SUPERENE LTD AND ANOTHER v. METRO FAIR LTD

DCCJ 3025/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3025 OF 2008

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DECISION

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Introduction

1. This is the application by the defendant for leave to appeal against my judgment handed down on 3 May 2013.

2. Briefly stated, the case was about the narrow strip of external wall (“the External Wall”) of Zhongda Building (“the Building”) facing Haiphong Road between its ground floor shop (“the Shop”) and its main entrance (“the Main Entrance”).  The defendant’s case was that the whole of the External Wall was its property by virtue of an assignment dated 10 July 1995 (“the Assignment”).  The plaintiff’s case, however, was that the defendant owned only the vertical half of the External Wall which was closer to the Shop.  The facts have been summarized in my judgment which I will not repeat.

3. For the reasons stated in my judgment, I dismissed the defendant’s counterclaim against that the plaintiff for, among other things, (i) a declaration that it is the registered owner and entitled to the possession of the whole of the External Wall; (ii) an order that the plaintiff remove the signages of its tenants from the External Wall; and (iii) an injunction that the plaintiff be restrained from erecting any signage or otherwise trespassing upon the External Wall.  It is against that decision that the defendant now seeks leave to appeal to the Court of Appeal.

The Law

4. The test for the granting of leave to appeal is well-known and not in dispute.  It is for the defendant to show that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard: see s 63A(2) of the District Court Ordinance, Cap 336.  A “reasonable prospect of success” means that there is an arguable case such that the chance of success is more than “fanciful” but without having to be “probable”: see Wing Tat Haberdashery Company Limited v Elegance Development & Industrial Co Limited [2011] 5 HKC 474, 476B-C; and also Ma Bik Yung v Ko Chuen [2009] 3 HKC 359, 360H-I, 361A-C.

Consideration of the submissions

5. I have considered the draft grounds of appeal and the submissions from Mr Koo for the defendant and from Mr Wong for the plaintiff.  With respect to Mr Koo, I am not satisfied that the proposed appeal has a reasonable prospect of success.  My reasons are as follows.

6. Firstly, I disagree with Mr Koo that there is no evidence that the uncoloured strip was facing Haiphong Road.  This ground concerns a finding of fact.  Without the evidence of the defence witnesses, which I have rejected, there was no evidence that the uncoloured strip was at 90º to Haiphong Road as the defence asserted.  On the other hand, the finding that the uncoloured strip was facing Haiphong Road was based not only on a visual inspection of the Plan IV, but was also supported by other objective documentary evidence mentioned at para 43(a) of the judgment. Furthermore, at para 43(b) of the judgment, I also considered the case that the pink strip was only part of the External Wall (the other part being the uncoloured strip) was consistent with the parcel clause description that what was to be assigned was only “Portion of the External Wall of the Main Entrance”.

7. Secondly, Mr Koo argued that the portion of the External Wall “of the Main Entrance” by its ordinary meaning, must mean differently to the portion of the External Wall “of the Shop”.  Reference was made to Wong Lai Kai v Incorporated Owners of Lok Fu Building, Yuen Long [2000] 2 HKC 633, at 646A-B.  However, I note that that was a case of personal injuries where the claimant was hit by a fallen awning attached to the external wall of a building at a height below the ceiling level of the ground floor.  The judgment of that case did not involve the interpretation of any assignment as none had been produced.  As a result, there was no material on which the trial judge could have found that that part of the external wall to which the awning had been attached was part of the common parts of the building.[1]  That case bears little factual resemblance to the present one.  Moreover, in the present case, as the External Wall was a narrow strip between the Shop and the Main Entrance, I am unable to see why the External Wall cannot be described as the External Wall “of the Main Entrance”. 

8. Mr Koo went on to submit that it was unlikely for the parties, by incorporating in the Assignment the specific provision of “Portion of the External Wall of the Main Entrance”, to have intended to assign any part of the Building which formed part of the shop front façade.  This, Mr Koo suggested, reinforced his argument that the pink strip in fact represented the whole of the External Wall and that the uncoloured strip was at 90º to Haiphong Road.  It is a bit difficult to follow this argument.  It seems to me that Mr Koo’s argument is based on a false premise and is contradicted by the way the parcel clause was drafted.  One would have thought that (i) the portion of the Canopy erected between the Shop and the 1st Floor of the Building and (ii) the ceiling under that portion of the Canopy were part of the shop front façade.  If Mr Koo were right, then it would not be necessary to make specific provisions for them in the parcel clause.  However, as I have noted at para 41(b) of my judgment, there were indeed specific provisions for both of them.  Not only that, the parties also took the trouble of including photographs in the conveyance documents to show what those portions were.  Therefore, the inference is that the parties intended to be specific by making express provisions for everything to be assigned in the parcel clause regardless of whether it formed part of the shop front façade or not.  There is also a strong inference that the parties regarded the photographs as important in showing what was to be assigned.

9. Thirdly, I accept Mr Wong’s submission that Plan IV is an integral part of the parcel clause description and that Plan IV is important to show not only what was to be assigned but also what was not to be assigned.  If the uncoloured strip was facing Haiphong Road, then there would be harmony between the parcel clause description and Plan IV.  This is because what was assigned, as the parcel clause says and as Plan IV shows, was the portion of the External Wall marked in pink.  That makes perfect sense because the pink strip was nearer to the Shop than to the Main Entrance.  On the other hand, the defence case would cause serious conflicts between the parcel clause description and Plan IV.  This is because the defence case entails the inherent improbability of the parties having wrongly used the word “portion” when they actually meant “whole” and also that they had wrongly coloured on Plan IV just half of the External Wall when they should have coloured the whole of it.  On this basis, Harvest Rise Development Ltd v Ling Yau Yung [2002] 2 HKLRD 378 is factually distinguishable and does not assist the defendant. 

10. Fourthly, in my judgment there was indeed no ambiguity as to what the parties had intended to convey when the Assignment and the Agreement are considered together.  Besides, at para 41(d) of my judgment, I have given reasons as to why no reliance should be placed on the representation made in the invitation to tender that the Shop had a frontage of 33 feet. 

Conclusion

11. As the defendant has failed to show that the proposed appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard, I refuse leave. 

Costs

12. I order that the defendant pay the plaintiff costs of this application, to be taxed if not agreed.