AU YEUNG KAM HA v. MAXLUX DEVELOPMENT LTD AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

HIGH COURT MISCELLANEOUS PROCEEDING NO. 3506 OF 2001

(ON AN INTENDED APPEAL FROM LDBM 151 OF 2001)

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JUDGMENT

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Hon Woo JA:

          By summons dated 26 June 2001, the Applicant seeks extension of time to appeal against the judgment of Deputy Judge Tong in the Lands Tribunal given on 28 May 2001 in favour of the respondents.

2. It is well settled that the factors which are normally taken into account in deciding whether to grant an extension of time for serving a notice of appeal are:

However, where the delay is short and there is an acceptable excuse for it, an extension of time will not be refused on the basis of the merits of the intended appeal, unless the appeal is hopeless. See para 59/4/14 at page 792 of the Hong Kong Civil Procedure 2001.

3. According to Order 60A, rule 3 of the Rules of the High Court, Cap. 4 and section 11(3) and (4) of the Lands Tribunal Ordinance, Cap. 17, an appeal against a determination of the Lands Tribunal must be brought by a notice of appeal which "must be served on all parties to the proceedings before the Tribunal and on the Tribunal within 21 days of the date on which the decision or order of the Tribunal was given." The date when the determination was given by the Tribunal being 28 May 2001, the deadline was on 19 June 2001. According to the "reasons for applying the leave from Court of Appeal" attached to the affirmation of the applicant made on 26 June 2001 in support of her application for extension of time, she was told by the judge immediately after he delivered his judgment that if she was not satisfied with his decision, she could lodge an appeal within a month. This fact is borne out by the transcript of the proceedings. She was therefore lulled into a false sense that she had one month to appeal. She is honest to point out that when she checked with the High Court on 19 June, she learned that the time to lodge appeal should be 21 days instead of 28 days. She immediately went to collect the transcript of the proceedings from the Lands Tribunal but she had insufficient time to make a decision immediately whether further action should be taken. She applied for legal aid on 21 June and took out the summons on 26 June.

4. The delay was altogether one week. The application for extension of time was taken out within the time as mentioned by the judge, i.e., one month after he had given his judgment. When the applicant realised that the advice of the time for appealing given by the judge was wrong, she did not delay matters further. In the circumstances, I am of the view that she has offered good and reasonable explanations for the delay, which was in any way only for a short period of a week.

5. Moreover, I cannot detect any prejudice to the respondents caused by the delay, save of course, that they have not seen the finality of the action which they ought to have seen by the expiration of the appeal period prescribed by the aforesaid provisions. However, that cannot be considered as substantial prejudice in view of the short delay.

6. I now turn to consider whether the appeal is hopeless, for if it is hopeless, there is really no point to waste the court's time and the costs and time of the parties in allowing this matter to proceed.

7. By her application, the applicant as the owner of Flat 1A, 31-37 Mosque Street, Mid-Levels, Hong Kong ("Flat 1A") sued the 1^st respondent as the owner of Shop 1, G/F of the same building ("Shop 1") and the 1^st respondent as the tenant/occupier of Shop 1. The crux of her claims against the respondents was that the respondents had, without the authorisation or permission of the other owners or the incorporated owners of the building erected an exhaust pipe in the common parts of the building and through that pipe, grease and smell were emitted causing a nuisance to her in her enjoyment of Flat 1A. The cause of action arising from the exhaust pipe was one of trespass, and the applicant claimed an injunction for the demolition of the pipe. The cause of action against the emission of grease and smell from Shop 1 was one of nuisance and she claimed damages for such nuisance.

8. The judge rejected both claims. In respect of the trespass claim, the judge referred to section 16 of the Building Management Ordinance Cap. 344 and decided that the applicant lacked locus standi in bringing such a claim. In respect of the nuisance claim, apart from hearing evidence from the parties' witnesses, the judge visited the building and the premises concerned with the parties and concluded that there was little grease emitted from Shop 1, and that the degree of the smell from roasting chicken in Shop 1 did not exceed the usual smell generated by normal cooking and frying of food in a domestic kitchen. He also referred to the proviso to clause 14(59)(k) of the Deed of Mutual Covenant governing the obligations and rights of the owners of the building, which is as follows:

          "The owner or occupier of any commercial unit shall:

The judge concluded that from the evidence that had been adduced before him and his observations at the site visit, even if the 2^nd respondent had caused some degree of nuisance to the applicant, he accepted the evidence of the witness called by the 2^nd respondent that the 2^nd respondent had properly and reasonably carried on its business of roasting chicken so that the nuisance caused by the carrying on of the business had, under all reasonably possible circumstances, been reduced to the lowest level.

9. Regarding the judge's decision on the lack of locus standi on the part of the applicant, it is necessary to examine the provisions of section 16 of the Building Management Ordinance. Section 16 provides:

"When the owners of a building have been incorporated under section 8, the rights, powers, privileges and duties of the owners in relation to the common parts of the building shall be exercised and performed by, and the liabilities of the owners in relation to the common parts of the building shall, subject to the provisions of this Ordinance, be enforceable against, the corporation to the exclusion of the owners, ...."

10. As the trespass claim related to the common parts of the building and as there had been in existence an owners' corporation incorporated pursuant to the Ordinance, it is plain that the judge was correct in ruling that the applicant had no locus standi to bring the action for trespass or to seek an injunction therefor. There was not only a decision by the same judge in See Wah Fan v Tam Kam Yuk [2000] 3 HKLRD 406, but there was also a decision of the Court of Appeal in Chau Mei Lee Fragrance & Another v Ng Yee Tim [1995-96] CPR 119 to the same effect. The law point involved is settled and any challenge to it is unarguable. It follows that as far as this point about locus standi is concerned the applicant's appeal is hopeless.

11. Section 11(2) of the Lands Tribunal Ordinance provides that "any party to proceedings before the Tribunal may appeal to the Court of Appeal against a determination or order of the Tribunal on the ground that such determination or order is erroneous in point of law." This is a very clear provision precluding parties to proceedings in the Tribunal from appealing against the Tribunal's decision on questions of fact. The judge's decision on the question of the extent of the grease and smell emitted by Shop 1 is a decision on facts. The applicant has through her application and address to me raised lengthy grounds regarding the extent of the smell and the judge's site visit, but she is plainly not allowed to raise these grounds as they relate to facts.

12. In the circumstances, I consider that the appeal is really hopeless. Despite the reasonable explanations for the delay in launching the appeal offered by the applicant and the delay being short, I must say that allowing her to proceed with the appeal would be of no benefit to her and would also cause more damage to her by way of a further costs order that would likely be granted against her.

13. For the above reasons, the application for extension of time to appeal is refused.

14. After hearing the parties, I order the applicant to pay costs in the sum of $300 to the 1^st respondent and costs in the sum of $300 to the 2^nd respondent.