Grand Power International Ltd v. Chan Sing Hoi Enterprises Ltd and Others

LDBM 329/2014

[2019] HKLdT 15

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 329 OF 2014

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DECISION
(Leave to Appeal)

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1.By the judgment handed down by me on 1 November 2018 (“Judgment”), I dismissed all the applicant’s claims and the 1^st respondent’s counterclaims.

2.By the summons dated 29 November 2018, the applicant applies leave to appeal against the Judgment on the grounds as set out in the draft notice of appeal attached thereto.

3.Pursuant to the directions given in the consent order made on 4 January 2019, the applicant and the 1^st respondent lodged and served their respective written submissions and this application be disposed of on paper without oral hearing.

4.Under section 11AA(6) of the Lands Tribunal Ordinance, leave to appeal shall not be granted by this Tribunal unless it is satisfied that (i) the appeal has a reasonable prospect of success, or (ii) there is some other reason in the interests of justice why the appeal should be heard.

5.Upon reading the parties’ submissions, I am satisfied the appeal has a reasonable prospect of success, in particular the legal issues concerning whether the applicant is bound by the defence of waiver and acquiescence established against its predecessor as well as the bona fide purchaser defence raised by the applicant. As said in the Judgment, all parties have cited in total over 110 legal authorities before me.  Additionally, I relied on the passage of Megarry and Wade concerning the issue of “a licence coupled with interest or proprietary interest”, which is not provided by the parties.  I do recognize that the law regarding these issues in Hong Kong (may be even in England) seems not yet well settled as there are some conflicting authorities or different schools of thoughts.  For instance, Mr Fan for the 1^st respondent maintained in his submission that detrimental reliance is not a requisite element for acquiescence or waiver and seems to disagree that “some sort of detrimental reliance” is needed.

6.Hence, it may be the proper occasion for the higher court to make appropriate determinations or clarifications in the interest of justice. 

7.In the circumstances, I shall grant leave to appeal and make an order in terms of para 1 of the applicant’s summons dated 29 November 2018.

8.Concerning the question of costs, usual costs order shall be costs be in the cause of the appeal.  However, I note that the applicant lodged altogether 10 hearing bundles (Bundles A, B1 to B9) for the sole purpose of this application.  Mr Lee for the applicant only referred to Bundles A and B1 (regarding clause 10 of the DMC only) in his written submission whereas Mr Fan for the 1^st respondent only referred to Bundle A but nothing to Bundles B1 to B9 in his written submission.  Indeed, the entire clause 10 of the DMC had been quoted in para 80 of the Judgment.  It is unnecessary to include the whole copy DMC in the hearing bundles.  Furthermore, I note that in fact the Trial Bundles lodged with the Tribunal has not yet been returned to the applicant.  Therefore, the parties can simply refer the relevant pages of the Trial Bundles in their written submissions.  

9.Besides, part B of PD 4.1 reads as follows:

“B. Applications for Leave to Appeal

5. Order 59 rules 2A to 2C govern applications to the Court for leave to appeal. Except where there are special circumstances which make it impossible or impracticable to apply to the court below, an application for leave must not be made to the Court, unless the applicant has first applied to the court below for leave but failed.

…..

9. The applicant should only include essential documents (viz. those relating directly to the issues raised in the draft grounds of appeal) in the application bundle. An application bundle which was put together by indiscriminate inclusion or reproduction of bundles previously used at the court below will be returned unread with costs consequence.” (emphasis added)

10.Strictly speaking, I accept that this PD only governs the procedure for application for leave to appeal to the Court of Appeal.  Nonetheless, I fail to see why the applicant cannot observe the same in the similar application for leave in the court below.  Hence, I am of the view that save for Bundle A, the costs for preparing Bundles B1 to B9 is entirely redundant and wasted. 

11.I now exercise my discretion to make the order that costs of the application be costs in the cause of the appeal on the High Court scale except the applicant shall bears its own costs for preparing Bundles B1 to B9 in any event. 

Mr Jason Lee, instructed by Mayer Brown, for the applicant

Mr Alex Fan, instructed by Hon & Co., for the 1^st respondent