CHAN LAI CHUN MARIA v. STEADYPROFIT LTD

CAMP 171/2025, [2026] HKCA 1024

On intended Appeal From [2025] HKLdT 44

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 171 OF 2025

(ON INTENDED APPEAL FROM LDBM 17 OF 2024)

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J U D G M E N T

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Hon Ng J (giving the judgment of the court):

INTRODUCTION

1.  This is the renewed application by the Respondent for leave to appeal against the judgment of Her Honour Judge LJ Cruden (“Judge”) in the Lands Tribunal given on 9 May 2025 (“Judgment”)[1]. In the Judgment, the Judge declared in favour of the Applicant that (i) upon a proper interpretation of the Deed of Mutual Covenants dated 4 February 1987 (“DMC”), the owners were entitled to change the name of the land and building known as “LA VILLA (龍濤花園)” (“Building”) situated at No. 142 Waterloo Road erected on New Kowloon Inland Lot No. 4069 (“Premises”) by a majority passing a resolution in accordance with clause 9 of and the Fifth Schedule to the DMC and (ii) the name of the Building may be changed without the unanimous consent of all the owners.

2.  The only issue in the intended appeal is the correct interpretation of the DMC.

3.  The Applicant with her husband and son are the majority owners (“Majority Owners”). The Respondent is the remaining owner.

4.  By summons dated 4 June 2025, the Respondent applied for leave to appeal. By the decision dated 15 August 2025 (“Leave Decision”)[2], the Judge dismissed the Respondent’s leave application.

5.  The Respondent then took out the present summons on 29 August 2025, subsequently amended on 22 October 2025 (“Amended Summons”), renewing its leave application. Having considered the parties’ written statements and submissions, we consider it is appropriate that the Respondent’s renewed application be disposed of on paper without an oral hearing pursuant to RHC Order 59 rule 2A(5)(a).

BACKGROUND

6.  As the Judge noted at [4] of the Judgment, there were no material disputes of fact. The parties agreed that the application could proceed and be determined on the basis of a Statement of Agreed Facts dated 18 November 2024 and a bundle of agreed documents as the issues turned on the construction of the DMC and determinations of law.

7.  The material background facts were set out in the Judgment at [7] to [19]. They need not be repeated here in any detail.

8.  In brief, the Applicant sought before the Judge a declaration that, on the proper construction of the DMC, the Majority Owners were entitled to change the name of the Building without the unanimous consent of all its owners, in other words, without the consent of the Respondent.

9.  The material terms of the DMC provide as follows:

(1)  Recital (5) provides that the Vendor and First Owner entered into the DMC “for the purposes of making provision for the management and of defining and regulating the rights interest and obligations of themselves and all subsequent owners in respect of the said premises”.

(2)  Clause 9 provides that “From time to time there shall be meetings of the owners to discuss and decide matters concerning the said premises and in regard to such meeting the provisions set out in the Fifth Schedule hereto shall apply”.

(3)  Paragraph 10 of the Fifth Schedule to the DMC provides that  “Any resolution on any matter concerning the said premises passed by a majority of the owners present in person or by proxy and voting at a duly convened meeting shall be binding on all the owners … ”.

10.  Clause 9 and Paragraph 10 of the Fifth Schedule were referred to in the Judgment and shall be referred to herein as the “Meeting Provisions”.

11.  The Applicant’s case at the trial was that:

(1)  Under the DMC, the owners might pass resolutions on “any matter concerning the said premises” by majority consent and such resolutions are binding on all owners.

(2)  In the recent decision of DHCJ Yuen in Falcome Co Ltd v Zhejiang Development Co Ltd [2024] HKCFI 2992[3] handed down on 7 November 2024, it was held that words to the same effect as “any matter concerning the said premises” were wide enough to include owners deciding the name of a building (see [47] and [58]), and the contention that owners’ unanimous consent was needed to change the building’s name was roundly rejected.

(3)  The present case was on all fours with Falcome, so the same conclusion ought to follow, namely that the Majority Owners were entitled to re-name the Building without the Respondent’s consent.

12.  Falcome is a decision in which DHCJ Yuen followed the ratio of the Court of Appeal (Rogers VP, Le Pichon and Hartmann JJA) in Pak Fah Yeow Investment (Hong Kong) Co Ltd v Proper Invest Group Ltd [2009] 3 HKC 285. At [43], DHCJ Yuen held that the ratio of the Court of Appeal (as well as the First Instance Judge DHCJ Au, as he then was) was that when deciding the name of a building, the current co-owners were bound by the provisions of the DMC governing the conduct of meetings. Applying that ratio to Falcome, where there was no provision in the relevant DMC requiring unanimous consent of owners for the change of name[4], DHCJ Yuen held that “the current co-owners would be bound by the provisions of the DMC in Section VII B.”[5]

13.  On the other hand, the Respondent’s position was that the Majority Owners had no power to impose a change of name on the minority by passing a resolution pursuant to clause 9 of, and the Fifth Schedule to, the DMC, without the unanimous consent of all the owners.

14.  As stated earlier, by the Leave Decision, the Respondent’s leave application was refused by the Judge on the basis that the appeal had no reasonable prospect of success, and that there was no other reason in the interests of justice why the appeal should be heard.  

LEGAL PRINCIPLES

15.  Section 11(2) of the Lands Tribunal Ordinance, Cap. 17 (“LTO”) provides:

“(2) Subject to section 11AA and the provisions of any Ordinance relating to appeals from the Tribunal, any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law.”

16.  Section 11AA(6) of the LTO provides that leave to appeal shall not be granted unless inter alia the Court of Appeal hearing the application for leave is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.

17.  For the present purpose, a reasonable prospect of success means the prospect must be more than “fanciful” without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 at [17].

18.  As for the jurisdiction to grant leave to appeal in the interests of justice, we agree with the observation by DHCJ Marlene Ng (as she then was) in Dr Yeung Sau Shing Albert v Google Inc (No.2) [2015] 1 HKLRD 26[6] at [33] that it should not be overly generous; otherwise unmeritorious challenges would add to the costs to be incurred by the opposing parties and would waste court resources.

ANALYSIS

19.  The grounds set out in the amended draft Notice of Appeal annexed to the amended Summons on which the Respondent seeks leave to appeal before this court are in gist:

(1)  The ratio of Pak Fah Yeow holding that when deciding the name of the Building, the current owners were bound by the provisions of the DMC governing the conduct of meetings is plainly wrong and ought to be overruled; (“Ground 1”) and

(2)  the DMC ought to be construed on its own as a whole - the Judge wrongly ignored the fact that it contains no provision on the change of building name and hence is a matter not within the contemplation of the DMC (“Ground 2”).

20.  Albeit not expressly stated in the amended draft Notice of Appeal, the Respondent also contends in its Statement in support that leave to appeal should be granted in the public interest.

21.  We do not consider Grounds 1 and 2 to have any reasonable prospect of success. Nor do we consider public interest requires the grant of leave to appeal. The reasons are as follows.

22.  Regarding Ground 1 and the decision in Pak Fah Yeow, the Respondent submits that there are 2 possible interpretations of the DMC:

(1)  First, a literal and wide interpretation: that in the context of the Meeting Provisions, the word “concerning” broadly means “about”; and the word “management” is wide enough to include a “change of name” of the Building. Thus, anything and everything passed by the Majority Owners (in meetings duly convened) will bind all present owners even though the matter does not “touch and concern” or “affect” land, being of a personal nature (such as a change of name of building), and cannot run with the land and bind future co-owners.

(2)  Second, a narrow and technical interpretation: that “concerning” is a technical expression used in the drafting of a DMC by conveyancers as a land contract that aims to bind all present and future owners. Here, “concerning”, a derivative of “concern”, has the same meaning as “touch” or “concern” land; or “touch and concern” land as used in modern land law, both referring to a covenant that “must either affect the land as regards mode of occupation or it must be such as per se, and not merely from collateral circumstances, affects the value of the land”: per Sir Nicolas Browne-Wilkinson VC in Kumar v Dunning and another [1989] 1 Q.B. 193, quoted in Pak Fah Yeow at [10]. Hence, only a matter “concerning” and therefore that can run with the land will be within the scope of the DMC on which a  resolution by the Majority Owners would bind all present and future owners.

23.  The Respondent further submits that the literal and wide interpretation fails to have a holistic regard to and is incongruous with the DMC as a conveyancing device intent on binding all future owners. Further, it cannot be reconciled with [18] of Pak Fah Yeow that a resolution for the change of name of a building could only be validly passed with the unanimous consent of all the owners.[7]

24.  The Respondent submits in conclusion that having regard to the purposes of the DMC as a land contract intent on binding all owners from time to time and adopting a purposive and common sense approach, the word “concerning” ought to be attributed the meaning of “touching and concerning” in the land law on covenants and the scope of “management” to be decided according to the Meeting Provisions ought to be confined to matters touching and concerning land.

25.  On the other hand, the Applicant submits that leave to appeal should be refused because inter alia (i) the intended appeal is hopeless as there is no basis for this Court to depart from its own previous decision; and (ii) it is not in the interests of justice for such a misconceived appeal to proceed.

26.  This court agrees with the Applicant.

27.  First and foremost, it is well-established that the Court of Appeal is bound by its previous decisions although it may depart from them where it is satisfied that they are plainly wrong: Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117 at [45].

28.  The Respondent attempts to challenge the ratio of Pak Fah Yeow on the basis that the literal and wide interpretation failed to have a holistic regard to and is incongruous with the DMC as a conveyancing device intent on binding all future owners. Taking that contention at its highest, it is at most one of 2 possible interpretations of the DMC, as the Respondent itself acknowledges at para 5 of its Statement in support.  This is hardly a contention which is plainly right and that Pak Fah Yeow’s ratio is plainly wrong. In this regard, Li CJ’s observation in Solicitor (24/07) at [46] is highly pertinent:

“46. Where the arguments whether the previous decision is wrong are finely balanced, the Court of Appeal’s mere preference for the view that it is wrong would plainly be insufficient to justify departure from it. Even where the Court of Appeal is satisfied that the arguments against its previous decision are more substantial and cogent than the contrary arguments in its favour, this would still be insufficient. It is only where the Court of Appeal is convinced that the contentions against its previous decision are so compelling that it can be demonstrated to be plainly wrong that the test is satisfied.” (emphasis added)

29.  In our view, the Respondent has failed to satisfy this court that its contention against Pak Fah Yeow’s ratio is so compelling that it can be demonstrated to be plainly wrong. Ground 1 has no reasonable prospect of success.

30.  Regarding Ground 2 and the lack of provisions on the change of building name in the DMC, we agree with the Applicant that   the Judge had not ignored the fact that it contains no provision on the change of building name since the Respondent’s submissions in this regard were actually recorded in the Judgment at [59] – [61]. The mere fact that the Judge did not expressly reject them does not mean that it had been ignored because judges are not required to address in the written reasons all the points made by counsel, whether legal or factual: Harbour Front Ltd v Money Facts Ltd & Ors [2019] HKCA 916 at [9].

31.  In any event, it cannot be seriously suggested that the DMC must expressly refer to each and every matter conceivable regarding the management of the Building or concerning the Premises generally before its provisions, especially the Meeting Provisions, can be applicable to that matter. That would be unrealistic and unworkable as there can be any number of issues relating to the management of the Building or concerning the Premises generally which would require the decision of the owners in accordance with the DMC. That is the whole point of using the formula “matters concerning the said premises” in the DMC which is open-ended and which ensures sufficient flexibility for the owners to deal with such contingencies as and when they arise from time to time. It is unarguable that a lack of provision on the change of building name in the DMC per se would preclude the owners from changing the building name in accordance with the Meeting Provisions. This ground of appeal equally has no reasonable prospect of success.

32.  Finally, the Respondent argues that this court should grant leave on the ground of public interest, as the question of how to interpret the word “concerning” and define the scope of “management” in DMCs generally affects the vast number of co-owners in Hong Kong. Public interest requires clarification and warrants a definitive determination of this issue at the level of Court of Appeal.

33.  We do not agree.

34.  As the Applicant submits, the relevant issue in principle viz whether owners’ resolutions relating to the change of building name passed pursuant to the procedural provisions in the DMC are binding on subsequent owners has already been resolved authoritatively by this Court in Pak Fah Yeow from which there is no reason to depart. The intended appeal is hopeless and to allow it to proceed would be a waste of the parties’ and judicial resources.

CONCLUSION

35.  For these reasons, we are of the view that the Respondent’s intended appeal has no reasonable prospect of success and we do not consider there is any other reason why the appeal should be heard in the interest of justice.

36.  Accordingly, we dismiss the application for leave to appeal, with costs to be paid by the Respondent to the Applicant. In the updated statement of costs annexed to the Applicant’s Reply submissions dated 10 November 2025, it claims a total sum of HK$198,520, including 2 counsel’s fees for drafting the Statement in opposition and Reply submissions. Having considered the complexity of the issue at hand, costs are summarily assessed at HK$150,000.

37.  As we are of the view that the renewed application is totally without merits, we make an order pursuant to RHC Order 59 Rule 2A(8) that no party may request the determination to be reconsidered at an oral hearing inter partes.