The Incorporated Owners of Kwung Tong Lap Shing Building v. Lee Yuet Yuen

CACV 306/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 306 OF 2004

(On appeal from the Lands Tribunal Application No. LDBM 86 of 2003)

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BETWEEN

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Date of Hearing: 13 January 2005

Date of Judgment: 13 January 2005

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 J U D G M E N T

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Hon Yeung JA (giving Judgment of the Court):

1.The applicant is the Incorporated Owners of Kwun Tong Lap Shing Building at Nos. 305-325 & 325A, Ngau Tau Kok Road, Kowloon. The respondent is the owner of flat G on the 8^th floor.

2.The applicant sought to commit the respondent for contempt of court for his refusal and/or failure to comply with a court order.

3.Judge Yung (the judge) of the Lands Tribunal refused the applicant’s application for leave to issue contempt proceedings under Order 52 Rule 2, although the order he made was “Order for imprisonment refused”.

4.Despite the applicant’s request through its solicitors, the judge refused to give reason for his decision.

5.The applicant now appeals against the judge’s order.

6.The contempt application is premised on an order of the Land Tribunal (the order) granted in the absence of the respondent in favour of the applicant on 22 July 2003 in the following terms:

“Judgment be entered for the Applicant. The Respondent do within 60 days from the date of this Order (emphasis added), dismantle and clear all illegal additional structures at common parts (including public corridors and podium opposite the central staircase) at subject building Kwun Tong, Nos. 305 – 325 & 325A, Nga Tau Kok Road, Kwun Tong Lap Shing Building 9/F, and to restate such common parts to their original conditions:”

7.Attempts to serve the order on the respondent personally failed and it was only served by way of substituted service between 2^nd and 4^th June 2004, long after the expiration of the 60 days stipulated under the order.

8.When one party obtains an order from the court in the absence of the other party, the order should only take effect after service or within a stipulated period after service. If the order cannot be served before the time limit for doing an act expires, extension of time must be obtained.

“Where a specified time is limited for doing the act required, the order must be served within that time…; or else a supplemental order extending the time fixed must be obtained”. (Hong Kong Civil Procedure 2004 para. 5/7/4).

9.By the time the order was effectively served on the respondent, the respondent was then no longer in a position to comply with the order in time.

10.A case of contempt of court, based on an alleged failure to comply with an order that could not be complied with, is doomed to fail.

11.The applicant’s application for leave to commit the respondent for contempt was entirely misconceived.

12.The judge could have given a short reason for his decision and it would probably have rendered the appeal unnecessary. However, the judge was right to refuse leave.

13.The appeal is dismissed and as the respondent is absent, we make no order as to costs.

Mr Tommy Wong instructed by Messrs Huen & Partners for the Appellant.

Respondent unrepresented and absent.