Chatham Industries Ltd v. The Incorporated Owners of Gold King Industrial Building and Another

CACV 252/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 252 OF 2010

(ON APPEAL FROM HCA 1603 OF 2007)

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BETWEEN

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Before : Hon Cheung, Fok and Chu JJA in Court

Date of Hearing : 15 September 2011

Date of Decision : 15 September 2011

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D E C I S I O N

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Hon Cheung JA (giving decision of the Court) :

1.This is an application by the defendants for leave to appeal against our judgment to the Court of Final Appeal on ‘great general or public importance’ and ‘or otherwise’ grounds.

2.The two questions framed by Mr. Mak in his written submission relating to the great public importance ground are as follows :

(1) What are the applicable principles on the existence of ancillary right in the construction of a grant of the right to use the car parking spaces which also include the right to load and unload goods.

(2) Was the Court of Appeal in principle entitled to reverse the Judge’s conclusion that in the circumstances, the discretion should be exercised against the grant of injunction relief since the claim for injunctive relief was already abandoned by the Supplementary Notice of Appeal and it was a proper exercise of discretion by the Court of First Instance which can only be disturbed if either one or more of the following situations existed :

(a) There was a mistake in law (as in Evans v Bartlam [1937] AC 473);

(b) There was a disregard of principle (as in Young v Thomas [1892] 2 Ch 134);

(c) There was a misapprehension as to the facts (as in Young v Thomas [1892] 2 Ch 134);

(d) There was taking into account of irrelevant matters (Egerton v Jones [1939] 2 KB 702 at 705-6);

(e) A failure to exercise discretion (as in Crowther v Elgood (1887) 34 ChD 691 at 697);

(f) The conclusion which the judge reached in the exercise of his discretion was ‘outside the generous ambit within which a reasonable disagreement is possible’ (G v G [1985] 1 WLR 647).

3.We do not consider issues of great public importance have been raised :

(1) In respect of the implication of an ancillary right, the Court applied the principles set out in the House of Lords’ decision of Moncrieff v. Jamieson [2007] 1 WLR 2620.

(2) As pointed out in our judgment the issue that called for determination was the ancillary right to stop for the purpose of loading and unloading goods and not parking right. This distinction was specifically drawn in Moncrieff. As such, Waterman v. Boyle [2009] EWCA Civ 115 which dealt with ancillary parking right and not loading and unloading right (which in fact was allowed by the owner in that case) was not relevant. In any event, Waterman only followed the principles in Moncrieff. Mr. Mak now argues that the right to stop for the purpose of loading and unloading goods is only one aspect of the parking right. This was not an issue that was canvassed before us. Neither was the Law Commission Report No. 327 which addressed the ouster principle which clearly is pertinent only to the issue of parking.

(3) The extent of an ancillary right in a grant of right of way is case specific and depends on the context of the case.

(4) In granting the injunction the Court was not ‘re-exercising’ any discretion. Having found the existence of the ancillary right, the Court exercised the discretion to grant the injunction which was not exercised by the trial judge in the light of his finding on the ancillary right.

(5) There was no abandonment of the claim for injunction. Injunction was granted after both parties had made submissions on the difficulties of granting a declaration.

4.Although Mr. Mak also relied on the ‘or otherwise’ ground, he made no oral submissions and relied on what was contained in his written submission.  We are also not satisfied that the case is so exceptional or injustice has occurred which engaged the ‘or otherwise’ ground.

5.Accordingly the application is refused with costs to the plaintiff.

Mr. Benjamin Yu SC, Mr. K M Chong and Mr. Lester Lee, instructed by Messrs Kenneth C. C. Man & Co., for the Plaintiff

Mr. Andrew Mak, instructed by Messrs Chung & Kwan, for the Defendants