Lau Chun Wing Rod v. The Incorporated Owners of Po on Building

DCCJ 762/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 762 OF 2004

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BETWEEN

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Coram:  Deputy District Judge K.W. Wong in Chambers

Dates of Hearing:  20^th December 2006

Date of Handing Down Judgment: 19^th January 2007

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Ruling

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1.On 14^th August 2006, I handed down a judgment granting, interalia, an injunctive relief to the Plaintiff against the Defendant with damages to be assessed and costs. In the same judgment, I also dismissed the Defendant’s counterclaim. This is an application by the Defendant for leave to appeal to the Court of Appeal against my said judgment.

2.There is in fact no dispute on the test for granting leave to appeal. Both Mr. Mak, counsel for the Defendant and Mr. Victor Chan for the Plaintiff agreed that the applicable test is set out in Smith v Cosworth Casting Processes Limited [1997] 1 WLR 1538. For completeness sake, the principles set out in Smith v Cosworth by Lord Woolf, MR, are set out as follows:

“i)         The Court will only refuse leave if satisfied that applicant has no realistic prospect of succeeding on the appeal. The test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word “realistic” makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.

ii)          the court can grant the application even if it is not satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying.”

These principles were cited with approval by Leong CJHC in Ma Bik Yung v Ko Chuen, unreported, HCMP4303 of 1999, 8^th September 1999.

3.It is obvious that this test has a low threshold. F urthermore if the District Court refuses leave, the party may still apply to the Court of Appeal for such leave according to section 63 of the District Court Ordinance, Cap 336.

4.For reasons more particularly set out in my said judgment, I consider the Defendant liable to the Plaintiff on grounds of, inter alia, nuisance, negligence and breach of duties under section 18(1) of the Building Management Ordinance (“BMO”), Cap 344. These are essential questions of facts and application of established legal principles to facts found by this Court. I have read the written submissions of Mr. Mak and heard his oral submissions which raised several grounds of law and facts. Although I am not convinced that the Defendant can succeed at the end of the day on all the grounds it advances, it seems that I cannot say that the Defendant has no real prospect of success on appeal on, at least, those issues of law.

5.Furthermore, Mr. Mak in his submission raised a point concerning the construction of section 18 (1) of BMO – whether it imposes an absolute duty on the owners incorporation in maintaining the common parts of the building or whether the incorporation will be discharged from liability once it has appointed an apparently competent contractor to do the work on its behalf. This ground apparently falls within the second limb of the Smith v Cosworth test.

6.For reasons set out in the preceding two paragraphs, I therefore grant leave to appeal.

7.As to costs, I consider it reasonable, and accordingly order that costs of and incidental to this application be costs in the cause of the appeal with certificate for counsel.

Mr. Victor Chan of Messrs. Tang, Wong & Cheung for the Plaintiff

Mr. Bernard Mak instructed by Oldham, Li & Nie for the Defendant