Wing Hong Investment Co Ltd v. Fung Sok Han and Others

HCA 2075/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2075 OF 2009

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BETWEEN

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Before:  Hon L Chan J in Chambers

Date of Hearing: 16 August 2012

Date of Decision: 16 August 2012

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D E C I S I O N

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1.This is an application by the defendant for specific discovery of two classes of documents by the plaintiff.

2.The plaintiff’s main ground of objection is relevance.  In relation to one class of documents the plaintiff has a subsidiary point of opposition that the request is too broad.

3.The plaintiff claims against the defendants for a declaration that it is entitled to the exclusive use, possession and occupation of certain areas on the ground floor of a building.  The defendants say that those areas are common parts of the building.  They counterclaim for damages for trespass or an account of rental and profit from the plaintiff as the plaintiff has taken exclusive possession of the disputed areas, built over them and let them out as shops for rental income.

4.The defendants also say that the building works executed by the plaintiff on the disputed areas are works that require approval from the Building Authority under the Buildings Ordinance, Cap. 123, and approval has not been given, hence such works are illegal works.

5.The defendants in this application seek discovery by the plaintiff of the tenancies of the shops built on the disputed areas by the plaintiff which were entered into between the plaintiff and its tenants. The defendants also seek discovery of all correspondence exchanged between a consulting firm called Traces on behalf of the plaintiff and the Buildings Department and all other government departments in relation to the plaintiff’s application for addition and alteration works on the disputed areas.

6.The tenancies are obviously relevant because they show the rental income that the plaintiff had obtained by letting out the shops.  The defendants’ counterclaim is of a restitutionary basis[1].  If the plaintiff should lose the case, it may be ordered to pay the defendants what it has earned as rental from the shops in question less the costs of constructing the structures.  It should therefore make discovery of the tenancies.  It may also consider making discovery of documents that evidence the expenditure incurred by it in the construction of the shops in question.

7.Regarding the second class of documents, they are sought for resolution of the issue of whether the building works executed by the plaintiff on the disputed areas have or have not been approved by the Building Authority.

8.I think the scope of all correspondence is indeed too wide and the approval from the Building Authority for the execution of the works in question would be sufficient for disposing of the argument of legality or otherwise of the works.

9.I therefore order the plaintiff to make discovery of such approvals as well.

(Submission on costs)

10.I order the plaintiff to pay the defendants 75% of the costs of this application.

Mr Lam Chun-sing, of Hastings & Co, for the plaintiff

Mr John Chan, instructed by Elsa Law & Co, for the 1st to 4th defendants