Hong Kong Case Law: Decisions & Judgments

Topic

Construction of covenants

Legal area

Court

9 Nov 2020

ADDITECH LTD v. TAI CHEUNG MANAGEMENT CO LTD

Citation

[2020] HKCA 902
Court

Court of Appeal
Case number

CAMP204/2019

On proper construction clauses 9(A)(d) and 9(B)(35) of the DMC imposed positive and separate management obligations on the Manager to grant consent and to exercise that power reasonably; there is no general 'No Damages Doctrine' barring damages claims in this context and the applicant has an arguable cause of action for damages, so the striking out application was not plainly sustainable and leave to appeal was refused.
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.
30 Jun 1995

FAIRFAX LTD. v. ATTORNEY GENERAL

Citation

FAIRFAX LTD. v. ATTORNEY GENERAL
Court

Court of Appeal
Case number

CACV114/1995

Although the covenant is properly construed as restricting development to "one or more villa residences only" (thus apt to preclude the proposed multi-storey building), the undisputed evidence showed an open, notorious and prolonged course of breaches across Inland Lot No.757 over decades, consistently tolerated by the Crown without seeking premiums; on those facts the only proper inference is that the Crown abandoned or released its right to enforce the covenant as to the lot, entitling the tenant to redevelop without the landlord's consent.
9 Feb 1994

THE INCORPORATED OWNERS OF SOUTH SEAS CENTRE, MODY ROAD v. GREAT TREASURE DEVELOPMENT LTD.

Citation

THE INCORPORATED OWNERS OF SOUTH SEAS CENTRE, MODY ROAD v. GREAT TREASURE DEVELOPMENT LTD.
Court

Court of Appeal
Case number

CACV191/1993

On a provisional construction the Deed's express negative stipulations (Clauses g, l and m) are breached by the defendant's maintenance of the signs without prior written consent; where a defendant proposes to act in breach of such a covenant the court will normally grant interlocutory relief to preserve the status quo pending trial unless special circumstances or equitable considerations strongly outweigh doing so; applying that principle the appeal is allowed and an interlocutory injunction is appropriate.
9 Feb 1994

THE INCORPORATED OWNERS OF SOUTH SEAS CENTRE, MODY ROAD v. GREAT TREASURE DEVELOPMENT LTD.

Citation

THE INCORPORATED OWNERS OF SOUTH SEAS CENTRE, MODY ROAD v. GREAT TREASURE DEVELOPMENT LTD.
Court

Court of Appeal
Case number

CACV8/1994

On provisional construction the defendant's maintenance of the signs without plaintiffs' consent breached the express negative stipulations in the Deed of Mutual Covenant; no special circumstances or discretionary considerations existed to outweigh the plaintiffs' right, and therefore the appeal is allowed and an interlocutory injunction granted to preserve the status quo pending trial.
7 Jan 1993

BILWIDE LTD. v. CHUNG CHUN KWAI

Citation

BILWIDE LTD. v. CHUNG CHUN KWAI
Court

Court of Appeal
Case number

CACV139/1992

Clause 4 of the tenancy agreement imposes independent obligations: the landlord's obligation to pay compensation is not a condition precedent to the landlord's right to recover vacant possession upon expiry of the term and notice; the defendant failed to show an arguable defence for the purposes of O.14 and summary judgment for vacant possession was properly upheld.
4 Dec 1989

HONG KONG PING JENG LAU CO LTD v. THE INCORPORATED OWNERS OF UNITED CENTRE

Citation

HONG KONG PING JENG LAU CO LTD v. THE INCORPORATED OWNERS OF UNITED CENTRE
Court

Court of First Instance
Case number

HCMP2971/1989

Clause 17(g) is a restrictive covenant intended to subsist for the life of the building and to enure for the benefit of subsequent owners; the dispensing/consent power in Clause 17(g) was personal to the First Owner and ceased when the First Owner no longer retained any shares; consequently the plaintiff remains bound by the restrictions and cannot rely on the First Owner's prior status to nullify them.
13 Dec 1984

CHIU SHU-CHOI v. MERRILONG DYEING WORKS LTD

Citation

CHIU SHU-CHOI v. MERRILONG DYEING WORKS LTD
Court

Court of Appeal
Case number

CACV102/1984

On construction of the Deed of Mutual Covenants the court implied a limited right of way in favour of the owner of the 9th floor: a right to pass and repass from the lift doors over the 8th floor to the nearest staircase as necessary for the proper use and enjoyment of the 9th floor, based on the express grant to use lifts and the shared obligation to maintain them; appeal dismissed.
18 Nov 1977

GAIL STEVENSON AND ANOTHER v. THE CHARTERED BANK

Citation

GAIL STEVENSON AND ANOTHER v. THE CHARTERED BANK
Court

Court of Appeal
Case number

CACV38/1976

Under Hong Kong law the common law rule applies that a promise cannot be made to several persons both jointly and severally; the savings account was a joint account (not joint and several) and the bank could not appropriate the joint account balance to satisfy the husband's separate guarantee; the appellants' declaration succeeds and the appeal is allowed.