FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. FU CHUNG FU

HCA 1623/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1623 OF 2005

______________________

______________________

_______________

D E C I S I O N

_______________

Application

1. This is an application by the Plaintiff against the Defendant for striking out of certain parts of the Defence and the whole of the Counterclaim herein.  The Plaintiff relies on Order 18 rules 19(1)(a) and (c) of the Rules of the High Court (“RHC”) as well as the inherent jurisdiction of this Court.  The relevant rules state that:

“19. —(1)  The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that—

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) ……

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) ……

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

Background

2. The Plaintiff was and is the manager of a low-rise residential estate, Fairview Park (“the Estate”), in Yuen Long, New Territories, consisting of about 5,000 houses with gardens.

3. The Defendant was and is the registered owner of House No. 55 in the 5^th Street of the Estate.  He acquired the same on 4 October 2004.

4. The Plaintiff told this Court that, despite repeated demands and requests, the Defendant had failed and/or refused to rectify breaches in the Deed of Mutual Covenant (“DMC”) and Estate Rules of the Estate by:-

“ (a) Erecting a glass structure at rear garden;

  (b) Erecting a block fence without minimum open space at front garden;

  (c) Erecting a block fence without minimum open space at rear garden; and

  (d) Enclosing the common plot fence without minimum open space.”

(paragraph 17 of the Statement of Claim herein)

5. On 22 August 2005, the present proceedings were commenced.  The Defendant filed his Defence and Counterclaim on 3 October 2005.  So far, the parties have moved into the discovery stage.  On 5 June 2006, the Plaintiff issued the present application for striking out.

6. The substantive argument of the matter was heard by me on 8 September 2006.  Mr. Thomas T.H. Kwan of Counsel represented for the Plaintiff while the Defendant acted in person.  Having heard from the parties, I reserved my decision to be delivered.  I now do so.

Ruling

7. Upon considering the evidence authorities and submissions from the parties, I have come to the conclusion that certain parts of the Defence and Counterclaim complained by the Plaintiff are to be struck out, particulars are marked in red as per the Schedule attached hereto.

The Law

8. Mr. Kwan referred me to paragraphs 18/19/3 to 18/19/6 and 18/19/9 of the Hong Kong Civil Procedures 2006 to lay down his foundation for striking out.  In this respect, I heard nothing from the Defendant to argue otherwise.  For the present purpose, I attempt to sum up the relevant rules as follows:

(a) It is only in plain and obvious cases that this Court should exercise its summary power to strike out.

(b) Questions of law can be determined in strike out application.

(c) The mere fact that the case is weak and not likely to succeed is no ground for striking it out.

(d) The burden of proof lies on the one who seeks for the striking out.

(e) This Court may consider allowing amendment on the pleading if improvement can be made.

Reasons

9. Applying the above principles to the present case, the Plaintiff has satisfied me that the following parts of the Defence and Counterclaim are to be struck out.

(a) The Plaintiff sought to strike out the following parts from paragraph 2 of the Defence that:

“(2)  ……The accusation for building a glass structure in the defendant’s garden is overtly sensitive and does not observe the rule of English law.  The gist of the legislation is the concern of endangering lives of the public and the creation of nuisance to others, which is not occurring in this case ……The accusation is seriously infringing the defendant’s absolute right of enjoyment and rights as a free citizen stipulated in the conventional Basic Law and Bills of Right ……”

(b) Mr. Kwan complained that “overtly sensitive” was not a ground of Defence.  Further, the Defendant did not specify clearly what exactly he meant by “… the rule of English law”, “The gist of the legislation …” and “… the conventional Basic Law and Bills of Rights”.  Mr. Kwan also told me that he had attempted to conduct research on the possible legislation or authorities relied by the Defendant, but in vain.  Hence, he concluded that a striking out application, rather than one asking for particulars, would be appropriate to cure the defects of the Defence which was prejudicing, embarrassing and delaying a fair trial.  I agree with Mr. Kwan and indeed, the Defendant confirmed that he did not seriously oppose the striking out of these parts of the Defence because he could not improve his pleadings any further.

(c) The Plaintiff further applied to strike out a substantial part of paragraph 3 as well as the whole of paragraphs 4, 5, 7, 8, 10, 11, 13 and 14 of the Defence.  In relation to these, I classify them into 3 categories.

(1) A portion of paragraph 3 and the whole of paragraphs 5, 7, 10 and 13 are to be struck out.  The long and short of these paragraphs maybe summarized as:

(i) The DMC and Estate Rules were tailor-made solely for the Plaintiff and not satisfactory to the Defendant and the owners of other houses in the Estate.

(ii) The DMC and Estate Rules were and are unfair and unreasonable.

(iii) The DMC and Estate Rules are seriously out-dated.

During the hearing when I discussed these parts of the Defence with the Defendant, he maintained the view that he should be allowed to pursue them as they were indeed his major defences.  However, they have to go away because such defences are unsustainable in law.  In short, the Defendant asked this Court to strike down, give no effect or re-write the DMC and Estate Rules for him.  However, he has no legal basis to trigger such jurisdiction of the Court.  I have checked a number of possible legislation for the Defendant.  Nonetheless, the Control of Exemption Clauses Ordinance (Cap. 71) cannot help the Defendant because we are not talking about exemption clauses.  Neither is the Unconscionable Contracts Ordinance (Cap. 458) able to assist him since the DMC and Estate Rules are not contract for sale of goods or supply of services made after 20 October 1995.  Finally, the Building Management Ordinance (Cap. 344) does not advance his case because Part VIA of the Ordinance only regulates the deed of mutual covenants in a limited extent and the Seventh/Eighth Schedule thereto do not purport to regulate the structures built by the Defendant in the present case.

(2) Regarding the following clauses contained in paragraphs 4, 8, 11 and 14, they are struck out for the same reasons as per paragraphs 9(b) and (c) hereinabove as well as those stated in paragraph 9(d) below.

“… The domination violate the defendant’s conventional human rights and interest …”

“… and other owners in the same Estate”

“… feels unfair and …”

(3)         As to the remaining parts in paragraphs 4, 8, 11 and 14, they are to be retained for the reason that they indeed are part and parcel of the Counterclaim of the Defendant.  In short, once the major defences are struck out, the Defendant will be left with a denial of the Plaintiff’s claim only.  Nonetheless, the Plaintiff still has to prove the same on balance before the trial judge.  Should it fail to achieve the same, there is no reason why the Defendant cannot pursue his counterclaim even though the same is weak and is unlikely to succeed.

(d) For the reasons as aforesaid, I am not prepared to strike out the Counterclaim herein except the reference of:

“… and other owners in the same Estate …”

in paragraph (4) of the prayer.  I do not consider that the Defendant has any locus or legal capacity to sue for damages, if any, for and on behalf of other house owners of the Estate.

Costs

10. I have not heard from the parties in relation to the question of costs.  However, there appears no reason why costs should not follow the event.  The Plaintiff has substantially succeeded in its application and Mr. Kwan’s assistance is useful to me.  In the circumstances, there will be an order nisi that costs of the application, including costs reserved on 16 June 2006 and Certificate for Counsel on 8 September 2006, are borne by Defendant to the Plaintiff, on party-and-party scale, to be taxed if not agreed, in any event.  Such costs order nisi will become absolute upon expiry of 14 days from today.