MAGIC KEY LTD AND OTHERS v. APPEAL TRIBUNAL (BUILDINGS) AND ANOTHER

MAGIC KEY LTD AND OTHERS v. APPEAL TRIBUNAL (BUILDINGS) AND ANOTHER

The court held the Tribunal did not err in finding no good cause for a full hearing because the evidence did not establish sufficient uniformity to infer the structures were built by the developer or existed before the occupation permit; there was no evidence of BA approval by conduct and no lawful legitimate expectation; Applicants as owners were properly served; leave to apply for judicial review was dismissed.

Citation
[2020] HKCFI 1716
Parties
1st Applicant: Magic Key Ltd; 2nd Applicant: Yau Kwok Choi Brain; 3rd Applicant: Cheng Luk Tak; 3rd Applicant: Cheng Tang Miu Nang; Putative Respondent: Appeal Tribunal (Buildings); Putative Interested Party: Building Authority
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 July 2020
Case Number
HCAL1931/2018
Procedural Posture
Judicial Review of Appeal Tribunal Determination / Leave to Apply for Judicial Review (application Dismissed)
Outcome
Application for leave to apply for judicial review dismissed
Legal Topics
Unauthorized Building Works, Legitimate Expectation, Preliminary Hearing Under S49, Expert Evidence and Factual Inference
Source Language
EN
Administrative Law Building Regulation Constitutional Law Judicial Review Unauthorized Building Works Legitimate Expectation Preliminary Hearing Under S49 Expert Evidence and Factual Inference

Case Brief

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Parties

Magic Key Ltd

1st Applicant

Yau Kwok Choi Brain

2nd Applicant

Cheng Luk Tak

3rd Applicant

Cheng Tang Miu Nang

3rd Applicant

Appeal Tribunal (Buildings)

Putative Respondent

Building Authority

Putative Interested Party

Procedural Posture

Judicial Review of Appeal Tribunal Determination / Leave to Apply for Judicial Review (application Dismissed)

Legal Issues

  1. 1 Whether the Appeal Tribunal erred in finding no good cause to hold a full hearing under s49 of the Buildings Ordinance
  2. 2 Whether the South re-entrant and verandah extension structures were constructed by the developer prior to issuance of the occupation permit
  3. 3 Whether the Applicants were the correct parties to be served with building orders

Ratio Decidendi

The court held the Tribunal did not err in finding no good cause for a full hearing because the evidence did not establish sufficient uniformity to infer the structures were built by the developer or existed before the occupation permit; there was no evidence of BA approval by conduct and no lawful legitimate expectation; Applicants as owners were properly served; leave to apply for judicial review was dismissed.

Court Disposition

Application for leave to apply for judicial review dismissed

Orders

  • Application for leave to apply for judicial review dismissed
  • Summons to amend dismissed