Baynard Ltd and Another v. Secretary for Justice and Others

HCA 4073/2002

[2019] HKCFI 1373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 4073 OF 2002

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DECISION ON THE FORM OF ORDER

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1.In §130 of my Judgment (ie [2019] HKCFI 852), I invited parties to submit an agreed draft of the precise declarations that they proposed should be made to reflect my decisions on the Issues; or, in default of agreement, each party may offer me a separate draft, accompanied by a short supporting submission. The parties were unable to reach agreement. I have considered the respective draft orders, the parties’ submissions and the relevant solicitors’ correspondence.

2.The plaintiffs’ proposed draft order (which the Secretary for Justice acting for the Government ie 1^stdefendant also agrees with) is as follows ("Ps’ Draft Order”):

“ IT IS DECLARED that:-

1. The owners of Tuen Mun Town Lot No. 238 (the ‘Lot’) other than the 1^stPlaintiff, the 2^nd Plaintiff and Commercial Ace Limited (the ‘Individual Owners’), are not entitled to object to (i) the Modification Letter issued by the District Lands Officer dated 29 October 1996 and registered in the Land Registry by Memorial No. TM746000 (the ‘1996 Modification Letter’) and (ii) the Modification Letter issued by the District Lands Officer dated 25 February 1997 and registered in the Land Registry by Memorial No. TM767885 (the ‘1997 Modification Letter’); and that the 1996 Modification Letter and the 1997 Modification Letter are legally valid; and

2. Under Special Condition 7(e) of New Grant No. 2607 of the Lot:-

(a) neither the 1^st Plaintiff nor the 2^nd Plaintiff is obliged to seek or obtain the consent of the Individual Owners in submitting any proposed amendment to the Master Plans or the Landscape Plans (‘Plans’) for the approval of the Director of Lands; and

(b) any such amendment approved by the Director of Lands and recorded on the Plans need not be certified in writing by the Individual Owners;

IT IS ORDERED that:-

3. the Plaintiffs’ claims against the 1^st Defendant in this action be dismissed;

4.  the 1^stDefendant’s costs of the proceedings be paid by the 1^stand 2^ndPlaintiffs with certificate for two counsel, to be taxed if not agreed; and

5.   there be no order as to the costs of the proceedings:

(a)   as between the 1^st and 2^nd Plaintiffs on the one hand, and the 2^nd and 3^rd Defendants on the other; and

(b)   as between the 1^st Defendant on the one hand, and the 2^nd and 3^rd Defendants on the other.”

3.In contrast, D2’s proposed draft order attached to her solicitors’letter dated 23 April 2019 is as follows (“D2’s Draft Order: Version 1”):

“ IT IS DECLARED that:-

1. The owners of Tuen Mun Town Lot No. 238 (the ‘Lot’) other than the 1^stPlaintiff, the 2^nd Plaintiff and Commercial Ace Limited (the ‘Individual Owners’), are not entitled to object to (i) the Modification Letter issued by the District Lands Officer date [sic] 29^th October 1996 and registered in the Land Registry by Memorial No. TM746000 (the ‘1996 Modification Letter’) and (ii) the Modification Letterissued by the District Lands Officer date [sic] 25^thFebruary 1997 and registered in the Land Registry by Memorial No. TM767885 (the ‘1997 Modification Letter’); on the basis that the additional gross floor area or the potential gross floor area could or should have been allocated to the Lot as a whole and should enure to the benefit of, among others, the Individual Owners represented by the 2^nd Defendant and the 3^rd Defendant; and

2. Special Condition 7(e) of New Grant No. 2607 of the Lot had been severed such that any amendment to the Master Plans or the Landscape Plans in relation to Sections A3, B2 and B4 does not require the certificate in writing or the consent or authority of the Individual Owners;

3. By Section Ill clauses I(d), (e) and 3 of the Deed of Mutual Covenant dated 17^th August 1990, the Individual Owners have conferred on the 1^st Plaintiff the authority to consent, on their behalf, to the 1996 and 1997 Modification Letters or any amendment of the Master Plans following thereon, or are otherwise precluded from objecting to the 1996 and 1997 Modification Letters or any amendment of the Master Plans following thereon; and

4. The 1996 and 1997 Modification Letters are valid and effective in the sense that the Individual Owners are not entitled to object under the terms of the New Grant No. 2607;

IT IS ORDERED that:-

5. The 1^st Defendant’s costs of the proceedings be paid by the 1^st and 2^nd Plaintiffs with certificate for two counsel, to be taxed if not agreed; and

6.   There be no order as to costs of the proceedings as between the 1^st Defendant on the one hand, and the 2^nd and 3^rd Defendants on the other.”

4.I note that the 2^nd defendant’s proposed order annexed to her Skeleton is different (“D2’s Draft Order: Version 2”):

“ IT IS DECLARED that:

1. The Modification letter issued by the District Lands Officer dated 29 October 1996 and registered in the Land Registry by Memorial No. TM7456000 and the Modification Letter issued by the District Lands Officer dated 25 February 2017 and registered in the Land Registry by Memorial No. TM767885 (collectively the ‘1996 and 1997 Modification Letters’) are legally valid, by reason of the following:

(a) The owners of Tuen Mun Town Lot No. 238 (the ‘Lot’) other than the 1^st Plaintiff, the 2^nd Plaintiff and Commercial Ace Limited (the ‘Individual Owners’) donot hold any interest in the individual Sections in the Lotwhich are affected by the 1996 and 1997 Modification Letters and are not necessary parties to the 1996 and 1997 Modification Letters;

(b) The Government has not committed a derogation from grant by issuing the 1996 and 1997 Modification Letters; and

(c) The Individual Owners are not entitled to object to the 1996 and 1997 Modification Letters on the basis that the additional gross floor area or the potential gross floor area could or should have been allocated to the Lot as a whole and should enure to the benefit of, among others, the Individual Owners.

2. Under Special Condition 7(e) of the New Grant No. 2607 of the Lot:

(a) Neither the 1^st Plaintiff nor the 2^nd Plaintiff is obliged to seek or obtain the consent of the Individual Owners in submitting any proposed amendment to the Master Plans or the Landscape Plans (‘Plans’) for the approval of the Director of Lands;

(b) Any such amendment approved by the Director of Lands and recorded on the Plains need not be certified in writing by the Individual Owners.

IT IS ORDERED that:

3. The Plaintiffs’ claims against the 1^stDefendant be dismissed.

4. The 1^st Defendant’s costs of the proceedings be paid by the 1^st and 2^nd Plaintiffs with certificate for two counsel, to be taxed if not agreed; and

5. There be no order as to the costs of the proceedings between the 1^st Defendant, and the 2^nd and 3^rd Defendants.”

5.I prefer Ps’ Draft Order largely for reasons submitted by the plaintiffs (with whom the 1^stdefendant agrees), which may be summarized as follows:

(a)   The two declarations in Ps’ Draft Order are simpler, easier to understand and more in line with what I thought to be necessary as I indicated in §131 of the Judgment.

(b)   The purpose of the declarations is set out the consequences, or end results, of my answers to the seven issues under the Order 14A Summons.  The purpose is not to repeat or summarize those answers.  It is unnecessary to do so because the declarations will and must, of course, be construed and understood in the light of my answers to the Issues.

(c)   D2’s Draft Orders (both Versions 1 and 2) are rather confusing in that they appear to be a hybrid of the consequences and the reasons (or basis) leading to those consequences (ie my answers to the Issues).  First, this is wrong in principle.  Second, insofar that D2 attempts to include a summary of my answers to the Issues, the summary is not only unnecessary but also inaccurate (in particular Version 1).

6.As to the order on costs, on reflection, I agree with the plaintiffs that, to avoid any doubt, it is preferable to add that there should be no order as to costs between the plaintiffs on the one hand, and the 2^nd and 3^rddefendants on the other hand.

7.For the above reasons, I shall make an order in terms of the P’s Draft Order.  The costs concerning the disagreement on the form of order should simply form part of the costs of these proceedings.

Written submission by Mr Victor Dawes SC and Mr Wilson Leung,instructed by Mayer Brown, for the 1^st and 2^nd plaintiffs

Written submission by Mr Chua Guan-hock SC and Ms Sharon Yuen, instructed by K B Chau & Co, for the 2^nd defendant