Bristle Ltd v. Wong Tsui Ching Venisa and Another

HCA 854/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 854 OF 2012

____________

____________

________________________________

REASONS FOR DECISION

________________________________

1.This is the plaintiff’s application for leave to appeal to the Court of Appeal against my decision of 16 May 2013 where I dismissed the remaining part of the plaintiff’s application for an interlocutory injunction (the other part was earlier dealt with by another court). The application for leave was refused. The reasons for doing so appear below.

2.The jurisdiction on which this application is founded is s 14AA(1) and (4), High Court Ordinance (Cap 4).  In contending that there is a reasonable prospect of success in its intended appeal, the plaintiff argued that I erred in concluding that there was no serious question to be tried in relation to the plaintiff’s claim.

3.Briefly, I decided that the plaintiff has no right to use the common part of the housing development for its own purpose (as an access to its own house in the housing development in question (“the housing development”)).

4.The plaintiff contended that I erred in:

(a)   overlooking the provisions of Part VIA, Building Management Ordinance (Cap 344), especially ss 34C and 34I thereof;

(b)   failing to consider that any breach of the DMC has been waived by acquiescence (an alternative legal basis arising out of the same facts is the doctrine of estoppel). 

5.I agree with the defendants that the reliance on Part VIA, Cap 344 is misconceived for the simple reason that:

(i)     s 34I thereof can only be exercised by an owner’s committee of an incorporated owners (see s 34I(1)(a));

(ii)   it has never been the plaintiff’s case that the housing development has had an owner’s committee at the material time (nor is there any evidential or other proper basis for so contending).

6.There is accordingly no need to consider the requirements of s 34I(1)(b).  If it were necessary to do so, those requirements have not been met either.

7.The reliance on s 34C, Cap 344 cannot further the plaintiff’s case.  The relevant part of this provision merely provides that in the event of any inconsistency between Part VIA, Cap 344 and the terms of a deed of mutual covenant, Part VIA should prevail.  As observed above, the only other provision in Part VIA relied upon by the plaintiff is s 34I thereof.

8.As regards para 4(b) above, I considered that the plaintiff’s breach was an unlawful breach for which the incorporated owners did not have power to approve, waive or acquiesce.  The reasons for such conclusion already appear in the decision of 16 May 2013 and will not be repeated here.  The plaintiff also argued in this application it would have been open to all the co-owners of the housing development to unanimously agree to vary the deed of mutual covenant. However, as a matter of fact, no such variation had been sought, or agreed to.

9.This is therefore a case similar to those involved in decisions such as:

(1)   The Incorporated Owners of Chungking Mansions v Shamdasani Civil Appeal 199/1991 (26 February 1993);

(2)   The Incorporated Owners of Hoi Luen Industrial Centre v Ohashi Chemical Industries (Hong Kong) Ltd [1995] 2 HKC 11;

(3)   The Incorporated Owners of Champion Court v Pang Ping Fan Peter CACV 317/2006 (23 May 2008).

The decision of Hollywood Shopping Centre Owners Committee Ltd v The Incorporated Owners of Wing Wah Building Mongkok Kowloon, HCA 1582/2007 (16 August 2010) is distinguishable for that reason.

10.Further, as has been pointed out at para 25(5), decision of 16 May 2013, objections have in fact been raised by the House 2 owner shortly after the plaintiff’s alteration work commenced.

11.Insofar as it may be necessary to mention it, the mere fact that the 2^nd defendant might have been invalidly formed cannot, without more, properly ground an application for an interlocutory injunction.

Mr Nicholas Cooney SC leading Mr Tony Ko, instructed by George Y C Mok & Co, for the plaintiff

Mrs Dora K H Chan, instructed by Fred Kan & Co, for the 1^st and 2^nd defendants