XCHRX BROADWAY-NASSAU INVESTMENTS LTD. v. LO YIU HO AND OTHERS

HCA 6471 OF 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL ACTION NO. HCA 6471 OF 1998

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J U D G M E N T

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1. There are 2 issues which I indicated to Miss Mak that I need to be satisfied of before I would be prepared to make an order asked for by the Plaintiff.

2. The first point centered on the High Court's jurisdiction to entertain these proceedings to enforce the term of the Deed of Mutual Covenant. It is plain that the enforcement of the Deed of Mutual Covenant is within the 10th Schedule of the Building Management Ordinance and it is so provided in S.45 of the Building Management Ordinance that the Lands Tribunal shall have jurisdiction on matters set out in the 10th Schedule to that Ordinance. In Winbase Industrial Ltd. v. Mightyton Property Management Ltd. Mayo J. held that the effect of the Building Management Ordinance was that the Lands Tribunal was given the exclusive jurisdiction to deal all matters within the 10th Schedule to that Ordinance.

3. The decision was not followed by Findlay J. in Ngan Chor Ying and others v. Year Trend Development Ltd. and Centaline Property Agency Ltd. 1994 No. A10337. Findlay J. held that there was nothing in the Building Management Ordinance and in particular in S.45 thereof that warranted any conclusion that the Lands Tribunal was given the exclusive jurisdiction to deal with matters within the 10th Schedule.

4. In Mass Transit Railway Corporation v. Lam Kai Fai and others 1994 No. A1796. Yam J. followed the decision of Mayo J. in Winbase. However it is plain from the Yam J.'s attention had not been brought to the decision of Findlay J.

5. Thus there were conflicting decisions of this Court on the issue. I consider that there is no binding authority on me or the point. Having considered the conflicting decisions I would prefer the reasoning of Findlay J. and for the reasons he gave, I held that this Court has the jurisdiction to entertain this claim.

6. On the 2nd point as to the locus of the Plaintiff to bring this action, Miss Mak informed me and produced before me a copy of the Deed of Mutual Covenant in issue. The Plaintiff was in fact a party to the Deed of Mutual Covenant. On her undertaking to file an affidavit exhibiting a copy of the Deed of Mutual Covenant, I am satisfied that the Plaintiff has the necessary locus standi to bring this action and is entitled to the relieves asked for.

7. I will grant the Plaintiff an order in term of the Summons. However I will not give any cost to the Plaintiff for the hearing on last Friday.