Lam Yin Man Formerly Known As Lam Chiu Chi v. The Incorporated Owners of Kwun Tong Industrial Centre

DCCJ3714/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3714 OF 2014

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Before: Deputy District Judge Daniel Tang in Chambers

Date of Hearing: 25 August 2017

Date of Decision: 25 August 2017

Date of Reasons for Decision: 29 September 2017

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REASONS FOR DECISION

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The issue

1.The plaintiff, Madam Lam, seeks leave to appeal against my judgment dated 25 May 2017 (the “Judgment”), whereby it was ordered, inter alia, that:

a. Madam Lam’s claim under paragraph 4 of the Statement of Claim be dismissed; and

b. There be no order as to costs.

2.After hearing both parties’ submissions, I dismiss Madam Lam’s application with costs to the defendant.  I now explain my reasons here.

3.I would adopt the abbreviations I used in the Judgment.

Leave to appeal

4.Pursuant to section 63A of the District Court Ordinance, Cap 336, leave to appeal should not be granted unless the Court is satisfied that:

a. the appeal has a reasonable prospect of success; or

b. there is some other reason in the interest of justice why the appeal should be heard.

5.For the “reasonable prospect of success” test:

“A reasonable prospect of success therefore means an appeal with prospects that are more than ‘fanciful’ but which do not need to be shown to be ‘probable’. It was insufficient to show that the appeal was ‘merely arguable’ and ‘not fanciful’ for the court to be satisfied that it had a reasonable prospect of success. In respect of case management decisions, the appellant faces a very high hurdle and has to show that the judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that his order was irrational”.

6.For the “interest of justice” test:

“It is impossible to give an exhaustive list of the circumstances in which in Court of Appeal would find that there is some other reason in the interests of justice that an appeal should be heard. It is suggested that the Court of Appeal would continue to be guided by the practice under the former O.59, r.14. The Court of Appeal may grant leave if the question is one of general principle, decided for the first time; or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage.”

(both Hong Kong Civil Procedure 2017, para. 59/2A/4).

The injunction

7.In paragraph 4 of the Statement of Claim, Madam Lam claims, inter alia, an injunction order restraining the Defendant from designating the Common Area as car parking space(s) or for any purpose other than part of the common area which each owner of the Building has full right and liberty to go, pass and repass over and along.

8.Pursuant to section 52B of the District Court Ordinance, the Court may grant an injunction if the Court considers it just or convenient to do so.

“The words ‘just and convenient’ in the relevant statutory provision do not mean that the court can grant an injunction simply because it thinks it convenient, but mean that it should grant an injunction for the protection of rights or the prevention of injury according to legal principles. They confer neither arbitrary nor unregulated discretion on the court, and do not authorise it to invent new modes of enforcing judgments in substitution for the ordinary modes” (with emphasis added)

(Halsbury’s Laws of Hong Kong, Second Edition, Vol. 44, [340.056]).

9.By the Consent Summons dated 19 August 2017, the IO concedes the Common Area forms part of the common area of the Building, which makes it should be treated as any common areas of the Building and be bound by the DMC, BMO and other existing law and regulations.

10.It becomes redundant and inconvenient to impose the injunction.

11.Mr Cheung, Counsel for Madam Lam, submits that section 34I(1)(a) of BMO is not applicable in this case and raises his legal argument.  While it may be interesting and merits further discussion; it becomes hypothetical and academic in the factual matrix of this case. 

12.Since the IO agrees that the Common Area forms part of the common area of the Building, it puts the Common Area back into the existing legal framework and should be managed and controlled accordingly. 

13.Further, there is no evidence to show the IO intends to convert the Common Area into a car parking space after the Consent Summons; which shows it learnt a hard lesson. 

14.I also conclude it would not be in the interest of justice to hear the appeal.

The costs order

15.After trial, I dismissed both claim and counterclaim, and made no order as to costs.  Mr Cheung disagrees and submits I should have awarded costs to Madam Lam.

16.Pursuant to O.62,r.5 of the Rules of the High Court, the Court, in exercising its discretion as to costs, may take into account the conduct of all the parties, which includes (a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (b) the manner in which a party has pursued or defended his case or a particular allegation or issue; (c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and (d) conduct before, as well as during, the proceedings.

17.Madam Lam’s only claim fails, which should not have been proceed in the light of the Consent Summons.

18.I have also dismissed the counterclaim, mainly on the ground that the IO fails to prove the quantum and normal damages should not be awarded.  Madam Lam admits under oath that she parks her vehicle at CPS 82 and the Common Area continuously (“長期泊自己的車”); and her son uses the Common Area for loading and unloading goods.

19.Accordingly, I ruled that no costs order should be made to both parties.

Order

20.Madam Lam’s application is hereby dismissed.

21.Costs follow the event; I order that Madam Lam to pay costs of this application to the IO, to be taxed if not agreed.  I grant counsel’s certificates to both counsels and thank for their assistance.

Mr Anthony Cheung, instructed by K.M. Cheung & Co., for the plaintiff

Mr Jackson Poon, instructed by Huen & Partners, for the defendant