SUPERENE LTD AND ANOTHER v. METRO FAIR LTD

SUPERENE LTD AND ANOTHER v. METRO FAIR LTD

On the evidence the Assignment and surrounding documents showed only a portion of the external wall was assigned to the defendant; objective inspection of Plan IV and building plans supported that the uncoloured strip faced Haiphong Road and was not assigned to defendant. The plaintiff, however, had not pleaded reliance on Clause 17(a) of the DMC and was precluded from raising it at trial; accordingly neither party established a sustainable proprietary claim against the other and both claims were dismissed.

Citation
SUPERENE LTD AND ANOTHER v. METRO FAIR LTD
Parties
Plaintiff: 1st Plaintiff; Defendant: Defendant
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
3 May 2013
Case Number
DCCJ3025/2008
Procedural Posture
Conveyancing/property Dispute / Trial Judgment
Outcome
Both the plaintiff's claim and the defendant's counterclaim dismissed; no substantive proprietary entitlement established for either party; plaintiff could not rely on Clause 17(a) as it was not pleaded
Legal Topics
Assignment of Part of Building, Construction of Conveyance and Plans, Parol Evidence Rule, Deed of Mutual Covenant (dmc), Injunctive Relief, Costs
Source Language
EN
Conveyancing Property Law Contract Law Building Management Law Civil Procedure Assignment of Part of Building Construction of Conveyance and Plans Parol Evidence Rule +3 more

Case Brief

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Parties

1st Plaintiff

Plaintiff

Defendant

Defendant

Procedural Posture

Conveyancing/property Dispute / Trial Judgment

Legal Issues

  1. 1 Whether the uncoloured strip in Plan IV formed part of the External Wall facing Haiphong Road
  2. 2 Whether the defendant was assigned the whole of the External Wall or only a portion
  3. 3 Whether Clause 17(a) of the DMC entitled the plaintiff to erect signs and whether that point was properly pleaded

Ratio Decidendi

On the evidence the Assignment and surrounding documents showed only a portion of the external wall was assigned to the defendant; objective inspection of Plan IV and building plans supported that the uncoloured strip faced Haiphong Road and was not assigned to defendant. The plaintiff, however, had not pleaded reliance on Clause 17(a) of the DMC and was precluded from raising it at trial; accordingly neither party established a sustainable proprietary claim against the other and both claims were dismissed.

Court Disposition

Both the plaintiff's claim and the defendant's counterclaim dismissed; no substantive proprietary entitlement established for either party; plaintiff could not rely on Clause 17(a) as it was not pleaded

Orders

  • Plaintiff's claim dismissed
  • Defendant's counterclaim dismissed