The Incorporated Owners of Pak Far Building v. An Occupier Whose Identity Is Unknown To the Plaintiff

DCMP 2925/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2925 OF 2013

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DECISION

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The application

1.This application concerns an area on the roof of Pak Far Building, Nos 158 and 156 Tai Po Road and Nos 51, 53 and 55 of Shek Kip Mei Street, Hong Kong (“the Roof”).  The plaintiff is the incorporated owners of Pak Far Building, and the defendant is an unknown occupant. The plaintiff applies for an order to demolish the illegal structures by the plaintiff on the Roof.

2.The plaintiff took out an originating summons on 12 November 2013 pursuant to Order 113 of the Rules of the District Court for (i) an order for possession of the Roof, (ii) an order for demolition of the illegal structures erected thereon; and (iii) a declaration that the person in occupation is of the Roof is without licence or consent.

3.On the return date of the originating summons on 13 May 2014, in absence of the defendant, the learned Registrar granted an order, inter alia, that upon the undertaking of the plaintiff to abandon the relief for declaration, (i) the plaintiff do recover possession of the Roof; (ii) the application for an order to demolish the illegal structures by the plaintiff on the Roof be adjourned before a judge.

4.I am satisfied the plaintiff has duly served the notice and the hearing bundle for today’s hearing on the defendant.  The defendant did not appear.

Background

5.The Affirmation of Lee Wai Sun filed on 12 November 2013 has substantively deposed with the facts.

6.The Roof is a common part of Pak Far Building.  The plaintiff is responsible for its maintenance.  The Roof was occupied by the defendant for quite some time where the plaintiff was unable to ascertain his identity.

7.In a letter dated 10 October 2011 issued from the Buildings Department, the plaintiff was ordered to demolish seven illegal structures on the Roof.  By reason of this, the plaintiff wrote to the defendant, an unknown occupant of the Roof on 26 April 2012 and 25 May 2012 respectively.  The plaintiff demanded the defendant to demolish the illegal structures and to reinstate the Roof.  As at time of the issuance of the originating summons, the illegal structures were still intact.

Plaintiff’s submission

8.Mr Wong, solicitor for the plaintiff agreed, an order to demolish the illegal structures on the Roof is unenforceable against unknown occupants.  (See 百達大廈業主立案法團訴非法佔用人 LDBM 309/2012).

9.Mr Wong admitted, the plaintiff is concerned with possible liabilities or claims from the defendant, the unknown occupant, after the actual demolition.  The reason for applying an order of court to state plaintiff is entitled to demolish the illegal structures on the Roof is for reassurance purpose.

10.Mr Wong invited me to infer from the judgment of HHJ Leung in Hanter Ltd v. Kong So Ching & ors DCMP 1136/2011 that a plaintiff is entitled to demolish any illegal structures found on the premise for the purpose of compliance of the notice of demolition issued by the Buildings Department, unless a valid defence is established.

Discussion

11.The ambit of Order 113, the Rules of District Court is limited, the scope of order is defined in paragraph 113/8/2 of the Hong Kong Civil Procedure 2014:-

“In proceedings under this Order, the only claim that can be made in the originating summons is for the recovery of the possession of land; notwithstanding Order 15, rule 1, no other cause of action can be joined with such a claim in proceedings under this Order; and no other relief or remedy can be claimed in such proceedings, whether for payment of money, such as rent, mense profits, damages for the use and occupation or other claim for damages or for an injunction or declaration or otherwise.”

12.Simply put, the plaintiff’s application is plainly outside the scope of Order 113.  The consequence is laid down in paragraph 113/8/10 of the Hong Kong Civil Procedure 2014:-

“If, on the hearing of the summons, it should appear that the claim of the plaintiff is not within the ambit of this Order of that claims for relief or remedy have been jointed with the claim of possession of land which could not or ought not to have been so joined or that the supporting affidavit is defective or that for some other reason of the proceedings are irregular, the court may dismiss the summons or give leave to amend or correct any irregularity on such terms as it thinks fit (see Order 3 rule 1).”

13.As the plaintiff has already obtained an order of possession, it goes without saying that it is empowered to demolish illegal structures erected on it.  One does not need to infer that power from authorities, such as Hanter Ltd v. Kong So Ching & ors. 

14.Mr Wong submitted the plaintiff might consider to seek leave to convert the originating summons into a writ of summons for the relief sought. I have considered the possibility of doing so.  Nevertheless, I failed to see there is possible cause of action against the defendant in seeking relief of either an injunction or a declaration to the effect that that the plaintiff is entitled to demolish the illegal structures on the Roof.  For an injunction, the plaintiff is ordered by the Buildings Department to demolish seven illegal structures on the Roof, it is redundant for an order of court to direct the plaintiff to do so.  For a declaration, it is awkward for the court to grant such relief declaring a person is entitled to do some acts on his land. 

15.The intention of the plaintiff’s application, be it in form of an injunction or a declaration, is to ask the court to reassure its power to demolish the illegal structures on the Roof, and to prevent itself to be held liable to any claim in event the defendant brings a claim against it.  I find there is slight inkling that this application might amount to an abuse of process.

16.I therefore dismiss the plaintiff’s application.

Costs

17.The learned Registrar reserved the costs of the hearing on 13 May 2014. I aware in applications where the defendant was named as unknown occupant, the court will not award costs against him.  It is unequivocally stated in paragraph 113/8/10 of the Hong Kong Civil Procedure 2014:-

“the part of Form 42A which relates to costs is in square brackets in order to indicate that an order for costs will not be obtainable against occupiers whose names are not known.”

18.For this reason, I make no order as to costs of the originating summons, including both hearings on 13 May 2014 and 13 June 2014.

Mr J Wong of S K Lam, Alfred Chan & Co, for the plaintiff

Defendant was not represented and did not appear