INCORPORATED OWNERS OF FU NING GARDEN AND ANOTHER v. GRANTWIN DEVELOPMENT LTD.

INCORPORATED OWNERS OF FU NING GARDEN AND ANOTHER v. GRANTWIN DEVELOPMENT LTD.

On the defendants' default the court found the plaintiffs entitled to the permanent injunctive relief and damages claimed; the covenant to pay solicitor and own client costs in the Deed of Mutual Covenant is ancillary to enforcement by the manager, is not a positive covenant for the purposes of s41(6) and thus binds both the registered owner and the tenant; absent exceptional circumstances the court will give effect to the contractual entitlement to costs and accordingly ordered costs to be paid to the plaintiffs to be taxed on an indemnity basis if not agreed.

Citation
INCORPORATED OWNERS OF FU NING GARDEN AND ANOTHER v. GRANTWIN DEVELOPMENT LTD.
Parties
1st Plaintiff: Incorporated Owners of Fu Ning Garden; 2nd Plaintiff: Funing Property Management Limited; 1st Defendant: Grantwin Development Limited; 2nd Defendant: Chan Wai Hing
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 June 2002
Case Number
HCA1747/2002
Procedural Posture
Civil Action Property/injunction / Application for Default Judgment and Final Determination on Relief and Costs
Outcome
Default judgment entered for the Plaintiffs; permanent injunction granted; damages awarded to be assessed; costs awarded to Plaintiffs on indemnity basis.
Legal Topics
Injunction, Default Judgment, Deed of Mutual Covenant, Solicitor and Own Client Costs, Section 41 Conveyancing and Property Ordinance, Indemnity Costs, Positive Vs Negative Covenants
Source Language
EN
Property Law Contract Law Civil Procedure Costs Law Injunction Default Judgment Deed of Mutual Covenant Solicitor and Own Client Costs +3 more

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Parties

Incorporated Owners of Fu Ning Garden

1st Plaintiff

Funing Property Management Limited

2nd Plaintiff

Grantwin Development Limited

1st Defendant

Chan Wai Hing

2nd Defendant

Procedural Posture

Civil Action Property/injunction / Application for Default Judgment and Final Determination on Relief and Costs

Legal Issues

  1. 1 Whether plaintiffs entitled to permanent injunctive relief and damages on defendants' failure to file defence
  2. 2 Whether the covenant to pay solicitor and own client costs in the Deed of Mutual Covenant is a positive covenant within the meaning of s41 Conveyancing and Property Ordinance and binds the tenant
  3. 3 Whether the court should follow the contractual entitlement to solicitor and own client costs or exercise discretion otherwise

Ratio Decidendi

On the defendants' default the court found the plaintiffs entitled to the permanent injunctive relief and damages claimed; the covenant to pay solicitor and own client costs in the Deed of Mutual Covenant is ancillary to enforcement by the manager, is not a positive covenant for the purposes of s41(6) and thus binds both the registered owner and the tenant; absent exceptional circumstances the court will give effect to the contractual entitlement to costs and accordingly ordered costs to be paid to the plaintiffs to be taxed on an indemnity basis if not agreed.

Court Disposition

Default judgment entered for the Plaintiffs; permanent injunction granted; damages awarded to be assessed; costs awarded to Plaintiffs on indemnity basis.

Orders

  • Permanent injunction granted in terms of paragraph 1 of the Summons
  • Payment of damages in terms of paragraph 2 of the Summons to be assessed