TAM CHUN CHUNG DENIS v. BUILDING AUTHORITY

ACTION NO 1624 OF 1995

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H E A D N O T E

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Plaintiff came into possession as tenant after the date of Closure Order. He challenged the validity of the Closure Order.

ACTION NO 1624 OF 1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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R U L I N G

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1. On 22 February 1995, the plaintiff filed the endorsement of claim for a declaration that the Closure Order in respect of House No. 26, Shek O Village, Shek O, Lot No. 1489, (hereinafter called `the Closure Order') is of no force or effect and an injunction to restrain the defendant from taking any steps in respect of the execution of the Closure Order.

2. On the same date, the plaintiff took out an interparte summons returnable on 24 February 1995 for an injunction to restrain the defendant from taking any steps to execute the Closure Order. The wording of the summons is somewhat strange. It did not ask for the defendant to be restrained until the conclusion of the action or further order.

3. On the return date, the matter came before Deputy Judge YEUNG who adjourned the matter to 3 March 1995 after consultation with plaintiff's then counsel. On 3 March 1995 the matter came before me. Another counsel appeared for the plaintiff. He came to ask for adjournment as the plaintiff had applied for legal aid. No memorandum from the Legal Aid Department had been filed.

4. Since the plaintiff's then solicitors had instructed counsel to appear, I pressed counsel to go ahead with the application for injunction. Counsel submitted that he was not prepared as he had been instructed quite late the day before and that he was only instructed to apply for adjournment as the plaintiff had applied for legal aid.

5. I find that sort of submission very unsatisfactory in that if the plaintiff had applied for legal aid, that means the solicitors' services were no longer required. Since solicitors had been retained, they knew or ought to have known that it was a resumed hearing in respect of the application for injunction. So it must be a matter of some urgency and should be proceeded with diligence. It lies ill in the mouths of counsel and solicitors to say that the instructions were for adjournment only. If it were so, why cannot the plaintiff come to apply for the adjournment himself?

6. Obviously, counsel had not read the papers and did not know what the case was about and had to apply to withdraw from acting for the plaintiff. This is very unsatisfactory. If counsel felt that he did not have time to go through the papers, he should not have taken up the case. Time and again, Courts have expressed displeasure with counsel coming to court saying that his instructions were limited to apply for adjournment.

7. Upon counsel withdrawing from the case, I asked the plaintiff's then solicitor to take up and continue with the case. He had been taking instructions and had prepared the case, so he should be in a position to proceed without difficulty. However, he, like the counsel he instructed, was not able to go on and had to apply for discharge.

8. I was, therefore, left with the plaintiff having no legal representation. It would be unfair to ask the plaintiff to conduct his case personally after he had instructed solicitors to act for him. In the circumstances, I had, with greatest reluctance, adjourned the matter for seven days to enable the plaintiff to get legal representation even though in view of the history leading to the present application which I hereinafter set out, I have greatest suspicion that the plaintiff was trying his best to delay the matter.

History Leading to the Present Action

9. Sometime in August l989, Business Right Ltd (hereinafter called `the owner') applied to the Building Authority to build a new village type house in the site situated at Shek O, Lot No. 1489 which contained two units of a 2-storey village type house which had fallen into dis-repair. The application was rejected but the owner pressed on regardless and built a small 3-storey domestic building which was completed towards the end of 1990.

10. Upon being discovered, the Building Authority on 30 January 1991 served Order No. C0172/91/HK and asked the owner to remedy the situation. Nothing was done either by the owner or the Building Authority until 21 November 1991 when the Building Authority, pursuant to section 27 of the Building Ordinance, gave Notice of Intention to apply for a Closure Order. To this Notice, the owner appealed to the Appeal Tribunal and the Tribunal dismissed the Appeal on 28 August 1992.

11. On 8 October 1992, the Building Authority issued another Notice of Intention to apply for a Closure Order. The owner appealed again. The Building Authority withheld the application for a Closure Order pending the decision of the Appeal Tribunal. The Tribunal held a hearing on 12 February 1993 and dismissed the Appeal on 22 February 1993.

12. On 16 August 1993, the Building Authority wrote to the owner to inform it that the Building Authority intended to apply to court on 23 September 1993 for a Closure Order pursuant to the notice dated 8 October 1992.

13. District Court Miscellaneous Proceedings No. 940 of 1993 was instituted to deal with the application. The matter was heard before His Honour Judge Downey, as he then was, and judgment was given in favour of the Building Authority. The owner then appealed against the decision and on 19 May 1994 the Court of Appeal dismissed the owner's appeal. The owner then applied for leave to take the matter to the Privy Council but leave was refused. The owner then petitioned for special leave to appeal to Privy Council and the Privy Council dismissed the petition on 17 October 1994.

14. On 19 January 1995 the plaintiff received a letter from the Building Authority addressed to the landlord that the house in question, that is house No. 26, Shek O, Lot No. 1489, would be closed for demolition and on 20 February 1995 the plaintiff received a copy letter from Messrs William Clarke & Co for the owner addressed to the Building Authority saying that the Closure Order is flawed in that it referred to house No. 26 Shek O whereas the owner's properties are house No. 208 and house No. 210. It is on this basis that the present application was made.

The plaintiff's case

15. Mr Pow, counsel now for the plaintiff, submitted that under section 27, sub-section 4A of the Building Ordinance, a Closure Order shall specify the building to be closed. He adopted Messrs William Clarke & Co's argument that the defendant had named a building not in existence and there was no evidence to clarify the matter. So he said there is an issue to be tried and has an arguable case.

Whether the plaintiff has locus standi

16. Mr Pow informed this court that the plaintiff became tenant in January 1994, a matter which is material but was not disclosed in the plaintiff's own affirmation in support of this application for injunction. The Notice of Intention to apply for a Closure Order on 8 October 1992 was made under section 27, sub-section 2A, which states:

"Not less than 7 days' notice of intention to apply for a Closure Order shall be given by the person making such application by posting a copy of such notice upon a conspicuous part of the building to be affected, and upon being so posted such notice shall be deemed to be notice to all persons of such intention".

17. The closure order was dated 23 September 1993. That being the case, the plaintiff was not an occupant either at the time of the Notice of Intention to apply for a Closure Order or when the Closure Order was made. He became a tenant only in January 1994 at the time when the house had already been closed under a Court Order. In my judgment, he has no locus standi because he was, firstly, in contravention of the law and, secondly, he was not the person interested or affected by the notice when the Notice of Intention to apply for Closure Order was given, nor was he a person interested or affected when the Closure Order was made.

Has the plaintiff made out a case

18. From the letter of the solicitors for the owner, Messrs Robert W H Wang & Co, dated 9 December 1991, on appeal to the Appeal Tribunal in respect of the first Notice of Intention dated 21 November 1991, it stated at paragraph 5A that:

"The captioned lot is a building site and did previously contain two units (Nos. 208 and 210) of a 2-storey `village type' house which had fallen into disrepair".

19. Then at paragraph 5K that:

"A small 3-storey domestic building was then erected on the site and completed towards the end of l990".

20. What happened is that the house with two units was demolished and a new house was erected. There was no suggestion whatsoever that two houses had been erected.

21. Then Mr P J Sheehan, a consultant solicitor with Messrs S H Leung & Co in DCMP 940 of 1993, sworn an affidavit on 16 October 1993 and said that:

"On 30 November 1991 the applicant issued Order No. CO172/91/HK requiring demolition of the premises known as house No. 26, Shek O village, Hong Kong (also known as house Nos. 208 and 210, Shek O Village) and identified in Land Registry records as Shek O, Lot No. 1489, which is owned by the respondent".

22. Mr Pow conceded that the house, subject matter of the Closure Order, was erected on Shek O, Lot No. 1489. With that concession by the plaintiff's counsel and admissions by the owner, in my judgment, the Closure Order was unequivocal, unambiguous and had specified the building to be closed and section 27, sub-section 4A of the Building Ordinance had been complied with. The plaintiff, therefore, has no arguable case.

Owner's conduct

23. By DCMP 940 of 1993 the owner had exhausted all venues in respect of the Closure Order. The judgment from the Court of Appeal is final. It would be wrong for it to instruct Messrs. William Clarke & Co to write to the Building Authority on 20 February 1995 to say that the Closure Order was fatally flawed. This is a matter which the owner could have brought up in that proceeding but it had chosen not to do so. This is sufficient to shut out that subject of litigation in any subsequent action. Had the owner taken out this action, it would have been barred by the doctrine of res judicata, see Yat Tung Investment Co Ltd and Dao Heng Bank and another 1975 [AC] 58l.

24. I cannot say that the doctrine of res judicata can apply to this action since the party is different, but the owner by sending a copy of his letter to the plaintiff, the plaintiff had been misled into believing that he had an arguable case. If the plaintiff were aggrieved and had suffered damage as a result of the Closure Order, in my judgment, the proper course is to go after the owner who should never have let the house or any part thereof which had been under a Closure Order to the plaintiff.

25. I am aware that by dismissing the summons, I am in effect disposing of the action, but the argument put forward by counsel for plaintiff is so devoid of merits that the only proper order in the circumstances is to have the summons dismissed.

26. For those reasons, the summons is dismissed with costs.