TONG WAI TAK AND ANOTHER v. THE INCORPORATED OWNERS OF TAK CHEONG BUILDING (BATTERY STREET)

FAMV000022/2000

FAMV No. 22 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 22 OF 2000 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 367 OF 1999)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1. This application involves a dispute between the Incorporated Owners of a building and the owner of a flat in it. It concerns the latter's erection of a signboard, affixed by a metal frame to one of the external walls of the flat, against the opposition of the Incorporated Owners.

2. Proceedings were instituted by the Incorporated Owners against the flat owner and his company (the present applicants) in the Lands Tribunal on 15 January 1998, seeking orders for removal of the signboard and prohibiting erection of any further signboards on the wall.

3. The Lands Tribunal granted the orders but its decision was reversed when the Court of Appeal held on 13 November 1998 that the Incorporated Owners were not the owners of the external wall and that title had remained vested in a company called Hang Yick Property Management Ltd. It also held that there had been no breach of any clauses in the Deed of Mutual Covenant.

4. A week after the Court of Appeal's decision, Hang Yick took steps to transfer ownership of the external wall to the Incorporated Owners for a nominal consideration. Then on 25 March 1999 the Incorporated Owners brought fresh proceedings in the Lands Tribunal seeking similar injunctive relief, relying on its newly acquired ownership of the external walls and relying also on clauses 1 and 11 of the Deed of Mutual Covenant. The applicants responded by taking out a summons to dismiss or stay the proceedings contending, among other things, that the fresh proceedings were precluded by res judicata and that Hang Yip had not acquired title to the external wall.

5. On 23 December 1999, Deputy Judge Helena Lee handed down "Reasons for Decision" in relation to her judgment given on 6 December 1999. She identified the applicants' grounds for dismissing or staying the proceedings but concluded that each of them had been successfully refuted by the Incorporated Owners; that the application should be dismissed and that, as she put it, "the trial shall continue".

6. In fact, the trial did continue and on 8 February, the Lands Tribunal, now comprising Deputy Judge Lee as well as W K Lo, a member of the Tribunal, gave judgment in favour of the Incorporated Owners. The dates of hearing listed in the judgment were 13 and 14 September, 4 and 5 November and 6 December 1999 respectively.

7. The judgement starts by repeating Deputy Judge Lee's Reasons for Decision. Then it refers to the evidence of witnesses called and concludes with findings that the Incorporated Owners had become owners of the external walls; that by virtue of the Deed of Mutual Covenant, they thereafter enjoyed the exclusive right to use those walls; and that the applicants were therefore in breach of the Deed of Mutual Covenant and had committed a "tortious act" by erecting the signboard. The Lands Tribunal accordingly made orders against the applicants requiring the sign to be removed and prohibiting erection of any other signboards on the external wall.

8. The applicants' appeal came before the Court of Appeal on 31 March 2000, and judgment was delivered on the same day. The Court of Appeal treated the appeal solely as being against Deputy Judge Lee's refusal to dismiss or stay the proceedings in accordance with the Reasons for Decision dated 23 December 1999. The court was therefore concerned only with whether the Incorporated Owners had any reasonable cause of action and whether the proceedings were otherwise an abuse of the process. It held that the cause of action was arguable and that no abuse was involved. It therefore dismissed the appeal without considering the merits of the dispute. At that hearing, the applicants were not legally represented. The Incorporated Owners were however represented by Mr Chan Chung who also appears before us today.

9. On 26 May 2000, the applicants returned to the Court of Appeal, seeking leave to appeal to the Court of Final Appeal. This was when the Court of Appeal first became aware that the Lands Tribunal had delivered a judgment after trial on 8 February (prior to its hearing of the appeal). The court had therefore dismissed the appeal on 31 March, unaware of the existence of such judgment. The Court of Appeal decided to proceed on the motion for leave to appeal to the Court of Final Appeal stating as follows:

10. The Court of Appeal therefore continued to approach the matter as an interlocutory appeal and dismissed the application on the ground that it raised no question of great, general or public importance.

11. On 20 June 2000, the applicants applied to this Committee for leave to appeal. Amongst various grounds put forward, the applicants contend that the Court of Appeal was wrong to think that no appeal had been lodged against the Lands Tribunal judgment of 8 February, having overlooked a "Supplemental Notice of Appeal" dated 17 February 2000, dealing with that very judgment.

12. We have looked into the circumstances in which this situation arose and it appears that there may have been some regrettable confusion as to the subject-matter of the appeal before the Court of Appeal. The existence of the Lands Tribunal's judgment appears to have been overlooked at the hearing on 31 March. The applicants certainly appear to have intended to include the judgment of the 8 February in their appeal and filed and served their document entitled "Supplement Notice of Appeal" to this end.

13. Mr Chan informs us that in his skeleton argument he objected to the Court of Appeal entertaining the proposed appeal against the Lands Tribunal's judgment dated 8 February on the technical ground that no fresh notice of appeal had been lodged in respect of that judgment.

14. However, the fact remains that the judgment of the Court of Appeal in respect of which leave to appeal is now sought deals only with the applicants' unsuccessful interlocutory application. The Court of Appeal has not so far considered the merits of the Tribunal's judgment on 8 February.

15. Approaching the present application on that basis, it is clear that the Court of Appeal was right to refuse leave to appeal to this Committee. Its dismissal of the appeal against the interlocutory decision of the Lands Tribunal raises no point of great, general or public importance and has, in any event, been overtaken by the Tribunal's final judgment of 8 February.

16. In such circumstances, the present application for leave must be dismissed. However, the respondents have offered an undertaking that they will not seek to execute the orders of the Lands Tribunal for a period of four weeks from today, pending the applicants' possible application to the Court of Appeal for leave to appeal out of time against the judgment of the Lands Tribunal dated 8 February 2000. They have also offered an undertaking that if the applicants do lodge such an application within that period, their said undertaking to refrain from execution will be extended until the final determination of the Court of Appeal is known. There is to be liberty to the respondents to apply to the Court of Appeal to be relieved of their undertaking in the event that the applicants do not prosecute the appeal with due dispatch.

17. We accept these undertakings and dismiss today's application on the terms thereof. We would merely add one cautionary comment. In the event that the applicants decide to pursue an appeal, and if the Court of Appeal should agree to hear it, whatever the outcome of such appeal, neither party should assume that leave would necessarily be granted for any further appeal to this Court.

Mr Justice Bokhary PJ:

18. The question of costs remains. Although the respondent has succeeded in its resistance of the applicants' application for leave to appeal, it is content that there should be no order for costs before the Appeal Committee. There will be no order as to costs.

Representation: