富嘉花園業主立案法團 v. in Smart Ltd and Another
Read the full judgment text of LDBM 185/2022 on BabelCite. This Lands Tribunal judgment was delivered on 17 April 2025.
1. The Applicant ( IO ) is the Incorporated Owners of the Grandway Garden (富嘉花園) ( the Estate ) incorporated pursuant to the provisions of Building Management Ordinance, Cap.344 ( BMO ), on 8 September 1994. Mr Brian Lo of counsel ( Mr Lo ) appeared for IO.
Cites 7 cases
|
LDBM 185/2022 [2025] HKLdT 18 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO.185 OF 2022 __________________
_________________
_____________________ J U D G M E N T _____________________ A. Introduction 1.The Applicant (IO) is the Incorporated Owners of the Grandway Garden (富嘉花園) (the Estate) incorporated pursuant to the provisions of Building Management Ordinance, Cap.344 (BMO), on 8 September 1994. Mr Brian Lo of counsel (Mr Lo) appeared for IO. 2.The Estate is built on Sha Tin Town Lot No.289 (the Lot) granted by the Government by way of New Grant No.12159 (the Grant). The Estate and the Lot was governed by a deed of mutual covenant dated 28 March 1989 registered at the Land Registry (the DMC). 3.The 1st Respondent company (R1) became the registered owner of Shop 7 on the ground floor of the Estate (Shop 7) by an assignment dated 26 March 2015 (R1’s 2015 Assignment) and has remained so until trial. The 2nd Respondent (R2) is Madam Jackie Luk. Ms Lily Yeung of counsel (Ms Yeung) appeared for R1 and R2. 4.R1 and R2 in their respective Amended Notice of Opposition and Notice of Opposition settled by the same counsel[1] admitted paragraph 2 of IO’s Amended Notice of Application. 5.By the said paragraph 2 of Amended Notice of Application, IO alleges that, at all material times, R2 has occupied using Shop 7 as a fruit shop with particulars as follows:
Hence, according to the said paragraph 2, R2 has at all material times been tenant of Shop 7. 6.On 8 December 2022, IO commenced these proceedings at Lands Tribunal against R1 and R2 for alleged breaches of the DMC and BMO, seeking against them mandatory injunction, prohibitory injunction, damages for breach of the DMC and costs. B. IO’s Case 7.In its Amended Notice of Application, IO’s case is that the all passageways (行人通道) within the Estate (the Passageways) are “common parts” of the Estate under Schedule 1 of BMO and the definitions of the DMC. 8.Since about November 2021, R1 and/or R2 (using Shop 7 with express and/or implied consent of R1), has/have, in alleged breach of, among others, clause 14 of Subsection A of Section IV of the DMC (Clause 14),
9.Further or alternatively, the above actions of R1 and/or R2 are, IO says, in breach of s.34I of BMO in that the Passageway outside Shop 7:
C. Case of R1 and R2 10.In their Amended Notice of Opposition, and Notice of Opposition, respectively, R1 and R2 do not admit that the Passageways are “common parts” of the Estate as alleged. 11.R1 in its Amended Notice of Opposition avers that it did not expressly or impliedly consent to R2 to act in contravention of the DMC. 12.Both R1 and R2 averred that R2 placed, and places, her goods and sundries, which are movable, outside Shop 7B at ground floor of the Estate (Shop 7B) during business hours and kept, and keeps, the goods and sundries inside the shop thereafter, causing no nuisance to the other owners or occupiers of the Estate. 13.If the area in question is “common parts” as alleged, R1 and R2 do not admit that their use thereof constitute(s) breach of Clause 14. 14.If R1 and/or R2 is/are found to have breached the DMC, IO, said R1 and R2 in their respective Amended Notice of Opposition and Notice of Opposition, has acquiesced to R1 and/or R2’s breaches. The particulars of acquiescence provided are that: -
15.If R1 and/or R2 is/are found to have breached BMO, it is averred in their respective Amended Notice of Opposition and Notice of Opposition that IO has acquiesced to R1 and/or R2’s breaches. The above paragraph regarding acquiescence to R1 and/or R2’s breaches of the DMC is repeated. 16.Both R1 and R2 finally deny that IO is “entitled to any of its claimed reliefs or any relief at all” against them. D. Issues to be resolved 17.Considering parties’ case at section C above, it is, I think, necessary for this Tribunal to resolve the following issues, namely: -
E. Assessment of witnesses called at trial E1. Leung 18.IO called Mr. Leung (梁堅強) (Leung), assistant property officer of its management office, to testify. 19.As shall be seen, Leung’s evidence suffers from one limitation. He only joined the management of the Estate in 2016. Thus, he has no personal knowledge of events happening within the Estate beforehand. 20.Nonetheless, Leung claimed in the box that the management of the Estate has documents of other legal proceedings about G/F shops commenced prior to 2016 but they are not produced. He purportedly explained that, as he only joined the Estate in 2016, it was not appropriate for him to produce them. This explanation is, I think, unconvincing. Had those alleged documents existed, Leung could, I think, equally produce them into evidence at trial. I cannot accept this piece of evidence from Leung as Ms Yeung has submitted. 21.Leung was also cross-examined by Ms Yeung on the number of complaints received by the manager of the Estate and IO about placing of merchandises and goods at the Passageway outside G/F shops of the Estate. He only produced at trial documents proving two instances, one by an owner in May 2024 and the other by four owners in July 2024. Again, he claimed to have received other similar complaints from owners but they were not produced either. I am, however, prepared to accept Leung’s evidence on this point for trial evidence disclosed that IO had taken proceedings against different G/F shop owners of the Estate starting from 2016 and had formed a task force to take enforcement action starting February 2024. It is, I think, likely that IO and the manager of the Estate took out these actions due to other owners’ complaints made to them prior to May 2024. 22.Subject to a few points to be addressed below, the rest of Leung’s evidence is either unopposed or non-controversial, or supported by documentary evidence produced by IO. I am prepared to accept them and give such weight to them as they deserve. E2. R2 & Choi Senior 23.R2 took to the witness stand after Leung finished his evidence. 24.Afterwards, one director and shareholder of R1 i.e. Mr Choi Hon Lun (蔡漢粦) (Choi Senior) was called to testify (another director of R1 that appeared on documents produced at trial is his younger brother Mr Choy Hon Ping). 25.I am afraid I do not find R2 or Choi Senior witness of truth. They both impress me as incredible and unreliable witness for the following reasons. 26.They both gave, I think, misleading evidence that seeks to confuse the reader and this Tribunal. Both claimed that as much as “2m” remain for one to move around after goods were placed at the Passageway outside Shop 7. However, that 2m width is, as R2 later admitted, open government land/pavement that does not belong to owners of the Estate (i.e. not within the Lot). 27.Regarding the so-called “common practice”[4] they both gave evidence, what matters, I think, most is the adverse effect, if any, goods and sundries placed on the Passageways had on residents and occupiers of, and visitors to, the Estate in the daytime when such persons are expected to be passing by. What happened in the nighttime when there is neither resident nor visitor around as claimed by Choi Senior and R2[5] is, I think, neither here nor there. 28.Like Leung, Choi Senior also sought to give evidence of alleged “common practice” as early as in the 1990’s when he admittedly first came into picture to purchase Shop 7 only in 2015. He purportedly gave evidence on matters beyond his personal knowledge. 29.The Google street photos R1 produced[6] and Choi Senior relied (and R2 also relied) in witness statement to support alleged 1990’s “common practice” are all, I must say, daytime photos and they do not show nighttime situation as claimed. 30.Choi Senior’s so-called further support for such alleged “common practice” by way of alleged enquiries with nearby shop user(s) and estate agent(s) is, I must say, all “hearsay” with their source(s) “wholly unknown”. I cannot but give no weight to all such pre-2015 evidence given by Choi Senior. 31.Even one takes to their highest what were captured by those Google street photos produced in the daytime in the years before 2015, they captured, I must stress, what happened on one single day in 2009 and another single day in 2011 (see below). Due to the limited number of years and dates these photos were taken, they could not, I think, prove continuous “common practice” over the years since 2009 as alleged by Choi Senior or by R2. 32.Neither do these Google street photos show that “nearly all (if not all)” G/F shops occupants of the Estate placed goods at the Passageways in the daytime. They are all photos of G/F shops facing Mei Tin Road. Those shops occupants that practised the so-called “common practice” captured by them are limited to, one notes, no more than 7 shops facing Mei Tin Road. 33.There are, I should stress, as many as 31 G/F shops at the Commercial Development of the Estate. R1 (and R2) produced no evidence of similar practice by G/F shops facing Tai Wai Road. Indeed, some photos of Shop 7B and other G/F shops facing Tsuen Nam Road produced by IO[7] positively showed that other shops facing Tsuen Nam Road did not have such practice[8] (see below for layout of the Estate) (the analysis in this paragraph applies with equal force, I think, to such evidence of alleged “common practice” given by R2 before she became tenant of shops at the Estate.) 34.Indeed, evidence of alleged “common practice” and many other allegations in Choi Senior’s witness statement, including alleged acquiescence on the part of IO, were not raised at all in R1’s 2/4/2019 Letter to LT re 2018 Action (signed by Choi Senior), in R1’s Former Solicitors’ Letter dated 25/1/2022, or in R1’s Notice of Opposition filed by Choi Senior in person in January 2023 (see below). These many allegations of Choi Senior only surfaced, I note, for the first time in R1’s Amended Notice of Opposition filed by its solicitors as late as in January 2024 i.e. 7 months before trial. 35.At one stage in the box, Choi Senior also gave evidence of R2 being tenant of G/F shop of the Estate as far back as 1996. With respects, that goes beyond, and is contracted by, evidence of R2, who said in her witness statement that she started renting Shop 7A of ground floor of the Estate (Shop 7A) selling fruit back in 2011 only (at the same time, R2 surprisingly made no reference of her renting Shop 7A at all in her Notice of Opposition settled by counsel). 36.At the same time, R2’s evidence is also contradicted by contemporaneous documents. For instance, while she produced a business registration of a fruit business in name of Kam Nga Fresh Fruit (金雅鮮果) at Shop 7 as from 6 April 2011, she referred to her renting Shop 7A selling fruit as from 2011 in her witness statement. However, on documents produced at trial (and on Choi Senior’s evidence), Shop 7 was rented by R1 to one Tsui Ka Ping (徐家平) (Tsui) between September 2015 and March 2019. I cannot but reject R2’s contrary evidence in this respect in her statement and in the box. 37.For similar reason, I also reject R2’s evidence in the box that she has continuously rented Shop 7A from 2011 until today. Plainly, Choi Senior on behalf of R1 had granted a licence of Shop 7A to Wong Wai Ming (黃偉明) (Wong) from November 2022 to May 2023. After Mr Lo referred to the said licence agreement in his cross-examination, R2 had no choice but to admit that she herself did not rent Shop 7A between November 2022 and May 2023. 38.Furthermore, R2 gave incredible evidence by insisting under cross-examination that certain alleged footpath remains on the ground that allows pedestrians to move around inside the Passageway outside Shop 7 when fruit and boxes had been heavily and closely stacked together to its outer limit i.e. up to the drain covers on the ground facing Tsuen Nam Road (see below). On photos produced at trial before this Tribunal, any footpath alleged by R2 that remains, if at all, must be very narrow. Maneuver that pedestrians can allegedly make, if any, must also be very limited. 39.Neither did Choi Senior nor R2 tell, I think, the whole truth to this Tribunal. For example, for likely, I think, tactical reason, R2 made no mention in her witness statement of occupying Shop 6 as a tenant and her moving away as a result of the 2019 Proceedings taken out by Bridge, which in turn was caused by 2018 Action against Bridge taken out by IO (see below). 40.While R1 had, as Choi Senior said in his letter dated 1 August 2023 to IO’s solicitors, recovered possession of Shop 7A from Wong, Choi Senior had at the same time hidden in the said letter the material facts that R1 had thereafter let it to R2 until he gave evidence in the box (see below). 41.Choi Senior’s evidence is also, I think, inconsistent with contents of R1’s own documents. Choi Senior claimed of not receiving letter dated 31 December 2021 from IO’s solicitors and of not knowing IO’s claim of placing goods and merchandise at the Passageway outside Shop 7 done in contravention of the DMC. But he was contradicted, and embarrassed, at once on both points when Mr Lo referred Choi Senior in his cross-examination to R1’s Former Solicitors’ Letter dated 25/1/2022 (see below). 42.Plainly, contrary to Choi Senior’s claim of IO’s lack of enforcement until February 2024 in his witness statement, IO had in the past enforced (or sought to enforce) the DMC regarding goods and sundries placed at the Passageway outside Shop 7 against R1 and its tenant by way of 21/9/2015 Warning Letter and 2018 Action (see below). And, according to order made by Lands Tribunal in 2018 Action, R1 was jointly and severally ordered to pay costs of IO by its consent, contrary to Choi Senior’s denial in his witness statement (see below). 43.Hence, unless otherwise stated below, I do not accept evidence given by R2 or by Choi Senior save those that are unopposed or non-controversial. 44.In the event R2 and Choi Senior made admissions consistent with IO’ case, I give such admissions full weight and act on them accordingly. F. Facts proven at trial 45.I find the following facts proven from admissions in R1’s Amended Notice of Opposition, admissions in R2’s Notice of Opposition, indisputable documentary evidence, unopposed factual evidence, and oral admissions given by parties’ witnesses, including R2 and Choi Senior, called at trial. F1. Conditions of the Grant 46.According to the Grant, the Lot, located at Tai Wai, Sha Tin, is about 8,666 square metres in area and is “delineated and shown coloured pink, pink hatched black and pink crossed black (underline and italics supplied)” on a plan annexed to the Grant (the Lot Plan). 47.Looking at the Lot Plan, the Lot is rectangular in shape. Its 4-side boundary is marked, among others, by points A to H. Tsuen Nam Road, and the railway, is to the Southeast of the Lot. Mei Tin Road is to its Southwest. Grendeur Estate is located to its Northwest. And Tai Wai Road is found at its Northeast. 48.Special Conditions (11) of the Grant headed “Construction of a walkway” read as follows:
49.On the Lot Plan, the said “covered walkway” in Special Conditions (11) above is a U-shaped narrow strip of land at the boundary of the Lot facing Mei Tin Road, Tsuen Nam Road and Tai Wai Road and marked by points F to E, E to D, and D to A (the Covered Walkway). Put another way, it is, as shall be seen, the margin between 31 ground floor shops of the Estate and the outermost boundary of the Lot. F2. Material provisions of the DMC 50.The DMC includes the following definitions, namely: -
51.In recital (2), the Lot and the Estate were notionally divided into 43,667 equal undivided shares as set out in the First Schedule. First Schedule in turn allocates different number of undivided shares to each of:
52.Clause 1 in Section I sets out the exclusive use areas of the “Registered Owner” of the DMC. It reads: -
53.Clause 2 in Section I sets out the exclusive use areas of the “First Purchaser” of the DMC. It reads:
54.Section II is headed “Easements, rights and privileges the benefit of which is held with each (residential or commercial) undivided shares of and in the Land and the Estate”.
55.Section IV is headed “covenants, provisions and restrictions to be observed and performed by the owners”. Subsection A is “provisions applicable to all owners”.
56.Section V deals with “management of the Estate”. Clause 1 of Subsection B thereof set outs “powers and duties” of “Manager”, including:
57.Subsection D deals with “management expenses” payable by owner of each Residential Unit, Commercial Unit or Car Port in accordance with Second Schedule. It includes “(b) The cost of carrying out all or any of the duties of the Manager set out in Clause 1 of Sub-Section B of SECTION V hereof”. 58.Section VII provides for “meetings of the owners” and “meetings of Estate Owners’ Committee”. 59.Finally, clause 6 of Section VIII provides that “the Manager shall at all times keep in the management office in the Estate a set of plans showing the common parts of the Estate which plans shall be available for inspection by the Owners (bold supplied)”. F3. The Estate 60.The Site Layout Plan, one of the Plans defined in the DMC, is produced at trial. Together with the DMC, they reveal that the Estate consists of:
F4. Shop 7 and the Passageway outside 61.Shop 7 is a corner shop (which is marked by the words ‘SH7’ in the above Site Layout Plan) facing Mei Tin Road at one side and facing Tsuen Nam Road on the other. It is at the Southern most of the boundary of the Lot, with boundary point E to its South. Further out from point E, columns are erected from the ground to build one long covered walkway leading to, I believe, Tai Wai railway station. 62.On photos before me, the Passageway outside Shop 7 is “L” in shape. It is made of concrete and grey in colour, and it is directly underneath the canopy above. Its ground area is thus delineated by the concrete canopy above. Drainage covers on the ground mark its outer limit with pavement of Tsuen Nam Road. 63.And the said L-shaped Passageway outside Shop 7 is easily distinguishable from the open pavement of Tsuen Nam Road and the open pavement of Mei Tin Road (they are of course, as Leung said, open government land not within the Lot) as the latter two are paved with bricks of different (pink) colour. 64.The said L-shaped Passageway outside Shop 7 is thus, I find, part of the Covered Walkway within the Lot constructed pursuant to Special Condition (11) of the Grant. On the Site Layout Plan, the words “canopy above” repeatedly appears throughout the 3 sides of the Covered Walkway facing Mei Tin Road, Tsuen Nam Road and Tai Wai Road. It is distinct from the adjacent open government land (or open pavement) outside the boundary of the Lot. F5. First assignment of Shop 7 65.On 4 April 1989, the “Registered Owner” named in DMC assigned Shops 7 and 13 to its first purchaser (First Assignment of Shop 7) and the said 2 shops were coloured Pink on two ground floor plans annexed thereto. The said First Assignment of Shop 7[9] was made subject to and with the benefit of DMC. The two shops were assigned
F6. Division into Shop 7A and Shop 7B 66.At an unknown time, Shop 7 was divided into Shop 7A facing Mei Tin Road and Shop 7B facing Tsuen Nam Road as R2 testified and described under cross-examination[10]. F7. 2009 67.Three Google street photos taken, likely, in same day in April 2009[11] produced by R1 showed that the Passageway outside Shop 5, Shop 6 and Shop 7A at ground floor facing Mei Tin Road was fully[12] occupied by merchandise and other goods. F8. 2011 68.Three Google street photos taken, likely, in same day in June 2011[13] produced by R1 showed that the Passageway outside Shop 5, Shop 6 and Shop 7A at ground floor facing Mei Tin Road was fully occupied with merchandise and other goods[14]. F9. 2014 69.On 8 October 2014, R1 entered into an agreement to purchase Shop 7 for $68,800,000. F10. 2015 70.On 26 March 2015, for consideration of $68,800,000, R1 purchased from three vendors (one of them being Tsui), and became registered owner of, Shop 7. 71.R1’s 2015 Assignment was executed by, among other, Choi Senior for R1. It was subject to and with the benefit of the DMC. Shop 7 was said therein to be shown and coloured Pink and marked “SH7” on the Floor Plan annexed to First Assignment of Shop 7. 72.For matters below, it is likely, I find, that Tsui had continued to occupy Shop 7 as tenant of R1 after the said sale of Shop 7 to R1 in March 2015. 73.About 6 months later, on 21 September 2015, the management office of the Estate issued a letter to 金雅麵包, copied to owner of Shop 7, IO and District Land Office Sha Tin, warned that placing of merchandise and other goods outside Shop 7 obstructed Covered Walkway therein and caused nuisance to members of the public and referred to Clause 14, demanding that merchandise and goods be removed within 10 days or else legal action be taken without further notice (21/9/2015 Warning Letter). F11. 2016 74.In October 2016, Leung joined the management office of the Estate. 75.Sometime in 2016, IO began DCCJ 3796/2016 against the 1st and 2nd defendants therein regarding Shop 5 at ground floor of the Estate (Shop 5). 76.Two Google street photos taken in December 2016 produced by R1 show that the Passageway outside Shop 2 (or 3), Shop 6 and Shop 7A at ground floor facing Mei Tin Road was occupied by merchandise and/or other goods[15]. F12. 2017 77.Sometime in 2017 prior to 16 March 2017, IO began at Land Tribunal 5 different proceedings i.e. LDBM 22/2017 to LDBM 26/2017 against the respondent(s) therein regarding Shop 4, Shop 3A, Shop 3B, Shop 2BC and Shop 2A all at ground floor of the Estate (Shop 4, Shop 3A, Shop 3B, Shop 2BC, Shop 2A) respectively. 78.On 16 March 2017, in LDBM 25/2017, consent order was made by Lands Tribunal on consent summons 1) requiring respondent therein to remove goods from the passageway outside Shop 2BC and 2) prohibiting the respondent from doing so in future. F13. 2018 79.Sometime in 2018, IO commenced proceedings against one Bridge Services Limited (喜達有限公司) (Bridge) in LDBM 237/2018 at Lands Tribunal regarding Shop 6 (2018 Action against Bridge). Under cross-examination of Mr Lo, R2 admitted occupying Shop 6 as tenant, I think, from Bridge. 80.On or about 26 March 2018, Tsui and R1 entered into a tenancy agreement over Shop 7 (this is likely, I find, a renewed tenancy agreement). 81.In October 2018, Leung became assistant property officer of the management office of the Estate. 82.On 13 November 2018, IO’s solicitors commenced LDBM 236/2018 (2018 Action) on IO’s behalf against R1 as the 1st respondent thereof and Tsui trading as Kam Ngar Cakes Shop (金雅餅店) as the 2nd respondent thereof, making similar allegations of breach of Clause 14 and s.34I of BMO by Shop 7 as from 2018 and seeking similar relief to those of these proceedings. F14. 2019 83.On 25 January 2019，Choi Senior on behalf of R1 and Tsui signed a 終止租約協議書 in Chinese whereby, R1 having let Shop 7 to Tsui by a tenancy agreement dated 28 March 2018, Tsui agreed to surrender the said shop to R1 on or before 25 March 2019. 84.On 6 March 2019, R1 and Tsui signed an agreement for surrender agreement in English whereby, R1 having let Shop 7 to Tsui by a tenancy agreement dated 26 March 2018, Tsui agreed to surrender the said shop to R1 on or before 25 March 2019 (incorporating a Chinese 退租協議書 dated 25 January 2019 by the same parties on Shop 7). 85.By 26 March 2019, Tsui had likely, I find, surrendered and returned possession of Shop 7 to R1. 86.On 2 April 2019, Choi Senior on behalf of R1 wrote a letter to the Registrar of Lands Tribunal headed “LDBM 1236/2018”[16] (R1’s 2/4/2019 Letter to LT re 2018 Action), referring to summons (傳票) dated 13 November 2018 from Lands Tribunal, stating that it was owner of Shop 7 and, also, the followings in the 2nd and 3rd paragraphs of the said letter:
87.On 4 April 2019, in 2018 Action, Lands Tribunal made an order by consent, after hearing IO’s solicitors, R1’s representative and Tsui, whereby it gave leave to IO to discontinue 2018 Action, and R1 and Tsui became jointly and severally liable to pay costs of the action in sum of $15,000 to IO. 88.After surrender of Shop 7 by Tsui in late March 2019, on Choi’s admissions, in 2019, R1 let Shop 7A to R2 and let Shop 7B to one estate agent by the name of “Hong Kong Property” for 2 years. R2 came to know that Tsui surrendered Shop 7 due to legal proceedings taken out by IO against him for placing merchandises at the Passageway outside Shop 7 (R2 claimed such action by IO as IO’s “harassment” of Tsui in her witness statement; and Choi Senior made similar claim in his witness statement). 89.On 18 April 2019, orders were made by Lands Tribunal in LDBM 23/2017 on consent summons filed by IO, 1st and 2nd respondents therein giving leave to IO to discontinue as against 3rd respondent therein and ordering the 1st and 2nd respondents therein to pay agreed costs of the action in the sum of $40,000 to IO (as new tenant of Shop 3A agreed, I accept from Leung, to remove all the goods placed at the passageway outside the said shop). 90.On 18 April 2019, orders were made by Lands Tribunal in LDBM 24/2017 on consent summons filed by IO, the 1st to 3rd respondents therein giving leave to IO to discontinue as against the 1st to 3rd respondents and ordering the 1st to 3rd respondents to pay agreed costs of the action in sum of $40,000 to IO (as new tenant of Shop 3B agreed, I accept from Leung, to remove all the goods placed at the passageway outside the said shop). 91.Sometime in 2019, IO began DCCJ 868/2019 regarding Shop 1 against the defendant therein. 92.Sometime in 2019, Bridge began LDPE 438/2019 at Lands Tribunal, seeking to recover possession of Shop 6 from, I think, R2 (the 2019 Proceedings). 93.On 23 May 2019, interlocutory judgment was entered by default in DCCJ 3796/2016 began by IO against the 1st and 2nd defendants therein removing them to remove obstructions at common parts of the Estate (this, I accept from Leung, means the Passageway outside Shop 5), for damages to be assessed and costs. 94.On 8 July 2019, orders were made by Lands Tribunal in the 2018 Action against Bridge on consent summons and upon undertaking of Bridge to make best endeavours in the 2019 Proceedings to recover possession of Shop 6 and to remove all goods at the Passageway outside Shop 6 within 3 months thereafter, giving leave to IO to discontinue 2018 Action against Bridge and requiring Bridge to pay costs of the same in sum of $15,000 to IO. 95.Two Google street photos taken in September 2019 produced by R1 show that the Passageway outside Shop 3, Shop 4, Shop 5, Shop 6 and Shop 7 was occupied with merchandise and other goods. 96.On 11 October 2019, orders were made by consent by District Court Master in DCCJ 969/2019 whereby, upon defendant’s undertaking not to place or leave or allow goods outside Shop 1 of the Estate which area fell within common areas, leave was given to IO to discontinue the action and IO was awarded costs of $30,000. 97.On 19 December 2019, judgment after trial was entered by the Lands Tribunal in LDBM 26/2017 began by IO on consent of the 1st and 2nd respondents therein 1) requiring them to remove goods placed at the Passageway outside Shop 2A and 2) prohibiting them to so place goods in future. F15. 2021 98.On 11 January 2021, orders were made by consent by the Lands Tribunal in LDBM 22/2017 on consent summons filed by parties requiring the respondent therein, among others, to remove goods placed at the passageway outside Shop 4 within 7 days and paying costs of the action in sum of $30,000 to IO. 99.Four Google street photos taken in February 2021 (two of them likely taken on the same day[18]) produced by R1 show that the Passageway outside Shop 2, Shop 3, Shop 4, Shop 5, Shop 6 and Shop 7 was occupied with merchandise and other goods. 100.After termination of Hong Kong Property’s tenancy over Shop 7B, on 11 March 2021, R1 also let Shop 7B to R2 for commercial use for 2 years (from 10 March 2021 to 9 March 2023) by way of R2’s 2021 Tenancy Agreement at monthly rental of $160,000. R2 thereafter carried on a fruit business thereon. 101.As from March 2021, R2 thereby occupied both Shop 7A and Shop 7B (the entire Shop 7) as tenant of R1 carrying on her fruit business for the first time. By then, R2 should have already returned possession of Shop 6 to Bridge due to the 2019 Proceedings taken out by Bridge because of 2018 Action against Bridge. 102.On 3 August 2021, District Lands Office (DLO), Shatin, issued bilingual warning letter by way of registered post to R1 at its registered office in Jordan, copied to Shop 7 occupant and IO, advising that recent inspection by officers of its Lease Enforcement Unit revealed that:
and calling upon R1 to purge the said breach within 28 days (with the said marked copy plan attached) while reserving government right to take further lease enforcement action (DLO 3/8/2021 Warning Letter). 103.Two photos dated 26 November 2021 produced at trial show that fruit, boxes and sunshades[20] were placed at L-shaped Passageway outside Shop 7, which was not painted, or affixed, with any nameplate, likely done intentionally by R2 due to legal proceedings in the past (after all, R2 has had, since 2011, a trade name of Kam Nga Fresh Fruit in her business registration which she could lawfully disclose to others if she saw fit to do so). 104.Since about November 2021, management staff of the Estate on their patrol discovered that (and on the admissions of R1 and R2 in their (Amended) Notice of Opposition) goods and sundries (including fruit and carton boxes) were, without consent of IO or manager of the Estate, placed by R2 at the Passageway outside Shop 7 (inclusive of Shop 7A and Shop 7B) during business hours in the daytime, attracting from time to time many shoppers to stay at and/or beyond the Passageway outside Shop 7. 105.As is amply proven by, among others, many photos produced at trial, the above actions of R2 (and results thereof) persisted, I find, until trial (though it stopped for a short period as far as Shop 7A is concerned, see below). 106.On 28 November 2021, DLO 3/8/2021 Warning Letter was registered against Shop 7 at the Land Registry. 107.On 31 December 2021, IO’s solicitors sent by post a letter to R1 and occupier of Shop 7, warning that merchandise and other goods were placed on pavement in breach of Clause 14 by occupier of Shop 7 in November 2021 as per enclosed 5 photos (all taken on 26 November 2021 showing that merchandise were placed at the Passageway outside Shop 7) and demanding their cessation and remedy within 7 days or else legal action may be taken by IO. F16. 2022 108.In early January 2022, R1’s staff spoke to R2 urging her to “improve” in her business i.e. to move merchandises and goods back to interior of Shop 7. 109.On 25 January 2022, R1’s former solicitors replied to IO’s solicitors on latter’s letter dated 31 December 2021, copied R1 (R1’s Former Solicitors’ Letter dated 25/1/2022), stating that:
and enclosing 4 photos of Shop 7 taken at 0640 to 0710 hours all on 6 January 2022 (with all goods put inside Shop 7 and nothing remaining on L-shaped Passageway outside). 110.But photos taken by IO in January, February, May, July, August and December 2022 show that L-shaped Passageway outside Shop 7 were fully occupied by fruit, boxes and sunshade. Shop 7 was, of course, not painted, or affixed, with any nameplate in these photos. 111.Two Google street photos taken in March and July 2022 produced by R1 also show that the Passageways outside Shop 4, Shop 5, Shop 6 and Shop 7 were occupied with merchandise and other goods. 112.On 27 May 2022, IO’s solicitors sent a reply letter to R1’s former solicitors, copied to IO and occupant of Shop 7, stating, among others, that “little improvements” were made since their letter dated 25 January 2022 and tenant of Shop 7 continues to place goods and objects at the common areas of the Estate causing obstructions to the residents and the general public in violation of the DMC. Photos taken on 9 & 12 February and 1, 2, 16, 17 & 23 May 2022 were enclosed (all showing that the Passageway outside Shop 7 occupied by merchandise and other goods). IO’s solicitors demanded R1 and its tenant to cease above action and take remedial actions within 7 days, failing which they have standing instructions to take out legal proceedings. 113.On 12 November 2022, instead of letting Shop 7A further to R2, Choi Senior on behalf of R1 granted a licence agreement of Shop 7A to Wong for selling drinks from 15 November 2022 to 14 May 2023 (i.e. a short period of 6 months) at a monthly license fee of $32,000. 114.On 8 December 2022, IO’s solicitors sent letter to R1’s former solicitors asking the latter for any instructions to accept service of legal proceedings. 115.On the same day, IO issued Notice of Application against R1 alone in these proceedings. I believe R1 was then sued alone as IO and the management of the Estate had no information about the identity of the occupant(s) or tenant(s) of Shop 7. After all, no nameplate of Shop 7 was affixed or painted at all. 116.On 16 December 2022, Leung on behalf of IO sent a letter to R1, copied to tenant of Shop 7, demanding that goods and objects placed at common areas for private and commercial use causing obstruction (enclosing one photo of Shop 7A and another of Shop 7B, both of even date, showing that merchandise, sunshade and other goods were placed at the Passageway outside, with Shop 7 having no nameplate) be at once removed and returned to Shop 7, or else IO may exercise its power under DMC to remove or discard the same at R1’s expense. 117.On 30 December 2022, Leung on behalf of IO sent a letter to R1, copied to tenant of Shop 7, in similar terms to IO’s letter dated 16 December 2022 and enclosing 2 photos of even date, one of Shop 7A and the other of Shop 7B, with fully occupied Passageways outside and Shop 7 having no nameplate at all. 118.Apart from the above written letters, oral warnings, I accept from Leung, had previously also been given to owner and/or occupants of Shop 7 by management staff of the Estate requiring them to remove goods and sundries placed at the Passageway outside Shop 7. F17. 2023 119.On 20 January 2023, Choi Senior on behalf of R1 filed Notice of Opposition in these proceedings. The only ground put down was that R1 did not breach the DMC (答辯人沒違反富嘉花園大厦公契). 120.Two photos taken on 31 January 2023 produced by IO show that fruit, boxes and sunshade were placed at L-shaped Passageway outside Shop 7, which had no nameplate. 121.On 15 February 2023, Leung’s witness statement was filed. 122.On 5 March 2023, R2 entered into R2’s 2023 Tenancy Agreement with R1 (signed by Choi Senior) to renew lease of Shop 7B for another 2 years of commercial use from 10 March 2023 to 9 March 2025 at a monthly rent of $160,000, pursuant to an option to renew in R2’s 2021 Tenancy Agreement. 123.By then, R2 had come to know from Choi Senior about these proceedings then taken out against R1 alone. 124.At hearing before Lands Tribunal on 8 March 2023, R1 provided IO’s solicitors with 1) copy licence agreement of Shop 7A until 14 May 2023 with Wong dated 12 November 2022 and 2) copy tenancy agreement of Shop 7B with R2 until 9 March 2023. 125.On 21 July 2023, Wong and Choi Senior on behalf of R1 entered into a surrender agreement (終止租約協議書), agreeing to terminate tenancy of Shop 7A between the two (tenancy agreement dated 12 November 2022 and lasting) as from 31 July 2023. 126.On 24 July 2023, IO’s solicitors wrote to R1 seeking updated information regarding tenancy of Shops 7A and 7B. 127.In about late July 2023, R1 recovered possession of Shop 7A from Wong. However, R1 on the other hand let Shop 7A to R2 for her fruit business. The two did not see fit to enter into any written tenancy agreement over Shop 7A. 128.On 1 August 2023, Choi Senior on behalf of R1 replied IO’s solicitors stating that it had recovered possession of Shop 7A but that tenant of Shop 7B had renewed for 2 years to 9 March 2025 (and disagreeing to return the same). R1 purportedly stated that it would take legal action to recover Shop 7B. 129.Photos taken by IO in April, July and 3 to 7 August 2023 show that fruit, boxes and sunshade were placed at L-shaped Passageway outside Shop 7, which had no nameplate. 130.Two photos taken in late August 2023 produced by IO also show that fruit, boxes and sunshade were placed at L-shaped Passageway outside Shop 7. Four more photos taken in August 2023 produced by IO showed that L-shaped Passageway outside Shop 7 was fully occupied by fruit, boxes and sunshades etc. The Passageway outside Shop 6 was similarly occupied. 131.Two photos taken on 26 August 2023 produced by R1 also showed that merchandises and goods were placed at the Passageways outside Shops 2 to 7. 132.On 27 September 2023, leave was given by the Lands Tribunal to join R2 to these proceedings. 133.Two photos taken by R1 and/or R2 at night on 8 November 2023 showed that roller gates of Shop 7 (which had no nameplate) have been shut down with nothing placed at Passageway outside Shops 1 to 7. 134.But four Google street photos taken in January, March and December 2023 (two of them likely taken on the same day[21]) produced by R1 show that the Passageway outside Shop 4, Shop 5, Shop 6 and Shop 7 was occupied by merchandise and other goods. F18. 2024 135.On 3 January 2024, Amended Notice of Opposition was filed by R1 and Notice of Opposition was filed by R2. 136.Starting from February 2024, a task force formed by the manager of the Estate removed merchandises and goods placed at the Passageway outside G/F shops and demand payment for returning them to their owners. 137.On 19 April 2024, R1 and R2 jointly made an interlocutory application in these proceedings for an interlocutory injunction until judgment against IO’s interference of their use and occupation of the “pedestrian walkway(s)” outside Shop 7B. 138.On 4 May 2024, the management of the Estate received complaint from one owner from Block 1 about obstruction caused by placing of goods at the Passageway. 139.On 14 May 2024, the above interlocutory injunction application taken out by R1 and R2 in these proceedings was dismissed by the Lands Tribunal after hearing. 140.On 27 June 2024, Choi Senior’s witness statement, and R2’s witness statement, were filed. 141.On 17 July 2024, IO received complaint from four owners[22] regarding occupation of the Passageway by shop occupants. Two photos taken by IO in the morning of 17 July 2024 show that the Passageway outside Shop 7 was still partly occupied by merchandise and cartoon boxes. 142.On 29 July 2024, Leung’s supplemental witness statement was filed. 143.On 27 August 2024, trial of these proceedings began. G. Material provisions of BMO 144.Under s.2, “common parts” means “(a) the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and (b) unless so specified or designated, those parts specified in Schedule 1”. 145.Paragraph 8 of Schedule 1 includes “passageways[23]”. 146.Under s.18(1)(c), IO shall “do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant (if any) for the control, management and administration of the building”. 147.Under s.34C(1), Part VIA applies “, except where otherwise expressly provided, applies only to a building in respect of which a deed of mutual covenant is in force whether that deed came into force before or after the material date”. 148.By s.34C(2), “In the event of any inconsistency between this Part and the terms of a deed of mutual covenant or any other agreement, this Part shall prevail”. 149.S.34I(1) reads: “No person may —
150.By s.34I(2), any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building. H. Issue (1) – is the Passageway outside Shop 7 “common parts” or not? 151.It is a pity that IO has not produced such plans, if any, prepared pursuant to clause 6 of Section VIII of the DMC to assist in resolving the above issue. 152.But I still agree with Mr Lo that the Passageway outside Shop 7 is “common parts” of the Estate within definitions of BMO and the DMC. I give the following reasons:-
I. Issue (2) – were R2 and R1 in breach of Clause 14 or not? 153.Pursuant to s.41 of Conveyancing and Property Ordinance[24], the benefits and burdens of covenants of the DMC run with the Lot and are enforceable against any “owners” of the Lot like R1. As against occupier of the Lot like R2, negative (as opposed to positive) covenants of the DMC remain enforceable under the said section. 154.Clause 14 is, I think, a negative covenant. Thus, it is, I think, also enforceable against R2. It could, I think, be broken into 4 different prohibitions against different activities on different areas by different person(s), namely: -
155.Looking at its Amended Notice of Application, IO only relies on Limb (3) and Limb (4) of Clause 14 against R2 and R1. 156.Regarding R2, on my findings above, she had, I think, undoubtedly used the Passageway outside Shop 7 (be it Shop 7A or Shop B) for her business purpose since about November 2021 until trial. I find her in breach of Limb (3) of Clause 14. 157.However, as R2 is not an “Owner” as defined in the DMC, she could not, I think, be guilty of breaching Limb (4) of Clause 14, whose prohibition is directed against “Owner”. 158.Moving to R1, notwithstanding Choi Senior’s evidence of denial and his claimed ignorance of the DMC in his statement and in the box, I infer and find on balance from, among others, the following trial evidence that R1 had allowed R2 using the Passageway outside Shop 7 (be it Shop 7A, Shop 7B or Shop 7) for R2’s business purpose since about November 2021 until trial: -
I therefore find R1 in breach of Limb (3) of Clause 14. If necessary, I would also apply Clause 8 and/ Clause 10 to arrive at the same conclusion above. 159.Based on, among others, the same evidence in the preceding paragraph and Leung’s evidence below, I am also satisfied on the balance of probabilities that R1, has since about November 2021, suffered or permitted R2 to place goods and sundries at the Passageway outside Shop 7, Shop 7A or Shop 7B (as the case may be) which caused or became a nuisance to other owners or occupiers of the Estate. 160.On this point, I accept Leung’s unchallenged evidence that R2’s actions above had:
161.And R2’s actions above had, as one observes from photos produced, caused shoppers to gather together from time to time at and around the Passageway outside Shop 7 such that other owners and occupiers of the Estate were obstructed from using the said passageway for their own passage (or that of their customers to their shops[25]). 162.These self-evident ordinary and foreseeable consequences in the two preceding paragraphs above could not, I think, have escaped R1’s attention in the past. 163.Applying principles of private nuisance summarized in Cheng Lai Yin v Liu Yee Mui[26] quoted at paragraph 34 of Ms Yeung’s opening submissions, though no financial or physical damage is involved, the consequences in the preceding two paragraphs above are, I think, real interference with comfort and convenience of the living and business of other owners and occupiers of the Estate according to standards of average man, and the said discomfort is, I think, substantial to them, having regard to all the circumstances, including duration, extent and frequency, of such occupation of the Passageway outside Shop 7 by R2 for her own business. They therefore amounted to, I find, nuisance to other owners or occupiers of the Estate. 164.I therefore also find R1 in breach of Limb (4) of Clause 14. 165.Hence, I find both R1 and R2 in breach of Clause 14 due to R2’s placing of goods and sundries at the Passageway outside Shop 7 since about November 2021. J. Issue (3) – were R2 and R1 in breach of s.34I of BMO or not? 166.Part VIA of BMO, including s.34I, applies, I think, to the Estate as the DMC is in force in respect of the Estate. 167.Looking at its Amended Notice of Application, IO only relies on s.34I(1)(a) and s.34I(1)(b)(i) of BMO against R2 and R1. 168.S.34I of BMO applies to any person, as the section began with the words “No person”. 169.By placing goods and sundries at the Passageway outside Shop 7 (be it Shop 7A or Shop 7B) since about November 2021, R2 had, I think, converted such common parts of the Estate to her own use. There is no suggestion of her having approval by way of resolution of any owners’ committee. 170.I therefore find R2 in breach of s.34I(1)(a) of BMO, as indeed Ms Yeung admitted in her written opening. 171.By placing goods and sundries in the way as she did since about November 2021, R2 had plainly, I find, obstructed other owners and occupiers of the Estate from using the Passageway outside Shop 7. Put it another way, R2 had used the same in such a manner as unreasonably to interfere with its use and enjoyment by other owners and occupiers of the Estate. 172.Hence, I also find R2 in breach of s.34I(1)(b)(i) of BMO, whose terms are, I think, clearly engaged in this case. 173.By allowing R2 to act in the way she did since November 2021, R1 had, I think, permitted the common parts of the Estate to be used by R2 in such a manner as unreasonably to interfere with its use and enjoyment by other owners and occupiers of the Estate and is, I find, in breach of s.34I(1)(b)(i) of BMO. 174.By the same reasoning above, R1 had, I find, allowed R2 to contravene s.34I(1)(a) of BMO. 175.Hence, both R2 and R1 are, I find, in breach of s.34I(1)(a) and s.34I(1)(b)(i) of BMO. 176.Accordingly, by reason of s.34I(2) of BMO, both R1 and R2 shall be deemed to be in breach of an obligation imposed on it/her by the DMC in force in respect of the Estate. K. Issue (4) – did IO acquiesce DMC and BMO breaches committed by R1 and R2 or not? 177.This is the crux of Ms Yeung’s submissions in her written opening and closing for R1 and R2. 178.According to paragraphs 15 to 17 of Ms Yeung’s opening, respondents’ case of acquiescence was said to be dependent on the following “indisputable facts”, namely: -
179.In reliance, it was said, of the above representation by inaction, R1, it was said, made the decision to acquire Shop 7 at a specific price and R2 rent it at a specific rental, which they would not have otherwise done but for IO’s conduct. Such detriment, it is said, is not diminished by any countervailing benefit of the respondents’ use of the trespassed area, because such usage was paid for by R1. It is thus unconscionable for IO to now enforce the DMC and deprive the respondents of the usage of Shop 7 that was paid for, which would cause a significant diminution in value. 180.By way of legal submissions, Ms Yeung submitted at paragraphs 5 to 9, 21 to 23, 26 to 30 of her closing that:-
181.In terms of local authorities on acquiescence binding on this Tribunal, Ms Yeung referred, among others, to the following Court of Appeal judgments, including one first instance judgment below: -
182.In dealing with Ms Yeung’s submissions above, the starting point is no doubt, I think, paragraphs 25 and 26 of Freder Centre, which read:
183.Assessing all the evidence adduced at trial, Ms Yeung fails, I think, miserably in terms of facts on the first element of acquiescence referred to above. I say so because:
184.Assuming I am wrong on the preceding paragraph regarding pre-2015 period or post-2015 period, R1 and R2 also failed, I think, to prove the second element of the defence of acquiescence set out by Court of Appeal in Freder Centre for the reasons below. 185.Firstly, this Tribunal rejects respondents’ evidence of alleged detrimental reliance allegedly relied upon.
186.Secondly, this Tribunal fails completely to see why the equity, if any raised in March 2015 in favour of R1 (or any raised in favour of R2) as submitted by Ms Yeung, ought to be satisfied by the grant of a proprietary (as opposed to personal) interest. 187.Indeed, this Tribunal has every reason below to think otherwise. Let me explain below.
188.Thirdly, had (contrary to my conclusions above) the respondents proven any assent and lying by on the part of IO for breaches of the DMC and BMO committed by G/F shop owners facing Mei Tin Road before September 2015, considering the matters raised in sub-paragraphs (8) to (12) of the preceding paragraph and enforcement actions taken by IO and the management of the Estate against R1 and R2 since 21/9/2015 Warning Letter, it cannot, I think, be said to be unjust in all the circumstances to grant injunctive relief to IO for similar breaches of Clause 14 and s.34I of BMO committed by R1 and R2 after September 2015. 189.At Hollywood First Instance Judgment, the learned Recorder also only upheld the raised defence of acquiescence for plaintiff’s breaches up to 30 November 2008 but not for breaches thereafter due to defendant’s objection: see [23] to [25] of Hollywood CA Judgment. This part of first instance judgment was not disturbed on appeal despite cross-appeal was filed. 190.For the reasons in this section, I therefore totally reject respondents’ defence of acquiescence despite the interesting legal arguments raised by Ms Yeung by reference to a host of United Kingdom authorities and legislation in her opening and closing. 191.In view of my conclusion above, I do not find it necessary to consider, and resolve, the rival contentions of Mr Lo and Ms Yeung as to whether or not breaches of Clause 14 and of s.34I(1)(b)(i) of BMO are within the power of IO to waive or acquiesce. 192.By way of completeness, this Tribunal would also reject Ms Yeung’s complaint of alleged “arbitrary” enforcement on the part of IO. On my factual findings in section F above, I accept paragraphs 13 and 15 of Leung’s supplemental witness statement. IO had, I find, taken legal proceedings at one time or another against Shop 1, Shop 2A, Shop 2BC, Shop 3A, Shop 3B, Shop 4, Shop 5, Shop 6 and Shop 7 all facing Mei Tin Road for breaches of the DMC and/or BMO regarding the Passageway outside these shops. There is no merit at all in Ms Yeung’s aforesaid complaint. 193.Accordingly, Issue (4) above should, I think, be answered in the negative. L. Issue (5) – what relief is IO entitled to as against R1 and R2 ? L1. Mandatory injunction 194.All circumstances of this case and parties’ submissions having been considered, I find it appropriate to order R1 and R2 to remove all goods and sundries placed at the Passageway outside Shop 7 as sought by IO. L2. Prohibitory injunction 195.I also find it appropriate to restrain R1 and R2 from placing any goods or sundries at the Passageway outside Shop 7 in future. L3. Damages for breach of the DMC 196.I agree with Mr Lo that, on the authority of IO of Percival House v Fusion Advertising Solution Ltd[34] and Wing Ming Garment Factory Ltd v IO of Wing Ming Industrial Centre[35], R1 and R2 are liable to pay IO damages for breach of the DMC for R2’s wrongful use of the Passageway outside Shop 7 since about November 2021. The proper measure of such mesne profit is the benefit they received (or the market rent they ought to pay) for the use of the Covered Walkway outside Shop 7 since about November 2021. 197.However, IO provided at trial no evidence, be it oral evidence, documentary evidence or expert evidence, proving the value of the above benefit or market rent. 198.Mr Lo invited me to rely on assertions made by Choi Senior and R2 that the area of the Passageway outside Shop 7 is equivalent to 1/3 of that of Shop 7 to arrive at the above benefit or market rent. 199.I cannot accept Mr Lo’s invitation. 200.First, I find the above assertions made by Choi Senior and R2 doubtful and unreliable. They could well have exaggerated the size of the area in question to serve other purposes of them. Secondly, no tenancy agreement of Shop 7 was produced at all. Thirdly, the market rental that one pays for indoor space of a shop premises like Shop 7 could well, I think, be affected by many considerations different from those affecting covered pedestrian walkway outdoor like the Covered Walkway. One may not comparing like against like. Adjustment may be required if comparison is to be made. All in all, I do not find it safe, reliable or appropriate to act upon the above assertions. 201.In my views, IO therefore fails to prove the quantum of this claim and the same is dismissed. M. Disposition 202.On my findings and conclusions above, I therefore enter judgment as follows:
N. Costs 203.Costs normally follow the event after trial. IO has, I think, substantially succeeded, and obtained most of the reliefs it sought in these proceedings, against R1 and R2 after trial. 204.As such, I make a costs order nisi that the costs of this application, including all reserved costs and the costs of trial, including certificate for counsel, be paid by R1 and R2 jointly and severally to IO, to be taxed on District Court scale if not agreed. 205.The above costs order nisi shall become absolute if none applies to vary it within 14 days of the handing down of this judgment. 206.Finally, I thank Ms Yeung and Mr Lo for their written submissions.
Mr Brian Lo, instructed by K.B. Chau & Co., for the Applicant Ms Lily Yeung, instructed by Ellen Au & Co., for the 1st and 2nd Respondents [1] Not Ms Yeung [2] The stamped R2’s 2021 Tenancy Agreement produced at trial relates, however, to Shop 7B at ground floor of the Estate only. [3] R2’s 2023 Tenancy Agreement produced at trial relates, however, also to Shop 7B at ground floor of the Estate only. [4] 慣常做法 [5] It is, I think, not uncommon for shop users all around the territory to move their goods back inside their shops for safe storage over the night. [6] The Google street photos produced were taken in 7 years only i.e. 2009, 2011, 2016, 2019, 2021, 2022 and 2023. [7] E.g. photos annexed to Amended Notice of Application [8] such as Shop 8 to Shop 10 facing Tsuen Nam Road occupied by two estate agents named “Ricacorp Property” and “Centaline Property” [9] registered at Land Registry by Memorial No.ST475411 [10] See Exhibit R1 [11] Among others, the three captured same bicycles kept at railing of the pavement of Mei Tin Road. [12] By using the word “fully” in this Judgment, I mean the entire Passageway up to its outer limit of concrete canopy directly above was occupied. [13] Among others, they captured same items including bicycles at the railing of the pavement of Mei Tin Road. [14] Large number of carton and plastic boxes placed below traffic light at the pavement of Mei Tin Road opposite Shop 7A is not our concern. [15] Again, large number of cartoon and plastic boxes placed at pavement of Mei Tin Road opposite Shop 5 to Shop 7A is not our concern. [16] “1236” should, I believe, be a typographical error for “236”. In other words, it is a reference to 2018 Action. [17] It is an agreement for surrender in English dated 6 March 2019 between R1 and Tsui Ka Ping re Shop 7 and a 終止租約協議書 in Chinese dated 25 January 2019 between R1 and Tsui re Shop 7. [18] Among others, two of them captured same items near railing of the pavement of Mei Tin Road. [19] 有蓋行人道 [20] Sunshades were required to erected to provide cover from sunshine as merchandises and goods had been placed so far away from Shop 7 on the ground outside the coverage of concrete canopy above. [21] Among others, these two captured same white private car moving on Mei Tin Road. [22] two from Block 1, one from Block 2, the last one from Block 3 [23] 通道 [24] Cap.219 [25] One wonders, for example, whether customers intending to visit Hong Kong Property at Shop 7B would be obstructed from doing so by R2’s actions of placing goods and sundries at the Passageway outside Shop 7A. [26] [2022] HKCFI 940 [51] [27] [1979] HKLRD 536 [28] [2011] 4 HKLRD 623 [29] unreported, HCA 1582/2007, 16 August 2010, Mr Recorder Yuen SC [30] [2016] 2 HKLRD 190 [31] [2020] 2 HKLRD 142 [32] It was said at p.538 of the report: “It should perhaps be explained that the four blocks which make up Oriental Gardens were all designed with recesses which, to say the least, would be likely to be regarded by the majority of Hong Kong flat owners as constituting an invitation to extend their flats. We saw only one flat among the many on this site which had not been extended in one way or another (bold and italics supplied)” [33] [20] of first instance judgment quoted at [17] includes the followings:- “… It is not disputed that with the exception of one shop on ground floor, all other units on the ground floor and the basement had affixed or exhibited shop names or name signboards or product brand-names on the external walls close to their respective units... (bold and italics supplied)” [34] Unreported, LDBM 59/2011, 17 July 2012, [8] & [9] [35] [2014] 4 HKLRD 52, [212]-[218] | |||||||||||||||||||||||||||||
Cases cited in this judgment