Hong Kong Case Law: Decisions & Judgments

Topic

Lease covenants

Legal area

Court

23 Jan 2019

CHENG KAM v. DIRECTOR OF LANDS

Citation

[2019] HKLdT 6
Court

Lands Tribunal
Case number

LDLR12/2016

The Tribunal held that (1) applicants failed to prove vehicular access as at the resumption date; (2) the Block Government Lease covenant operates as a restriction relevant to user so prospects of obtaining building licences or lease modification fall within s.12(c) LRO and must be disregarded; and (3) consequently the best use is open storage with pedestrian access only and compensation is to be assessed on that basis using the respondent's comparables and adjustments, producing the award set out in the judgment.
23 Jan 2019

WAN FAT SHING v. DIRECTOR OF LANDS

Citation

[2019] HKLdT 6
Court

Lands Tribunal
Case number

LDLR8/2016

Because the Block Government Lease covenant restricted erecting buildings without Crown approval and s12(c) of the LRO excludes account of any expectancy of obtaining such approval, development potential for NTEH must be disregarded; factual finding that as at the resumption date the lots lacked vehicular access supports best use as open storage with pedestrian access only; valuation must therefore be based on comparable open‑storage land excluding speculative hope value, producing the awarded compensation amounts.
9 Mar 2018

UNI-CREATION INVESTMENTS LTD v. SECRETARY FOR JUSTICE

Citation

[2018] HKCA 141
Court

Court of Appeal
Case number

CACV73/2017

The Court of Appeal upheld the trial judge's factual evaluation that the defendant failed to discharge the burden of proving the columbarium use was 'offensive' in the relevant locality and that any offence alleged was not reasonable; given the present sparse, undeveloped locality, the manner of operation, the existence of preexisting graves and kam taps, and regulatory/licensing controls, the use did not contravene the offensive trade clause and the appellate court will not disturb the trial judge's evaluation absent clear error.
8 Mar 2017

LOYAL RICH TRADING LTD v. GREEN ENERGY TRADING LTD

Citation

LOYAL RICH TRADING LTD v. GREEN ENERGY TRADING LTD
Court

District Court
Case number

DCCJ4338/2016

The court granted interlocutory mandatory injunctions permitting the landlord access to the property to carry out works required by the Planning Department notice (21 Jan 2015) and the Lands Department notice (1 Dec 2015) upon the landlord giving the usual undertaking as to damages and directors' joint and several undertaking; the lease clauses were held sufficiently clear to oblige the tenant to permit compliance with notices issued by competent authorities, damages were inadequate given criminal and enforcement risks, delay was not fatal, and the balance of convenience favored the landlord.
28 Feb 2017

UNI- CREATION INVESTMENTS LTD v. SECRETARY FOR JUSTICE

Citation

UNI- CREATION INVESTMENTS LTD v. SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCMP2166/2015

Although 'offensive' can be given a broad contextual meaning, the defendant failed to adduce credible, weighty evidence that reasonable persons in the relevant locality are offended by the plaintiff's columbarium; given the remote location, historical presence of burial sites, the manner of operation, local support and lack of probative complaints, the use does not breach the Offensive Trades Clause and the defendant's counterclaim for reentry is dismissed.
16 Nov 2015

REGAL SHINING LTD v. SECRETARY FOR JUSTICE (ON BEHALF OF THE DIRECTOR OF THE LANDS DEPARTMENT AND THE TOWN PLANNING BOARD)

Citation

REGAL SHINING LTD v. SECRETARY FOR JUSTICE (ON BEHALF OF THE DIRECTOR OF THE LANDS DEPARTMENT AND THE TOWN PLANNING BOARD)
Court

Court of Appeal
Case number

CACV230/2014

The Court held that (1) the phrase 'human remains' in General Condition 15 includes cremated ashes and thus deposit of ashes at the plaintiff's columbarium contravened GC 15 (and Clause 7(5) as incorporated); and (2) the scale and commercial character of the columbarium meant it was not ancillary or incidental to the core religious functions of the temple and therefore columbarium use was not permitted as RI under OZP 21; accordingly the appeal was dismissed.
29 Apr 2013

陳木儂對巫佳豪

Citation

陳木儂對巫佳豪
Court

Lands Tribunal
Case number

LDPE147/2013

Tribunal preferred applicant's witnesses, found respondent in arrears from 1 January 2013, held that alleged breaches of land covenant or repair disputes did not render the lease void nor justified withholding rent, and that the Tribunal lacked jurisdiction to grant the respondent’s counterclaims for repair costs or other tortious relief; therefore applicant was entitled to possession and recovery of rent and costs subject to statutory relief on payment by the specified date.
22 Dec 2005

VIGERS HONG KONG LTD v. JUNSA DEVELOPMENT LTD

Citation

VIGERS HONG KONG LTD v. JUNSA DEVELOPMENT LTD
Court

Court of First Instance
Case number

HCA5173/1998

The lease was induced by a misrepresentation made by the solicitor present (who acted for both parties) that the formal lease permitted use as a sauna; that misrepresentation vitiated the tenant's consent so the lease was rescinded, clause 5(k) could not be relied upon to defeat the misrepresentation claim, and the tenant was entitled to repayment of sums paid under the formal lease and interest; the landlord's counterclaim for repudiation fails.
10 Nov 2000

Wong Hoi Nung v. The Secretary For Transport

Citation

Wong Hoi Nung v. The Secretary For Transport
Court

Lands Tribunal
Case number

LDMR1/2000

Profit rent was denied because the actual unit rent paid for the claimed lot exceeded market rent; no goodwill awarded because tax accounts showed no profit trend and Applicant failed to prove understatement; compensation for fixtures and site improvements denied where works contravened lease and renovation payment treated as loan repayable to landlord; forced sale stock loss accepted using Applicant's wholesale valuation less realized proceeds and apportioned to the claimed area, producing total compensation of HKD 279782.50 (excluding agreed severance).
13 Jun 2000

GREEN PARK PROPERTIES LTD. v. DORKU LTD.

Citation

GREEN PARK PROPERTIES LTD. v. DORKU LTD.
Court

Court of First Instance
Case number

HCA8564/1998

The court found the vendor (through its principal and agents) made actionable misrepresentations by allowing inspection and by showing a tenancy plan that conveyed the yard was included; the purchaser relied on that representation and it was material. Clause excluding prior representations was ineffective because it failed the statutory reasonableness test under the Misrepresentation Ordinance and Control of Exemption Clauses Ordinance. The plaintiff validly rescinded the Agreement and was entitled to return of the deposit and recovery of wasted conveyancing costs; the defendant's counterclai…