Kou Mei Juan t/a Mei Fook Jade & Jewellery Co v. The Incorporated Owners of Pak Cheung Building (Blocks C & D) Tung Choi Street and Another

CACV000024/1985

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Cons & Fuad, JJ.A.

Date of Hearing: 9th April 1985.

Date of Judgment: 9th April 1985

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. We have already delivered judgment in another appeal relating to this matter and it is clear the parties have got themselves into a confused legal tangle. I think it is enough for the purposes of this judgment to say that the Appellant is the tenant of the Incorporated Owners of the building in question. She claims to have a lease for sixteen years. It is not necessary for us to make any decision as to that. I merely observe that it is suggested by the other side that this is a misunderstanding of a letters.

2. The sub-tenant of a shop on the ground floor of the building brought an action against the Appellant alleging that she had a structure which was obstructing the shop. The present Appellant thereupon complained against the Incorporated Owners in an action in the District Court that by bringing his action the sub-tenant had caused a breach of the covenant for quiet enjoyment in her tenancy.  The Appellant's District Court action was followed by another action by her against the Incorporated Owners in the High Court. In this second action the complaint was that somebody else, namely the present owner of the ground floor shop, had brought an action similarly complaining that the but was causing an obstruction. The Incorporated Owners sought to have the second action brought by the Appellant struck out as being frivolous and vexatious. It also alleged that the Statement of Claim disclosed no reasonable cause of action. The Plaster granted the application of the Incorporated Owners and struck out the second action. There was an appeal to the judge in chambers. The judge upheld the Master's decision, but in his judgment he dealt only with one aspect of the case. He said it was quite clear, upon a perusal of the pleading in this action and that in the District Court, that the Appellant was attempting to litigate the same cause of action with a different prayer for relief. Against that decision the Appellant comes to this court.

3. The Respondents contest the appeal on the main ground of multiplicity of proceedings, but, at a late stage, have asked to file a Respondent's Notice contending that the action should be struck out on the ground that it discloses no reasonable cause of action. With respect to the learned judge I think that he was wrong on the main point, for I cannot agree that the two actions relate to the same cause of action: they both relate to alleged breaches of the covenant for quiet enjoyment, but they relate to different breaches of that covenant, one being the action brought by the former sub-tenant of the ground floor shop and the other being the action brought by the present owner of that shop. For that reason I think that but for the Respondent's Notice, the Appellant must have succeeded.

4. However, I think that the action does in fact disclose no arguable cause of action. Difficult as it may be for the Appellant to understand this, the owner of the ground floor shop is not the same person as the Incorporated Owners: she is one of the owners who have been incorporated, but the corporation is in law an entirely separate and distinct person. The Incorporated' Owners are not responsible for the acts of the individual owners. What is alleged in the present action is not that the Incorporated Owners have committed a breach of covenant by reason of their own acts, but that they have committed a breach by reason of the acts of one of their members. The Appellant has said to us that she thinks that the Incorporated Owners should have done something to prevent the owner of the ground floor shop from bringing the action against her. There was nothing which the Incorporated Owners could in law do to prevent the proceedings brought by the member. For that reason I think that the appeal must fail.

Cons, J.A.:

5. I agree with the reasons given by my Lord and would also dismiss the appeal.

Fuad, J.A.:

6. Madam Kou has argued her case with considerable ability and with invariable courtesy. Making every allowance for the fact that she is unrepresented and therefor prepared the Statement of Claim under attack personally, I also agree that the appeal should be dismissed on the ground explained by my Lord the Vice-President.

11th April 1985

Representation:

Appellant in person.

A Wong for 1st Respondent.

2nd Respondent in person.