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HCA 816/2004
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 816 OF 2004
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BETWEEN
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COGI ENTERPRISES LIMITED |
1st Plaintiff |
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SPEEDY GAINER LIMITED |
2nd Plaintiff |
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CHOW SHING KEE INVESTMENT
COMPANY LIMITED |
3rd Plaintiff |
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and |
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THE INCORPORATED OWNERS OF
MALAHON APARTMENTS |
Defendant |
Before : Hon Sakhrani J in Chambers
Date of Hearing : 21 December 2010
Date of Judgment : 21 December 2010
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J U D G M E N T
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1. At trial there were four separate matters in dispute between the parties. The main dispute was in respect of the pipeworks.
2. By my judgment dated 5 May 2010 I found in favour of the plaintiffs in relation to the pipeworks.
3. I gave judgment to the 3rd plaintiff on its claim for a mandatory injunction to compel the IO to remove the pipeworks and to reinstate the walls in shop 2A where the pipeworks pass through by 5 November 2010 with liberty to the parties to apply in case there is difficulty in complying with this order. I also dismissed the IO’s counterclaim for a declaration and an injunction in relation to the pipeworks.
4. The IO has by its notice of appeal dated 20 May 2010 sought to appeal the orders I made. I would observe that although the notice of appeal was filed on 20 May 2010 it was only on 9 December 2010 that the IO applied to fix a date for the hearing of the appeal. No satisfactory explanation has been provided to me as to why there has been this undue delay.
5. The summons before me is for a stay of the injunction order in respect of the pipeworks pending the disposal of the appeal. That is what the summons says. However, Mr Chan, for the IO, has this morning confirmed that he is no longer applying for a stay of the order pending the disposal of the appeal. Instead, he is asking for an extension of time so that the IO can comply with the order.
6. The evidence before me shows that the IO has not been expeditious in trying to comply with the order. It was only on 5 November the last day for compliance of the order that this summons was taken out. And the expert report has only been recently obtained although there had been inspections by the expert a few months ago. No satisfactory explanation has been provided to me for this delay in seeking to comply with the mandatory injunction.
7. On the evidence before me it is likely that the costs of the reinstatement works may well exceed the cap of $200,000.00 provided for under s. 20A(2)(a) of the Building Management Ordinance (Cap. 344) as submitted by Mr Chan. That means that there are procurement requirements under the Ordinance. All that this means is that more time may be needed to obtain the necessary procurement.
8. Mr. Wright has fairly submitted in his submissions that from the expert report of the plaintiff the works should not require more than eight weeks to complete. The plaintiff is prepared to accede to an extension of time limited to a maximum period of eight weeks.
9. It seems to me that although the IO has not proceeded with reasonable expedition, more time is needed to comply with the order. In view of the upcoming holidays and the intervening Christmas and Chinese New Year holidays I would be prepared to grant an extension of time up to 12 March 2011 for the IO to comply with the mandatory injunction. That is the order I make.
10. Costs of the application to the plaintiffs.
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(Arjan H. Sakhrani)
Judge of the Court of First Instance,
High Court |
Mr Colin Wright, instructed by Messrs Orrick, Herrington & Sutcliffe, for the Plaintiffs
Mr Kenneth C. L. Chan, instructed by Messrs Tung, Ng, Tse & Heung, for the Defendant
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