朱文蘭 對 李志榮及另一人

朱文蘭 對 李志榮及另一人

Leave to appeal refused because the Tribunal correctly applied legal principles governing discretionary equitable relief: it found breaches of the DMC but, on the facts (delay, acquiescence, lack of expert evidence of structural risk, limited or remediable damage and disproportionate cost), reasonably concluded mandatory orders were not justified; applicant failed to show a legal error or an arguable prospect of success to warrant leave.

Citation
[2024] HKLdT 83
Parties
Applicant: Chu Man Lan; First Respondent: Lee Chi Wing; Second Respondent: Chan Siu Mun
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
3 October 2024
Case Number
LDBM33/2022
Procedural Posture
Building Management Application / Application for Permission to Appeal
Outcome
Application for leave to appeal refused
Legal Topics
Injunctions, Mandatory Injunction, Prohibitory Injunction, Restrictive Covenants, Deed of Mutual Covenant, Exercise of Judicial Discretion, Appeal Permission
Source Language
CH
Property Equity Civil Procedure Land Tribunal Jurisdiction Injunctions Mandatory Injunction Prohibitory Injunction Restrictive Covenants +3 more

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Parties

Chu Man Lan

Applicant

Lee Chi Wing

First Respondent

Chan Siu Mun

Second Respondent

Procedural Posture

Building Management Application / Application for Permission to Appeal

Legal Issues

  1. 1 Whether leave to appeal should be granted on question of law
  2. 2 Whether the Tribunal erred in exercising its discretion to refuse mandatory injunctions
  3. 3 Whether damages are an adequate remedy and mandatory relief is required where common parts were occupied or building appearance altered

Ratio Decidendi

Leave to appeal refused because the Tribunal correctly applied legal principles governing discretionary equitable relief: it found breaches of the DMC but, on the facts (delay, acquiescence, lack of expert evidence of structural risk, limited or remediable damage and disproportionate cost), reasonably concluded mandatory orders were not justified; applicant failed to show a legal error or an arguable prospect of success to warrant leave.

Court Disposition

Application for leave to appeal refused

Orders

  • Leave to appeal refused
  • Interim costs order: applicant to pay respondents' costs of the leave application; if parties fail to agree amount, costs to be assessed by the Court on District Court and party litigant scale