The Incorporated Owners of Wise Mansion v. Mak Shiu Ling

DCCJ 1567/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1567 OF 2010

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Coram: His Hon Judge Leung in Chambers (open to public)

Date of hearing: 18 February 2011

Date of decision: 18 February 2011

D E C I S I O N

1.This was an action by the Incorporated Owners of Wise Mansion (“the IO”), the Plaintiff, against the Defendant owner (“the Owner”) pursuant to the deed of mutual covenants and Building Management Ordinance, Cap. 344 for outstanding management fees and injunction. The injunction was to compel the Owner to demolish certain structure and to reinstate the area affected.

2.The Owner never entered appearance or filed any pleading in defence.

3.On 30 September 2010, this court heard the IO’s application for final judgment against the Owner; and gave judgment in terms of the prayer as pleaded.  This court also awarded costs of the action to the IO which was assessed in the summary manner.

4.Apparently the order has not been complied with by the Owner.

5.By summons dated 20 January 2011, the IO applies to amend its pleading to include the basis for its claim for an order that they be sanctioned to proceed to carry out the demolition of the structure in question themselves; and that the cost of such work to be borne by the Owner.

6.The IO asks for service of the amended pleading to be dispensed with and at the same time asks for amendment of the judgment of this court in line with the amended claim, if granted.

7.O.20, r.8(1) of the Rules of the District Court gives the court discretion to amend the pleading for the purpose of determining the real question in controversy between the parties or correcting an error or defect in the proceedings.

8.But sub-rule (1A) provides that such power to amend is not to be exercised, unless the order to amend is necessary either for disposing of the cause or matter or for saving costs.

9.Pausing here, these provisions are well understood to apply while the dispute between the parties to the action remains to be determined by the court.  Hence sub-rule (2) makes clear that this rule shall not have effect in relation to a judgment or order.

10.Obviously this is the situation here.  Final judgment has been entered and the relevant order of the court perfected.  What is being sought is not amendment of clerical mistakes or error in the judgment or order arising from accidental slip or omission pursuant to O.20, r.11.

11.If the IO’s application is allowed, this will be tantamount to allowing them to have a second bite of the cherry for what they should and could have pleaded and prayed for before final judgment was entered and perfected on the last occasion.  This court is not in a position to open such a backdoor for them now.

12.Those acting for the IO did not acknowledge in the affidavit in support that this is in reality a second thought, after failing to claim for the further relief on the previous occasion.  It is for the IO to consider taking another action for their purpose.  But as I said during the hearing, I expect that such fresh action, if commenced, would still have entailed the issue of costs for the reasons explained above.

13.The summons is dismissed with no order as to costs.

Mr Victor K H CHIU instructed by Messrs Darin Leung & Partners for the Plaintiff

The Defendant, in person, absent