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Silver Carnival Ltd v Longbase Investments Ltd

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date14 June 2005
Year2005
Judgement NumberCACV339/2004
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000339/2004 SILVER CARNIVAL LTD v. LONGBASE INVESTMENTS LTD

cacv 339/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 339 of 2004

(on appeal from HCA NO. 1121 of 2004)

____________________

BETWEEN

SILVER CARNIVAL LIMITED Plaintiff
and
LONGBASE INVESTMENTS LIMITED Defendant

____________________

Before: Hon Rogers VP, Tang JA and Barma J in Court

Date of Hearing: 2 June 2005

Date of Handing Down Judgment: 14 June 2005

____________________

J U D G M E N T

____________________

Hon Rogers VP:

1. This is an appeal from a judgment of Recorder Leong SC given on 28 October 2004. The matter before the Recorder was an application under Order 14 for summary judgment against the defendant. The relief sought included a declaration that the plaintiff was entitled to the exclusive right and privilege to hold, use, occupy and enjoy the external wall of Nos. 50 and 52 Russell Street (“the Building”) and an injunction to order the defendant to remove the advertising sign for which it was responsible on the external wall. The defendant for its part had applied under Order 14A for determination of a number of questions of law the effect of which, if answered in the defendant’s favour, would be that the defendant’s landlord would have the right to use the external wall.

2. The Recorder came to the conclusion that the defendant’s landlord did have the right to use the external wall under the relevant DMC but that the advertising sign which had been affixed to the external wall by the defendant was in breach of the DMC and therefore had to be removed. Conditional upon the defendant abiding by an injunction to remove that advertising sign it was given leave to defend the action. At the conclusion of the hearing of this appeal, judgment was reserved which we now give.

Background

3. Apparently, in June 1979 the parties who were referred to in the subsequent DMC as the First and Second Owners entered a building agreement with a contractor, who was referred to in the DMC as the Third Owner, to develop the site at Nos. 50 and 52 Russell Street. The agreement of June 1979 includes provisions as to how the various floors of the building were to be allotted once the building was completed. The Third Owner was to own some of the floors. Nothing seems to have been said in the building agreement as to the external walls. However, in the DMC, which was entered into by the First, Second and Third Owners, there is reference to the external wall in at least two of the relevant clauses. The first is clause 11 which provides in 11(c) that none of the parties would cut or damage any of the main walls of the Building. The other provision is clause 19 which reads as follows:

“ 19. There is reserved and to the First Owner and Second Owner their successors and assigns (other than that the Third Owner) at all times hereafter the exclusive right and privilege to hold use occupy and enjoy the external wall of the Building.”

4. For completeness, mention can also be made to Clause 27 of the DMC which reads as follows:

“The grants and covenants herein contained shall be binding on the parties hereto and their respective executors administrators successors in title and assigns and the covenants herein contained and intended shall run with the land or the interest therein both as to the benefit and burden of such covenants and the Law of Property (Enforcement of Covenants) Ordinance Cap. 297. Together with any statutory amendment or modification thereof for the time being in force shall apply to these presents Provided That no part(y) shall be bound thereby after ceasing to own any part or share of and in the said Land and the said Building or any interest therein save and except in respect of any matter arising previously to his ceasing to own such part or share or interest therein.”

5. The DMC sets out the various flats which the Owners would have. There were altogether 204 undivided shares in respect of the Building. It may be noted that the 11th floor included two flats, a flat A and a flat B and the main roof immediately above each flat. There were six shares allotted in respect of each of those floors and the corresponding part of the main roof. It should also be mentioned is that there was no allocation of any shares to the external walls of the Building.

6. Over the years there were a number of assignments of the different flats in the building. The judgment below sets out a chart showing those assignments. The result has been that neither the First Owner nor the Second Owner owns any part of the Building. The only assignment from either the First or Second Owner which specifically identified the external wall was that from the First Owner dated 30 April 1997 by which the First Owner assigned 2 equal undivided shares in the land together with the exclusive right and privilege to hold, use, occupy and enjoy the main roof A of No. 50 Russell Street together with the right to use the external wall and all other rights easements enjoyed by the Vendors in the Building.

7. In short, it is the plaintiff’s case that because the Second Owner never purported to assign the right to use the external wall of the Building, the rights which the Second Owner had under clause 19 of...

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