Steak Expert Holdings Ltd v. The Incorporated Owners of Jade Plaza (Tsuen Wan)

HCMP 3233/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3233 OF 2015

(ON AN INTENDED APPEAL FROM LDBM NO. 171 OF 2013)

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BETWEEN

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.By now, it is not disputed that the right of access can be constrained by reasonable measures. Based on the arguments placed before us, the crucial issue in the present case is whether the introduction of the Door Code system and the Smart Card system [“the Measures”] can be regarded as a reasonable act or decision within Clause 8 of the Deed of Mutual Covenants. In that respect, the Lands Tribunal dismissed the application on the basis that the Measures were reasonable.

2.By reason of section 11(2) of the Lands Tribunal Ordinance, appeal can only be brought on point of law.  Further, Section 11AA of the Lands Tribunal Ordinance provides that leave to appeal is required and it should only be granted if the court is satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interest of justice that the appeal should be heard.

3.Three grounds of appeal were put forward in §4 of the skeleton submissions of counsel for the Applicant:

(1) The judge failed to consider the relevance of the composite element of the building and the difference in interests of the parties;

(2) As a result, the judge erred in assessing whether the relevant measure introduced was, in light of those circumstances, reasonable to the Applicant;

(3) The judge failed to take into account the nature of the Applicant’s business prior to ruling that there was no undue interference with the Applicant’s right to free and uninterrupted access to the common lifts. 

4.Grounds (1) and (2) can be considered together. The composite element of the building is a relevant consideration.  If the Tribunal failed to consider it at all, it would have erred on a point of law.

5.However, we do not think it is reasonably arguable that the Tribunal failed to consider this matter.  In the judgment of 25 February 2015, Deputy Judge Chan considered the layout of the building at §3 and the first feature she referred to at §3(1) was the composite nature of the building.  She further adverted to the separate lobby and lift serving the commercial floors at §3(5).  In the assessment of the reasonableness of the Measures, she addressed the argument of counsel for the applicant point by point, see §§20 to 30.  At that stage, counsel did advance argument relating to the composite nature of the building in the same way as the argument is now put before us. However, under heading (3): discrimination against the Applicant, the judge did refer to the possibility of using the commercial lift or the assistance of the staff of the Applicant to its customers in using the common lifts. 

6.What the Applicant really complains about is the judge did not attach as much weight to the composite nature of the building in assessing that question.  This is not a question of law.

7.Turning to Ground (3), it is quite plain from the judgment that the judge had paid regard to the Applicant’s business and the inconvenience occasioned by the Measures, see §§36 to 43.  Again, the real complaint is that the judge did not attach such weight to the inconvenience suffered by the Applicant to reach a conclusion that the Measures is not reasonable.  Likewise, this is not a question of law.

8.It should be remembered that the management of the building, under the Deed of Mutual Covenants, is in the hand of the manager.  So long as a decision is within the range of reasonable options, the court will not interfere.  In the present case, bearing in mind the background, in particular the fact that the customers of the Applicant can use the commercial lift for access, we do not see any reasonably arguable basis for challenging the decision of the manager.

9.For these reasons, the intended appeal has no prospect of success and we refuse to grant leave.  The summons of 4 December 2015 is dismissed.

10.We also order the Applicant to pay the Respondent the costs of the application, which we fix at $67,000.

Mr Chan Chi Wah of Chung & Kwan, for the applicant

Mr Ross MY Yuen, instructed by Ford, Kwan & Co, for the respondent