CACV 153/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 153 OF 2016
(ON APPEAL FROM HCA NO 568 OF 2011)
_______________
BETWEEN
NEW MOON LIMITED (新月有限公司)
1st Plaintiff
(1st Appellant)
MONEY TAKER LIMITED (發財有限公司)
2nd Plaintiff
(2nd Appellant)
TSE WAH TONG (謝華堂)
3rd Plaintiff
(3rd Appellant)
and
HAU, LAU, LI & YEUNG (a firm)
Defendant
(侯劉李楊律師行)
(Respondent)
_______________
Before: Hon Cheung, Yuen and Poon JJA in Court
Date of Hearing: 13 June 2017
Date of Judgment: 21 July 2017
___________________
J U D G M E N T
___________________
Hon Poon JA (giving the Judgment of the Court) :
1. After a 6-day trial concluded in February 2014, Deputy High Court Judge ST Poon (“the Judge”) handed down his judgment on 15 June 2016, some 28 months later, dismissing the plaintiffs’ claims against the defendant based on professional negligence arising from an aborted sale and purchase of Shop G, G/F, 50 Wan Chai Road, Hong Kong (“the Wan Chai Shop”). The plaintiffs now appeal.
2. The background circumstances are largely not in dispute. They may be summarized as follows.
A. Background
3. The 3rd plaintiff was a seasoned investor in the property market. He was the sole shareholder and director of the 1st plaintiff. He was also the sole shareholder of the 2nd plaintiff. The defendant is a firm of solicitors. The 3rd plaintiff had previously engaged the defendant to represent him or his companies in at least 20 other property transactions.
4. The 1st plaintiff purchased the Wan Chai Shop in 2005. On 2 October 2007, the 1st plaintiff leased the Wan Chai Shop to a tenant (“the Tenant”) for a term of 3 years.
5. There was an illegal structure at the Wan Chai Shop, namely, a canopy “on and over the yard and the approved water closet at the rear” (“the Illegal Structures”). On 21 September 2006, the Building Authority issued a warning notice under section 24C(1) of the Buildings Ordinance, Cap 123, requiring the demolition of the Illegal Structures. But the warning notice was wrongly addressed to the 1st plaintiff’s predecessor in title and was not registered in the Land Registry. On 20 February 2008, the Building Authority issued another warning notice (No. WNZ/U08-21/0009/04) to replace the previous one, requiring the 1st plaintiff to demolish the Illegal Structures on or before 19 April 2008 (“the Warning Notice”). The Building Authority registered the Warning Notice against the Wan Chai Shop in the Land Registry on 11 June 2008.
6. By a provisional sale and purchase agreement dated 4 June 2008, signed by the 3rd plaintiff for and on behalf of the 1st plaintiff, the 1st plaintiff agreed to sell the Wan Chai Shop to a purchaser for HK$16,380,000.00. The parties signed the formal sale and purchase agreement on 11 July 2008. Completion was due to take place on 27 August 2008.
7. The defendant acted for the 1st plaintiff in connection with the conveyancing of the Wan Chai Shop. On 16 July 2008, the solicitors acting for the purchaser (“H&M”) wrote to the defendant raising requisitions on the Illegal Structures and the Warning Notice. When the solicitors could not resolve the matter by correspondence, H&M took out a vendor and purchaser summons on 27 August 2008 (“the VP Summons”). The defendant was also instructed to act for the 1st plaintiff in the VP Summons.
8. In the meantime, the Illegal Structures were removed by the Tenant, although on the evidence when exactly it was done was unclear. On 23 October 2008, the Building Authority issued a letter to the 1st plaintiff to withdraw the Warning Notice. The letter was registered in the Land Registry on 22 December 2008.
9. On 23 December 2008, the 1st plaintiff and the purchaser entered into a cancellation agreement to settle the VP Summons. Under the cancellation agreement, the 1st plaintiff returned the deposit and paid a further sum of HK$35,000.00 to the purchaser.
10. On 24 March 2009, the 1st plaintiff sold the Wan Chai Shop to another purchaser at a lower price of HK$14,300,000.00.
11. Separately, the 2nd plaintiff had on 16 July 2008 agreed to purchase Shops 1 and 2A, G/F, Great Wall Building, No 26 Tam Kung Road and No 2 San Shan Road, Hong Kong (“the TKW Shop”) at HK$13,300,000.00 and had paid a deposit of HK$1,330,000.00 to the vendor. The 2nd plaintiff could not complete the sale because of lack of funds. The vendor then forfeited the deposits of HK$1,330,000.00. The defendant also acted for the 2nd plaintiff in the transaction.
B. Proceedings below
12. In March 2011, the plaintiffs commenced the proceedings below.
B1. Pleaded case in a nutshell
13. In the amended statement of claim, the plaintiffs’ claims fell into two main areas.
14. First, they pleaded that the 3rd plaintiff and/or the 1st plaintiff retained the defendant to act as his and/or its solicitors in the sale and conveyancing of the Wan Chai Shop, thus owing them a duty to exercise all proper skill and care, diligence and competence as solicitors in contract or alternatively in tort, in respect of the transaction. An array of breach of duties resulting in professional negligence was then pleaded.
15. One particular complaint is that the defendant had delayed in advising the 1st and/or the 3rd plaintiff on how to deal with the Warning Notice, in particular, to remove the Illegal Structures before completion in that the defendant did not so advise the 1st and/or the 3rd plaintiff until 8 to 10 days before completion.
16. By reason of the defendant’s negligence, the plaintiffs pleaded that the 1st and/or 3rd plaintiff had suffered loss and damage, including the price difference between the aborted sale and the subsequent sale in March 2009 in the sum of HK$2,080,000.00 and various items of expenditure incidental to the aborted sale.
17. Second, the plaintiffs pleaded that the 3rd plaintiff and/or the 2nd plaintiff had engaged the defendant in the sale and conveyancing of the TKW Shop. The defendant knew or ought to have known that if the sale and purchase of the Wan Chai Shop were aborted, the 3rd plaintiff and/or the 2nd plaintiff would not have sufficient funds to complete the sale and purchase of the TKW Shop and would suffer loss and damage consequentially. Since the transaction of the Wan Chai Shop fell through, the 2nd plaintiff did not have sufficient funds to complete the transaction of the TKW Shop. As a result, the 3rd plaintiff and/or the 2nd plaintiff had suffered loss and damage including the forfeited deposit of HK$1,330,000.00 and various items of expenditure incidental to the aborted transaction.
18. The defendant denied that they were negligent as alleged. In respect of the complaint that they did not timely advise the 1st and/or 3rd plaintiff, the defendant pleaded that they had advised the 1st and 3rd plaintiffs on the Warning Notice and to demolish the Illegal Structure in good time before the completion date on 27 August 2008 on three occasions, namely, 16 June, 11 July and 11 August 2008.
19. The defendant also challenged the 3rd plaintiff’s locus to sue as he was not a client. Further, the defendant pleaded that the 3rd plaintiff could not claim against the defendant for the loss allegedly suffered by the 1st plaintiff as its shareholder. Finally, the defendant pleaded that any loss as a result of the cancellation of the transaction of the TKW Shop was reflective loss of the 2nd plaintiff which neither the 1st plaintiff nor the 3rd plaintiff was entitled to claim as a matter of law.
B2. Delay being the only complaint
20. At the end of the trial, the plaintiffs effectively abandoned all the pleas of breach of duties against the defendant save and except the complaint on delay in giving advice on the Warning Notice and to remove the Illegal Structures.
B3. Evidence on delay
21. The 3rd plaintiff was the only witness called by the plaintiffs to give evidence. The defendant called 6 witnesses, including :
(1) Chan Mei Har Miriam (“Miriam”), legal executive in the conveyancing department of the defendant, who was responsible for handling the conveyancing of the Wan Chai Shop;
(2) Mok Yau Sang Nelson (“Nelson”), legal executive responsible for liaising with the 3rd plaintiff on behalf of the defendant;
(3) Choi Ka Man Carmen (“Carmen”), trainee solicitor, who assisted Miriam in handling conveyancing of the Wan Chai Shop;
On the question of delay, the 3rd plaintiff and the defendant’s witnesses gave dramatically opposed evidence.
B3.1 The 3rd plaintiff’s evidence
22. It is the 3rd plaintiff’s evidence that he had not come across any warning notice before. He first learnt of the Warning Notice in about late July or early August from either Nelson or Carmen but he was not advised as to what he should do about it. Nelson or Carmen just said that they would deal with it and talk to the other side. It was only about 8 to 10 days before the completion date (27 August 2008) that Nelson called him, telling him that he should demolish the Illegal Structures as soon as possible. The 3rd plaintiff told Nelson that there might not be enough time to do so and queried why Nelson gave such advice so late. Nelson asked him to talk to the Tenant and liaise with the Building Authority for removal of the Illegal Structures.
23. The 3rd plaintiff then telephoned the Building Authority to enquire if the Warning Notice could be withdrawn should the Illegal Structures be removed immediately. He was advised by the Building Authority that it could not do so because of time. He made an appointment with the Authority to attend a site visit to confirm what exactly was required to be demolished. He then contacted the Tenant, informing him about the appointment. The Tenant was cooperative saying that he would demolish any illegal structure as directed by the Building Authority.
24. The 3rd plaintiff then related to Nelson his communication with the Building Authority and also told him that the Tenant had agreed to demolish the Illegal Structures. A few days later, the 3rd plaintiff attended the Wan Chai Shop with an officer of the Building Authority who identified the Illegal Structures in the presence of the Tenant. The Tenant agreed to demolish them but he needed some time to look for a contractor to carry out the works. The officer said that the 3rd plaintiff could make another appointment with the Building Authority for inspection once the demolition works were completed. The 3rd plaintiff kept Nelson informed of what had happened.
25. On 27 August 2008, Nelson called the 3rd plaintiff and informed him that the purchaser challenged the title of the Wan Chai Shop and had commenced legal proceedings. The 3rd plaintiff was shocked as he thought the defendant had sorted everything out for him. He was asked to attend the defendant’s office and there he met a number of persons from the defendant including the partners. That was the first time he met or heard from a qualified lawyer of the defendant concerning this matter.
B3.2 The defendant’s evidence
(a) Advice in June 2008
26. Miriam said she received a letter from H&M on 14 June 2008, making enquiry, among other things, about the Warning Notice, which was not mentioned to the purchaser when the provisional sale and purchase agreement was signed. She then telephoned the Building Authority on about 16 June 2008 to enquire about the Warning Notice. The Building Authority informed her that the Tenant had approached them before to enquire whether the Illegal Structures should be removed. The Tenant told them that he did not intend to remove the Illegal Structures as he was afraid that intruders would be able to enter the Wan Chai Shop easily if it is removed. The Building Authority told Miriam that as they agreed with the Tenant’s security concern they decided only to issue a warning notice instead of a building order in respect of the Illegal Structures. Miriam then related the matter to Nelson.
27. Nelson said in his witness statement that he then related the matter to the 3rd plaintiff over the phone on 16 June 2008. The 3rd plaintiff said he had not received the Warning Notice and it might have been sent to the Wan Chai Shop. The 3rd plaintiff said he would discuss the matter with the Tenant and the Buildings Department to confirm how to deal with the Warning Notice. In his supplemental witness statement, Nelson said that over the telephone conversation on 16 June 2008 he told the 3rd plaintiff to resolve the matter relating to the Warning Notice with the purchaser; and that on or about 17 June 2008 when the 3rd plaintiff came to the defendant’s office and told him that he did not have the Warning Notice, Nelson told the 3rd plaintiff that the Warning Notice should have been sent to the Tenant at the Wan Chai Shop.
28. Miriam produced a handwritten note dated 16 June 2008 (“Miriam’s Notes”), recording the telephone conversation she had had with the Building Authority on the same day. She also wrote :
“ Actually, we had advised client to deal with the matter whether remove the same or not with the tenant and the purchaser together, in order to settle the queries from the purchaser’s solicitors.”
(b) Advice in July 2008
29. Nelson said he had advised the 3rd plaintiff upon signing of the formal sale and purchase agreement on 11 July 2008 that the purchaser could refuse completion if the Illegal Structures were not demolished before completion.
(c) Advice in August 2008
30. Nelson said in his witness statement that on 7 August 2008 when he attended the 3rd plaintiff in signing the formal sale and purchase agreement for the TKW Shop, he reminded the 3rd plaintiff again to settle the Warning Notice with the Tenant and the purchaser directly before completion of the sale of the Wan Chai Shop.
31. Carmen said in her witness statement that she had in a telephone conversation with the 3rd plaintiff on 11 August 2008 advised the 3rd plaintiff that the purchaser could refuse completion because of the Warning Notice but the 3rd plaintiff did not agree. Carmen told the 3rd plaintiff that the Warning Notice had been registered against the Wan Chai Shop. As such, it was an encumbrance on the property which must be removed. The 3rd plaintiff told her that he had been informed by the Buildings Department that the Warning Notice was not an order and he did not have to remove the Illegal Structures. The 3rd plaintiff said that the purchaser could not refuse to complete because of the Warning Notice. Carmen disagreed and repeated to him that the Warning Notice had been registered and it was not sufficient to just rely on the verbal confirmation by the Buildings Department. The 3rd plaintiff then said he would call the Buildings Department again on the matter.
32. Carmen produced a notebook and the typed out attendance notes apparently recording the conversations between the 3rd plaintiff and her. According to the telephone attendance note dated 11 August 2008 (“Carmen’s Notes”) :
“ - CC asked Mr Tse whether the shop sells only frozen / pre-packaged meat or is it a butchery. Mr Tse replied that it is a butchery.
- CC explained to Mr Tse that one of the requisitions is related to the “offensive trade clause” under the Government Lease. CC asked Mr Tse whether he was aware of any licence / consent for opening the meat shop. Mr Tse said that he has a licence from Government and will bring us a copy of the same.
- CC asked Mr Tse about the B.A. warning notice – whether tenant would agree to remove it.
- Mr Tse : tenant did not agree to remove it because they are concerned about security; he has called B.A. for enquiry and was informed that the warning notice is not an order, and he did not have to remove it.
- CC informed Mr Tse that the warning notice has been registered on the Land Registry and it is an encumbrance to the Property.
- Mr Tse said P cannot refuse completion because of the warning notice.
- CC disagreed and repeated that it is clear that the warning notice has been registered; it is not sufficient to rely on the verbal confirmation of B.A. to reply the requisitions.
- Mr Tse said he will call B.A. to confirm what should be done with the structure.
- NM then arranged the time with Mr Tse to bring the licence to our office.”
33. It is also the evidence of Miriam, Nelson and Carmen that the 3rd plaintiff mentioned that the Tenant was unwilling to demolish the Illegal Structures. Nelson said the 3rd plaintiff told him about this in or before early July 2008. Carmen said she asked the 3rd plaintiff on 11 August 2008 whether the Tenant agreed to remove the Illegal Structures and the 3rd plaintiff replied no.
B4. The Judge’s findings
34. For the reasons that he gave, the Judge rejected the 3rd plaintiff’s evidence on delay and preferred the defendants’. He accepted that the defendants’ version was supported by contemporaneous records after rejecting the plaintiffs’ case that the attendance notes prepared by Miriam and Carmen, including Miriam’s Notes and Carmen’s Notes, were fabrications. The Judge found that the defendant had through Nelson informed the 3rd plaintiff of the existence of the Warning Notice on or about 16 June 2008 and had advised him on numerous occasions in July and August of the purchaser’s right to insist on his demolition of the Illegal Structures.[1]
35. The Judge further found that the Tenant was unwilling to demolish the Illegal Structures because of security concerns. As at 11 August 2008, the Tenant had not yet agreed to demolish the Illegal Structures.[2]
36. The Judge found that there had no delay whatsoever on the part of the defendant in giving advice to the 1st or the 3rd plaintiff in relation to the conveyancing of the Wan Chai Shop, in particular, the effect of the Warning Notice and the need to demolish the Illegal Structures.[3] Instead, he found that the defendant had given timely advice to the 3rd plaintiff on the effect of the Warning Notice and to demolish the Illegal Structures or to come up with a solution with the Tenant, the Building Authority and the purchaser and that they should not be blamed if the 3rd plaintiff did not act on their advice or the advice given could not be carried out because of commercial difficulties.[4] The Judge therefore found that there was no breach of duty of care on the part of the defendant as solicitors acting for the 1st plaintiff or the 3rd plaintiff in the conveyancing of the Wan Chai Shop or in the VP Summons.[5]
37. The Judge also, for the reasons that he gave, found that the 2nd plaintiff and/or the 3rd plaintiff did not have locus to sue the defendant for the alleged professional negligence and rejected the plaintiffs’ claims on reflective loss.
C. Grounds of Appeal
38. In the amended notice of appeal, the plaintiffs raised 5 grounds of appeal, 4 of which contained numerous sub-paragraphs, touching on various matters.
39. Grounds 1 to 4 all concern the findings of fact made by the Judge on the complaint about delay in giving advice. They are dispositive of this appeal.
40. Ground 1 complains that the Judge had fallen in palpable error in finding that there had been no delay on the defendant in giving advice to the 1st or 3rd plaintiff in relation to the conveyancing of the Wan Chai Shop, in particular, the effect of the Warning Notice and the need to demolish the Illegal Structures (GOA 1).
41. Ground 2 complains that the Judge had fallen in palpable error in approaching the differences between Nelson’s and Miriam’s evidence (GOA 2).
42. Ground 3 complains that the Judge erred in rejecting the 3rd plaintiff’s evidence (GOA 3”).
43. Ground 4 contends that the errors of findings of fact made by the Judge could also be attributable to the 28 months’ delay between the conclusion of the trial and the handing down of the judgment. The plaintiffs ask the Court of Appeal to apply a higher degree of scrutiny to ensure that the analysis, reasoning and findings made by the Judge are safe and correct (GOA 4).
44. Ground 5 deals with the 3rd and 2nd plaintiff’s locus to sue and reflective loss (GOA 5). GOA 5 would arise for determination only if the plaintiffs succeed on their challenges against the Judge’s factual findings on delay in giving advice.
D. Discussion
D1. Applying a higher degree of scrutiny as properly understood
45. The delay between the conclusion of the trial and the handing down of the judgment is on any view inordinate. But it is well established that substantial delay alone is not a ground for disturbing the factual findings made by the trial judge. Although the Court of Appeal will apply a higher degree of scrutiny to examine the factual findings, it is still incumbent on the appellant to show that the findings were plainly wrong : Ho Wai Ping v Ho Ka Man Carmen [2017] 2 HKLRD 158, per Yuen JA at [14.1] – [14.2]. Unless the appellant overcomes the high burden of showing that the findings are plainly wrong, this Court will not overturn the factual findings made by the trial judge : DBS Bank (Hong Kong) Ltd v Sit Pan Jit [2016] 5 HKC 104, per Poon JA at [111] – [117]; China Gold Finance Limited v CIL Holdings Limited & Others , CACV 11/2015, unreported, 27 November 2015, per Lam VP at [11] – [25], [30].
46. In other words, while GOA 4 is correct as a matter of legal proposition, it does not get the plaintiffs anywhere unless they can satisfy us that the factual findings by the Judge on the issue of delay are plainly wrong.
47. In applying a higher degree of scrutiny to examine the Judge’s findings on delay, we have read all the relevant materials with care, including witness statements, documentary evidence adduced by the defendant and the transcripts of the trial together with counsel’s submissions. However, in light of counsel’s oral submissions, we do not consider it necessary to delve into all the matters raised in GOAs 1 to 3 or the lengthy written submissions in this regard, both on law and on fact, by Mr Chong for the plaintiffs. What we are going to discuss is sufficient to dispose of the plaintiff’s challenges on the Judge’s factual findings on delay in giving advice.
D2. When advice was given
48. As said, the defendant’s pleaded case is that there were three occasions where they had advised the 3rd plaintiff to remove the Illegal Structures before completion, that is, 16 June, 11 July and 11 August 2008. Mr Chan, for the defendant, submitted that there were four occasions where the defendant gave the advice to the 3rd plaintiff. The additional occasion was 17 June 2008, according to Nelson’s evidence in this respect. However, the Judge did not make any finding that Nelson had so advised the 3rd plaintiff on 16 or 17 June 2008. Nor has the defendant filed any respondent’s notice in this regard. So for present purposes, one must proceed on the basis that the Judge did not find that the defendant had advised the 3rd plaintiff on 16 or 17 June 2008.
49. The Judge did not expressly find when in July and August 2008 did the defendant advise the 3rd plaintiff. On the available evidence, there were three possible occasions, namely, 11 July, 7 August and 11 August 2008. Although Nelson did say on 7 August 2008 he told the 3rd plaintiff that the purchaser could refuse to complete if the Illegal Structures were not removed, the Judge did not make any express finding on this point. And Mr Chan did not make any submission that Nelson had advised the 3rd plaintiff on that day. In the circumstances, one must further proceed on the basis that the Judge did not find that Nelson had so advised the 3rd plaintiff on 7 August 2008. That leaves us with 11 July and 11 August 2008.
50. Turning to 11 July 2008, it was Nelson who said he had advised the 3rd plaintiff to remove the Illegal Structures on that day. Contrary to the Judge’s reasoning, Nelson’s evidence is not supported by any contemporaneous documents such as attendance notes. This impacts on the reliability of his evidence. In his evidence, he alleged he had read the Warning Notice on 16 June, when in fact it was not even available then. The defendant could not pray in aid Miriam’s Notes nor Carmen’s Notes as they dealt with other occasions. More importantly, under cross-examination, Nelson said it was not his practice to write down his advice in any attendance notes but he could still recall it as H&M made specific mention about the Warning Notice. In our view, any reasonable tribunal would find Nelson’s explanation for lack of written record unconvincing. Given H&M’s concern, and the importance of giving advice to the 3rd plaintiff to remove the Illegal Structures, any reasonably competent conveyancing clerk in Nelson’s position must have recorded his verbal advice (a) for good record keeping; (b) to keep other members of the firm handling the transaction, like Miriam and Carmen, and even the partners, informed; and (c) to protect the firm’s position. The Judge had not explained why he still accepted Nelson’s evidence as credible.
51. In our view, the Judge clearly erred when he found that Nelson had advised the 3rd plaintiff on 11 July 2008 on the basis that his evidence was supported by contemporaneous documents. His finding was plainly wrong. That is however not the end of the matter. For it is Carmen’s evidence that she had advised the 3rd plaintiff to remove the Illegal Structures on 11 August 2008.
52. In response to our question, Mr Chong submitted that it would only take the Tenant 12 days at most to remove the Illegal Structures.[6] Further, it is the plaintiffs’ case that the Tenant was all along very cooperative. So Mr Chong also accepted that had Carmen advised the 3rd plaintiff to remove the Illegal Structures on 11 August, the Illegal Structures could have been removed days before the completion to allow completion to take place on 27 August 2008. In any event there was no evidence adduced below that removal before the completion was still not possible even if such advice was given on 11 August 2008. In such scenario, there can be no valid complaint of delay in giving advice.
53. In the circumstances, this appeal really turns on a very narrow question : whether the Judge was plainly wrong when he found that Carmen did advise the 3rd plaintiff to remove the Illegal Structures on 11 August 2008. This is essentially a matter of Carmen’s credibility. Carmen’s version is supported by a contemporaneous record, namely Carmen’s Notes. Mr Chong submitted that Carmen’s Notes was a fabrication by taking a number of forensic points directed mainly to some other attendance notes and documents. We need not deal with those attacks as we do not consider them to have any material impact on the genuineness of Carmen’s Notes. On Carmen’s Notes, Mr Chong took two main points.
54. First, Mr Chong submitted that according to Carmen’s Notes, the Tenant did not agree to the demolition of the Illegal Structures. However, in a letter to H&M dated 15 August 2008, the defendant maintained that no work was required to be carried out in order to comply with the Warning Notice. With respect, this point is misconceived. For it is perfectly permissible for Carmen to advise for the removal of the Illegal Structures while at the same time answering H&M in the way as the defendant did, bearing in mind that according to the 3rd plaintiff, the Buildings Department did not insist on the removal of the Illegal Structure at the time.
55. Second, Mr Chong asked us to compare the handwritten note and the typed out version of Carmen’s Notes, to see that the latter contained some matters which were not recorded in the former. That we did but we can see nothing unusual in these minor differences. The handwritten note was jotted down by Carmen when she was having the telephone conversation with the 3rd plaintiff. Understandably, it must be brief and could not possibly contain all the points as if it were a verbatim record. It was not even meant to be a proper record which Carmen’s Notes were supposed to be. It is therefore not surprising that Carmen’s Notes contained more details and particulars of the conversation not written in the handwritten note.
56. We are not persuaded that Judge was plainly wrong when he found that Carmen did advise the 3rd plaintiff to remove the Illegal Structures on 11 August 2008.
57. That being our conclusion, we need not deal with GOAs 1 to 3 in breadth and detail. They must all fail. GOA 5 even does not arise for our consideration.
E. Conclusion
58. For the above reasons, we dismiss the appeal with costs, to be taxed if not agreed.
(Peter Cheung)
(Maria Yuen)
(Jeremy Poon)
Mr Patrick Chong and Ms Athena Wong, instructed by Kong & Tang, for the 1st to 3rd Plaintiffs (1st to 3rd Appellants)
Mr Frederick H F Chan, instructed by Bird & Bird, for the Defendant (Respondent)
[1] Judgment [90].
[2] Judgment [91].
[3] Judgment [92].
[4] Judgment [100].
[5] Judgment [93] - [94].
[6] Mr Chong submitted that the Warning Notice had to be withdrawn to remove the encumbrance on title. With respect, Mr Chong’s submission is wrong. It would be sufficient for the 1stplaintiff to show good title if the Illegal Structures were removed without the withdrawal of the Warning Notice.