Read the full judgment text of CACV 61/2015 and CACV 110/2015 on BabelCite. This Court of Appeal judgment was delivered on 1 March 2016 before Lam VP, Barma JA and G Lam J.
Civil procedure – locus standi – compulsory sale of land – Land (Compulsory Sale for Redevelopment) Ordinance Cap 545 – whether Director of Lands has locus to participate in compulsory sale proceedings based on contractual right to charge premium for disposal of undivided shares – building known as Western Court completed in 1961 on Inland Lot No 834 – 8/364th shares in Roofs and Exterior Wall vested in Government as bona vacantia in 1969 – Government assigned the 8 shares to Incorporated Owners of Western Court (IO) in 1996 subject to Covenant requiring Government's prior written approval for any further assignment – applicants as majority owners applied in 2011 for order for sale under Cap 545 – Director of Lands joined as 17th respondent claiming interest based on right to charge premium for approving disposal – whether Tribunal has jurisdiction to determine Director's contractual entitlement to charge premium – whether Covenant constitutes right affecting the lot under s.8 of the Ordinance – whether consent order under Order 15 Rule 4 conferring joinder is determinative of locus – first issue: locus standi of the Director of Lands in compulsory sale proceedings – held: Director has no locus as Ordinance is primarily concerned with disputes between majority and minority owners and Director's contractual right does not give her proprietary standing – consent order under Order 15 Rule 4 is not determinative of locus and Tribunal should have considered ordering Director to cease being a party under Order 15 Rule 6(2) – second issue: Tribunal's jurisdiction to determine Covenant-related premium disputes – held: Tribunal has no jurisdiction to adjudicate on Director's entitlement to charge premium or quantum thereof as this is a contractual claim falling outside s.4 of Cap 545 and s.8 of Lands Tribunal Ordinance – s.4(6)(a)(iii) does not give Tribunal jurisdiction to determine underlying lis pendens – third issue: whether Covenant is a right affecting the lot under s.8 of the Ordinance – held: Covenant is purely contractual and does not run with the land, following Sky Heart v Lee Hysan and Wong King Lim v IO of Peony House – Covenant does not constitute a proprietary right in or over the lot – there is a material difference between a right in respect of the lot and a right 'in or over' the lot under s.8(6) – Director's contractual right to enforce Covenant cannot be elevated to a proprietary right simply because means of control appears precarious in compulsory sale context – Director's position analogous to that of potential judgment creditor of IO rather than claimant with proprietary interest in land – both appeals dismissed – Director ordered to pay costs of 1st to 9th Applicants with certificate for 2 counsel.
Legal issues: Locus standi of the Director of Lands in compulsory sale proceedings · Tribunal's jurisdiction to determine Covenant-related premium disputes · Whether the Covenant is a right affecting the lot under section 8 of the Ordinance
Outcome: Both appeals (CACV 61/2015 and CACV 110/2015) by the Director of Lands dismissed. The Director of Lands ordered to pay the costs of the 1st to 9th Applicants with certificate for 2 counsel.
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