高等法院（民事訴訟）Deputy High Court Judge Jonathan Wong19/6/2024[2024] HKCFI 1617
HCA2064/2023
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B HCA 2064/2023 B
[2024] HKCFI 1617
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IN THE HIGH COURT OF THE
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HONG KONG SPECIAL ADMINISTRATIVE REGION
E COURT OF FIRST INSTANCE E
ACTION NO 2064 OF 2023
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G G
BETWEEN
H THE INCORPORATED OWNERS OF 1st Plaintiff H
WAH CHUN INDUSTRIAL CENTRE
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MAXGAIN DEVELOPMENT LIMITED 2nd Plaintiff
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and
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COCA INVESTMENT COMPANY LIMITED Defendant
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_____________
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N Before: Deputy High Court Judge Jonathan Wong in Chambers N
Dates of Hearing: 7 and 20 March 2024
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Date of Decision: 20 June 2024
P P
Q Q
DECISION
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T T
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B 1. Introduction B
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1.1 This is my decision on the following applications: C
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(1) The Plaintiffs’ application by their summons dated 22 December
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2023 for interlocutory injunction (“Injunction Summons”); E
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(2) The Plaintiffs’ application by their summons dated 14 March 2024
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for leave to amend the generally-indorsed writ dated
H 20 December 2024 (“Writ”) and for an extension of time to file H
and serve a Statement of Claim (“Amendment Summons”);
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(3) The Defendant’s application by their summons dated
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18 March 2024 for this action to be transferred to either the
K District Court or the Lands Tribunal (“Transfer Summons”). K
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1.2 At the hearings on 7 and 20 March 2024, the Plaintiffs were L
M represented by Ms Carol Wong and the Defendant by Mr Jenkin Suen SC M
(leading Mr Justin Ismail).
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O 2. Background O
P 2.1 The 1st Plaintiff is the Incorporated Owners of Wah Chun P
Industrial Centre (“Building”) and the 2nd Plaintiff the registered owner of Unit
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2 on 7th Floor of the Building.
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2.2 The Defendant is a wholly-owned subsidiary of Chinachem
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Properties Holding Company Limited and was the developer of the Building.
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It is, and was at all material times, the registered owner of car park nos 3, 4, 5, T
U and 6 on the Ground Floor (respectively “CP3”, “CP4”, “CP5” and “CP6”
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B and collectively “CPs”). The CPs are the subject matters of the present dispute B
between the parties.
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D
2.3 The Building is a 23-storey industrial building. The Ground Floor
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is essentially a carpark and the vehicular access to the Building. For ease of
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understanding, the Ground Floor Plan of the Building is annexed hereto as E
F Attachment 1 (“G/F Plan”). It may be seen from the G/F Plan that access to
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the upper floors (apart from stairs) is provided by 3 cargo lifts and 1 passenger
G
lift. Right in front of the 3 cargo lifts is an elevated Loading and Unloading G
H Platform.
H
I 2.4 CP4, CP5 and CP6 are located right in front and across the entire I
width of an elevated Loading and Unloading Platform (about 3 feet from the
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ground) and CP3 in front of an opening for occupants or visitors of the Building
K to pass through and access the elevated Loading and Unloading Platform via a K
short flight of stairs. Although not shown on the G/F Plan, it is common ground
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that there is a drainage manhole within the area of CP3.
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2.5 The occupation permit of the Building was issued on
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18 October 1988 and the Building is subject to a Deed of Mutual Covenant N
O dated 25 October 1988.
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P 2.6 Since at least 2006 up to 31 March 2017, the CPs were leased by P
Defendant to the 1st Plaintiff, and the 1st Plaintiff, in turn, would receive income
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by charging users a parking fee for the use of the CPs for loading and unloading
R goods. R
S
2.7 In early 2017, the Defendant approached the 1st Plaintiff in respect S
T of the renewal of the tenancy of the CPs (at an increased rent) which was then
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due to expire on 31 March 2017. On the 1 Plaintiff’s part, there were at least
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B two considerations at that time. As shown in the minutes of an annual general B
meeting of the owners held on 7 April 2017: (1) counsel had been instructed to
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advise the 1st Plaintiff on whether the CPs were in fact common parts of the
D Building despite the Defendant being the registered owner; and (2) the income D
generated from the CPs was insufficient to cover the associated expenses,
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which included the rental payments paid to the Defendant and the costs of
F hiring an attendant for the CPs. At the meeting, by an overwhelming majority F
of those in attendance, a resolution was passed against the renewal of the
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tenancy of the CPs.
H H
2.8 Ever since the expiry of the tenancy agreement with the
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1st Plaintiff, the Defendant has not rented any of the CPs to others. Instead: I
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(1) In the latter part of 2017, the Defendant installed metal poles at
K the CPs in September 2017 which prevented access to the Loading K
and Unloading Platform, but they were subsequently removed as
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a result of a complaint made by the property manager to the
M Defendant in November 2017; M
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(2) Throughout 2018, the CPs were left empty most of the time and
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there was therefore clear access to the Loading and Unloading O
P
Platform;
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Q (3) Since March 2019, the Defendant started to use the CPs more Q
frequently by parking 2 to 3 vehicles at the CPs. Access to the
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Loading and Unloading Platform therefore became limited;
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(4) In late November 2019, the Defendant put up fences at the front
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of CP4, CP5 and CP6 and placed vehicles and objects on all the T
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B CPs, and as a result, there was very limited access to the Loading B
and Unloading Platform;
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D
(5) From 2020 to around October 2023, the Defendant moved away
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the vehicle parked at CP4 but continued to occupy CP3, CP5 and
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CP6 and therefore there was limited access to the Loading and E
F Unloading Platform;
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G (6) On or around 14 November 2023, the Defendant parked a vehicle G
at CP4.
H H
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2.9 The elevated Loading and Unloading Platform was plainly
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designed to allow the back of a lorry to reach the edge of the platform to enable
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loading or unloading goods directly onto or from the lorry. As a result of the J
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matters stated in the preceding paragraph, during the period between 1 April
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2017 and mid-November 2023, there were varying degrees of vehicular access
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to the Loading and Unloading Platform. Between 13 November L
M and 29 December 2023 (and for divers periods earlier in late 2017 and
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November 2019/early 2020), the vehicular access to the Loading and
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Unloading Platform was entirely blocked and access to the manhole at the CP3 N
O area was restricted.
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3. The hearings on 29 December 2023 and 7 March 2024
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3.1 By the Injunction Summons, the Plaintiffs seek an interlocutory
R injunction in the following terms: R
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(1) An order restraining the Defendant from interfering with or
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disturbing the Plaintiffs’ use and enjoyment of the CPs and/or the T
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B right of way over the CPs to access the Loading and Unloading B
Platform (“Right of Way”);
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D (2) An order enjoining the Defendant do forthwith remove the fences, D
vehicle or objects on the CPs which interfere with or disturb the
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Plaintiffs’ use and enjoyment of the CPs and/or the Right of Way.
F F
3.2 The first hearing of the Injunctions Summons took place on
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29 December 2023. At that hearing, I gave directions to bring the Injunctions G
H Summons to a substantive hearing on 7 March 2024. I also granted an interim-
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interim injunction pending the substantive determination of the Injunction
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Summons, the effect of which was to “reopen” CP4 and CP5 and allow I
J unrestricted access to that part of CP3 where the drainage manhole is located 1 J
(“Interim-Interim Injunction”).
K K
L 3.3 At the hearing on 7 March 2024, the position taken by the L
Defendant was that there should be a speedy trial of the action. The Defendant
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was prepared to offer in the meantime to keep two of the CPs (either (1) CP3
N and CP4 or (2) CP4 and CP5) “open”. N
O
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3.4 As part of the consideration for a speedy trial canvassed at that
P hearing, it became apparent that there might be an issue (which was not raised P
by the parties or spotted by the court before the hearing) as to whether the
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present action falls within the jurisdiction of the District Court. The substantive
R hearing of the Injunction Summons was therefore adjourned to 20 March 2024 R
and the Plaintiffs were directed to file and serve their Statement of Claim
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(which by then they had not done so) on or before 14 March 2024, the purpose
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1
But still allowing the Defendant to place objects on or park at CP3 as long as it did not obstruct access to
U the drainage manhole. U
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B of which was to assess whether the Plaintiffs’ claim falls within the jurisdiction B
of the District Court.
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D
3.5 On 14 March 2024, the Plaintiffs, instead of filing a Statement of
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Claim, issued the Amendment Summons. The Defendant thereafter issued the
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Transfer Summons on 18 March 2024. E
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4. The Amendment Summons
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4.1 I first deal with the Amendment Summons. The Amendment
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Summons seeks:
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(1) Leave to amend the Writ by (a) altering the capacity in which the
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1st Plaintiff sues, namely from only suing in its own right to suing
K also for and on behalf of all the owners of the Building except the K
Defendant, (b) removal of the 2nd Defendant (which is one of the
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owners of the Building), (c) adding a number of declaratory relief
M and (d) amending the claim for damages from “Damages M
including but not limited to wrongful interference with the
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Plaintiffs’ use and enjoyment of the Carparks and/or Right of Way,
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derogation of grant and the rents paid by the 1st Plaintiff to the O
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Defendant over the years” to “Damages as pleaded in paragraph
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58 of the Statement of Claim”;
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R (2) An extension of time to file and serve a Statement of Claim, a
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draft of which was annexed to the Amendment Summons.
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T 4.2 RHC Order 20, rule 1 provides as follows:
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B “[(1)] Subject to paragraph (3), the plaintiff may, without the leave of the
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Court, amend the writ once at any time before the pleadings in the action
begun by the writ are deemed to be closed.
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…
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[(3)] This rule shall not apply in relation to an amendment which consists of
–
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(a) the addition, omission or substitution of a party to the action
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or an alteration of the capacity in which a party to the action sues or
is sued, or F
G (b) the addition or substitution of a new cause of action, or G
(c) (without prejudice to rule 3(1)) an amendment of the
H
statement of claim (if any) indorsed on the writ, H
I unless the amendment is made before service of the writ on any party
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to the action.”
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4.3 The Defendant does not object to the Amendment Summons, save
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one aspect. Mr Suen contends that the reference made in the proposed K
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amended Writ to draft Statement of Claim §58 should not be allowed (§4(1)
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above).
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N 4.4 Draft Statement of Claim §58 pleads as follows:
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O “[a] Mistaken payment of rents as pleaded in paragraph 19 above (to be
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assessed subject to discovery);
P [b] Damages for the Defendant’s wrongful occupation of the Carparks…” P
Q
4.5 Mr Suen’s objection is on the basis that the claims set out at draft Q
R Statement of Claim §58 (or parts thereof) are time-barred.
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S
4.6 In the present case, pleadings have not been deemed to be closed. S
T As pointed out by Ms Wong, Mr Suen’s objection has overlooked the fact that T
no leave is required to amend the claim for damages as the proposed
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B amendment in the Writ is not said by the Defendant to involve any addition or B
substitution of a new cause of action. Even if there was, the Defendant did not
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object on that basis.
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4.7 In relation to the draft Statement of Claim, the Amendment
E
Summons only seeks an extension of time from the deadline imposed by my E
F order made on 7 March 2024. RHC Order 20 rule 1(3)(c) does not apply as
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the draft Statement of Claim was not indorsed on the Writ. The Amendment
G
Summons is therefore not an application to amend the Statement of Claim as G
H none had been filed. In so far as Mr Suen raised any arguments on the merits
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of the matters pleaded in the Statement of Claim (in particular whether some
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or all of the claims advanced at draft Statement of Claim §58 is time-barred), I
J it seems to me that the proper occasion for such issues to be ventilated is in the J
context of a strike-out application (if pursued).
K K
4.8 For the above reasons, I accede to paragraphs 1 to 3 of the
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Amendment Summons. I also make a costs order nisi that the costs of the
M Amendment Summons be paid by the 1st Plaintiff to the Defendant2. M
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5. The Injunction Summons N
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5.1 As a result of the Transfer Summons, Mr Suen no longer
P maintained his stance at the hearing on 27 March 2024 that there should be a P
speedy trial of the action. Notwithstanding the Transfer Summons, both parties
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were content for the court to determine the Injunction Summons even if, at the
R end of the day, the court is to transfer the present case elsewhere. R
S S
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The 2nd Plaintiff has separately filed a Notice of Discontinuance on 19 March 2024. U
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B 5.2 The issues raised by the Plaintiffs in this action, as summarized B
by Mr Suen, are as follows:
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D
(1) Whether the CPs are common parts of the Building;
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E
(2) Whether the co-owners have the Right of Way; E
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(3) Whether the Defendant has derogated from grant;
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(4) Whether the Defendant is estopped from denying the co-owners’
H access to the Loading and Unloading Platform; H
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(5) Whether the Defendant is in breach of the Deed of Mutual I
J Covenant and the Building Management Ordinance Cap 344 in J
placing fences at the CPs.
K K
5.3 At the hearing, Mr Suen fairly accepted that there are serious
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issues to be tried on the Plaintiffs’ claims. As submitted by Mr Suen, the
M question for determination is whether and to what extent the balance of M
convenience lies in favour of the grant of an interlocutory injunction.
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5.4 As stated above, the Defendant has offered to keep open 2 CPs O
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pending trial, namely either (1) CP3 and CP4 or (2) CP4 and CP5. In my view,
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I think CP 3 merits separate consideration due to its location (not being in front
Q
of the Loading and Unloading Bay) and characteristics (the existence of a Q
R drainage manhole and providing “human” as opposed to vehicular access to
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the Loading and Unloading Area).
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B 5.5 It seems to me therefore what has factually transpired after the B
granting of the Interim-Interim Injunction is a useful starting point to consider
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issues relating to balance of convenience.
D D
5.6 Disputes between co-owners of a building often generate very
E
entrenched positions. At the time of the issuance of the Injunction Summons, E
F vehicular access to all the CPs and therefore the Loading and Unloading Area
F
was denied.
G G
5.7 The position taken by the Defendant at the hearing on
H H
29 December 2023 was that there was space and passageway to “accommodate
I a trolley/cart or pallet truck to assist the transport of goods onto” the Loading I
and Unloading Platform. From the photographs then adduced, the Defendant,
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for example, seemed to have deliberately parked the cars not in the middle but
K towards the sides of CP3 and CP4 to leave a gap. I do not see how that can be K
said to be a satisfactory arrangement, not least because it plainly exposed
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workers to safety considerations attendant to the lifting of heavy goods, and
M the associated risks would self-evidently be lowered had lorries been able to M
access the Loading and Unloading Platform directly.
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O 5.8 On the other hand, I have some difficulties in understanding why
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st
the 1 Plaintiff could not attempt to deal with the situation on a more practical
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P
basis. Whilst litigating the underlying disputes, more practical arrangements
Q could have been offered, such as making payments for the use of the CPs under Q
protest or into an escrow account. Instead, the Plaintiffs decided to litigate the
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interim arrangement of the CPs by mounting an expensive application.
S Bearing in mind that the rent of the CPs last paid was only in the S
neighbourhood of HK$23,000 per month, I do not see why a more reasonable
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T
and cost-effective proposal was not considered or offered in the light of the
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B legal fees involved. For example, an olive branch was extended by the B
Defendant prior to the hearing on 29 December 2023 by offering to lease CP5
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to the 1st Plaintiff at a nominal rent of HK$ 1 per month until the determination
D of the action. Whilst I understand that the 1st Plaintiff might have wanted the D
reopening of more CPs, but on the evidence before me, no counter proposal
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was made. In addition, for reasons set out below, the 1st Plaintiff also takes a
F steadfast position that these proceedings should remain in the Court of First F
Instance.
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H 5.9 Be that as it may, I have to decide the Injunction Summons on the
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material before me.
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5.10 The competing considerations are as follows.
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K 5.11 On the Defendant’s part: K
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(1) The Defendant has produced a video footage for the period L
M between 11 to 18 January 2024 (6 weekdays)3 to demonstrate the
M
usage of CP4 and CP5 and compiled a table summarizing the
N
durations during which CP4 and/or CP5 were occupied (“Table”). N
O As demonstrated by the Table, there were only sporadic timeslots
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during which both CP4 and CP5 were occupied following the
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P
grant of the Interim-Interim Injunction;
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(2) Mr Suen submits that CP4 and CP5 are already sufficient and this
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is evidenced by the fact that, for an extended period between 2020
S and November 2023 (which included a substantial period after all S
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3
There were times no video recording was made because of technical issues. For present purpose I have
U ignored 11 January 2024 as the video recording was not functioning properly for most of the day. U
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A A
B COVID-19 restrictions had been lifted), the Plaintiffs only had B
access to CP4 and no injunction was sought;
C C
D (3) As regards CP3, since the granting of the Interim-Interim D
Injunction, no notice has been received from the Plaintiffs and/or
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the property manager that any repair works had to be carried out
F at the drainage manhole. In any event, the property manager is F
empowered under the Deed of Mutual Covenant to access CP3 for
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the purpose of maintaining the drainage manhole upon giving
H notice to the Defendant. In so far as it is suggested by the H
I
Plaintiffs that the door accessing the switch room is within the
I
area of CP3, that is factually incorrect;
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(4) The Defendant, as the registered owner of the CPs, has a
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proprietary right and the Defendant has reached out to estate
L agents concerning the sale of the CPs; L
M (5) The 1st Plaintiff is running at a deficit (in the sum of around M
HK$325,000 for the year 2023). There is a real question whether
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the 1st Plaintiff is able to offer a credible undertaking as to
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damages. O
P
P
5.12 On the Plaintiffs’ part:
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(1) The Plaintiffs contend what is shown by the Table demonstrates
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there are, in Ms Wong’s words, “indeed a lot of times” when both
S CP4 and CP5 are occupied; S
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B (2) When CP4 and CP5 were both occupied, the waiting lorries would B
have to make loops around the Building;
C C
D
(3) Smaller goods vehicles still need access to the Loading and
D
Unloading Platform, it being the only access to the cargo lifts;
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(4) The Defendant has no meaningful use of any of the CPs. The
F F
Defendant does not own any units in the Building and the cars
G placed at, for example, CP6 is a “dead” car; G
H (5) Even if CP4 to CP6 are reopened, it may still fall short of the H
I
minimum requirement of the Hong Kong Planning Standards and
I
Guidelines (“Guidelines”);
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(6) CP3 is required to remain at least partially open as provided by
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the Interim-Interim Order as access to the switch room and the
L drainage manhole is required; L
M (7) Although the 1st Plaintiff is running at a deficit, the 1st Plaintiff is M
in the position to raise funds to meet its undertaking, given the
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Defendant’s damages (should the injunction be wrongly granted)
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are not substantial. The rental payment last paid in early 2017 O
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was HK$22,900 per month, which could realistically be raised
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amongst owners occupying 23 floors of the Building.
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5.13 In my view, the balance of convenience lies in favour of
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continuing the Interim-Interim Order until trial, for the following reasons.
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5.14 I do not regard the position taken by the Defendant to be a very
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attractive one. The suggestion that it has reached out to estate agent(s) to sell
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B the CPs is a bare assertion. No email or engagement letter has been adduced B
into evidence. The fencing-off of the CPs and placing a dead car thereat, when
C C
plainly CP4 to CP6 are designed for vehicular assess to the Loading and
D Unloading Area, seem to me to be difficult to justify. The suggestion that an D
injunction order would strike a blow to the Chinachem group’s reputation,
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standing and credit is also a very far-fetched proposition.
F F
5.15 On the other hand, P’s position that all the CPs should
G
immediately be “reopened” cannot be justified on the present evidence. Since G
H the granting of the Interim-Interim Injunction, even on Ms Wong’s analysis,
H
CP4 and CP5 appear to have provided adequate access to the Loading and
I
Unloading Area. Whilst there were sporadic periods during which both CP4 I
J and CP5 were occupied, it seems to me that such durations would not be J
considered abnormal. It cannot be said that, in the normal course, industrial
K K
buildings should be expected to offer unfettered or guaranteed access to a
L loading and unloading bay. In my view, it is not uncommon that delivery L
workers may on occasions have to wait around until a loading bay is cleared.
M M
From the Table, it does not appear to me that during those occasions when both
N CP4 and CP5 were occupied, the consequent waiting time (until one of them N
was cleared) can be considered to be unreasonable. I note that it is the Plaintiffs’
O
O
evidence that reopening of CP6 is sought to be justified only on the basis that
P there should be spare availability of the loading and unloading area. P
Q
5.16 The above also leads to the point that I do not agree with Ms Q
R Wong’s reading of the Guidelines. The part of the Guidelines which Ms Wong
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refers to is as follows:
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“Loading and Unloading requirements:
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1 goods vehicle bay per 700-900m2 GFA, 50% of which should be for parking
of goods vehicles.
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B B
1 container vehicle loading/unloading bay with turning circle of 11.6m outer
radius should be provided for a site with dimensions not less than 45m x 40m”
C (emphasis added) C
D
5.17 The Gross Floor Area (“GFA”) of the Building is around D
E 25,000m2. Ms Wong reasons that the available carparking spaces for loading
E
and unloading should therefore be 25,000 x 900 x 50% = 13.89 car parking
F F
spaces. But the Guideline plainly distinguishes between (1) goods vehicle bay
G for parking of goods vehicles and (2) container vehicle loading/unloading bay. G
According to the Guideline, only 1 container vehicle loading/unloading bay is
H H
required, regardless of the GFA of a building.
I I
5.18 In terms of CP3, I accept that, after the granting of the Interim-
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Interim Injunction, it cannot be said on the evidence that the drainage manhole
K required frequent access. However, the drainage manhole is right in front of K
the opening providing “human” access to the Loading and Unloading Bay.
L L
Were the Interim-Interim Injunction lifted in respect of CP3, the Defendant is
M entitled to park a car in such a way to block that opening. I do not regard it as M
satisfactory to force workers or users to jump up to or down from the Loading
N N
and Unloading Platform (which is about 3 ft in height). In the foregoing regard,
O the competing evidence as to whether CP3 provided access to the switch room O
P
is not my main concern when compared with the access to the Loading and
P
Unloading Platform.
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st
5.19 I acknowledge the evidence shows that the 1 Plaintiff is running
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at a deficit. However, the Building has 23 floors and I do not regard it likely
S that, should the 1st Plaintiff be called upon its undertaking, it will not be able S
to raise funds to meet it, given the likely extent of the Defendant’s loss until
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trial, which is around HK$25,000 (or adjusted upwards given inflation) per
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B month. I think I can take judicial notice that the 1st Plaintiff would have passed B
a resolution to meet legal expenses incurred or to be incurred in these
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proceedings.
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6. The Transfer Summons
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6.1 Ms Wong accepts that the Plaintiffs’ claims as formulated in the
F F
draft Statement of Claim fall within the jurisdictional limits prescribed by
G section 35 (annual rent or rateable value of the CPs being below HK$320,000) G
and section 37 (proceedings involving land for relief against mistake where the
H H
1st Plaintiff’s claim for mistaken payment is below HK$7,000,000) of the
I District Court Ordinance Cap 336 (“DCO”). I
J J
6.2 The only basis relied on by Ms Wong to resist a transfer to the
K District Court is that the 1st Plaintiff’s claim for mesne profits (quantified as K
follows) is over HK$3 million (provisionally based on rents in fact paid by the
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1st Plaintiff and assuming a limitation period of 12 years):
M M
N Dec 2011 to Feb2015 HK$18,000 x 39 months = N
HK$702,000
O Mar 2015 to Mar 2016 HK$21,800 x 25 months =
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HK$545,000
P
Apr 2017 to Mar 2024 HK$22,900 x 84 months =
HK$1,923,600 P
Mar 2024 until possession Ongoing if injunction does not cover
Q
the CPs Q
Total HK$3,170,600 (plus ongoing)
R R
S
6.3 I accept Ms Wong’s submission that the authorities suggest that a
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plaintiff should be entitled to frame his case in the manner that he wishes and
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that his case on quantum ought to be viewed at its highest when determining T
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B the proper jurisdiction where the case should be brought: Wong Miu Kwan v B
FPD Savills Property Management Ltd [2006] 1 HKC 575 §§19-21.
C C
D 6.4 However, as pointed out by Mr Suen, the foregoing is subject to a D
qualification of absence of abuse. The court has in the past carried out an
E E
evaluation of the quantification advanced by a plaintiff, bearing in mind the
F requirement to err on the generous side set out in Wong Miu Kwan: Hung Chor F
Hung John suing as the administrator of the estate of Chow So Hing, the
G G
Deceased v Li Kwok Kin & Anor, HCPI 251 of 2009, 10 November 2009 §§16,
H 50-60 and 69-70. H
I
6.5 Ms Wong’s quantification is on the basis that the 1st Plaintiff can I
J claim mesne profits for all the CPs in the stated periods and even then it is J
barely over HK$3 million. However, as pointed out by Mr Suen, during
K K
December 2011 to March 2017, the Defendant was not in occupation of the
L CPs as they had been leased to the 1st Plaintiff. The proper basis for that period L
would be a claim for mistaken payment, which if pursued, is caught by the
M M
jurisdiction limit under section 37 of the DCO. During the period identified
N by Ms Wong, the 1st Plaintiff had various degrees of access to the CPs for divers N
periods which Ms Wong’s quantification does not take into account. In my
O
O
view, the 1st Plaintiff’s claim for mesne profits is likely to be within the
P jurisdiction of the District Court. P
Q Q
6.6 Section 43 of the DCO provides:
R R
“(1) The Court of First Instance may, either of its own motion or on the
S application of any party, order the transfer to the Court of all or part of an
S
action or proceeding, other than a counterclaim, which appears to the Court
of First Instance likely to be within the jurisdiction of the Court.
T
T
U U
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A A
B (2) An order may be made under this section at any stage of the proceedings
B
of the motion of the Court of First Instance itself or on the application of any
party.
C C
(3) The Court of First Instance is required to make an order under this
D section unless it is of the opinion that, by reason of the importance or
D
complexity of any issue arising in the action or proceeding, or for any other
reason, the action or proceeding ought to remain in the Court of First
E Instance.” (emphasis added) E
F F
6.7 I have considered the parties’ submissions on the residual factor
G on importance or complexity of the issues arising in the present case. I do not G
accept Ms Wong’s submission that the present case is of such importance or
H H
complexity that it should remain in the Court of First Instance. That being the
I case, I transfer the present action to the District Court pursuant to section 43(3) I
of the DCO.
J J
K 6.8 Given my view that the case should be transferred to the District K
Court, it is unnecessary for me to deal with the Defendant’s fallback position
L L
to have the present case transferred to the Lands Tribunal.
M M
7. Conclusion
N N
7.1 For the above reasons:
O
O
P (1) I accede to the Amendment Summons with costs to be paid by the P
1st Plaintiff to the Defendant (§4.8 above) to be summarily
Q Q
assessed4;
R R
S S
T
T
st
4
The Defendant is to lodge its Statement of Costs within 3 days and the 1 Plaintiff its Statement of
U Objection within 3 days thereafter. Summary assessment will then be carried out on the papers. U
V V
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A A
B (2) On the Injunction Summons, I order the Interim-Interim B
Injunction granted on 29 December 2023 be continued until trial
C C
or further order;
D D
(3) On the Transfer Summons, I make an order that these proceedings
E
be transferred to the District Court. E
F F
7.2 As to costs (except those of the Amendment Summons)5:
G G
(1) I order the costs of the Injunction Summons to be costs in the
H H
cause;
I I
(2) I order the costs of the Transfer Summons to be the Defendant’s
J J
costs in the cause;
K K
(3) I reserve the questions as to costs before the transfer to the trial
L
judge who may then consider whether this case should have been L
M commenced in the Court of First Instance in the first place
M
(adopting the approach set out at The Incorporated Owners of
N
Affluence Garden v Guardian Management Services Ltd [2023] 1 N
O HKLRD 910 §20).
O
P 7.3 All of the above costs orders are nisi. However, I set out my P
provisional views.
Q Q
R 7.4 I do not agree with Mr Suen’s submission that the hearing on 7 R
March 2024 were wasted as a result of the Plaintiffs bringing the action in the
S S
T
T
5
In my view, I do not need to deal the issue of costs arising from the Notice of Discontinuance. No
leave is required as the 2nd Plaintiff’s action is discontinued before any defence is filed by the
U Defendant (RHC Order 21, rule 2). The costs consequences are provided for by RHC 62, rule 10. U
V V
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A A
B wrong court. It was not a point raised by the Defendant at the hearings on 29 B
December 2023 and 7 March 2024, and it was the Defendant’s proposal to have
C C
a speedy trial in the High Court.
D D
7.5 It also seems to me that neither party acted entirely reasonably
E
(§§5.6 to 5.8 above) or was entirely successful in the Injunction Summons. E
F The Plaintiffs sought the reopening of all the CPs and the Defendant was
F
prepared to only keep 2 of them open.
G G
H H
(Jonathan Wong)
I Deputy High Court Judge I
J J
Ms Carol WONG instructed by Messrs Li & Partners, for the 1st - 2nd Plaintiffs
K K
Mr Jenkin SUEN, SC leading Mr Justin ISMAIL instructed by Messrs Deacons,
L for the Defendant
L
M M
N N
O
O
P
P
Q Q
R R
S S
T
T
U U
V V
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A A
B B
C C
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O
O
P
P
Q Q
R R
S S
T
T
U U
V V
THE INCORPORATED OWNERS OF WAH CHUN INDUSTRIAL CENTRE AND ANOTHER v. COCA INVESTMENT COMPANY LTD
A A
B HCA 2064/2023 B
[2024] HKCFI 1617
C C
IN THE HIGH COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E COURT OF FIRST INSTANCE E
ACTION NO 2064 OF 2023
F F
_____________
G G
BETWEEN
H THE INCORPORATED OWNERS OF 1st Plaintiff H
WAH CHUN INDUSTRIAL CENTRE
I I
MAXGAIN DEVELOPMENT LIMITED 2nd Plaintiff
J J
and
K K
COCA INVESTMENT COMPANY LIMITED Defendant
L L
_____________
M M
N Before: Deputy High Court Judge Jonathan Wong in Chambers N
Dates of Hearing: 7 and 20 March 2024
O O
Date of Decision: 20 June 2024
P P
Q Q
DECISION
R R
S S
T T
U U
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A A
B 1. Introduction B
C
1.1 This is my decision on the following applications: C
D D
(1) The Plaintiffs’ application by their summons dated 22 December
E
2023 for interlocutory injunction (“Injunction Summons”); E
F F
(2) The Plaintiffs’ application by their summons dated 14 March 2024
G G
for leave to amend the generally-indorsed writ dated
H 20 December 2024 (“Writ”) and for an extension of time to file H
and serve a Statement of Claim (“Amendment Summons”);
I I
(3) The Defendant’s application by their summons dated
J J
18 March 2024 for this action to be transferred to either the
K District Court or the Lands Tribunal (“Transfer Summons”). K
L
1.2 At the hearings on 7 and 20 March 2024, the Plaintiffs were L
M represented by Ms Carol Wong and the Defendant by Mr Jenkin Suen SC M
(leading Mr Justin Ismail).
N N
O 2. Background O
P 2.1 The 1st Plaintiff is the Incorporated Owners of Wah Chun P
Industrial Centre (“Building”) and the 2nd Plaintiff the registered owner of Unit
Q Q
2 on 7th Floor of the Building.
R R
S
2.2 The Defendant is a wholly-owned subsidiary of Chinachem
S
Properties Holding Company Limited and was the developer of the Building.
T
It is, and was at all material times, the registered owner of car park nos 3, 4, 5, T
U and 6 on the Ground Floor (respectively “CP3”, “CP4”, “CP5” and “CP6”
U
V V
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A A
B and collectively “CPs”). The CPs are the subject matters of the present dispute B
between the parties.
C C
D
2.3 The Building is a 23-storey industrial building. The Ground Floor
D
is essentially a carpark and the vehicular access to the Building. For ease of
E
understanding, the Ground Floor Plan of the Building is annexed hereto as E
F Attachment 1 (“G/F Plan”). It may be seen from the G/F Plan that access to
F
the upper floors (apart from stairs) is provided by 3 cargo lifts and 1 passenger
G
lift. Right in front of the 3 cargo lifts is an elevated Loading and Unloading G
H Platform.
H
I 2.4 CP4, CP5 and CP6 are located right in front and across the entire I
width of an elevated Loading and Unloading Platform (about 3 feet from the
J J
ground) and CP3 in front of an opening for occupants or visitors of the Building
K to pass through and access the elevated Loading and Unloading Platform via a K
short flight of stairs. Although not shown on the G/F Plan, it is common ground
L L
that there is a drainage manhole within the area of CP3.
M M
2.5 The occupation permit of the Building was issued on
N
18 October 1988 and the Building is subject to a Deed of Mutual Covenant N
O dated 25 October 1988.
O
P 2.6 Since at least 2006 up to 31 March 2017, the CPs were leased by P
Defendant to the 1st Plaintiff, and the 1st Plaintiff, in turn, would receive income
Q Q
by charging users a parking fee for the use of the CPs for loading and unloading
R goods. R
S
2.7 In early 2017, the Defendant approached the 1st Plaintiff in respect S
T of the renewal of the tenancy of the CPs (at an increased rent) which was then
T
st
due to expire on 31 March 2017. On the 1 Plaintiff’s part, there were at least
U U
V V
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A A
B two considerations at that time. As shown in the minutes of an annual general B
meeting of the owners held on 7 April 2017: (1) counsel had been instructed to
C C
advise the 1st Plaintiff on whether the CPs were in fact common parts of the
D Building despite the Defendant being the registered owner; and (2) the income D
generated from the CPs was insufficient to cover the associated expenses,
E E
which included the rental payments paid to the Defendant and the costs of
F hiring an attendant for the CPs. At the meeting, by an overwhelming majority F
of those in attendance, a resolution was passed against the renewal of the
G G
tenancy of the CPs.
H H
2.8 Ever since the expiry of the tenancy agreement with the
I
1st Plaintiff, the Defendant has not rented any of the CPs to others. Instead: I
J J
(1) In the latter part of 2017, the Defendant installed metal poles at
K the CPs in September 2017 which prevented access to the Loading K
and Unloading Platform, but they were subsequently removed as
L L
a result of a complaint made by the property manager to the
M Defendant in November 2017; M
N N
(2) Throughout 2018, the CPs were left empty most of the time and
O
there was therefore clear access to the Loading and Unloading O
P
Platform;
P
Q (3) Since March 2019, the Defendant started to use the CPs more Q
frequently by parking 2 to 3 vehicles at the CPs. Access to the
R R
Loading and Unloading Platform therefore became limited;
S S
(4) In late November 2019, the Defendant put up fences at the front
T
of CP4, CP5 and CP6 and placed vehicles and objects on all the T
U U
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A A
B CPs, and as a result, there was very limited access to the Loading B
and Unloading Platform;
C C
D
(5) From 2020 to around October 2023, the Defendant moved away
D
the vehicle parked at CP4 but continued to occupy CP3, CP5 and
E
CP6 and therefore there was limited access to the Loading and E
F Unloading Platform;
F
G (6) On or around 14 November 2023, the Defendant parked a vehicle G
at CP4.
H H
I
2.9 The elevated Loading and Unloading Platform was plainly
I
designed to allow the back of a lorry to reach the edge of the platform to enable
J
loading or unloading goods directly onto or from the lorry. As a result of the J
K
matters stated in the preceding paragraph, during the period between 1 April
K
2017 and mid-November 2023, there were varying degrees of vehicular access
L
to the Loading and Unloading Platform. Between 13 November L
M and 29 December 2023 (and for divers periods earlier in late 2017 and
M
November 2019/early 2020), the vehicular access to the Loading and
N
Unloading Platform was entirely blocked and access to the manhole at the CP3 N
O area was restricted.
O
P
P
3. The hearings on 29 December 2023 and 7 March 2024
Q Q
3.1 By the Injunction Summons, the Plaintiffs seek an interlocutory
R injunction in the following terms: R
S S
(1) An order restraining the Defendant from interfering with or
T
disturbing the Plaintiffs’ use and enjoyment of the CPs and/or the T
U U
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A A
B right of way over the CPs to access the Loading and Unloading B
Platform (“Right of Way”);
C C
D (2) An order enjoining the Defendant do forthwith remove the fences, D
vehicle or objects on the CPs which interfere with or disturb the
E E
Plaintiffs’ use and enjoyment of the CPs and/or the Right of Way.
F F
3.2 The first hearing of the Injunctions Summons took place on
G
29 December 2023. At that hearing, I gave directions to bring the Injunctions G
H Summons to a substantive hearing on 7 March 2024. I also granted an interim-
H
interim injunction pending the substantive determination of the Injunction
I
Summons, the effect of which was to “reopen” CP4 and CP5 and allow I
J unrestricted access to that part of CP3 where the drainage manhole is located 1 J
(“Interim-Interim Injunction”).
K K
L 3.3 At the hearing on 7 March 2024, the position taken by the L
Defendant was that there should be a speedy trial of the action. The Defendant
M M
was prepared to offer in the meantime to keep two of the CPs (either (1) CP3
N and CP4 or (2) CP4 and CP5) “open”. N
O
O
3.4 As part of the consideration for a speedy trial canvassed at that
P hearing, it became apparent that there might be an issue (which was not raised P
by the parties or spotted by the court before the hearing) as to whether the
Q Q
present action falls within the jurisdiction of the District Court. The substantive
R hearing of the Injunction Summons was therefore adjourned to 20 March 2024 R
and the Plaintiffs were directed to file and serve their Statement of Claim
S S
(which by then they had not done so) on or before 14 March 2024, the purpose
T
T
1
But still allowing the Defendant to place objects on or park at CP3 as long as it did not obstruct access to
U the drainage manhole. U
V V
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A A
B of which was to assess whether the Plaintiffs’ claim falls within the jurisdiction B
of the District Court.
C C
D
3.5 On 14 March 2024, the Plaintiffs, instead of filing a Statement of
D
Claim, issued the Amendment Summons. The Defendant thereafter issued the
E
Transfer Summons on 18 March 2024. E
F F
4. The Amendment Summons
G G
4.1 I first deal with the Amendment Summons. The Amendment
H H
Summons seeks:
I I
(1) Leave to amend the Writ by (a) altering the capacity in which the
J J
1st Plaintiff sues, namely from only suing in its own right to suing
K also for and on behalf of all the owners of the Building except the K
Defendant, (b) removal of the 2nd Defendant (which is one of the
L L
owners of the Building), (c) adding a number of declaratory relief
M and (d) amending the claim for damages from “Damages M
including but not limited to wrongful interference with the
N N
Plaintiffs’ use and enjoyment of the Carparks and/or Right of Way,
O
derogation of grant and the rents paid by the 1st Plaintiff to the O
P
Defendant over the years” to “Damages as pleaded in paragraph
P
58 of the Statement of Claim”;
Q Q
R (2) An extension of time to file and serve a Statement of Claim, a
R
draft of which was annexed to the Amendment Summons.
S S
T 4.2 RHC Order 20, rule 1 provides as follows:
T
U U
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A A
B “[(1)] Subject to paragraph (3), the plaintiff may, without the leave of the
B
Court, amend the writ once at any time before the pleadings in the action
begun by the writ are deemed to be closed.
C C
…
D D
[(3)] This rule shall not apply in relation to an amendment which consists of
–
E E
(a) the addition, omission or substitution of a party to the action
F
or an alteration of the capacity in which a party to the action sues or
is sued, or F
G (b) the addition or substitution of a new cause of action, or G
(c) (without prejudice to rule 3(1)) an amendment of the
H
statement of claim (if any) indorsed on the writ, H
I unless the amendment is made before service of the writ on any party
I
to the action.”
J J
4.3 The Defendant does not object to the Amendment Summons, save
K
one aspect. Mr Suen contends that the reference made in the proposed K
L
amended Writ to draft Statement of Claim §58 should not be allowed (§4(1)
L
above).
M M
N 4.4 Draft Statement of Claim §58 pleads as follows:
N
O “[a] Mistaken payment of rents as pleaded in paragraph 19 above (to be
O
assessed subject to discovery);
P [b] Damages for the Defendant’s wrongful occupation of the Carparks…” P
Q
4.5 Mr Suen’s objection is on the basis that the claims set out at draft Q
R Statement of Claim §58 (or parts thereof) are time-barred.
R
S
4.6 In the present case, pleadings have not been deemed to be closed. S
T As pointed out by Ms Wong, Mr Suen’s objection has overlooked the fact that T
no leave is required to amend the claim for damages as the proposed
U U
V V
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A A
B amendment in the Writ is not said by the Defendant to involve any addition or B
substitution of a new cause of action. Even if there was, the Defendant did not
C C
object on that basis.
D D
4.7 In relation to the draft Statement of Claim, the Amendment
E
Summons only seeks an extension of time from the deadline imposed by my E
F order made on 7 March 2024. RHC Order 20 rule 1(3)(c) does not apply as
F
the draft Statement of Claim was not indorsed on the Writ. The Amendment
G
Summons is therefore not an application to amend the Statement of Claim as G
H none had been filed. In so far as Mr Suen raised any arguments on the merits
H
of the matters pleaded in the Statement of Claim (in particular whether some
I
or all of the claims advanced at draft Statement of Claim §58 is time-barred), I
J it seems to me that the proper occasion for such issues to be ventilated is in the J
context of a strike-out application (if pursued).
K K
4.8 For the above reasons, I accede to paragraphs 1 to 3 of the
L L
Amendment Summons. I also make a costs order nisi that the costs of the
M Amendment Summons be paid by the 1st Plaintiff to the Defendant2. M
N
5. The Injunction Summons N
O
O
5.1 As a result of the Transfer Summons, Mr Suen no longer
P maintained his stance at the hearing on 27 March 2024 that there should be a P
speedy trial of the action. Notwithstanding the Transfer Summons, both parties
Q Q
were content for the court to determine the Injunction Summons even if, at the
R end of the day, the court is to transfer the present case elsewhere. R
S S
T
T
U 2
The 2nd Plaintiff has separately filed a Notice of Discontinuance on 19 March 2024. U
V V
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A A
B 5.2 The issues raised by the Plaintiffs in this action, as summarized B
by Mr Suen, are as follows:
C C
D
(1) Whether the CPs are common parts of the Building;
D
E
(2) Whether the co-owners have the Right of Way; E
F F
(3) Whether the Defendant has derogated from grant;
G G
(4) Whether the Defendant is estopped from denying the co-owners’
H access to the Loading and Unloading Platform; H
I
(5) Whether the Defendant is in breach of the Deed of Mutual I
J Covenant and the Building Management Ordinance Cap 344 in J
placing fences at the CPs.
K K
5.3 At the hearing, Mr Suen fairly accepted that there are serious
L L
issues to be tried on the Plaintiffs’ claims. As submitted by Mr Suen, the
M question for determination is whether and to what extent the balance of M
convenience lies in favour of the grant of an interlocutory injunction.
N N
O
5.4 As stated above, the Defendant has offered to keep open 2 CPs O
P
pending trial, namely either (1) CP3 and CP4 or (2) CP4 and CP5. In my view,
P
I think CP 3 merits separate consideration due to its location (not being in front
Q
of the Loading and Unloading Bay) and characteristics (the existence of a Q
R drainage manhole and providing “human” as opposed to vehicular access to
R
the Loading and Unloading Area).
S S
T
T
U U
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A A
B 5.5 It seems to me therefore what has factually transpired after the B
granting of the Interim-Interim Injunction is a useful starting point to consider
C C
issues relating to balance of convenience.
D D
5.6 Disputes between co-owners of a building often generate very
E
entrenched positions. At the time of the issuance of the Injunction Summons, E
F vehicular access to all the CPs and therefore the Loading and Unloading Area
F
was denied.
G G
5.7 The position taken by the Defendant at the hearing on
H H
29 December 2023 was that there was space and passageway to “accommodate
I a trolley/cart or pallet truck to assist the transport of goods onto” the Loading I
and Unloading Platform. From the photographs then adduced, the Defendant,
J J
for example, seemed to have deliberately parked the cars not in the middle but
K towards the sides of CP3 and CP4 to leave a gap. I do not see how that can be K
said to be a satisfactory arrangement, not least because it plainly exposed
L L
workers to safety considerations attendant to the lifting of heavy goods, and
M the associated risks would self-evidently be lowered had lorries been able to M
access the Loading and Unloading Platform directly.
N N
O 5.8 On the other hand, I have some difficulties in understanding why
O
st
the 1 Plaintiff could not attempt to deal with the situation on a more practical
P
P
basis. Whilst litigating the underlying disputes, more practical arrangements
Q could have been offered, such as making payments for the use of the CPs under Q
protest or into an escrow account. Instead, the Plaintiffs decided to litigate the
R R
interim arrangement of the CPs by mounting an expensive application.
S Bearing in mind that the rent of the CPs last paid was only in the S
neighbourhood of HK$23,000 per month, I do not see why a more reasonable
T
T
and cost-effective proposal was not considered or offered in the light of the
U U
V V
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A A
B legal fees involved. For example, an olive branch was extended by the B
Defendant prior to the hearing on 29 December 2023 by offering to lease CP5
C C
to the 1st Plaintiff at a nominal rent of HK$ 1 per month until the determination
D of the action. Whilst I understand that the 1st Plaintiff might have wanted the D
reopening of more CPs, but on the evidence before me, no counter proposal
E E
was made. In addition, for reasons set out below, the 1st Plaintiff also takes a
F steadfast position that these proceedings should remain in the Court of First F
Instance.
G G
H 5.9 Be that as it may, I have to decide the Injunction Summons on the
H
material before me.
I I
5.10 The competing considerations are as follows.
J J
K 5.11 On the Defendant’s part: K
L
(1) The Defendant has produced a video footage for the period L
M between 11 to 18 January 2024 (6 weekdays)3 to demonstrate the
M
usage of CP4 and CP5 and compiled a table summarizing the
N
durations during which CP4 and/or CP5 were occupied (“Table”). N
O As demonstrated by the Table, there were only sporadic timeslots
O
during which both CP4 and CP5 were occupied following the
P
P
grant of the Interim-Interim Injunction;
Q Q
(2) Mr Suen submits that CP4 and CP5 are already sufficient and this
R R
is evidenced by the fact that, for an extended period between 2020
S and November 2023 (which included a substantial period after all S
T
T
3
There were times no video recording was made because of technical issues. For present purpose I have
U ignored 11 January 2024 as the video recording was not functioning properly for most of the day. U
V V
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A A
B COVID-19 restrictions had been lifted), the Plaintiffs only had B
access to CP4 and no injunction was sought;
C C
D (3) As regards CP3, since the granting of the Interim-Interim D
Injunction, no notice has been received from the Plaintiffs and/or
E E
the property manager that any repair works had to be carried out
F at the drainage manhole. In any event, the property manager is F
empowered under the Deed of Mutual Covenant to access CP3 for
G G
the purpose of maintaining the drainage manhole upon giving
H notice to the Defendant. In so far as it is suggested by the H
I
Plaintiffs that the door accessing the switch room is within the
I
area of CP3, that is factually incorrect;
J J
(4) The Defendant, as the registered owner of the CPs, has a
K K
proprietary right and the Defendant has reached out to estate
L agents concerning the sale of the CPs; L
M (5) The 1st Plaintiff is running at a deficit (in the sum of around M
HK$325,000 for the year 2023). There is a real question whether
N N
the 1st Plaintiff is able to offer a credible undertaking as to
O
damages. O
P
P
5.12 On the Plaintiffs’ part:
Q Q
(1) The Plaintiffs contend what is shown by the Table demonstrates
R R
there are, in Ms Wong’s words, “indeed a lot of times” when both
S CP4 and CP5 are occupied; S
T
T
U U
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A A
B (2) When CP4 and CP5 were both occupied, the waiting lorries would B
have to make loops around the Building;
C C
D
(3) Smaller goods vehicles still need access to the Loading and
D
Unloading Platform, it being the only access to the cargo lifts;
E E
(4) The Defendant has no meaningful use of any of the CPs. The
F F
Defendant does not own any units in the Building and the cars
G placed at, for example, CP6 is a “dead” car; G
H (5) Even if CP4 to CP6 are reopened, it may still fall short of the H
I
minimum requirement of the Hong Kong Planning Standards and
I
Guidelines (“Guidelines”);
J J
(6) CP3 is required to remain at least partially open as provided by
K K
the Interim-Interim Order as access to the switch room and the
L drainage manhole is required; L
M (7) Although the 1st Plaintiff is running at a deficit, the 1st Plaintiff is M
in the position to raise funds to meet its undertaking, given the
N N
Defendant’s damages (should the injunction be wrongly granted)
O
are not substantial. The rental payment last paid in early 2017 O
P
was HK$22,900 per month, which could realistically be raised
P
amongst owners occupying 23 floors of the Building.
Q Q
5.13 In my view, the balance of convenience lies in favour of
R R
continuing the Interim-Interim Order until trial, for the following reasons.
S S
5.14 I do not regard the position taken by the Defendant to be a very
T
T
attractive one. The suggestion that it has reached out to estate agent(s) to sell
U U
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A A
B the CPs is a bare assertion. No email or engagement letter has been adduced B
into evidence. The fencing-off of the CPs and placing a dead car thereat, when
C C
plainly CP4 to CP6 are designed for vehicular assess to the Loading and
D Unloading Area, seem to me to be difficult to justify. The suggestion that an D
injunction order would strike a blow to the Chinachem group’s reputation,
E E
standing and credit is also a very far-fetched proposition.
F F
5.15 On the other hand, P’s position that all the CPs should
G
immediately be “reopened” cannot be justified on the present evidence. Since G
H the granting of the Interim-Interim Injunction, even on Ms Wong’s analysis,
H
CP4 and CP5 appear to have provided adequate access to the Loading and
I
Unloading Area. Whilst there were sporadic periods during which both CP4 I
J and CP5 were occupied, it seems to me that such durations would not be J
considered abnormal. It cannot be said that, in the normal course, industrial
K K
buildings should be expected to offer unfettered or guaranteed access to a
L loading and unloading bay. In my view, it is not uncommon that delivery L
workers may on occasions have to wait around until a loading bay is cleared.
M M
From the Table, it does not appear to me that during those occasions when both
N CP4 and CP5 were occupied, the consequent waiting time (until one of them N
was cleared) can be considered to be unreasonable. I note that it is the Plaintiffs’
O
O
evidence that reopening of CP6 is sought to be justified only on the basis that
P there should be spare availability of the loading and unloading area. P
Q
5.16 The above also leads to the point that I do not agree with Ms Q
R Wong’s reading of the Guidelines. The part of the Guidelines which Ms Wong
R
refers to is as follows:
S S
“Loading and Unloading requirements:
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T
1 goods vehicle bay per 700-900m2 GFA, 50% of which should be for parking
of goods vehicles.
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A A
B B
1 container vehicle loading/unloading bay with turning circle of 11.6m outer
radius should be provided for a site with dimensions not less than 45m x 40m”
C (emphasis added) C
D
5.17 The Gross Floor Area (“GFA”) of the Building is around D
E 25,000m2. Ms Wong reasons that the available carparking spaces for loading
E
and unloading should therefore be 25,000 x 900 x 50% = 13.89 car parking
F F
spaces. But the Guideline plainly distinguishes between (1) goods vehicle bay
G for parking of goods vehicles and (2) container vehicle loading/unloading bay. G
According to the Guideline, only 1 container vehicle loading/unloading bay is
H H
required, regardless of the GFA of a building.
I I
5.18 In terms of CP3, I accept that, after the granting of the Interim-
J J
Interim Injunction, it cannot be said on the evidence that the drainage manhole
K required frequent access. However, the drainage manhole is right in front of K
the opening providing “human” access to the Loading and Unloading Bay.
L L
Were the Interim-Interim Injunction lifted in respect of CP3, the Defendant is
M entitled to park a car in such a way to block that opening. I do not regard it as M
satisfactory to force workers or users to jump up to or down from the Loading
N N
and Unloading Platform (which is about 3 ft in height). In the foregoing regard,
O the competing evidence as to whether CP3 provided access to the switch room O
P
is not my main concern when compared with the access to the Loading and
P
Unloading Platform.
Q Q
st
5.19 I acknowledge the evidence shows that the 1 Plaintiff is running
R R
at a deficit. However, the Building has 23 floors and I do not regard it likely
S that, should the 1st Plaintiff be called upon its undertaking, it will not be able S
to raise funds to meet it, given the likely extent of the Defendant’s loss until
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trial, which is around HK$25,000 (or adjusted upwards given inflation) per
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A A
B month. I think I can take judicial notice that the 1st Plaintiff would have passed B
a resolution to meet legal expenses incurred or to be incurred in these
C C
proceedings.
D D
6. The Transfer Summons
E E
6.1 Ms Wong accepts that the Plaintiffs’ claims as formulated in the
F F
draft Statement of Claim fall within the jurisdictional limits prescribed by
G section 35 (annual rent or rateable value of the CPs being below HK$320,000) G
and section 37 (proceedings involving land for relief against mistake where the
H H
1st Plaintiff’s claim for mistaken payment is below HK$7,000,000) of the
I District Court Ordinance Cap 336 (“DCO”). I
J J
6.2 The only basis relied on by Ms Wong to resist a transfer to the
K District Court is that the 1st Plaintiff’s claim for mesne profits (quantified as K
follows) is over HK$3 million (provisionally based on rents in fact paid by the
L L
1st Plaintiff and assuming a limitation period of 12 years):
M M
N Dec 2011 to Feb2015 HK$18,000 x 39 months = N
HK$702,000
O Mar 2015 to Mar 2016 HK$21,800 x 25 months =
O
HK$545,000
P
Apr 2017 to Mar 2024 HK$22,900 x 84 months =
HK$1,923,600 P
Mar 2024 until possession Ongoing if injunction does not cover
Q
the CPs Q
Total HK$3,170,600 (plus ongoing)
R R
S
6.3 I accept Ms Wong’s submission that the authorities suggest that a
S
plaintiff should be entitled to frame his case in the manner that he wishes and
T
that his case on quantum ought to be viewed at its highest when determining T
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A A
B the proper jurisdiction where the case should be brought: Wong Miu Kwan v B
FPD Savills Property Management Ltd [2006] 1 HKC 575 §§19-21.
C C
D 6.4 However, as pointed out by Mr Suen, the foregoing is subject to a D
qualification of absence of abuse. The court has in the past carried out an
E E
evaluation of the quantification advanced by a plaintiff, bearing in mind the
F requirement to err on the generous side set out in Wong Miu Kwan: Hung Chor F
Hung John suing as the administrator of the estate of Chow So Hing, the
G G
Deceased v Li Kwok Kin & Anor, HCPI 251 of 2009, 10 November 2009 §§16,
H 50-60 and 69-70. H
I
6.5 Ms Wong’s quantification is on the basis that the 1st Plaintiff can I
J claim mesne profits for all the CPs in the stated periods and even then it is J
barely over HK$3 million. However, as pointed out by Mr Suen, during
K K
December 2011 to March 2017, the Defendant was not in occupation of the
L CPs as they had been leased to the 1st Plaintiff. The proper basis for that period L
would be a claim for mistaken payment, which if pursued, is caught by the
M M
jurisdiction limit under section 37 of the DCO. During the period identified
N by Ms Wong, the 1st Plaintiff had various degrees of access to the CPs for divers N
periods which Ms Wong’s quantification does not take into account. In my
O
O
view, the 1st Plaintiff’s claim for mesne profits is likely to be within the
P jurisdiction of the District Court. P
Q Q
6.6 Section 43 of the DCO provides:
R R
“(1) The Court of First Instance may, either of its own motion or on the
S application of any party, order the transfer to the Court of all or part of an
S
action or proceeding, other than a counterclaim, which appears to the Court
of First Instance likely to be within the jurisdiction of the Court.
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A A
B (2) An order may be made under this section at any stage of the proceedings
B
of the motion of the Court of First Instance itself or on the application of any
party.
C C
(3) The Court of First Instance is required to make an order under this
D section unless it is of the opinion that, by reason of the importance or
D
complexity of any issue arising in the action or proceeding, or for any other
reason, the action or proceeding ought to remain in the Court of First
E Instance.” (emphasis added) E
F F
6.7 I have considered the parties’ submissions on the residual factor
G on importance or complexity of the issues arising in the present case. I do not G
accept Ms Wong’s submission that the present case is of such importance or
H H
complexity that it should remain in the Court of First Instance. That being the
I case, I transfer the present action to the District Court pursuant to section 43(3) I
of the DCO.
J J
K 6.8 Given my view that the case should be transferred to the District K
Court, it is unnecessary for me to deal with the Defendant’s fallback position
L L
to have the present case transferred to the Lands Tribunal.
M M
7. Conclusion
N N
7.1 For the above reasons:
O
O
P (1) I accede to the Amendment Summons with costs to be paid by the P
1st Plaintiff to the Defendant (§4.8 above) to be summarily
Q Q
assessed4;
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S S
T
T
st
4
The Defendant is to lodge its Statement of Costs within 3 days and the 1 Plaintiff its Statement of
U Objection within 3 days thereafter. Summary assessment will then be carried out on the papers. U
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A A
B (2) On the Injunction Summons, I order the Interim-Interim B
Injunction granted on 29 December 2023 be continued until trial
C C
or further order;
D D
(3) On the Transfer Summons, I make an order that these proceedings
E
be transferred to the District Court. E
F F
7.2 As to costs (except those of the Amendment Summons)5:
G G
(1) I order the costs of the Injunction Summons to be costs in the
H H
cause;
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(2) I order the costs of the Transfer Summons to be the Defendant’s
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costs in the cause;
K K
(3) I reserve the questions as to costs before the transfer to the trial
L
judge who may then consider whether this case should have been L
M commenced in the Court of First Instance in the first place
M
(adopting the approach set out at The Incorporated Owners of
N
Affluence Garden v Guardian Management Services Ltd [2023] 1 N
O HKLRD 910 §20).
O
P 7.3 All of the above costs orders are nisi. However, I set out my P
provisional views.
Q Q
R 7.4 I do not agree with Mr Suen’s submission that the hearing on 7 R
March 2024 were wasted as a result of the Plaintiffs bringing the action in the
S S
T
T
5
In my view, I do not need to deal the issue of costs arising from the Notice of Discontinuance. No
leave is required as the 2nd Plaintiff’s action is discontinued before any defence is filed by the
U Defendant (RHC Order 21, rule 2). The costs consequences are provided for by RHC 62, rule 10. U
V V
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A A
B wrong court. It was not a point raised by the Defendant at the hearings on 29 B
December 2023 and 7 March 2024, and it was the Defendant’s proposal to have
C C
a speedy trial in the High Court.
D D
7.5 It also seems to me that neither party acted entirely reasonably
E
(§§5.6 to 5.8 above) or was entirely successful in the Injunction Summons. E
F The Plaintiffs sought the reopening of all the CPs and the Defendant was
F
prepared to only keep 2 of them open.
G G
H H
(Jonathan Wong)
I Deputy High Court Judge I
J J
Ms Carol WONG instructed by Messrs Li & Partners, for the 1st - 2nd Plaintiffs
K K
Mr Jenkin SUEN, SC leading Mr Justin ISMAIL instructed by Messrs Deacons,
L for the Defendant
L
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