TAM SEEN MANN ESTEFANIA v. CHAN NORMAN AND ANOTHER

TAM SEEN MANN ESTEFANIA v. CHAN NORMAN AND ANOTHER

The Registrar held the defendants lack authority to sue in respect of alleged illegal works and re-demarcation affecting common parts absent consent from the Incorporated Owners under s.16 BMO; the impugned counterclaim paragraphs were general, hypothetical or related to matters (immigration offences) enforceable only by public authorities and not civil claims, and therefore paragraphs and prayers specified disclosing no reasonable cause of action must be struck out.

Citation
TAM SEEN MANN ESTEFANIA v. CHAN NORMAN AND ANOTHER
Parties
1st Plaintiff (hca 627/2010): PONG, SEONG TERESA; 2nd Plaintiff (hca 627/2010): TAM, SHUI CHUEN; 3rd Plaintiff (hca 627/2010) and Plaintiff (hca 726/2011): TAM, SEEN MANN ESTEFANIA; Defendant (hca 627/2010) and 1st Defendant (hca 726/2011): CHAN, NORMAN; 2nd Defendant (hca 726/2011): WAI SO LIN SHIRLEY
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 June 2012
Case Number
HCA726/2011
Procedural Posture
Civil Actions (combined HCA 627/2010 & HCA 726/2011) / Application to Strike Out Parts of the Defendants' Counterclaims Decided by Registrar (reasons Delivered)
Outcome
Registrar struck out specified paragraphs and prayers of the defendants' counterclaims in both actions and awarded costs to the plaintiffs (primarily) to be summarily assessed.
Legal Topics
Strike Out, Standing/locus Standi, Common Parts of Building, Deed of Mutual Covenant, Section 16 Building Management Ordinance, Injunctions, Illegal Structures, Parking Demarcation
Source Language
EN
Building Management Property Law Civil Procedure Nuisance Immigration Enforcement (incidental) Strike Out Standing/locus Standi Common Parts of Building +5 more

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Parties

PONG, SEONG TERESA

1st Plaintiff (hca 627/2010)

TAM, SHUI CHUEN

2nd Plaintiff (hca 627/2010)

TAM, SEEN MANN ESTEFANIA

3rd Plaintiff (hca 627/2010) and Plaintiff (hca 726/2011)

CHAN, NORMAN

Defendant (hca 627/2010) and 1st Defendant (hca 726/2011)

WAI SO LIN SHIRLEY

2nd Defendant (hca 726/2011)

Procedural Posture

Civil Actions (combined HCA 627/2010 & HCA 726/2011) / Application to Strike Out Parts of the Defendants' Counterclaims Decided by Registrar (reasons Delivered)

Legal Issues

  1. 1 Whether individual owners/occupiers have locus to bring claims concerning common parts absent consent of the Incorporated Owners under s.16 BMO
  2. 2 Whether pleaded allegations in counterclaims disclose reasonable cause of action or are hypothetical/general and thus amenable to strike out
  3. 3 Whether alleged breaches of immigration conditions by employment of foreign domestic helpers can be pursued as a private civil remedy

Ratio Decidendi

The Registrar held the defendants lack authority to sue in respect of alleged illegal works and re-demarcation affecting common parts absent consent from the Incorporated Owners under s.16 BMO; the impugned counterclaim paragraphs were general, hypothetical or related to matters (immigration offences) enforceable only by public authorities and not civil claims, and therefore paragraphs and prayers specified disclosing no reasonable cause of action must be struck out.

Court Disposition

Registrar struck out specified paragraphs and prayers of the defendants' counterclaims in both actions and awarded costs to the plaintiffs (primarily) to be summarily assessed.

Orders

  • In HCA 627/2010, paragraphs 17 to 19 and prayers (1), (2) and (3) of the defendant's Counterclaim are struck out.
  • In HCA 726/2011, paragraphs 35, 37 and 38 and prayers B and C of the defendants' Counterclaim are struck out.