SHING PROPERTIES LTD v. CHAN KA PO NATASHA AND OTHERS

SHING PROPERTIES LTD v. CHAN KA PO NATASHA AND OTHERS

On the balance of probabilities the Green Wall was not relocated or dislocated; CP6 as assigned with length 15 feet from the Green Wall was not shown to encroach on common parts; CP5 is defective by design so no actionable private nuisance by D1/D2 could be established; D1 and D2 lacked requisite knowledge of any previous protrusion prior to DLO letter and so cannot be held liable for nuisance; mandatory orders to redraw CP6 or relocate the Green Wall would be futile or unlawful without BA/DLO approval and would likely breach fire safety and affect other owners; accordingly plaintiff's claims are dismissed and defendants are entitled to costs.

Citation
SHING PROPERTIES LTD v. CHAN KA PO NATASHA AND OTHERS
Parties
Plaintiff: Shing Properties Limited; 1st Defendant: Chan Ka Po Natasha; 2nd Defendant: Chan Ka Ming; 3rd Defendant: The Incorporated Owners of Shan Shing Building
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
21 March 2013
Case Number
DCCJ2274/2010
Procedural Posture
Civil Action — Property/building Management Dispute / Judgment
Outcome
Plaintiff's claims dismissed against all defendants
Legal Topics
Car Park Boundary and Delineation, Private Nuisance, Mandatory Injunction, Deed of Mutual Covenant Enforcement, Building Authority Approval and Futility of Orders, Estoppel and Derogation From Grant
Source Language
EN
Property Law Building Management Tort Law Civil Procedure Statutory Duties Car Park Boundary and Delineation Private Nuisance Mandatory Injunction +3 more

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Parties

Shing Properties Limited

Plaintiff

Chan Ka Po Natasha

1st Defendant

Chan Ka Ming

2nd Defendant

The Incorporated Owners of Shan Shing Building

3rd Defendant

Procedural Posture

Civil Action — Property/building Management Dispute / Judgment

Legal Issues

  1. 1 Whether the Green Wall was constructed in a location deviating from the Approved Plan (dislocation)
  2. 2 Whether the Pink Line/delineation of Car Park No.6 deviated from the Approved Plan and encroached on common parts
  3. 3 Whether the use and parking of CP6 by D1 and D2 amounted to private nuisance and caused actionable interference with CP5

Ratio Decidendi

On the balance of probabilities the Green Wall was not relocated or dislocated; CP6 as assigned with length 15 feet from the Green Wall was not shown to encroach on common parts; CP5 is defective by design so no actionable private nuisance by D1/D2 could be established; D1 and D2 lacked requisite knowledge of any previous protrusion prior to DLO letter and so cannot be held liable for nuisance; mandatory orders to redraw CP6 or relocate the Green Wall would be futile or unlawful without BA/DLO approval and would likely breach fire safety and affect other owners; accordingly plaintiff's claims are dismissed and defendants are entitled to costs.

Court Disposition

Plaintiff's claims dismissed against all defendants

Orders

  • Plaintiff to pay costs of proceedings to all defendants, to be taxed if not agreed, with certificate of one Counsel
  • Costs reserved by adjournment order of 30 May 2012 are included; costs of adjournment are costs in the cause