海怡閣(成和道)業主立案法團 v. 泓璟集團有限公司及另一人

海怡閣(成和道)業主立案法團 v. 泓璟集團有限公司及另一人

The Tribunal found both the 1st Respondent (landlord) and the 2nd Respondent (tenant) liable for trespass to the 1st Floor common areas, for installation of signboards and air‑conditioners on common parts, because the landlord or its agent consented or permitted use beyond its rights; damages were assessed as mesne profits measured by the benefit to the trespassers using a market rental approach and awarded for a 36‑month period with specified sums for common areas, signboards and air‑conditioners; injunctions and reinstatement orders were granted (order nisi), interest and costs ordered.

Citation
海怡閣(成和道)業主立案法團 v. 泓璟集團有限公司及另一人
Parties
Applicant (owner of Common Areas): Incorporated Owner of Happy Court; 1st Respondent (landlord): Registered Owner of Shops 1-6, 1st Floor (Happy Court); 2nd Respondent (tenant): Tenant of Shops 1-6 (foot message business)
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
11 March 2013
Case Number
LDBM64/2011
Procedural Posture
Lands Tribunal Application Building Management, Trespass and Mesne Profits / Judgment (11 March 2013)
Outcome
Judgment for Applicant. 1st and 2nd Respondents held jointly liable for trespass and mesne profits; injunctions and reinstatement ordered (order nisi); interest and costs awarded (order nisi).
Legal Topics
Trespass to Land, Mesne Profits, Deed of Mutual Covenant, Building Ordinance Compliance, Injunction, Damages, Landlord Liability for Tenant Acts
Source Language
EN
Property Law Tort Building Management Law Land Law Trespass to Land Mesne Profits Deed of Mutual Covenant Building Ordinance Compliance +3 more

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Parties

Incorporated Owner of Happy Court

Applicant (owner of Common Areas)

Registered Owner of Shops 1-6, 1st Floor (Happy Court)

1st Respondent (landlord)

Tenant of Shops 1-6 (foot message business)

2nd Respondent (tenant)

Procedural Posture

Lands Tribunal Application Building Management, Trespass and Mesne Profits / Judgment (11 March 2013)

Legal Issues

  1. 1 Whether the 1st and/or 2nd Respondents committed trespass by occupying 1st Floor common areas and installing signboards and air‑conditioners on common parts
  2. 2 Whether the 1st Respondent (landlord) is liable for its tenant’s trespass or for consenting to the trespass
  3. 3 Appropriate measure of damages for trespass to common parts (mesne profits) and period of occupation to be used for assessment

Ratio Decidendi

The Tribunal found both the 1st Respondent (landlord) and the 2nd Respondent (tenant) liable for trespass to the 1st Floor common areas, for installation of signboards and air‑conditioners on common parts, because the landlord or its agent consented or permitted use beyond its rights; damages were assessed as mesne profits measured by the benefit to the trespassers using a market rental approach and awarded for a 36‑month period with specified sums for common areas, signboards and air‑conditioners; injunctions and reinstatement orders were granted (order nisi), interest and costs ordered.

Court Disposition

Judgment for Applicant. 1st and 2nd Respondents held jointly liable for trespass and mesne profits; injunctions and reinstatement ordered (order nisi); interest and costs awarded (order nisi).

Orders

  • Mesne profits for occupation of 1st Floor common areas: HKD 1,505,304 assessed (HKD 600 per sq m x 69.69 sq m x 36 months) payable by 1st and 2nd Respondents jointly and severally
  • Mesne profits for signboards: HKD 154,310.40 payable by 1st and 2nd Respondents jointly and severally