Read the full judgment text of CACV 235/2011 on BabelCite. This Court of Appeal judgment was delivered on 27 July 2012 before Cheung JA, Kwan JA, Chu JA.
Civil law – building management – common parts – service lane – adverse possession – Limitation Ordinance – Deed of Mutual Covenant – enforcement of covenants – Building Management Ordinance – section 34I – injunction – delay and laches – jurisdiction of Lands Tribunal – fresh evidence on appeal. The applicant incorporated owners of Mountain View Mansion sought to enforce their rights over a service lane constituting a common part of the building, which the 2nd respondent had occupied for his own car repair and metal collection business since 1988 and in respect of which he claimed adverse possession. The Presiding Officer of the Lands Tribunal found for the applicant, ordered removal of structures, granted an injunction and required the 3rd respondent to reinstate the external wall. On appeal by the 2nd and 3rd respondents, the Court of Appeal (Cheung, Kwan and Chu JJA) dismissed the appeal, holding that the principles of adverse possession and the provisions of the Limitation Ordinance (Cap 347) do not bar the incorporated owners from enforcing the covenants of the DMC in respect of a common part – following The Incorporated Owners Of Man Hong Apartments v Kwong Yuk Ching [2001] 3 HKC 116 and applying the principle in Nisbet and Potts' Contract [1906] 1 Ch D 386, so that even a squatter acquiring possessory title takes the land subject to the burden of the DMC. Sections 7(2) and 17 of the LO (recovery of land) have no application as the applicant was not claiming possession but enforcing owners' rights under section 34I of the BMO, and section 4(7) of the LO specifically excludes actions for injunction. The Court further held, applying 九龍漆咸道 27A 號業主立案法團 v 李先生 CACV 2238/2001, that the BMO is not merely for regulating rights between co-owners but for the management of buildings generally, and that section 34I(2) applies to outsiders who convert common parts to their own use. The Lands Tribunal had jurisdiction under section 45 of the BMO and Schedule 10, as well as under section 8 of the Lands Tribunal Ordinance (Cap 17). The defence of laches and delay, not having been pleaded, could not be raised for the first time on appeal; in any event damages would not be an adequate remedy. The application to adduce fresh evidence was refused for failure to satisfy the Ladd v. Marshall test, the documents being obtainable with reasonable diligence before trial and of only marginal value. Appeal dismissed with costs to the applicant; certificate for one counsel; fresh evidence application refused with costs.
Legal issues: Application of adverse possession and Limitation Ordinance to enforcement of DMC covenants over common parts · Whether section 34I of the BMO applies to persons outside the DMC · Jurisdiction of the Lands Tribunal to hear claims concerning common parts of a building · Whether injunction should be refused for delay, acquiescence or laches · Whether to grant leave to adduce fresh evidence on appeal
Outcome: Appeal by the 2nd and 3rd respondents against the Lands Tribunal judgment in favour of the applicant dismissed.
Cited by 1 case · Cites 2 cases