THE INCORPORATED OWNERS OF CHAMPION COURT v. PANG PING FAN PETER AND ANOTHER

DCCJ55/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 55 OF 2005

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BETWEEN

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D E C I S I O N

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1.  The Plaintiff is the Incorporated Owners of the building known as Champion Building in Wong Ngai Chung Road, Happy Valley (“the Building”), and the 1st and the 2nd Defendants were the registered owners of the premises known as Flat A, 23rd Floor, including its main roof, of the Building (“the Premises”). The Plaintiff claimed that the Defendants had erected illegal structures on the roof of the Building, and therefore commenced the present action against the Defendants seeking for an order for the latter to remove the illegal structures.

2.  On 6 July 2006, Deputy District Judge Wesley Wong made an order after trial requiring the Defendants to remove all the illegal structures and to rectify the Premises to its original state and condition.  The Defendants’ appeal against the judgment of the learned Deputy Judge was also dismissed by the Court of Appeal.

3.  However, the Plaintiff complains that the Defendants have up to now failed to remove the illegal structures in the Premises and to reinstate the Premises to its original state and condition.  The Plaintiff therefore took out the application dated 27 May 2010, asking for leave to the Plaintiff to instruct its own contractor to enter the Defendants’ Premises to remove the illegal structures.

4.  It has all along been the Defendants’ contention that, according to the written judgment of the learned Deputy Judge, the Defendants were only required to remove the illegal structures in the common parts of the Building.  Since the structures, which were the subject matters of the Plaintiff’s application, were situated in the Defendants’ property and not in the common parts of the Building, the Defendants say that they are not required to remove those structures.  For the illegal structures in the common parts of the Building, the Defendants confirm that they had already removed those structures.

5.  The case came before me on two previous occasions for directions.  In the last direction hearing on 6 July 2010, the parties agreed to conduct a site visit to check whether all the illegal structures had been removed.

6.  The case came back before me today.  Prior to the hearing, the 2nd Defendant sent a fax to the court, enclosing a copy of her sick leave certificate and some referral forms and asking for an adjournment of today’s hearing.  However, I note from the court file that the Defendants had made use of the same excuse to apply for an adjournment of the taxation hearing on 28 May 2010.  The taxation hearing was therefore adjourned to 8 July 2010.  Prior to that hearing, the Defendants again applied to adjourn the taxation hearing which was refused by the court.  The Defendants did not attend the taxation hearing on 8 July 2010. Up to now, the Defendants have not paid any of the taxed costs both in respect of the present action and the appeal and so I have reason to believe the Defendants are only making an excuse not to attend today’s hearing.  Further, the 2nd Defendant has not clearly stated in the fax what exactly was her sickness, and she has not explained to the court why the 1st Defendant cannot attend today’s hearing on her behalf.  To me, this is only a delaying tactic and so I refuse the Defendants’ application for adjournment.

7.  After perusing the 1st and the 2nd Affirmation of Kevin Kin Kwok-nie and the Affirmation of Nils Victor Nilsson, I am satisfied that there were still illegal structures in the Premises.  I have also studied the written judgment of the learned Deputy Judge Wesley Wong.  After conducting the site visit, the learned judge had not mentioned anywhere in the judgment that the Defendants were only required to remove the illegal structures in the common parts of the Building. Further, the sealed judgment of the learned judge clearly stated that the Defendants had to remove all the illegal structures and to rectify the Premises to its original state and condition.  In such circumstances, there is simply no merit in the Defendants’ contention that the order is only limited to the illegal structures in the common parts of the Building.

8.  Since the Defendants have failed to remove the illegal structures in compliance with the judgment of the learned judge, I allow the Plaintiff’s application.

(Discussion re summons and costs)

9.  I make an order in terms of the summons as amended with the deletion of paragraph 2. I think the Plaintiff can always come back to take the necessary execution, but at this stage I will not give a blanket approval to the Plaintiff to levy execution for whatever amount that is the cost of the contractor.

10.  In relation to the costs of the summons, I allow the application for the costs to be paid on an indemnity basis.  I take the view that, looking at the history of this case, the Defendants have deliberately failed to comply with the order given in 2006.  The appeal had been dismissed, but up to now the Defendants have tried all sorts of tactics with a view to delay the execution of the order. The Defendants have also failed to pay any of the costs, and so I take the view that the Defendants have all along been acting unreasonably so far as the present application is concerned.  I allow the Plaintiff’s application for costs to be paid on an indemnity basis.

(Discussion re certificate for counsel)

11.  I take the view that this is not a particularly complicated case, but on the other hand, looking at the history of this case, it seems that there is some urgency in the application.  Timing is also important for the Plaintiff in the sense that the Defendants have all along been trying to adopt delaying tactics with a view to avoid the obligation to comply with the order.  In such circumstances, it was not unreasonable for the Plaintiff to have engaged counsel to conduct the case on its behalf.  I therefore grant certificate for counsel in favour of the Plaintiff.