THE INCORPORATED OWNERS OF PO HANG BUILDING v. SAM WOO MARINE WORKS LTD

THE INCORPORATED OWNERS OF PO HANG BUILDING v. SAM WOO MARINE WORKS LTD

Leave to appeal was refused because the appeal had no reasonable prospect of success; the Court held existing authority (notably Incorporated Owners of Man Hong Apartments) remains binding and the defendant's arguments—relying on Peony House and Nisbet—did not reasonably undermine that authority or establish a viable, arguable defence to enforcement of the DMC/BMO in the factual and legal context presented.

Citation
THE INCORPORATED OWNERS OF PO HANG BUILDING v. SAM WOO MARINE WORKS LTD
Parties
Plaintiff (respondent): The Incorporated Owners of Po Hang Building; Defendant (applicant): Sam Woo Marine Works Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
6 August 2015
Case Number
HCMP415/2014
Procedural Posture
HCMP 415/2014 Court of Appeal Miscellaneous Proceedings (intended Appeal From DCCJ 2259/2013) / Application for Leave to Appeal and Stay of Execution at Court of Appeal; Leave Refused
Outcome
Leave to appeal refused; application for stay dismissed
Legal Topics
Adverse Possession, Deed of Mutual Covenant, Building Management Ordinance S.34 I, Restrictive Covenants, Injunction, Limitation Ordinance
Source Language
EN
Property Equity Civil Procedure Adverse Possession Deed of Mutual Covenant Building Management Ordinance S.34 I Restrictive Covenants Injunction +1 more

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Parties

The Incorporated Owners of Po Hang Building

Plaintiff (respondent)

Sam Woo Marine Works Limited

Defendant (applicant)

Procedural Posture

HCMP 415/2014 Court of Appeal Miscellaneous Proceedings (intended Appeal From DCCJ 2259/2013) / Application for Leave to Appeal and Stay of Execution at Court of Appeal; Leave Refused

Legal Issues

  1. 1 Whether adverse possession to the requisite period can defeat an incorporated owners' equitable right to enforce covenants in a Deed of Mutual Covenant and remedies under the Building Management Ordinance
  2. 2 Whether distinction between a co-owner who encroaches and a trespasser/squatter matters for the operation of equitable covenants and adverse possession
  3. 3 Whether the Court of Appeal decision in Incorporated Owners of Man Hong Apartments remains binding despite subsequent discussion in Wong King Lim v. Incorporated Owners of Peony House

Ratio Decidendi

Leave to appeal was refused because the appeal had no reasonable prospect of success; the Court held existing authority (notably Incorporated Owners of Man Hong Apartments) remains binding and the defendant's arguments—relying on Peony House and Nisbet—did not reasonably undermine that authority or establish a viable, arguable defence to enforcement of the DMC/BMO in the factual and legal context presented.

Court Disposition

Leave to appeal refused; application for stay dismissed

Orders

  • Leave to appeal refused
  • Application for stay of execution dismissed