Case Document

100%Judiciary

LDBM 68/2007

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 68 of 2007

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BETWEEN

	SINO ESTATES MANAGEMENT LIMITED	Applicant
	and
	WONG PAK SUM	1^st Respondent
	CHINA FURNITURE CITY LIMITED	2^nd Respondent
	EVER PROFIT INDUSTRIES LIMITED	3^rd Respondent
	WONG PAK SUM trading as B.G. LAMPARAS	4^th Respondent
	JUNE HAZEL DE SOUZA	5^th Respondent

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Coram: Deputy Judge F Yiu, Presiding Officer, Lands Tribunal

Date of hearing on costs : 28^th February 2008

Date of last written submission : 26^th March 2008

Date of Costs Order : 25^th April 2008

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Costs Order

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1.This is an application by the 5^th Respondent for apportionment of costs. By the Judgment dated 5^th February 2008, the costs order nisi was that the 1^st to 5^th Respondents were to pay the Applicant costs in the application, with certificate for counsel, to be taxed on District Court scale if not agree.

2.The 5^th Respondent seeks to vary the costs order and submits that the fair share of her costs is 1/5^th of the total costs of the proceedings.

3.The background of the case was that the Applicant, being the manager of a building, applied for an injunction to remove all the chattels and goods placed on the common parts of the building. The 1^st to 4^th Respondents contended essentially that the place was not common parts. The 5^th Respondent was the landlord of a shop of the Mezzanine floor having rented the shop to the 3^rd Respondent and she alleged that she did not know nor cause the breach by the tenant 3^rd Respondent and did warn the 3^rd Respondent not to continue.

4.After trial, the place was found to be common parts and injunction was granted. The 5^th Respondent was also liable as the Deed of Mutual Covenant provided that the owner shall be responsible for the acts of the tenant and that the 5^th Respondent did not take any reasonable effort to prevent the tenant of the breach.

5.The 5^th Respondent now submits that the trespass by the 1^st to 4^th Respondents covered both the Ground Floor and the Mezzanine Floor while the 5^th Respondent owned the small shop of M3 and let to the 3^rd Respondent for only $1,800 per month. The 5^th Respondent had no connection to the 1^st to 4^th Respondents whatsoever apart from the mere tenancy relationship with the 3^rd Respondent. Further, the 5^th Respondent did not have any direct involvement in occupying the common parts.

6.The 1^st , 3^rd and 4^th Respondents (Winding-up order had been made against the 2^nd Respondent) support the apportionment and even stated that the 5^th Respondent was an innocent party. On the basis of actual trespass on about total area of 5,000 sq. feet comparing with the size of the shop, they submit that the proportionate costs of the 5^th Respondent should only be 27/5000.

7.The Applicant submits that the normal rule shall apply and the costs shall follow the event. There had not been exceptional circumstances shown, the 5^th Respondent chose not to consent to judgment and resisted the claim throughout the proceedings. The Applicant further submits that the size and rental income are irrelevant.

Assessment

8.The court had a broad discretion to determine how costs should be paid and apportioned. The normal rule is that the costs shall follow the event. While it is clear that the 5^th Respondent had joint and several liability with the 1^st to 4^th Respondents to the Applicant, one must also look into the actual circumstances how the liability arose, the actual involvement of the 5^th Respondent in the case and the conduct of the 5^th Respondent at the trial for the purpose of considering the application for apportionment of costs.

9.It is not in dispute that the trespass had covered substantial area not only at Mezzanine Floor but the Ground Floor as well. The 5^th Respondent was the owner of a small shop at Mezzanine Floor only, who happened to let the premises to the 3^rd Respondent whom later admitted to be owners of all these chattels and goods. It had not been shown that the 5^th Respondent had any direct involvement in placing the chattels on the common parts.

10At the trial, the 5^th Respondent was acting in person and in fact did not take any active part in opposing the claim. The 5^th Respondent did not even produce the warning letter to the 3^rd Respondent in the trial. Although it still remained necessary for the Applicant to prove its case against the 5^th Respondent, the time taken and effort made when comparing with other Respondents was clearly much less onerous.

11.Having taken into consideration all the background circumstances of the case and the matters stated above, I am of the view that the application for apportionment of costs should be approved. I assess that a fair and reasonable approach as suggested by the 5^th Respondent could be adopted. I therefore order that the 5^th Respondent shall pay to the Applicant 1/5^th of the costs of the application but there shall be no order as to costs of the hearing on costs.

Order

i. The 5^th Respondent shall pay 1/5^th of the costs of the application to the Applicant, with certificate for counsel, to be taxed on District Court scale if not agree.