WING MING GARMENT FACTORY LTD v. THE INCORPORATED OWNERS OF WING MING INDUSTRIAL CENTRE

HCCT 60/2006

[2019] HKCFI 421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 60 OF 2006

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D E C I S I O N

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1.  There are four matters in the IO’s summons this morning, most of which have been disposed of, happily by consent, leaving essentially one question that requires determination and that is the time limits or, rather, the extended time limits, for Wing Ming to comply with the injunction orders in relation to the ground floor external walls and the Part Loft.

2.  The parties have been in litigation with each other in one way or another since 1993.  My judgment after trial dated 23 June 2014 in these proceedings requires Wing Ming to remove certain alterations and to reinstate the external walls on the ground floor and to remove the Part Loft over the void areas in front of CPS 2, 3 and 4.

3.  The judgment as handed down and as subsequently drawn up did not specify a time limit, but paragraph 375 of the judgment gave the parties “Liberty to apply in relation to the terms of the injunctive relief granted and their implementation”.

4.  From not later than 28 November 2014, the IO has repeatedly demanded that Wing Ming comply with the orders against it.  In October 2016, the IO applied, inter alia, to put a time limit of 295 days for Wing Ming to comply with the orders relating to the external walls and Part Loft.

5.  At the hearing of that application on 22 March 2017, I imposed that time limit as agreed by Wing Ming.  By 24 January 2018, being the expiry of the 295‑day period, Wing Ming had not complied with either orders.  Instead, by two summonses, respectively dated 23 January 2017 and one for amendment of that summons dated 1 February 2018, Wing Ming applied to this court for an extension of time in which to comply with the injunctions until 30 November 2018.  One of the reasons given at the time for non‑compliance was the refusal by Wing Ming’s tenant occupying the ground floor and the Part Loft to cooperate in the efforts to comply with the orders. 

6.  On 2 February 2018, I dismissed those two summonses with costs, one of them on an indemnity basis. 

7.  The orders have to date still not been complied with, but Wing Ming has not made any further application for extension of time.  It fell to the IO eventually by summons dated 22 October 2018 to apply to this court to put a renewed time limit on the orders against Wing Ming. 

8.  The application of the IO was supported by the 4^th affirmation of Chee Yan Toi which recalled the history of the matter and set out proposed renewed time limits based on the expert evidence that was the footing on which the parties agreed the previous 295‑day time limit.

9.  Wing Ming has since, and at a very late stage, put in the 4^th affirmation of Yuen Man Pui and the affirmation of Yuen Foon Yeung, the authorised person engaged by Wing Ming, suggesting different time limits.

10.  Essentially, what is being proposed by the IO is that the time limits should be set on the basis of the previous expert report less any steps that have already been carried out. 

11.  On that basis, the IO proposed 66 days for compliance with the order relating to the external walls and 265 days for the order relating to the Part Loft. In contrast, Wing Ming has proposed a new time limit of one year from the date of the order.

12.  It is in my view highly unsatisfactory that Wing Ming has not itself asked for extension of time when it is in default of compliance with the orders of this court and, moreover, has put in evidence very late in response to the IO’s application. 

13.  So far as the external walls are concerned, they are agreed to fall within the minor works regime.  I am not satisfied on the evidence that the works required the submission of new general building plans and their approval by the Buildings Authority.  I do not think the contrary is suggested by the affirmation of Wing Ming’s authorised person which, in any event, because of its lateness, the IO has not had an opportunity of responding to with or without input from its expert. 

14.  In relation to the Part Loft, I think Mr Cooney is right in submitting that there is no clear evidence from Wing Ming’s authorised person that 90 days will be needed for repairing general building plans that are necessary solely for the purpose of complying with this court’s order.

15.  From the structural engineer’s report, the works that are required to remove part of the Part Loft and reinstate it to the original state is fairly contained and limited and it was on that basis that the IO’s expert had opined previously that 30 days would be sufficient for the preparation of plans that are necessary for the purpose of complying with the court’s order.  It is not clear from Wing Ming’s evidence whether or not it is proposing to include many more other things in its intended new submission to the Building Authority which may have nothing to do with compliance with the injunctions.  The sequence of works set out by the structural engineer has not been traversed. 

16.  In these circumstances, I do not think that Wing Ming has made out the basis for the time limit that it sought and I would, therefore, extend the time in the way submitted by the IO.