Hong Kong Case Law: Decisions & Judgments

Topic

Derogation from grant

Legal area

Court

20 Jun 2024

THE INCORPORATED OWNERS OF WAH CHUN INDUSTRIAL CENTRE AND ANOTHER v. COCA INVESTMENT COMPANY LTD

Citation

[2024] HKCFI 1617
Court

Court of First Instance
Case number

HCA2064/2023

The Court found there were serious issues to be tried and that the balance of convenience favoured continuing the interim-interim injunction (keeping CP4 and CP5 open and maintaining limited access to CP3) until trial; the Court granted leave to amend the writ and extended time to file the statement of claim because the amendment was permissible under RHC Order 20 and pleadings were not closed; and the Court transferred the action to the District Court under DCO s43(3) because the claims were likely within District Court monetary jurisdiction and the issues were not sufficiently important or…
27 Dec 2023

EASTRADE HOLDINGS LTD v. SECRETARY FOR JUSTICE FOR AND ON BEHALF OF THE DIRECTOR OF LANDS

Citation

[2023] HKCFI 3356
Court

Court of First Instance
Case number

HCMP1736/2021

The consent clause in the 1930 Crown Lease must be read in the context of the Kowloon Tong Garden Estate and the building covenant; 'any other messuage or dwellinghouse' refers to any house other than the Director‑approved house and therefore covers replacement/rebuilding as well as additional houses; charging a premium for increased development intensity does not constitute derogation from grant given the Estate purpose and lease terms; the Plaintiff failed to prove waiver of the consent clause and the Director's exercise of discretion was not shown to be arbitrary or irrational. Accordingly…
15 Jul 2022

WHARF REALTY LTD v. ABEBI LIMITED t/a "ARMANI JUNIOR"

Citation

[2022] HKCFI 2036
Court

Court of First Instance
Case number

HCA954/2020

On the assumed facts the events were unprecedented and caused severe commercial loss but did not change the nature of the parties' contractual obligations or physically render the premises unfit; the tenants therefore bore the market risk and the defences of frustration and abatement were not arguable, the counterclaims for quiet enjoyment and derogation were transient and unsustainable, and final judgment for the plaintiff was properly entered for the contractual arrears with interest and costs while unliquidated damages/mesne profits are left to assessment where appropriate.
15 Jul 2022

WHARF REALTY LTD v. AGB LEGEND LTD t/a "ABEBI"

Citation

[2022] HKCFI 2036
Court

Court of First Instance
Case number

HCA955/2020

On assumed facts the defendants' defences fail: the doctrine of frustration does not apply because the Tenancy Agreements remained capable of performance and the risk of adverse market conditions lay with the tenants; the abatement clause requires physical damage and was not triggered; counterclaims for quiet enjoyment and derogation from grant allege only temporary/intermittent disturbances and are unsustainable; plaintiff entitled to final judgment for outstanding contractual sums and contractual damages, counterclaims struck out and costs awarded to plaintiff.
15 Mar 2021

LEUNG WAI LING ISEWESG v. SUCCESS BASE ENGINEERING LTD

Citation

[2021] HKCA 310
Court

Court of Appeal
Case number

CACV58/2020

Defendant failed to establish an arguable implied repairing obligation at contract formation or that any delay in repair justified repudiation; the IO’s loading restriction did not constitute landlord’s breach or derogation from grant affecting fitness for general industrial use; clause 3 is a valid forfeiture and not shown to be a penalty nor did the late amendment cause prejudice — therefore summary judgment below was upheld and the appeal dismissed.
16 Nov 2020

NEW CASTLE INVESTMENTS LTD v. YUAN YIQIANG

Citation

[2020] HKCA 931
Court

Court of Appeal
Case number

CACV47/2020

The Court held the proposed implied term (requiring immediate application of deposit upon commencement of forfeiture proceedings) was not reasonably arguable because Clause 5.04 expressly made the deposit the landlord's money and prescribed repayment only after vacant possession and settlement of claims; therefore the Judge erred in setting aside the bankruptcy order and dismissing the petition, the appeals restoring the default judgment and bankruptcy orders succeeded, and leave to the Court of Final Appeal was refused for lack of merit.
16 Nov 2020

NEW CASTLE INVESTMENTS LTD v. FOO WAI LOK

Citation

[2020] HKCA 931
Court

Court of Appeal
Case number

CACV46/2020

The court held there is no arguable implied legal obligation requiring a landlord to apply the tenant's deposit immediately upon commencing proceedings; Clause 5.04 plainly made the deposit the landlord's money with a contractual mechanism requiring delivery of vacant possession and settlement of claims before refund, therefore the Court of Appeal was correct to restore the Default Judgment, Au-yeung J erred in setting aside the bankruptcy order, and there was no merit in the application for leave to the Court of Final Appeal.
16 Nov 2020

NEW CASTLE INVESTMENTS LTD v. WFC HOLDING LTD AND OTHERS

Citation

[2020] HKCA 931
Court

Court of Appeal
Case number

CACV399/2020

Clause 5.04 of the tenancy agreement makes the deposit the landlord's money and conditions the tenant's entitlement to repayment on delivery of vacant possession and settlement of claims; an implied legal obligation requiring immediate application of the deposit on the landlord's election cannot be read into the tenancy because implied terms cannot defeat clear express contractual provisions; consequently the intended appeal to the Court of Final Appeal was not reasonably arguable and leave was refused, and the Court of Appeal restored the default judgment and allowed the bankruptcy appeals,…
5 Mar 2020

THE DAIRY FARM COMPANY, LIMITED v. SECRETARY FOR JUSTICE for and on behalf of THE DIRECTOR OF LANDS

Citation

[2020] HKCFI 306
Court

Court of First Instance
Case number

HCMP2423/2017

SC20 of the Land Grant, construed in its textual and factual matrix and having regard to associated maintenance obligations and surrounding development plans, conferred a general right of way from Pokfulam Road to the Lot including vehicular access; the Government had no contractual discretion to refuse to grant such a VROW; the Government's refusal constituted breach of the Land Grant and derogation from grant; equitable defences of laches or acquiescence do not bar relief in the absence of demonstrated prejudice; relief in the form of declarations and a mandatory order to grant the Right of…
16 Jan 2020

ASIAN WELL TECHNOLOGIES LTD v. LEE YEE MAN AND OTHERS

Citation

[2020] HKCA 65
Court

Court of Appeal
Case number

CACV595/2018

The Court upheld the trial judge’s factual findings that the Yau family had exclusive factual possession of Area X1 from about 1997 for the requisite 12‑year period and that Lee acquired an easement by prescription over Area A by continuous, uninterrupted use since 1982 with acquiescence by the owners; the plaintiff’s challenges (pleading period, government letters, temporary clearance, unpleaded illegality, standing and derogation arguments) did not demonstrate error of law or fact requiring overturning; declaratory relief was confined to Lee and the right of way specified along the path bet…