FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. CHAN CHAK PANG LAWRENCE AND ANOTHER

HCA 844/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 844 OF 2007

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J U D G M E N T

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1.      This is a hearing on costs of the dispute between the estate manager and the house owner as to unauthorised building structure.

2.      The plaintiff is the estate manager of Fairveiw Park.  The defendants are the owners of the house therein.  The defendants bought a house with unauthorised structure in late 2006.  The plaintiff wrote to them asking for reinstatement and rectification.  The defendants responded that they wished to do reinstatement works and asked for permission to commence work.  And then there were correspondence between the parties as to how long it would take to complete work and there was no resolution of the matter.

3.      In April last year, the plaintiff commenced the action.  The defendants filed an acknowledgement of service indicating the intention to defend.  Before filing the defence, the defendants wrote a letter stating that they were surprised at the plaintiff’s stance, because they all along were acting in a way with a view to reinstatement.  The plaintiff’s solicitors replied offering terms of settlement.  The then solicitors for the defendants wrote a regrettable letter stating that all allegations were denied and they asked for a without prejudice meeting.  Then the defence was filed basically admitting liability for the unauthorised structure.  But the defendants also filed a counterclaim for negligence on the part of the plaintiff in estate management causing them mental distress. 

4.      In June last year, the defendants indicated that they would agree to the reinstatement.  The plaintiff’s solicitors wrote again reopening the offer and enclosing a consent summons relating to the reinstatement work only and that costs be provided for.  Unfortunately, the defendants did not sign the consent summons.  The plaintiff applied for Order 14 judgment.  

5.      The upshot was that the Order 14 is not contested today.  Reinstatement work was agreed to in terms of the injunction prayed for, the plaintiff’s claim for damages being dropped, and the defendants’ counterclaim for damages also dropped.

6.      The only argument was costs not to follow the event.  The question is whether the defendants were not unreasonable in not having signed the consent summons notwithstanding they had no real intention of defending the action; and whether the plaintiff was so unreasonable in insisting on the consent summons, though they now get what they have asked for in terms, and they should be deprived of the costs.

7.      The various arguments made, such as the defendants not being the original wrong-doer and the nature and extent of the breach, are irrelevant because they have consented to the judgment.

8.      There was an argument that the defendants did ask for permission but the plaintiff did not really grant it because they said it was not required.  I do not think there is a real argument because if the consent summons were signed, whatever possible argument on permission would be well taken care of by the consent court order.

9.      I really do not see any unreasonableness on the part of the plaintiff so that they should be deprived of their costs in having substantially won the action.

10.      Hence, I enter judgment in terms of the injunction prayed for, and that the claim and counterclaim of damages be withdrawn.  I order that the costs on the main action as well as on the counterclaim (including today’s hearing) be to the plaintiff.