had sought particulars as to which drainage pipes or system were alleged to be blocked by D2 which caused accumulation of rainwater on the roof.  P filed its answers in February 2014, and stated such drainage/water pipes “include but not limited to the drainage/water pipes on the FP Roof leading down to the FP Platform and those on the FP Platform”.  After the answers, there had not been any further requests by D2, nor any amendments to D2’s Amended Defence.

33.  In its Amended Defence, D2 had denied that any acts or omissions on its part caused the events alleged by P in the ASOC, and had further averred that such events were solely and/or partly caused by P’s own negligence. 

34.  In Mr Lui’s affirmation filed on behalf of D2 in opposition to the Order 14 Summons, he had stated the measures/steps taken by D2 after the interim injunction and that the main issues were whether (i) the water accumulation on the roof and water dripping from the ceiling of the 6/F of the FP Centre on about 31 August 2012 and (ii) the serious flooding on about 24 September 2012 were caused by blockage of drainage/water pipes, and if so, whether such blockage of pipes was caused by the waste materials allegedly dumped on the FP Platform by D2. 

35.  It was at the hearing of the Order 14 Summons that Ms Leung raised the issue as to expert evidence would be required on the causation of the water dripping from ceiling of 6/F and the serious flooding.

36.  As stated in the Judgment, I came to the conclusion that the issues of the causation of the water accumulation on the roof and the serious flooding, and also whether reasonable measures/steps had been taken by D2 after the Interim Injunction were triable issues and that the matter should go to trial.

37.  Having considered all the above, in so far as D2 is concerned, none of the 5 situations summarised by P would apply, I dismissed the Order 14 Summons against D2 only on the basis that there were triable issues.  In the circumstances, I am persuaded that in so far as D2 is concerned, the Order Nisi should be varied to that costs be in the cause, with certificate for Counsel.

Conclusion

38.  In light of the above, my orders are:

(i) In relation to D1,  the Order Nisi shall be varied to that P shall pay D1’s costs of the Order 14 Summons and also the variation application  in any event, such costs to be taxed on party and party basis, if not agreed, with certificate for counsel;

(ii) In relation to D2, the Order Nisi shall be varied to that the costs of the Order 14 Summons and also the variation application be costs in the cause, with certificate for counsel.

Mr Roy Lau, instructed by Alan Ho & Co, for the plaintiff

Ms Elizabeth Cheung, instructed by Tony Kan & Co, for the 1^st defendant

Ms Pauline Leung, instructed by Chung & Kwan, for the 2^nd defendant

[1] HKCP para 14/7/3

[2] At para 43, pg 14

[3] Para 17, pg 8-9

[4] HCA1599/2008, DHCJ A Chow SC, unreported, 20 February 2009

[5] At para 28, pg 11-12

[6] At para 15, pg 6

[7] See para 23, Judgment

[8] See para 37, Judgment

[9] At paras 39-40

HCA 1755/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1755 OF 2012

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J U D G M E N T

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Introduction

1. The plaintiff’s action against the defendants (collectively “Ds”) was based on trespass and nuisance, which arose out of alleged wrongful acts of Ds, and the plaintiff (“P”) claimed a final injunction, and damages for trespass, nuisance, physical damage to its building and for loss of use and enjoyment of its building or part thereof.

2. P had taken out a  summons for summary judgment (“Order 14 Summons”), seeking :

(a)  final judgment for an injunction restraining the 1^st and 2^nd defendants (respectively “D1” and “D2”) from, among other things, causing, permitting or allowing any trespass or nuisance to P’s  property;

(b)  interlocutory judgment on liability against Ds with damages to be assessed for trespass, nuisance, physical damage and loss of use and enjoyment of  P’s property, in particular an open area working platform.

Background

3. P, D1, and D2 are all limited companies incorporated under the laws of Hong Kong.

4. P is the owner of a building known as Fast Plus Center, No 16, On Lok Mun Street, Fanling, New Territories (“FP Centre”). 

5. D1 is the owner of a building adjacent to the FP Centre, which is known as Kawada Commercial Plaza (“KC Plaza”), situate at Sheung Shui Town Lot No 239 commonly known as 15, On Kui Street, On Lok Tsuen, Fanling, New Territories (“Site”).

6. At all material times, D2 is a construction company engaged by D1 as the main contractor to conduct construction works for the redevelopment of KC Plaza on the Site (“Construction Works”).

7. FP Centre has an open area working platform on the 1^st floor (“FP Platform”).

8. On about 31 August 2012, P found various problems in FP Centre which were allegedly caused by wrongful acts of D1 and/or D2. Thereafter, workers carrying out the Construction Works were also allegedly found on the FP Platform.

9. All this led P to issue a writ endorsed with a statement of claim on 21 September 2012.  On 25 September 2012, P issued a summons for an interim injunction to restrain the defendants (collectively “Ds”) from any trespass and/or nuisance to P’s property, which was granted on 28 September 2012 (“Interim Injunction”).  The directors of D2 and representatives of D1 were present at this hearing.  By consent of all parties, the Interim Injunction was ordered on 6 November 2012 to continue until the trial of the action.

10. It was P’s case that notwithstanding the Interim Injunction and the continuation thereof, the alleged wrongful acts of Ds continued up till the final construction phase of KC Plaza in July 2013.  The statement of claim had since been amended to include such wrongful acts (“ASOC”).

11. Further, the continued wrongful acts after the Interim Injunction had led to P to commence committal proceedings against D2 in March 2013, which were eventually settled in about May 2013 since all the Construction Works had been completed on 16 May 2013 and scaffoldings were dismantled.  The Site was subsequently handed over to D1 in October 2013.

12. Ds denied any wrongdoing, and had also pleaded contributory negligence on part of P.  Although initially, Ds filed a joint defence on 19 November 2012, later after they became separately represented, and each had filed an amended defence of its own, respectively on 11 November 2013 (“D1’s Defence”), and on 25 November 2013 (“D2’s Defence”).

13. P issued the Order 14 Summons about two months after Ds filed their respective amended defences.

General legal principles on Order 14 applications

14. It is trite that in an Order 14 application, the defendant has the burden to satisfy the court with respect of the claim, or part of the claim, that there is a triable issue or some other reason to be tried.

15. As has been said by Cheung JA in Paul Y Management Ltd v Eternal Unity Development and Others, unrep, CACV 16/2008, 12.08.2008:

“In deciding whether a plaintiff is entitled to summary judgment the relevant test is whether the defendant has raised credible triable issues. If there are, the matter should go to trial. If not, judgment should be entered against the defendant. In considering whether there are triable issues the Court will, of course, not take the alleged defence on its face value but test it against the evidence disclosed in the affidavit including matters such as contemporaneous documents, whether the alleged defence is inconsistent with the defence previously put forward or whether the defence is only recently raised despite opportunity being given to the defendant to respond earlier. …[1]”

16. P’s Counsel, Mr Roy Lau, had referred to paragraph 14/4/8 of the Hong Kong Civil Procedure2014 Volume 1 where it is stated that when the judge is satisfied not only that there is no defence but no fairly arguable point to be argued on behalf of the defendant it is his duty to give judgment.  Further where in an action for unliquidated damages, the liability of the defendant is clearly established, whether by the evidence or by admission or by submission, the court should give judgment for the plaintiff with costs for damages and interest thereon to be assessed.

17. D1’s Counsel, Ms Elizabeth Cheung, had referred this court to what was said by Bohkary JA, as he then was in Re Safe Rich Industries Ltd  CACV 81/1994, unreported  3.11.1994 :

“The test at the summary stage is indeed as simple as whether the defendant’s assertions are believable. But it must be recognized - because failure to recognize it would create a debt-dodger’s charter - that whether the defendant’s assertions are believable is a question to be answered not by taking those assertions in isolation but rather by taking them in the context of so much of the background as [is] either undisputed or beyond reasonable dispute[2]. ”

18. Ms Cheung had also referred to the “warning” given by Godfrey JA in Man Earn Ltd v Wing Ting Fong [1996] 1 HKC 225 :

“I would express the hope that those practitioners, of whom there are too many, who appear to be prepared to advise every client with what seems to be a good case to invoke this extraordinary procedure, without reflecting on the fact that, if the attempt fails, the result will be to keep the plaintiff out of the judgment to which he may well be entitled for far longer than would have been the case if they had concentrated, instead, on bringing the matter to trial, will in future think twice before giving such advice[3].”

19. As pointed out by Ms Cheung, an Order 14 application is not intended to be a mini trial on affidavits and where there are complicated factual issues, the Order 14 procedure is clearly not the correct procedure[4].

20. I now turn to the present application.

P’s Case

21. As mentioned earlier, P’s claims against D1 and/or D2 were based on alleged trespass and nuisance and P claimed damages against both Ds.

22. P’s Order 14 Summons was supported by the 3^rd affirmation of its director, Chung Tsi Kuen (“Chung”).  Chung and also P’s security guard Yeung Chi Keung (“Yeung”) had earlier filed affirmations to support P’s application for the Interim Injunction.  In his 3^rd affirmation, Chung had deposed to various problems/incidents including the following:

Date/Month	Some of the Problems/Incidents alleged by P	P’s supporting evidence
On about 31.08.12	P discovered (1)  a lot of wasted construction material dumped on the FP Platform clogging the drainage pipes for rainwater on roof of FP Centre, causing accumulation of rainwater on roof and water dripping from ceiling of the top floor (2)  bamboo scaffolding of KC Plaza erected on FP Platform (3)  external walls of FP Centre and security lighting lamps on walls of FP Platform damaged  bamboo scaffoldings blocked security lighting lamps	Photos A:194-196 A:197-200
On about 01.09.12	Workers from KC Plaza, climbed through the scaffolding and entered FP Platform with drills and other equipments etc	Video A:201 Security guard had asked a worker to remove all equipment from FP Platform
On about 03.09.12	Workers from KC Plaza climbed through scaffoldings and entered the FP Platform, and one of them admitted they were working for D2 when asked by P’s security guard	Video A:202
On 07.09.12	Workers or agents of Ds again entered the FP Platform with construction equipment through the bamboo scaffolding	P reported to police (ReportNo SSRN12030424)[5]
After 07.09.12	Workers or agents of Ds continued to enter the FP Platform with construction equipment	Photos A:280 and Video A:281
On about 24.09.12 Amber Rainstorm signal, which soon changed to Red signal	(1) Drainage system blocked by wasted construction materials dumped by workers of KC Plaza, causing: (i) serious flooding on the FP Platform, (ii) flooding on 1/F, spreading to G/F, (iii) flooding caused serious problems and damage to electricity system and different areas of FP Center (iv) flooding on the roof	Videos: A:211 A:286-28 A:294
On about 26.09.12	Fluid state concrete from KC Plaza had spilled and flown down onto the FP Platform continuously	Videos A:295-297
On about 04.10.12	Wooden plank of about 2-3 ft long from the KC Plaza hit and broke a glass window on FP Platform	P made report to police A:303
On about 16.10.12	Bamboo stick of over 10 ft long from the KC Plaza fell and hit the FP Platform	Photos A:307-310
11.12 to 01.13	(1) Waste material from KC Plaza continued to accumulate on FP Platform (2) wet concrete from KC Plaza continued to spill onto the FP Platform unknown chemicals (white and foam shape) started to emerge from walls of KC Plaza and spilled over onto the adjacent walls of the FP Center and dripped onto the FP Platform	Photos A:312-327
10.05.13	Rubber foam and PVC pipe being found	Report to police[6]
Up until July 2013	Ds continued to cause and allow waste material to be fallen, dumped or left on the FP Platform

D1’s Defence

23. D1’s case was that it had acted reasonably in entrusting the Construction Works to D2 and denied any knowledge of those problems/incidents alleged by P or that it had authorized or allowed any of the wrongful acts pleaded by P in the ASOC.  D1 admitted to having received a letter dated 5 September 2012 from P’s solicitors[7] and said upon receiving notice of the matters complained of by P, it, as owner of KC Plaza, it had taken reasonable measures and/or steps to prevent any wasted construction materials falling onto the FP Platform.

24. It was further or further alternative of D1’s case that if P was unable to use, occupy or enjoy the FP Platform in normal manner, the same was wholly due to the faulty execution of the Construction Works by D2[8].

25. D1 had also averred that if it was held liable to P, then any damages awarded to P should be reduced by the extent of P’s contributory negligence[9].

Trespass

26. Trespass to land consists in any unjustifiable intrusion by one person upon land in the possession of another, and the slightest crossing of the boundary is sufficient[10].  Further, trespass differs from nuisance in that it is a direct as opposed to a consequential injury, and is actionable without proof of damage, whereas damage must be proved in nuisance[11].

27. D1’s position in the present case was quite different from D2’s in that D1 was the owner/employer and D2 was the independent contractor.  However, P’s case in the ASOC was pleaded against them without distinguishing their different positions.

28. It was not disputed by all parties that other than having engaged D2 as the main contractor, D1 was not engaged at all in the actual carrying out of the Construction Works on the Site.   As mentioned earlier, D1 had denied any knowledge of the problems/incidents.  P admitted to receiving the letter dated 5 September 2012 from P’s solicitors and D1’s solicitors had replied on 10 September 2012 that P had no knowledge of the alleged wrongdoings and that it was making enquiries from its main contractor D2, and in the mean time, requesting P to withhold all legal proceedings.

29. The video taken on 3 September 2012 only showed a workman on the FP Centre claiming he was employed by D2.  At this stage, there cannot be a determination simply based on the affidavit evidence before this court as to whether D1 had in fact trespassed or “procured, caused, authorized, permitted or allowed” the wrongful act of trespass by its agents.  I am of the view that so far as the alleged trespass by P is concerned, there is a triable issue.

Nuisance

30. Ms Cheung had referred this court to paragraphs 6-56 and 6-57 under “Vicarious Liability” in Clerk & Lindsell on Torts, 20^th Ed on the law on liability for owners/employers where independent contractors have been engaged, and also to those paragraphs from Clerk & Lindsell quoted by Recorder Kwok SC in Tsang Hing Cheung and Chan Po Ling Stella & Others in HCPI 869/2001, unreported, 20.11.02[12]. 

31. I will not set out in detail those quoted or relevant paragraphs from Clerk & Lindsell, save that the principles extracted therefrom  would appear to be as follows:

(1)  The general rule is that an employer is not liable for the negligence of an independent contractor[13].

(2)  The above general rule is subject to the following circumstances, or ‘exceptions’[14]:

(i)  The damage complained of, although may have been caused by the wrongful act or omission of an independent contractor or his employee,  may also be attributable to the negligence or other personal fault of the employer, such as, if the employer has committed a tort by  having negligently selected an incompetent contractor, or having employed insufficient number of men, or having interfered with the manner of carrying out the work resulting in the damage, he will himself have committed a tort for which he can be held liable, or if the employer has authorized or ratified the independent contractor’s tort, then the employer will be jointly liable for that tort[15] (emphasis added);

(ii)  If the circumstances are such that the law imposes a strict or absolute duty upon the employer, then he cannot discharge his duty by delegating performance of the work in question to an independent contractor (emphasis added).  Such strict or absolute duties are often described as ‘non-delegable’ and may arise either by statute or at common law (“Non-Delegable Duties”)[16].

(iii)  What a statute requires a person to do a particular act, and an independent contractor employed by him fails to do that act, he cannot escape liability by pleading that the fault was not his, but was that of his independent contractor[17].

(iv)  The difficulty is to know when a Non-Delegable Duty exists at common law.  Whether a Non-Delegable Duty will be imposed “is one of policy for the courts to determine by reference to what is fair, just and reasonable”[18]. (emphasis added)

32. Some examples of cases where Non-Delegable Duties have been recognized by the courts have also set out in paragraphs 6-60 to 6-71 Clerk & Lindsellon Torts 20^th Ed.  Liability for nuisances caused by independent contractors is said by the learned authors to be “not terribly straightforward”[19].  On one hand there was the case of Spicer v Smee [1946] 1 All ER 489 which supported the view that the occupier would not be liable in nuisance for the act of his independent contractor.  On the other hand, Matania v National Provincial Bank Ltd [1936] 2 All ER 633, an earlier case supported the contrary thesis, namely that liability for the act of the independent contractor would depend on whether the work had entailed an inherent risk of creating a nuisance.  Slesser LJ in Matania had said that “If the act done is one which in its very nature involves a special danger of nuisance being complained of, then the employer of the contractor will be responsible if there is a failure to take the necessary precaution that the nuisance shall not arise”[20].  The learned authors of Clerk & Lindsell submitted that this should be the correct approach[21].

33. Another example where it had been held a Non-Delegable Duty existed was where the works involved “extra-hazardous acts”.

34. Relying on the above principles, Ms Cheung submitted that D1 had acted reasonably in selecting D2 as independent contractor and had taken all reasonable steps to satisfy itself and prior to the incidents complained of by P, had been satisfied that D2 was competent to commence, carry out and complete the Construction Works.  Further, the Construction Works were not “extra-hazardous acts” and did not fall within any of the “exceptions” to the general rule.

35. D1’s director, a Mr Lee Man Kin (“Lee”) had made an affirmation to oppose the Order 14 Summons.  In his affirmation, Lee explained the background leading to KC Plaza being erected, and that initially in around 2010, D1 had engaged another main contractor which ran into financial difficulties, after finishing the foundation works for KC Plaza, and was unable to continue.  In its replacement, D2 was eventually engaged as the main contractor in 2012.

36. According to Lee, D2 was picked because it was a very experienced registered general building contractor in Hong Kong having held the relevant construction licence for over 20 years and another main reason was that D2 had been engaged to construct 5 blocks of buildings in the vicinity of KC Plaza, including P’s FP Centre. 

37. There was no real challenge from P that D1 had acted reasonably in entrusting the Construction Works to D2.  There was no affirmation filed on behalf of P in reply to Lee’s affirmation. 

38. Mr Lau referred to various passages in Clerk & Lindsell, where it is stated that an actual wrongdoer will be liable for a nuisance whether or not he is in occupation of the land[22].  The wrongdoer may create the nuisance either personally or by his servants or agents, and that he is liable on this ground if he authorizes a licensee to burn bricks upon his land, thereby creating a nuisance or if he allows gypsies to camp on his land so as to be a nuisance from their noise and the insanity conditions of the camp[23]. 

39. Further, whether a person can be said to be a wrongdoer if the nuisance is created by his independent contract depends on whether he could reasonably have foreseen that the work he has instructed the independent contractor to do would likely to result in a nuisance[24].  Mr Lau had referred to the passage quoted by the authors of Clerk & Lindsell from the case of Bower v Peate where Cockburn CJ had said:

“A man who orders work to be executed from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing someone else –whether it be the contractor employed to do the work from which the danger arises or some independent person – to do what is necessary to prevent the act he has ordered to be done from being wrongful[25].”

40. To summarise, a person will be liable for nuisance, as the wrongdoer, in the following circumstances :

(i)  If he is the actual wrongdoer, whether or not he is in occupation of the land[26];

(ii)  The wrongdoer may create the nuisance either personally or by his servants or agents, authorized by him to do certain acts which create a nuisance[27];

(iii)  Whether a person can be said to be a wrongdoer if the nuisance is created by his independent contractor will depend on whether he could reasonably have foreseen that the work he had instructed the independent contractor to do was likely to result in a nuisance[28];

41. Sub-paragraph (iii) above applied to the creation of dangers in the highway, and to the interference with the right of support, and it had has not been confined to public nuisances but also applied to cases of private nuisance where it appeared that the nature of the work involved inherent dangers, being itself  “a dangerous operation”[29].

42. In light of the above principles, Mr Lau had submitted that it was futile for D1 to argue that D2 was carefully selected as an independent contractor, and that it was clear that the wrongdoings of D2 were totally foreseeable in a construction site and would result in nuisance to its neighbour. 

43. According to its director Lee, D1 is a company of which the sole shareholder is Ms Suen Wai Kwan, Samantha (“Suen”). Lee deposed that he and Suen only came to know of any issues relating to the debris at the Site of the Construction Works after they received the letter from P’s solicitors dated 5 September 2012.  According to Lee, he and Suen made only sporadic visits to the Site, and not on a regular basis and when they arrived at the Site, all the Construction Works would be halted as the workers would greet them and would stop work, and this had a disruptive effect on the construction.  Hence Suen and Lee would visit the site only once every 5 or 6 weeks.

44. Further, according to Lee, D1 had taken the following steps after the Interim Injunction :

(i)  D1 had posted written notices dated 29 September 2012 at the Site;

(ii)  D1 wrote to D2 and specifically asked D2 and its sub-contractors to ensure compliance with the terms of the Interim Injunction. A copy of this undated Chinese letter had been exhibited by Lee, which Lee said was sent on 3 October 2012[30];

(iii)  Thereafter, at each and every weekly Friday meeting, Lee would remind representatives from D2 and its sub-contractors of the Interim Injunction and that no building material or waste should be passed or dropped onto P’s building;

(iv)  Letters dated 15, 25 and 28 September 2012 were also sent by P’s architect Vincent Lai[31].

45. Having considered the evidence before this court, I am of the view that so far as D1 is concerned, whether D1 could reasonably have foreseen that the Construction Works he had instructed D2 to do would likely to result in a nuisance, and whether D1 had taken reasonable steps after the Interim Injunction are disputed factual matters, which this court cannot determine in a summary manner, and should be allowed to go to trial.

D2’s Defence

46. D2 had denied or made no admission to P’s allegations of trespass and nuisance, and had also averred that certain of the alleged problems/incidents were caused solely and/or partly by P’s own negligence.

Final Injunction

47. D2’s director Lui, confirmed that completion of the Construction Works was on 16 May 2013[32], and after dismantling of the scaffolding, D2 had vacated and handed over the Site to D1 in about October 2013[33].

48. Although according to Chung, up till July 2013 (final construction phase of the KC Plaza), Ds continued to cause and allow wasted materials to be fallen, dumped or left on the FP Platform, it seemed that after July 2013, there had been no further complaints from P.

49. Ms Leung submitted that there was no evidence that the acts complained of would be repeated, and in the absence of “grounds apprehending the repetition of wrongful acts”, P’s application for a permanent injunction should be refused.  Ms Leung had relied on Proctor v Bailey (1899) 42 Ch D 390. 

50. Proctor v Bailey was a case in relation to an infringement of the patent.  It was held on appeal in that case that though the defendant had infringed the patent, it was not to be inferred from the circumstances that he had any intention to infringe it again, and that the plaintiff, if he had made such inquiry as he ought, would have discovered this and there was, therefore, no case for an injunction.  It was said by Cotton LJ that the defendant had infringed the patent, but that the court must look at all the circumstances to see whether there was any ground for inferring they the defendant intended to continue to infringe it[34].

51. Ms Leung had also referred to Chiu Hung Shun, Paul and Anor and So Ka Tai and Anor  CACV 136 of 2005, unreported, 05.12.05.  The plaintiffs and the defendants were neighbours in a building, with the defendants owning and occupying the flat immediate above the plaintiffs’ flat.  There had been seepage of water from the defendants’ flat to the plaintiffs’ flat, which led to the writ being issued by the plaintiffs claiming breach of the deed of mutual covenant and/or negligence and/or nuisance.  Subsequently, the defendants admitted liability.  The plaintiffs then sought, among other things, a permanent injunction in addition to judgment being entered in their favour. Their summons was dismissed, save that the judge did order that the defendants to rectify the water leakage of their premises. 

52. On appeal, in relation to whether a permanent injunction should have been granted by the judge in the lower court, Ma CJHC, as he then was, said the judge was right to have refused to grant the plaintiffs such an injunction, and said among other things, the following:

“(1) Injunctions are an equitable remedy and as such therefore subject to equitable principles. They are to be granted only where necessary, appropriate and just. For example, where damages provide an adequate remedy, an injunction will not generally be granted. Where one is to be granted, the same principles also dictate that an injunction should not be made any wider than necessary; otherwise, for example, the party subject to the injunction may find himself in contempt of court (for this is in many ways the prime remedy for a breach) of an order that goes beyond what the party benefiting from the injunction could realistically have expected or have been entitled in the first place.

(2) In the present case, the Plaintiffs’ complaint was that of a leakage from the Defendants’ premises. The obvious remedy, in the absence of any special circumstances, was simply a mandatory injunction to effect due repairs, no more. This was precisely what the Judge ordered.

(3) I have already mentioned the aspect of a contempt of court. If a permanent injunction were to be granted as the Plaintiffs wish, the Defendants might find themselves facing contempt proceedings even when they had repaired the leakage, should another leakage occur in the future. Mr Chong submitted that if another leak did occur in the future, the Plaintiffs could only succeed on a motion for contempt if they proved contempt beyond reasonable doubt. This was the protection, he submitted, to prevent an innocent breach from being treated as contempt. I regret I cannot agree with this submission. The relative ease or difficulty of securing a finding of contempt is not really to the point: a party should not be subjected unnecessarily to an order with penal consequences.

(4) Mr Chong then submitted that the Defendants’ conduct justified the imposition of a permanent injunction. He referred to the persistence of leakage. He also submitted that even though the leakage in the present case had been rectified (and for this purpose we allowed new evidence to be adduced on appeal to show this), this was not a bar to a permanent injunction. In making this submission, he relied on The Attorney‑General v Birmingham, Tame, and Rea District Drainage Board [1912] AC 788 where, in relation to the discharge of effluent into a river, a permanent injunction was granted even though repairs had been effected. I do not doubt that a permanent injunction can be granted in such circumstances but in my view, such an injunction is only justified where (as in the Birmingham, Tame, and Rea District Drainage Board case) the risk of a breach remained even despite the repairs or the party in breach has somehow shown by his conduct that unless restrained, he would continue with the breach. A continuous breach, for example, would merit a permanent injunction being granted: ‑ see for example The Attorney General v The Council of the Borough of Birmingham (1858) 4 K & J 528. No such risk exists in the present case and there was no evidence before us to justify any finding that the Defendants intended to continue to breach the covenants in the Deed of Mutual Covenant.

(5) Lastly, in relation to the Doherty v Allman point, apart from that part of Lord Cairns LC’s speech being obiter dicta, I doubt whether the rigidity of what appears to have been said in the relevant passage quite represents the modern law. In Incorporated Owners of South Seas Centre, Mody Road v Great Treasure Development Ltd [1994] 1 HKC 197, Godfrey JA said this at 202, albeit in relation to interlocutory injunctions: ‑

‘The dictum of Lord Cairns in Doherty v Allman has frequently been quoted and cited with approval. But never, so far as we are aware, so as to exclude altogether the general discretionary considerations which always fall to be considered when the question for the court to decide is whether or not to grant an interlocutory injunction in the circumstances of the particular case.’

It is, however, unnecessary to resolve this point finally in this appeal or to state the limits because in my view, when properly analyzed, the nature of the relevant covenants in the present case was positive rather than negative. Although, as can be seen, some of the covenants are framed in negative terms, yet in the context of water leakage or seepage, the obligations on the Defendants is surely a positive one to keep his premises and pipes in sufficient repair so as not to allow water to leak.”

53. Mr Lau submitted that the matters complained of was not a single incident of trespass/nuisance but were repeated acts for a long period of time.  He had also referred this court to Romag Fasterners Inc and Anor and Inter Core Limited HCA 1096 of 2008, unreported, 21.04.09.  There was some argument between the parties in that case as to whether the plaintiff was entitled to a permanent injunction against the defendant as the incident complained of was only a one-off incident and whether the defendant was really an innocent infringer.  A Cheung J, as he then was, had mentioned that there was some dispute as to whether the defendant was really as innocent as it claimed, but in his view, given the clear infringement of the registered mark, prima facie, the plaintiff was entitled to a permanent injunction save for any special or exceptional circumstances.

54. In my view, the circumstances in the present case are more akin to the Chiu HungShun case.  Here, the injunction sought  by P was to restrain D2 whether by itself directors officers or by their servants contractors agents or otherwise from doing, repeating, continuing, procuring causing, authorizing, permitting or allowing any trespass and/or nuisance of a like kind, in particular (a) continuing the erection of the bamboo scaffolding on the FP Platform; (b) continuing to allow any wasted construction materials of the KC Plaza to remain on the FP Platform; (c) entering onto or remaining at the FP Platform; (d) causing any further damage to the FP Platform or the external walls of FP Center; and (e) interfering with the P’s use, occupation and enjoyment of the FP Platform[35].  These are the terms in the Interim Injunction.

55. Mr Lau submitted that for an Order 14 application, the test is whether D2 had any real defence to an injunction claim, and that P would be fully entitled to the grant of a final injunction. Further, Mr Lau submitted that P would be entitled to a final injunction at trial as the wrongful acts did repeat after 21 September 2012, after the issue of the writ, and that the relevant time that one should consider whether P was entitled to the injunction was at the time of the issue of the writ.

56. P’s complaints arose out of the Construction Works on the Site.  The fact remains that there was no dispute that by the time P took out the Order 14 Summons on 21 January 2014, the Construction Works had been completed and D2 had already handed over the Site to D1.  This meant that D2 had vacated the Site.  The last complaints from P were in July 2013.  As pointed out by the then Ma CJHC in Chiu Hung Shun, a permanent injunction would only be justified where the risk of a breach remained even despite the repairs or the party in breach had somehow shown by his conduct that unless restrained, he would continue with the breach.

57. There was no sufficient evidence before this court that the alleged wrongful acts would be repeated or continued by D2 to justify a final or permanent injunction in the terms sought by P against D2.  Further, in my view, this is a case where damages would provide an adequate remedy.

Trespass and Nuisance

58. Mr Lau complained that D2’s Defence consisted of bare denials.  Ms Leung pointed out that there is a difference between a “denial” and “non-admission” and that D2 should not be criticized for D2’s Defence when the ASOC itself had lacked particulars, and the burden would be on P to prove its case against Ds.  Anyway, as I have mentioned earlier, for the Order 14 Summons, the burden would be on D2 to satisfy this court that with respect of P’s claims, or part of the claims, that there is a triable issue or some other reason to go to trial. 

59. The videos, in particular, those taken on about 1, 3, 7 September 2012, or shortly thereafter showed workers actually on the FP Platform.  One of the videos showed one of the workers had said he was employed by D2. 

60. As stated in Clerk & Lindsell, it is also a trespass to place anything on or in land in the possession of another, eg dumping rubbish on another’s land[36].  Further, allowing waste material, wet concrete and unknown chemical to spill onto another’s land, if not trespass, would be nuisance.

61. Lui, however, did not admit that D2 had done any of the acts complained of by P in the ASOC. Specifically, he had pointed out that according to D2’s daily progress report, in or about August 2012, D2 was only erecting main scaffolding from 1/F level to 2/F level at KC Plaza, whereas the waste materials were alleged by P to be dumped and left on the FP Platform on the 1/F.

62. Having looked at the photographs and the videos, as conceded by Ms Leung, one could see acts or trespassing/nuisance prior to the Interim Injunction.  Ms Leung, however, submitted that there would be triable issues as to whether D2 would be liable for alleged wrongful acts after the Interim Injunction, since the evidence from Lui showed that D2 had taken various measures and steps to comply with the terms of the Interim Injunction[37].  It was not really disputed by P that those measures/steps alleged by D2 were taken and the issue was whether they were adequate or reasonable.

63. Further, Lui had said even if there was dripping of water from the 6/F ceiling on 31 August 2012, and blockage of drainage system of FP Platform on 31 August 2012 and/or 26 September 2012 as alleged by P, the causes of those incidents would need to be properly investigated by the court.

64. D2’s solicitors had on 6 December 2012 served a request on P for further and better particulars.  P’s answers were eventually filed on 18 February 2014 (“Answers”). 

65. In the Answers, P had said :

(1)  In relation to the water seeping problems on about 31 August 2012, the exact time and date that the drainage/water pipes started to be blocked was not known but P observed the problem starting from about 31 August 2012.  Further, the drainage/water pipes that were blocked included but not limited to the pipes on the FP Roof leading to the FP Platform, and those on the FP Platform. 

(2)  In relation to the flooding on 24 September 2012, D2 had requested details on how P’s workers cleared up the drain holes and pipeline outlets on the FP Platform, and to state which drain holes and pipeline outlets were blocked. P answered saying that the details on how to clear up the drain holes would go to the evidence supporting the facts.  As for which drain holes and pipeline outlets were blocked, P stated that a schematic diagram showing such details was not suitable at pleadings stage.

66. Ms Leung thus submitted that at this stage it would be difficult to see how the accumulation of water on the roof was related to the waste materials dumped on the FP Platform which was on the 1^st floor, and that the cause of accumulation of water on the roof needed to be investigated and the blockage of drainage system of the FP Platform would also need to be addressed by expert evidence.  The issue of causation had to be investigated by the court upon receiving expert evidence in this respect, and summary judgment thus should not be granted.  In this connection, Ms Leung had referred this court to European Partners In Capital (EPIC) Holdings BV v Goddard & Smith [1992] 41 EG 118.

67. In relation to the accumulation of rainwater on the roof of FP Center on about 31 August 2012, the photographs produced by P seemed to be all undated.  Anyway, one could see a lot of wasted construction materials/debris being dumped and there was a drain pipe in the photographs. However, it was not quite clear from the photographs whether the drain pipe led from the roof to the FP Platform, or whether the wasted construction materials/debris had in fact blocked the drain pipe, or indeed whether such blockage then caused the rainwater to accumulate on the roof.  Further, it was not clear whether there were other drain pipes which led from the roof to the FP Platform.

68. As mentioned earlier, P’s security guard Yeung had filed an affirmation in support of P’s application for the Interim Injunction.  What Yeung said was that FP Center had come across “many previous rainstorms situations and there was no single incident that flooding occurred on the roof or the FP Platform” and that the incident on 24 September 2012 was completely different and that various parts of FP Center were seriously affected[38].  Yeung had also mentioned that “as said by Cheng (Chung), the flooding, water accumulation and dripping problems in FP Center will worsen on rainy days”[39].

69. It was not clear what Chung had said to Yeung or what Yeung meant, namely what period of time were the previous rainstorm situations, or whether there had been other flooding problems/incidents in FP Center in the past.  I can see the rather bad situation in the video produced by P of the flooding on 24 September 2012, but again whether such was caused by blocking of drain pipes from waste construction material dumped by D2 on FP Platform was disputed. 

70. D2 had also pleaded contributory negligence.  Mr Lau submitted that this was only a bare assertion.  There were no particulars, although D2 had reserved the right to plead further in paragraph 9 of D2’s Defence after P had filed the Answers.  P only filed the Answers after it had already issued the Order 14 Summons.  However, up to this stage, there had been no application to re-amend D2’s Defence.  Thus, I accept as this stage, the allegation of contributory negligence is only a bare assertion.

71. In D2’s Defence, it had pleaded further or in the alternative, in or about August 2013, D2, had, without admission on liability, offered to remove, cause to remove and/or make good of wasted construction materials and/or damage, if any, which were alleged to have been dumped and/or left and/or damaged by D2 at the cost of D2, but such offer had been rejected by D2, and that D2 had alleged that P had refused to take any reasonable steps to mitigate the alleged loss or damages suffered by P.  This would be a matter in relation to assessment of damages.

72. More importantly for the present application, as mentioned earlier, it was D2’s case that it had taken steps to comply with the Interim Injunction and that even if there were debris or materials falling or left at the FP Platform after the Interim Injunction, these acts were involuntary and that no liability should attach.  As stated in Clerk and Lindsell, noise and dust caused by demolition and rebuilding will not be actionable if the operations are reasonably carried out, and all reasonable and proper steps are taken to ensure that no undue nuisance is caused to neighbours[40].  The burden is of course on D2 to prove that the measures and steps it had taken were reasonable.

73. There were 4 major complaints after the Interim Injunction, 2 of which reports had been made to police, but no further action by the police was taken, and there were undated photographs of the other complaints.  Apart from these 4 complaints, P’s case was that there was continued dumping, falling or leave of waste materials on the FP Platform up to July 2013, but, there seemed to be no contemporaneous documents adduced by P to support such allegations.

74. Having considered the above, D2 has raised an issue as to causation of the water accumulation on the roof and water dripping from the ceiling of the 6/F of the FP Centre on about 31 August 2012, and also the serious flooding on about 24 September 2012, and further there are disputes over the alleged wrongful acts after the Interim Injunction up to July 2013, and/or whether the measures/steps taken by D2 after the Interim Injunction were reasonable.  All these are not really issues which this court can decide in a summary way.  I am therefore of the view that D2 has satisfied this court that there are triable issues, and that the matter should go to trial.

Conclusion

75. In light of what I have said, the Order 14 Summons is dismissed with costs to Ds.  This is an order nisi which will be made final after 21 days.

[1] At para 19

[2] At pg 5

[3] At pg 228 H-I

[4] See Paul Y Management Ltd  at para 19, and also para 14/4/9, Hong Kong Civil Procedure 2014 

  Volume 1

[5] Para 31, A:135

[6] At para 20, A:170

[7] A:204

[8] Para 9A, A:66

[9] Para 18, A:70

[10] Para 19-01, Clerk & Lindsell on Torts, 20^th Ed

[11] Ar para 19-08, supra

[12] At para 7, Tsang Hing Cheung

[13] At para 6-57, Clerk & Lindsell on Torts, 20^th Ed

[14] See paras 6-56 and 6-57, supra

[15] At para 6-56, surpa

[16] At para 6-57, supra

[17] At para 6-59, supra

[18] At para 6-60, supra; see also Farraj v King’s Heathcare NHS Trust [2009] EWCA CIV 1203; [2010]

  P.I.Q.R. P 7 at [93], per Dyson LJ (Sedley LJ agreed at [99]); applied in Woodland v Swimming

Teachers’ Association [2012] EWCA CIV 239; [2012] P.I.Q.R. P 12

[19] At para 6-61, supra

[20] At 646, Mantania

[21] Last sentence para 6-61, pg 389, supra 

[22] At para 20-70, pg 1313

[23] At para 20-71, pg 1313

[24] At para 20-72, Clerk & Lindsell

[25] At para 20-72, supra

[26] At para 20-70, supra

[27] At para 20-71, supra

[28] At para 20-72, supra

[29] Para 20-73, supra

[30] B:654

[31] B:656-658

[32] Para 21, A:170

[33] Para 23, A:171

[34] At page 398, per Cotton LJ

[35] A:61-62

[36] Para 19-02, pg 1224, supra

[37] At paras 11-20, A:166-170

[38] At para 8, A:126

[39] At para 6, A:125

[40] At para 20-15, pg 1282