NG HING YAU AND ANOTHER v. CITY NOBLE DEVELOPMENTS LTD AND OTHERS

NG HING YAU AND ANOTHER v. CITY NOBLE DEVELOPMENTS LTD AND OTHERS

The Sub-DMC, construed purposively, covers matters concerning the External Wall and vests the Manager with authority to represent the owners and commence proceedings touching or concerning the Arcade; consequently the 1st and 2nd plaintiffs were not suitable representatives and the court exercised its discretion under Order 15 r 12 to strike out the representative parts of the Amended Writ and Statement of Claim, while preserving the plaintiffs' individual rights to sue on their own behalf.

Citation
NG HING YAU AND ANOTHER v. CITY NOBLE DEVELOPMENTS LTD AND OTHERS
Parties
1st Plaintiff: NG HING YAU; 2nd Plaintiff: LAU CHI PO and CHEONG PUN HENG; 1st Defendant: CITY NOBLE DEVELOPMENTS LIMITED; 2nd Defendant: KONG ART LIMITED; 3rd Defendant: LETINY TECHNOLOGY LIMITED; 4th Defendant: SPARK MEDIA COMPANY LIMITED; 5th Defendant: MA PAK LEUNG COMPANY, LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 November 2017
Case Number
HCA430/2017
Procedural Posture
Representative Action Seeking Injunction and Damages (torts Concerning Advertising on Building) / Interlocutory Application to Strike Out or Stay Representative Parts; Decision on Representative Standing
Outcome
Representative parts of the Amended Writ of Summons and Statement of Claim struck out; plaintiffs' individual claims preserved; costs awarded against the representative plaintiffs
Legal Topics
Representative Proceedings, Deed of Mutual Covenant Interpretation, Manager's Authority to Litigate, Standing and Suitability of Representatives, Strike Out Application, Injunctions and Damages
Source Language
EN
Property Law Civil Procedure Tort Building Management/deed of Mutual Covenant Representative Proceedings Deed of Mutual Covenant Interpretation Manager's Authority to Litigate Standing and Suitability of Representatives +2 more

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Parties

NG HING YAU

1st Plaintiff

LAU CHI PO and CHEONG PUN HENG

2nd Plaintiff

CITY NOBLE DEVELOPMENTS LIMITED

1st Defendant

KONG ART LIMITED

2nd Defendant

LETINY TECHNOLOGY LIMITED

3rd Defendant

SPARK MEDIA COMPANY LIMITED

4th Defendant

MA PAK LEUNG COMPANY, LIMITED

5th Defendant

Procedural Posture

Representative Action Seeking Injunction and Damages (torts Concerning Advertising on Building) / Interlocutory Application to Strike Out or Stay Representative Parts; Decision on Representative Standing

Legal Issues

  1. 1 Whether the plaintiffs are suitable representatives for a class of current and former owners
  2. 2 Whether the Sub-Deed of Mutual Covenant (Sub-DMC) vests exclusive authority in the Manager to commence proceedings on behalf of owners in respect of the Arcade (including the External Wall)
  3. 3 Whether the External Wall falls within the scope of the Sub-DMC and the Manager's powers

Ratio Decidendi

The Sub-DMC, construed purposively, covers matters concerning the External Wall and vests the Manager with authority to represent the owners and commence proceedings touching or concerning the Arcade; consequently the 1st and 2nd plaintiffs were not suitable representatives and the court exercised its discretion under Order 15 r 12 to strike out the representative parts of the Amended Writ and Statement of Claim, while preserving the plaintiffs' individual rights to sue on their own behalf.

Court Disposition

Representative parts of the Amended Writ of Summons and Statement of Claim struck out; plaintiffs' individual claims preserved; costs awarded against the representative plaintiffs

Orders

  • Strike out those parts of the Amended Writ of Summons and Statement of Claim relating to the representative action
  • 1st and 2nd plaintiffs to file and serve a Re-Amended Writ of Summons and an Amended Statement of Claim removing representative parts within 14 days of decision