The Incorporated Owners of Champion Court v. Pang Ping Fan Peter and Another

CACV 317/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 317 OF 2006

(On Appeal from DCCJ No. 55 of 2005)

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BETWEEN

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Before: Hon Yeung and Yuen JJA and Lam J in Court

Date of hearing: 13 January 2009

Date of judgment: 15 January 2009

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J U D G M E N T

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Hon. Yuen JA (giving the judgment of the court):

1.This is an application by the 2^nd Defendant for leave to appeal to the Court of Final Appeal from our judgment given on 23 May 2008 dismissing the appeal lodged by the 2^nd Defendant and the 1^st Defendant (her joint tenant) from a judgment of Deputy District Judge W. Wong ordering them to remove illegal structures in their premises and to rectify them to their original state and condition, and dismissing the Defendants’ counterclaim.

2.At the hearing of the appeal in November 2007, the 2^nd Defendant produced a document signed by the 1^st Defendant authorizing her to act on his behalf at the appeal: see para. 2 of our judgment.  No similar document has been produced for this application and the 2^nd Defendant stated that she was acting on her own behalf solely.

3.The 2^nd Defendants has first submitted that she is entitled to leave as of right under s.22(1)(a) Hong Kong Court of Final Appeal Ordinance Cap. 484 because the premises have been let at $60,000 (excluding rates and management fees) and there is still a period of 22.5 months unexpired on the tenancy agreement.  That is all that has been put forward.  Although arithmetically the rental for that period exceeds $1,000,000, the rental is not the “matter in dispute” on the appeal, and in the absence of other evidence it does not mean that the appeal involved a claim or question to or respecting property amounting to or of the value of $1,000,000.

4.As for s.22(1)(b) HKCFAO, all that the 2^nd Defendant has done is to have set out parts of this court’s judgment with which she disagrees.  That is not sufficient as the appeal has to involve a question of great general or public importance.  None has been raised.  Nor can we see anything under the “or otherwise” ground.

5.Accordingly this application for leave must be dismissed.

6.As a matter of completeness, I would add that as far as the iron staircase is concerned (see para. 21 of our judgment), the Defendants had not included in their counterclaim a demand that the court order the iron staircase to be dismantled or moved.  Not surprisingly, the judge at first instance did not deal with it.  Although the Defendants did include such a demand for the first time in the orders they sought on appeal, the staircase was not mentioned in their grounds of appeal.  As a result, we did not consider it appropriate to make any order in this respect.

7.We would therefore order that the application be dismissed.  As the parties have agreed that costs should follow the event, we would order that the costs of the application be paid by the 2^nd Defendant to the Plaintiff. 

Mr Joseph Lam Siu Wah instructed by Jesse HY Kwok & Co for the Plaintiff (Respondent)

The 2^nd Defendant (Appellant) in person.