THE INCORPORATED OWNERS OF YING KONG MANSION AND ANOTHER v. FEDELITY LTD AND ANOTHER

THE INCORPORATED OWNERS OF YING KONG MANSION AND ANOTHER v. FEDELITY LTD AND ANOTHER

Applications for summary judgment by both plaintiffs and defendants were dismissed and the defendants' strike-out application refused because there exist disputed facts (timing and nature of installations), contested legal issues (validity and effect of the 15 April 2005 Regulations and their interaction with the DMC and BMO), and factual questions about feasibility/hardship and acquiescence that require oral evidence and findings at trial; accordingly the matters must proceed to trial.

Citation
THE INCORPORATED OWNERS OF YING KONG MANSION AND ANOTHER v. FEDELITY LTD AND ANOTHER
Parties
1st Plaintiff: The Incorporated Owners of Ying Kong Mansion; 2nd Plaintiff: King Doh Restaurant Limited; 1st Defendant: Fidelity Limited; 2nd Defendant: The Groom Shoes Repair and Polish Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 September 2010
Case Number
HCA2491/2009
Procedural Posture
Civil (building Management / Property / DMC Dispute) / Interlocutory Applications for Summary Judgment and Strike Out Heard; Decision on Summonses (matters to Proceed to Trial)
Outcome
Both summary judgment applications dismissed; defendants' strike-out application refused; matter to proceed to trial; each party to bear their own costs of the summonses (costs nisi).
Legal Topics
Deed of Mutual Covenant (dmc), Unauthorized Structures / Signboards, Building Management Ordinance S34 I, Validity of Owners' Resolutions, Summary Judgment (order 14/14 A), Strike Out (order 18 R19), Acquiescence / Estoppel, Relief for Trespass
Source Language
EN
Property Building Management Civil Procedure Contract Deed of Mutual Covenant (dmc) Unauthorized Structures / Signboards Building Management Ordinance S34 I Validity of Owners' Resolutions +4 more

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Parties

The Incorporated Owners of Ying Kong Mansion

1st Plaintiff

King Doh Restaurant Limited

2nd Plaintiff

Fidelity Limited

1st Defendant

The Groom Shoes Repair and Polish Limited

2nd Defendant

Procedural Posture

Civil (building Management / Property / DMC Dispute) / Interlocutory Applications for Summary Judgment and Strike Out Heard; Decision on Summonses (matters to Proceed to Trial)

Legal Issues

  1. 1 Whether the Regulations adopted at the EGM of 15 April 2005 are valid and binding
  2. 2 Whether the erection of signboard and condenser units breached clauses 8 and 11 of the DMC and s34I of the BMO
  3. 3 Whether the 2nd plaintiff has standing to sue in respect of encroachment on part of its mezzanine external wall

Ratio Decidendi

Applications for summary judgment by both plaintiffs and defendants were dismissed and the defendants' strike-out application refused because there exist disputed facts (timing and nature of installations), contested legal issues (validity and effect of the 15 April 2005 Regulations and their interaction with the DMC and BMO), and factual questions about feasibility/hardship and acquiescence that require oral evidence and findings at trial; accordingly the matters must proceed to trial.

Court Disposition

Both summary judgment applications dismissed; defendants' strike-out application refused; matter to proceed to trial; each party to bear their own costs of the summonses (costs nisi).

Orders

  • Dismiss the 1st Plaintiff's application for summary judgment against the 1st and 2nd Defendants
  • Dismiss the 1st Defendant's application for summary judgment on the counterclaim pursuant to Order 14 and Order 14A