李延康及另其他人 v. 韻濤居業主立案法團及另一人

DCCJ 4861/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4861 OF 2008

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Coram: Deputy District Judge R. Yu in Chambers (open to public)

Date of hearing: 28^th October 2010

Date of handing down Decision: 16^th December 2010

DECISION

1.On 5^th August 2010, I have dismissed the claims by the Plaintiffs after trial. Four of the Plaintiffs, namely 1^st, 2^nd, 7^th and 10^th Plaintiffs (“the Intended Appellants”) appear before me today by their counsel Mr. Wong seeking leave to appeal against my judgment.

2.Both counsels agree the test for whether leave should be granted is whether the appeal has a reasonable prospect of success. I only need to refer to section 63A of the District Court Ordinance which provides that

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that—

(a) the appeal has a reasonable prospect of success; or
(b) there is some other reason in the interests of justice why the appeal should be heard.”

3.At the trial, counsel for all the Plaintiffs Miss Chit argued that, firstly, Clause 19 of the DMC does not relate to land and is therefore not a covenant binding on the Plaintiffs who are not signatories to the DMC.  I rule against this argument and Mr. Wong is not seeking to appeal against me on this finding.

4.The 2^nd argument ran by Miss Chit is Clause 19 conflicts with the covenant in the DMC for the Plaintiffs to have an exclusive enjoyment of their respective units.  Again I rule against this argument and Mr. Wong does not seek to appeal against my finding.

5.It was then argued by Miss Chit that the Defendants acknowledged/allowed/accepted the keeping of dogs.  She relied on the 2007 Resolution to argue that the Defendants have accepted that dogs would only be removed from the Estate in accordance with the terms of 2007 Resolution.  I ruled against this argument and again Mr. Wong does not seek leave to appeal against my findings.

6.In a meeting of the Management Committee of the 1^st Defendant held on 9^th September 2008, it has been resolved to appoint Messrs. Chung & Kwan to represent the 1^st Defendant to remove all the dogs from the estate.  I call this the 2008 Resolution.  I understand that Messrs. Chung & Kwan have indeed taken out applications including injunctive application against some of the Plaintiffs on instruction of the 2^nd Defendant. And one of the main contention of the Plaintiffs is to challenge the 2008 Resolution. By prayer 4 of the Amended Statement of Claim, the Plaintiffs seek a declaration that the 2008 Resolution be declared void.

7.It is the argument of Miss Chit that by 2007 Resolution, the Defendants have acknowledged/allowed/accepted the keeping of dogs and accordingly the 2008 Resolution should be declared void.  As an alternative argument, Miss Chit argues that the manager appointed under DMC have failed to exercise their discretion reasonably when facing with the application by the Plaintiffs for consent to keep dogs and therefore the 2008 Resolution should be declared void. The Plaintiffs further applied for specific performance of the 2007 Resolution.  I ruled against this application. 

8.The Intended Appellants argue that I erred in not finding that the Defendants have failed to exercise their discretion reasonably in not considering each application of the Plaintiffs to keep dogs on a case by case basis.  But the Intended Appellants do not seek to obtain a declaration as set out in Prayer 4 in the Amended Statement of Claim.

9.In the draft Notice of Appeal attached to the summons, the Intended Appellants seek an order from the Court of Appeal that my judgment be set aside and judgment be entered for them for some new declaratory reliefs.  In the written submission prepared by Mr. Wong, after setting out the various grounds of appeal, he added that the following appropriate relief (“the New Reliefs”) should be granted :-

(a)  A declaration that in rejecting the Plaintiffs’ application for written consent to raise dogs, the Defendants have failed to exercise their discretion and was in breach of their duty under Clause 19 Schedule 3 of the DMC.

(b) A declaration that the Defendants’ decision in refusing the Plaintiffs’ application for written consents to raise dogs be quashed.

(c)  A declaration that the Defendants should not carry out mandatory injunction against the Plaintiffs to remove their dogs unless and until the Defendants have considered the Plaintiffs’ respective applications for written consent to raise dog(s) on a case by case basis on their individual merits.

10.Mr. Wong concedes that none of these declarations have been applied for in the Statement of Claim. 

11.Mr. Wong submitted that the Court had jurisdiction to grant any further or other reliefs that it thinks appropriate.  He referred me to paragraph 18/15/4 of the Hong Kong Civil Procedure that:-

“The Court has jurisdiction to grant any further or other relief that it thinks appropriate on the facts as proved. For example, if the plaintiff omitted to ask for damages, it seems the Court may nevertheless award him damages, if justice so requires ……… likewise, a declaration may, it appears, be made under o.15, r.16, though not specifically ask for in terms ……….”

12.Mr. Wu, counsel for the Defendants, objects to the Plaintiffs’ attempt to introduce the New Reliefs on appeal.  Mr. Wu submits that the Court has not made the findings as suggested by Mr. Wong as they are not the issues before me at the trial. 

13.Paragraph 18/15/4 of the Hong Kong Civil Procedure 2010 quoted by Mr. Wong is on the consequence of failure to plea a specific relief in the statement of claim.  The Court may grant the relief even when it has not been pleaded.  But if a relief has not been pursued by the parties at the trial, and the Court has not been invited to make any finding or to draw any conclusion for such relief, it could not be correct for the Plaintiffs on appeal to take on board the New Reliefs and complain that the trial judge failed to make such order.  And it would not be fair to the Defendants if the New Reliefs are only brought in on appeal.  It cannot be in the interest of justice.

14.Further, if one takes a look at the 3 declarations now sought by Mr. Wong, the main contention is the 3^rd declaration that the Defendants shall not carried out mandatory injunction against the Plaintiffs to remove their dogs unless certain condition was complied with.  By reading again, it is not indeed a declaration but an injunctive relief. 

15.It is a completely new approach for the New Reliefs that the Intended Applicants seek to claim.  I see no prospect of inviting the Court of Appeal to adopt the New Reliefs when the same has not been argued at lower court.

16.I have considered each and every proposed ground. Mr. Wu who has kindly analysed all the grounds and I would adopt his written submission and the reason why there is no reasonable prospect of success.  I am not persuaded that the Intended Appellants show a reasonable prospect of success on the proposed ground of appeal as set out in the draft Notice of Appeal. 

17.Further, I do not consider there is any other reason in the interest of justice that the appeal should be heard.  I dismiss the application and I give an order nisi that the Defendants do have costs of this application with certificate for counsel, such order nisi to be become absolute within 14 days.

Mr. Charles Wong, instructed by Messrs. Hau, Lau, Li & Yeung, for the 1^st, 2^nd, 7^th, 10^th Plaintiffs

Mr. Paul Wu, instructed by Messrs. Chung & Kwan, for the 1^st and 2^nd Defendants