Read the full judgment text of HCA 1582/2007 on BabelCite. This Court of First Instance judgment was delivered on 13 June 2011 before Mr Recorder Yuen, SC.
Civil proceedings – building management – common parts – injunction – stay of execution pending appeal – account of profits – meaning of 'net profit' – compliance with demolition order – Building Management Ordinance (BMO) – Building Ordinance – Canopy used for commercial advertising by owners' committee of adjoining shopping centre – whether stay of execution warranted – whether 'net profit' includes deduction of unrelated management expenses – whether supporting steel framework required to be demolished – Court of First Instance decision on post-judgment applications. The court held that the plaintiff's application for a stay of execution of the injunction and demolition order pending appeal should be dismissed. Applying the principles in Star Play Development Ltd. v Bess Fashion Management Co. Ltd [2007] 5 HKC 84, the court found the plaintiff had at best an arguable appeal, which was the minimum and not by itself sufficient to justify a stay. The only loss that would be suffered without a stay was financial (estimated HK$462,000 in lost advertising revenue), which was compensable and would not render the appeal nugatory. The court further held that a stay would have the effect of condoning an illegal act because the supporting structure constituted unauthorised building work contrary to section 14 of the Building Ordinance, which the Buildings Department had required to be demolished. On the meaning of 'net profit' in paragraph 99(6) of the Judgment, the court accepted the defendant's construction that 'net profit' means gross profit derived from the Advertisement Boards less expenses or expenditure incurred exclusively in respect of the Advertisement Boards. Expenses unrelated to the Advertising Boards, such as general management expenses of Hollywood Shopping Centre, could not be deducted. The plaintiff was ordered to re-do its Statement of Account accordingly. On demolition, the court held that the order in paragraph 99(5) of the Judgment required not only removal of the advertising platforms but also removal of the steel framework and ancillary supporting structures used to mount the platforms, since the structures facilitated the contravention of section 34I(1) of the BMO and the breach of the DMC. The Relevant Date was 30 November 2010. Costs of all three matters were ordered against the plaintiff on an order nisi basis, to be taxed if not agreed.
Legal issues: Whether stay of execution of injunction and demolition order should be granted pending appeal · Proper meaning of 'net profit' in paragraph 99(6) of the Judgment · Whether plaintiff has fully complied with the demolition order in paragraph 99(5) of the Judgment
Outcome: Plaintiff's application for stay of execution dismissed; the meaning of 'net profit' determined in the defendant's favour (plaintiff to re-do Statement of Account); plaintiff's partial demolition held to be non-compliant, with supporting structures also required to be demolished.
Cited by 29 cases