SUN WAI CHUN v. FAIRVIEW PARK PROPERTY MANAGEMENT LTD.

FAMV000001/2000

FAMV No. 1 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1 OF 2000 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV Nos. 271 OF 1998 AND 61 OF 1999)

_____________________

_____________________

________________________

DETERMINATION

________________________

Mr Justice Ching PJ :

1. The applicant is and was at the time when proceedings were taken against her the owner of one of some 5,000 units in Fairview Park in the New Territories. One of her predecessors in title had made alterations to the unit without the approval of the respondent, the manager of the estate. Demands for reinstatement by the manager were not met. In the Court of First Instance the judge ordered her to restore the unit to the satisfaction of the respondent within 35 days failing which she was restrained from hindering or preventing the respondent from doing so. She was also ordered to pay the respondent's costs of the proceedings and to indemnify the respondent for the costs and expenses of carrying out the work. Her appeal to the Court of Appeal was dismissed as was her application to that Court for leave to appeal to the Court of Final Appeal. She now applies to us for leave. Her first application dated 20 January 2000, was restricted to asserting that there were questions of great general or public importance, or at least of importance to a section of the public, which ought to be decided by that Court. This morning she applied to abandon that document and to substitute for it another which adds the ground that the questions "should otherwise" be submitted for decision. This committee has repeatedly laid down in clear words the limits of the words 'or otherwise' in section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, and it is unnecessary to do so again. It is enough to say that this application does not begin to approach those limits.

2. The first question is said to be whether or not a deed of mutual covenant entered into by each owner, the estate rules which the respondent was empowered to make and the building plans were illegal so that the enforcement of any obligations under the former two would also be illegal. No illegality was pleaded but it is asserted that when an illegality appears the court is bound not to enforce illegal obligations. The argument misses the point. Pleadings are necessary to put the plaintiff on notice as to the defence it will need to meet. Illegality is a conclusion to be drawn from proven facts to which the law is applied. The respondent was never put on such notice. Like the Court of Appeal, we decline to countenance these arguments.

3. The second proposed question also relates to illegality and again it was not pleaded. It alleges boldly that there had been no statutory approval of the building plans and goes on to make other allegations as to what the evidence showed. We do not find it necessary to dwell upon these matters.

4. The third proposed question is whether or not the reinstatement work can be legally performed and, if so, whether permission to carry out the work should be sought from the Secretary for the New Territories or from the Building Authority. Leaving aside whether any such question could ever be described as a question of law of great general or public importance it is to be noted that the so-called question does not allege that the work would be illegal. It would be a kindness not to discuss this further.

5. The last question has to do with the construction of the deed of mutual covenant. The argument is that the provisions only refer to the owner who made the alterations and not to someone such as the applicant. This argument is wholly untenable even if the question could otherwise be said to be one of great general or public importance. Deeds of mutual covenants are common in Hong Kong. Each owner subscribes to it and is bound by it. The benefit and burden of the covenants run with the land. In the present case that is provided by clause 5. Rule A10 of the estate rules then provides that,

Paragraph 1(d) of the Third Schedule to the deed provides that,

If this were not enough, the deed of mutual covenant clearly falls within section 41 of the Conveyancing and Property Ordinance, Cap. 219.

6. This application is dismissed with costs on an indemnity basis.

Representation: