Hong Kong Case Law: Decisions & Judgments

Topic

Lease modification

Legal area

Court

20 Apr 2011

FULLY PROFIT (ASIA) LTD v. THE SECRETARY FOR JUSTICE for and on behalf of the DIRECTOR OF LANDS

Citation

FULLY PROFIT (ASIA) LTD v. THE SECRETARY FOR JUSTICE for and on behalf of the DIRECTOR OF LANDS
Court

Court of First Instance
Case number

HCMP82/2010

The proposed composite 26‑storey development is not within the ordinary meaning of 'a house' as used in the Crown leases; each portion of the composite building to be erected on each lot exceeds the ordinary attributes of a house, and therefore the intended development would contravene the covenant in each of the five Crown leases prohibiting the erection of more than one house on the demised premises.
28 Oct 2010

ANDERSON ASPHALT LTD AND OTHERS v. THE SECRETARY FOR JUSTICE

Citation

ANDERSON ASPHALT LTD AND OTHERS v. THE SECRETARY FOR JUSTICE
Court

Court of Appeal
Case number

CACV122/2009

The grant of Short Term Waivers is an exercise of the Director of Lands' contractual rights as land agent under the Crown Lease (a private landlord function) and lacks the necessary public law character to be amenable to judicial review; accordingly the Applicants lack locus standi and the challenge fails on that basis.
25 Jun 2009

RANK PROFIT INDUSTRIES LTD v. SECRETARY FOR JUSTICE

Citation

RANK PROFIT INDUSTRIES LTD v. SECRETARY FOR JUSTICE
Court

Court of Final Appeal
Case number

FAMV8/2009

The application was dismissed because Rank Profit’s fundamental contention—that the grant necessarily included an implied obligation by the government not to permit any change of user of other KBIA lots for 50 years—was not reasonably arguable; there was no basis to imply such a sterilizing obligation and therefore the pleading disclosed no reasonable cause of action.
16 Mar 2009

ANDERSON ASPHALT LTD AND OTHERS v. THE SECRETARY FOR JUSTICE

Citation

ANDERSON ASPHALT LTD AND OTHERS v. THE SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCAL98/2007

The Court held the Director's decisions to grant the short-term waivers and the alleged decision not to terminate them were, in essence, private law landlord decisions (commercial function) and not amenable to judicial review; alternatively, even if reviewable, the Director had considered relevant planning and environmental advice, gave adequate reasons in context, no clear refusal decision to terminate was established, and the decisions were not irrational; applicants lacked sufficient standing and the applications were dismissed.
8 Sept 2008

FINE TOWER ASSOCIATES LTD v. TOWN PLANNING BOARD

Citation

FINE TOWER ASSOCIATES LTD v. TOWN PLANNING BOARD
Court

Court of Final Appeal
Case number

FAMV20/2008

In assessing deprivation under Article 105 the court must consider the factual reality including any reasonable prospect of lease modification and development potential; lawful planning restrictions imposed under the Town Planning Ordinance do not constitute a deprivation where the possibility of modification affects the land's present value, and the discretionary nature of modification does not of itself infringe Article 105.
7 May 2008

RANK PROFIT INDUSTRIES LTD v. SECRETARY FOR JUSTICE

Citation

RANK PROFIT INDUSTRIES LTD v. SECRETARY FOR JUSTICE
Court

Court of Appeal
Case number

CACV125/2007

The pleaded implied term that the Government would preserve the KBIA land use pattern for the 50-year term so as to secure the viability of the plaintiff's public car park was not a term that could be necessarily implied from the facts; planning and rezoning actions by public authorities in discharge of public duties cannot be fettered by such an implied obligation, the estoppel plea was inadequately pleaded and unarguable, and express contract disclaimers (GC5) further precluded the implication; accordingly the strike-out of the claim was justified and the appeal was dismissed.
7 May 2008

RANK PROFIT INDUSTRIES LTD v. DIRECTOR OF LANDS

Citation

RANK PROFIT INDUSTRIES LTD v. DIRECTOR OF LANDS
Court

Court of Appeal
Case number

CACV94/2007

The Director, when negotiating and offering terms for lease modification, was exercising a private landlord function not subject to judicial review; therefore the two letters/offers were not reviewable public-law decisions and the applicant's judicial review claim failed. The appeal is dismissed and the respondent is entitled to costs (order nisi).
27 Jul 2007

FINE TOWER ASSOCIATES LTD v. TOWN PLANNING BOARD

Citation

FINE TOWER ASSOCIATES LTD v. TOWN PLANNING BOARD
Court

Court of Appeal
Case number

CACV356/2006

The Court held the appellant failed to prove that the Draft Outline Zoning Plan denied all economically viable or meaningful use of the lots; the lots remained marketable and usable under the proposed zoning, lease modification under Lands Department policy was a realistic prospect and relevant to the inquiry, and therefore there was no de facto deprivation requiring compensation; the appeal was dismissed and costs ordered nisi for the respondent.
26 Jul 2007

BEST PARTNER LTD v. SECRETARY FOR JUSTICE

Citation

BEST PARTNER LTD v. SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCMP1873/2006

Special Condition (c) was construed to prohibit commercial use of the ground floors at Oxford Heights and Cambridge Heights; historical acquiescence amounted only to waiver of breaches in respect of existing small houses, not to abandonment of the covenant for redevelopment; Rating Department valuation and rent demands do not estop the Lands Department from enforcing the covenant; therefore declarations sought by plaintiffs were refused and summonses dismissed.
26 Jul 2007

EXPRESSLUCK DEVELOPMENT LTD v. SECRETARY FOR JUSTICE

Citation

EXPRESSLUCK DEVELOPMENT LTD v. SECRETARY FOR JUSTICE
Court

Court of First Instance
Case number

HCMP1432/2005

Special Condition (c) was construed to prohibit commercial use of the ground floors of the redeveloped buildings ('erect' includes continued user); historical, open tolerance resulted only in waiver of particular past breaches relating to small original houses but did not release the covenant as it applies to redevelopment; Rating and Valuation assessments do not estop the Lands Department from enforcing the covenant.