XCHRX PACIFIC DRAYAGE CO. LTD. AND ANOTHER v. MA ON SHAN WHITEHEAD GOLF CENTRE LTD. AND OTHERS

HCA 1050/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1050 OF 2001

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R U L I N G

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1. Mr. Poon, on behalf of the 4th and the 5th Defendants, does not dispute that his clients have been at fault.

2. The two points in dispute before me this morning have essentially been whether the Plaintiffs are entitled to specify the particular surveyors, namely Dudley Surveyors Ltd, to submit plans and supervise the works and whether the Defendants should provide any security for the execution of the works by way of payment into court.

3. There are a number of features of the case which incline me to sympathise with the Plaintiffs' position and their desire to retain control over the works through the building surveyor, Dudley Surveyors Limited, whom they have been using and in whom they have confidence. These features include:

1) The history of the matter and in particular the past failure of the Defendants to submit plans and obtain proper authorisations for the two structures when it must have been abundantly apparent to them that they should.

2) The precariousness of the Plaintiffs' position in relation to the lease which requires the matter to be handled with the greatest urgency.

3) The fact that Dudley Surveyors Limited are familiar with the situation and have been familiar since the beginning of the year and they have already conducted certain discussions with the authorities albeit perhaps informally and can proceed with haste.

4) The fact that the Plaintiffs intend to use Dudley Surveyors in respect of unlawful features of other structures on the site.

4. The Defendants' counterproposals that they instruct other surveyors unknown to the Plaintiff who would submit plans within a month does not provide a full answer to the Plaintiffs' concerns.

5. Under the suggested order put forward by the Plaintiffs, the Defendants would still retain the ability to select their contractors.

6. I consider in the circumstances it is reasonable, particularly in the light of the urgency of these matters from the point of view of the Plaintiffs that the Plaintiffs have some assurance that the contractors be paid, I am therefore prepared to make an order along the lines suggested by Mr Yau in the following terms:

1) That unless each of the 4th and 5th Defendants undertakes forthwith to the Court:-

a) to co-operate with the building surveyor, Dudley Surveyors Limited, appointed by the 1st Plaintiff to submit approved building plans and timetable for carrying out rectifying measures (in respect of breaches occasioned by the erection and occupation of the respective premises erected on the site and occupied by the 4th and 5th defendants respectively) for the purpose of protecting the interest of the 1st Plaintiff under the Short Term Tenancy No. 1033 (in particular against the right of re-entry exercisable by the Government thereunder);

b) pay all reasonable and necessary expenses incidental to carrying out such rectifying measures (including the costs of Dudley Surveyors Limited in the sum of $120,000);

c) within 7 days hereof pay into the Court a sum of $600,000 to fortify the undertaking of payment in sub-paragraph (b);

the 4th and 5th Defendants shall demolish the premises they are presently occupying on the site and cease occupying therein.

2) In default of compliance by the 4th and 5th Defendants with paragraph 1 above, the 1st and 2nd Plaintiffs shall be entitled to demolish the said unauthorised premises themselves and an Order authorising them or any of them to do so is made herein accordingly.

3) Liberty to apply.

4) The costs of and occasioned by this application be to the 1st and 2nd Plaintiffs.