Read the full judgment text of CACV 161/2015 on BabelCite. This Court of Appeal judgment was delivered on 23 February 2016 before Lam VP, Kwan JA, Chu JA.
Civil law – Building Management – Deeds of Mutual Covenant – injunction – acquiescence – appeal – commercial building – trade name on external wall – Building Management Ordinance (Cap. 344) s.34I – DMC clause prohibiting signs on external parts except in assigned space. The 2nd respondent affixed the trade name '香港免稅店' on the external wall of the Building (a common part) above the ground floor doorway facing Sung Wong Toi Road, in alleged breach of Clause 14 of the DMC and s.34I of the Building Management Ordinance. The applicant obtained a mandatory and prohibitory injunction in the Lands Tribunal. On appeal, the Court of Appeal considered (1) whether a space for affixing trade names under Clause 14 can be assigned impliedly – held: respondents failed to identify any evidence of implied assignment, so this ground failed; (2) whether the applicant acquiesced in the breach – held: yes, the applicant had acquiesced, the Judge erred in disregarding widespread similar breaches; (3) whether it was just and equitable to grant injunctive relief – held: no, it was inequitable. The breach in question, not involving any illegal structure, was within the applicant's power to approve (Hollywood Shopping Centre Owners Committee Ltd v. Wing Wah Building (IO)). The defence of acquiescence arises where a person with a right, seeing another about to commit an infringing act, stands by in a manner that induces the infringer to believe he assents to it (De Bussche v Alt; Spry, Equitable Remedies). Following Cheung Yuet v Incorporated Owners of Oriental Gardens, similar breaches of comparable gravity by other owners, tolerated over many years, may be taken as a representation of tolerance. Such breaches are continuous in nature, so the fact that other signs were put up at different times and locations is immaterial. The applicant's own manager reported the existence of such signs at management meetings. The 2nd respondent had for 14 years displayed two other business signs on the building's external walls without objection. The applicant complained only four months after the November 2012 installation, but its inaction over the broader pattern of similar breaches made the case for acquiescence. Distinguishing Wing Ming Garment Factory Ltd v Incorporated Owners of Wing Ming Industrial Centre, the Court rejected the argument that breaches by other owners were irrelevant, and rejected the submission that owners of ground floor shops with shop frontages were not in breach. Appeal allowed, orders set aside, application dismissed, costs to respondents with certificate for counsel in the Lands Tribunal.
Legal issues: Whether a space for affixing trade names under Clause 14 can be assigned impliedly · Whether the applicant acquiesced in the respondents' breach of the DMC and BMO · Whether it was just and equitable to grant injunctive relief
Outcome: Appeal allowed; orders of the Lands Tribunal set aside; the applicant's application in the Lands Tribunal is dismissed.
Cited by 3 cases