THE INCORPORATED OWNERS OF GREENERY PLAZA v. LAND TREND DEVELOPMENT LTD AND OTHERS

LDBM 151/2012

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 151 OF 2012

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D E C I S I O N

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1.  The Applicant is the Incorporated Owners of Greenery Plaza, a mixed residential and commercial development situated at Chui Yi Street, Tai Po, New Territories.

2.  By a Notice of Application dated 26 May 2012 which was subsequently amended, the Applicant sought a declaration on wrongful occupation on some common parts by the respondents; consequential injunctive order and mense profits as relief.

3.  By a summons dated 19 November 2013, the Applicant asked for leave to file a Notice of Discontinuance on the 4^th Respondent and the costs against it in this Application. 

4.  The reason for discontinuing the claim against the 4^th respondent is this.  The 4^th Respondent was the past tenant of the 1^st, 2^nd & 3^rd Respondents.  It had left the rented premises after filing of the Notice of Application.  Since then the respondents were no longer in occupation of the common parts, it was therefore not necessary to seek declarative and injunctive relief as pleaded.  The remaining dispute between the Applicant and respondents was only in respect of mesne profit and costs.

5.  By Order dated 2^nd August 2013, the 4^th Respondent’s Notice of Opposition was struck out due to the 4^th Respondent’s failure to comply with the “unless order” of Deputy Judge R. Yu dated 3^rd December 2012.  

6.  The Applicant had entered into a settlement agreement with the 1^st, 2^nd and 3^rd Respondents in respect of its claim for mesne profit and costs by way of Consent Summons filed on 20^th November 2013.  Order was made according to those terms on same day.  Accordingly the Applicant’s claim against the 4^th Respondent would be reduced to any short fall from the actual amount of mesne profit and costs after subtracting the corresponding amount paid by the 1^st, 2^nd and 3^rd Respondents under the Consent Order.

7.  It is the stance of the Applicant that 1^st, 2^nd and 3^rd Respondents had substantially satisfied the Applicant’s claim for mesne profit.  With a view to minimising the use of the Tribunal’s resource and legal costs for assessing the quantum for such mesne profit, which after deduction from the 1^st, 2^nd and 3^rd Respondents’ payment may be disproportionally small compared with the resources and costs required for such assessment, the Applicant has decided to abandon its claim for mesne profit against the 4^th Respondent, but would pursue costs against it.

Discussion

8.  The 4^th Respondent was absent at the hearing.  I am satisfied that the Summons has been duly served on the 4^th Respondent.  I am of the view that although the Applicant has decided to discontinue the action against the 4^th Respondent, it was not unreasonable for the Application to be taken out in the first place.  I accept that the Applicant’s decision to abandon its claim in respect of mesne profit is for the purpose of saving costs only.  In the circumstance I grant leave for the Applicant to discontinue its claim against the 4^th Respondent and I agree that the 4^th Respondent is liable to pay the Applicant’s of this Application subject to what I am going to say below.

9.  The Applicant is asking for costs of the whole proceedings, that is, all costs incurred against all 4 respondents to be borne by the 4^th Respondent.  Mr Cheng further said that all 4 respondents should be held liable for costs jointly and severally.  In his written submission, Mr Cheng said that the Applicant, as a successful party, is entitled to choose the method of enforcement including the party against whom to take out such enforcement action.

10.  I cannot agree with this.  There was a Consent Order made between the Applicant and the first 3 respondents including costs.  So as far as those 3 respondents are concerned, there was a full and final settlement on the whole proceedings against them including costs.  I do not see how the Applicant could re-open the issue on costs against them and asked that costs of the whole proceedings be borne by the respondents jointly and severally for a reason other than their non-compliance.

11.  Further I do not find it fair that when the Applicant chose to settle with the first 3 respondents including costs, the 4^th Respondent not party to the Consent Order should be held jointly and severally liable to those costs agreed therein, or for worse, those costs against the first 3 respondents but not included in the Consent Order.

12.  My order is as follows:-