POLORACE INVESTMENTS LTD v. THE DIRECTOR OF LANDS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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Background

1. The Baptist Convention of Hong Kong is the Crown lessee of Kowloon Inland Lot 2411 and its extension (the lot). The plaintiff, another company and the Baptist Convention are joint venture partners in the development of the lot.

2. The Crown lease contains the following relevant covenants-

3. These are two separate covenants. I shall refer to the first as the first covenant, and to the second as the second covenant.

This Action

4. On 1 March 1996, the plaintiff issued an originating summons in which it sought various forms of relief. Before me, the only relief sought is a declaration that the covenants do "not restrict the height of any building to be erected on [the lot] to 4 or less storeys".

The Rival Contentions

5. Mr Lee, for the plaintiff, argues that the first covenant controls only the development of the lot with 3 and 4 storey buildings. The covenant says nothing about development with buildings of other than 3 or 4 storeys.

6. On the other hand, Miss Yuen, for the defendant, contends that the first covenant limits the development of the lot to 3 and 4 storey buildings with certain maximum site coverage.

The Plain Meaning of the First Covenant

7. The first covenant says, in plain terms, that the lessee is prohibited from developing the lot so that the roofed-over area of 3 or 4 storey buildings exceeds the specified area. It does not say, and cannot be read as saying, no matter for how long one stares at it, that the lessee is prohibited from developing the lot with buildings other than those with 3 or 4 storeys. The covenant is silent on this situation. That being the case - or the case as I see it - no employment of the tools of construction used by lawyers can make any difference. These tools are called in aid when there is some ambiguity that needs to be resolved; there is, in my judgment, no such ambiguity here. There may be an omission of some kind; there may be an oddity; there may be a lack of sense, but there is no ambiguity in the meaning of the words used. My task is to interpret the meaning of the words used, not to explore what was in the minds of the parties, and, by using the rules of construction, divine what words they would have used if that intention had been properly expressed.

8. I mean no disrespect to counsel by not reciting all the arguments and authorities used to support their cases. In cases involving the construction of language where there is no ambiguity, there is very little to be usefully said. The judge can only read the disputed provision. If, to him, the meaning is clear, that is the end of the matter; in his court, anyway. He must give effect to that clear meaning.

Conclusion

9. I conclude that the meaning to be given to the first covenant is that contended for by the plaintiff. Accordingly, the plaintiff is entitled to a declaration in the terms sought, and I grant this.

10. On the face of it, there seems no reason why costs should not follow the event. Accordingly, I make an order nisi that the defendant pay the plaintiff's costs.