Read the full judgment text of CACV 000209/2008 on BabelCite. This Court of Appeal judgment was delivered on 5 March 2009 before Rogers VP, Le Pichon JA, Hartmann JA.
Civil appeal – Deed of Mutual Covenant (DMC) – breach of negative covenant – alteration of external wall of industrial unit – claim for mandatory injunction for reinstatement – defendant raises acquiescence – plaintiff argues acquiescence precluded by illegality under section 14(1) of the Buildings Ordinance – whether plaintiff had requisite knowledge of the breach – whether rights under a negative covenant can be resumed after acquiescence – developer and first owner of Wah Tat Industrial Centre in Kwai Chung – defendant acquired unit on second floor of Block B in 1993 – in October 1997 defendant cut open part of the external wall under the windows and installed a pair of doors to lift machinery into its printing business – plaintiff's presence at the Centre for 20 years through car park operations, sales office, loading/unloading services, and ownership of over 60 factory units – scale and prevalence of similar alterations by other owners notorious – plaintiff did not assert rights for 20 years – reinstatement of external wall completed in November 2006 before commencement of trial – eight-day trial conducted solely to determine costs – first instance judge found plaintiff had acquiesced and that in any event a mandatory injunction would not be equitable – Court of Appeal held: illegality argument misconceived because plaintiff is a private party entitled to waive infringement of its private rights and the social policy considerations that prevent incorporated owners from acquiescing under section 18(1)(c) of the Building Management Ordinance, Cap. 344 do not extend to private parties – pleaded claim was for breach of DMC not for contravention of the Buildings Ordinance – following Tinsley v Milligan illegality in the background does not preclude a party from raising acquiescence so long as the party is not forced to plead or rely on the illegality – plaintiff had requisite knowledge because it is sufficient that the plaintiff knew the facts constituting the title to relief or was put on suspicion, consistent with Attorney General of Hong Kong v Fairfax Ltd – resumption of rights issue not pleaded and academic – appeal dismissed – order nisi for costs in favour of the defendant.
Legal issues: Whether illegality under s.14(1) of the Buildings Ordinance prevents the plaintiff from acquiescing in breaches of the DMC · Whether the plaintiff had the requisite knowledge for the defence of acquiescence · Whether rights under a negative covenant can be resumed after acquiescence
Outcome: Appeal dismissed.
Cites 2 cases