Read the full judgment text of CACV 000197/1998 on BabelCite. This Court of Appeal judgment was delivered on 29 July 1999 before Mortimer VP, Godfrey JA, Rogers JA.
Administrative law – judicial review – New Territories leases – special purpose leases – policy statement on extension of leases – whether Director of Lands' decision to refuse extension is judicially reviewable – whether land was used for the purpose for which it was originally granted – whether applicants who are not original grantees have standing – whether breaches of assignment covenant justify refusal of extension – Civil appeal from decision of Yeung J. dismissing application for judicial review of Director of Lands' refusal to extend a 1966 lease of Lot No. 1943 in DD 121, Tong Yan San Tsuen, Yuen Long, granted to seven grantees for an ancestral temple (Chi Tong) subject to a permanent prohibition against assignment – Lease also subject to user condition restricting use to a Chi Tong – Building subsequently used as a Taoist temple for public worship rather than as a Chi Tong for ancestral veneration – Some original grantees had assigned their interests in breach of the assignment covenant – Lease due to expire 27 June 1997 – Director of Lands refused extension on 21 March 1997 – Court of Appeal holds that the decision is judicially reviewable as it is taken in the exercise of the Director's public function, following Hong Kong & China Gas Co. Ltd v. Director of Lands [1997] 3 HKC 520, and disagreeing with Yeung J.'s contrary view – Court holds that the original purpose of the grant was a Chi Tong, not religious purposes generally, and the land was not being used for that original purpose within the meaning of paragraph 13 of the 1987 policy statement on Extension of Leases in the New Territories – Court holds that the 1st applicant (KAM LAN KOON), an unincorporated association of which no constitution was shown, is not a recognisable legal entity and should be struck out, the 2nd applicant (HONG KONG KAM LAN KOON LIMITED) is a stranger to the grant with no standing, and the 3rd applicant (WONG TUNG WING) cannot claim an extension to the exclusion of the other unjoined grantees – Court holds that the Director of Lands was entitled in his discretion to refuse extension on the ground of the assignment breaches, the non-assignable character being central to a special purpose grant – Appeal against the substantive dismissal of the judicial review application dismissed, with the 1st appellant to be struck out – On costs, the judge below was wrong to depart from the general rule that costs follow the event in relation to the respondent's unsuccessful application to set aside leave, and the appellants should have their costs of that application, but the judge acted within his discretion in making no order as to the costs of the appellants' successful application for specific discovery – Costs of the appeal and of the proceedings below (other than the two interlocutory applications) to be taxed and paid by the appellants, with the appellants' costs of the application to set aside leave to be set off against those costs – Application by the Applicants to the Appeal Committee of the Court of Final Appeal for leave to appeal subsequently dismissed with costs (FAMV 22/1999).
Legal issues: Judicial reviewability of Director of Lands' decision on extension of special purpose lease · Original purpose of the land grant under the policy statement · Standing of applicants who are not original grantees to seek extension · Director of Lands' discretion to refuse extension on grounds of assignment breaches
Outcome: Appeal against dismissal of judicial review application dismissed; part of costs appeal allowed in that the appellants were awarded costs of the respondent's unsuccessful application to set aside leave, and the judge was upheld on the costs of the specific discovery application
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