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Wong Bei Nei And Another v Attorney General

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date07 December 1973
Subject MatterMiscellaneous Proceedings
Judgement NumberHCMP199/1973
CourtHigh Court (Hong Kong)
HCMP000199/1973 WONG BEI NEI AND ANOTHER v. ATTORNEY GENERAL

HCMP000199/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO. 199 OF 1973

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IN THE MATTER of K.I.L. No.2657 S.A. as 8 R.P. & S.B., 28-30 Braga Circuit, Kowloon,
And
IN THE MATTER of Conditions of Sale No.3121 in respect of K.I.L. No.2657,
And
IN THE MATTER of Order 15 Rule 4 of the Rules of the Supreme Court

BETWEEN
WONG BEI NEI 1st Plaintiff
WOO FUNG Construction Co Ltd 2nd Plaintiff
And
THE ATTORNEY GENERAL Defendant

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Coram: Trainor, J.

Date of Judgment: 7th December, 1973.

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JUDGMENT

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1. On the 16th November, 1931 a parcel of land of 1,330,000 square feet was sold by auction by the Public Works Department, by order of His Excellency the Governor, subject to certain general Conditions of Sale, and for which land a Crown lease for a term of 75 years was to be executed by the purchaser when called upon so to do by the Land Officer. There were also Special Conditions annexed to the Conditions of Sale of the property including the following:

" 1. The Purchaser, his executors, administrators and permitted assigns shall not, except by way of mortage, assign or underlet or part with the possession or otherwise dispose of the Lot in question or any part thereof or of his interest therein without the consent of His Excellency the Governor unless and until he has formed the whole areas in accordance with Special Condition No.2 and has expended upon the erection of buildings on the Lot the sum required by clause 9 of the general conditions of sale.
Provided that when the whole of the area has been formed in compliance with Special Condition No.2 the Purchaser may, at his option, to be exercised within three months of the completion of such formation, call upon the Director of Public Works to apportion between the Lots shown on the lay out plan in proportion as nearly as may be to their area the liability for expenditure under clause 9 of the general conditions of sale, but in such event the total sum to be expended under that clause shall be $600,000 in lien of $500,000. If such apportionment shall be made then the Purchaser shall be at liberty to sell any lot when the apportioned building covenant has been complied with in respect of such Lot. In the event of such apportionment the right of re-entry reserved by the general conditions of sale shall be deemed to be severable and shall be enforceable upon neglect or failure to comply with the general or Special Conditions of sale in respect of any individual Lot.
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4. The Purchaser shall within six months of the date of the sale supply to the Director of Public Works a general lay out plan showing the positions width and levels of the roads which it is proposed to make, the positions levels and dimensions of the Lots into which it is proposed to divide the Lot and the positions and nature of the buildings which it is proposed to erect and such lay out plan shall be subject to the approval of the Director of Public Works. The whole of the lot shall be developed by the Purchaser to the satisfaction of the Director of Public Works in accordance with an approved lay out plan and no alteration shall be made in the positions width or levels of roads, the positions levels or dimensions of Lots or the positions or nature of the buildings shown on such plan without the consent in writing of the Director of Public Works. No road upon the Lot shall be less than twenty feet wide and every road, other than a cul de sac upon which not more than four Lots abut, shall be not less than twenty five feet wide.
5. The number of houses to be erected on the original Lot shall not be less than 35.
The area of the site and curtilage of each house intended to comprise a separate Lot shall be not less than 8,000 square feet and the Purchaser shall not dispose of any Lot of less area. The Crown Lease of each Lot shall contain a covenant in such form as may be required by the Land Officer for ensuring the continued maintenance of such an area for the Lot.
6. Save as provided herein the Purchaser shall not erect on the Lot any buildings other than detached or semi-detached residential premises of European type or such other buildings of European type as the Director of Public Works may approve of, with garage and all proper outbuildings thereto. Provided that, subject to the provisions of Special Conditions 7 and 8, the Purchaser shall be at liberty to erect flats, with or without shops or self-contained garages on the ground floor, fronting to Argyle Street and Waterloo Road on that part of the Lot hatched red on the sale plan and having a frontage of approximately 350 feet to Argyle Street and approximately 125 feet to Waterloo Road.
Save as herein provided no buildings erected on the Lot shall be used otherwise than as a private dwelling-house without the written consent of the Governor.
7. The design of the exterior elevations plans height and disposition of any buildings to be erected on the Lot shall be subject to the special approval of the Director of Public Works and no building shall be erected on the Lot save in accordance with such approval."

2. By an agreement made the 18th September, 1937 between the Director of Public Works, on behalf of the Government of Hong Kong, and the Purchasers at the auction Special Condition 1 was varied as follows:

"1. Special Condition Number 1 is amended to the effect that the Company will be permitted from time to time and before completion of the building conditions on the whole Lot to alienate such portions of the Lot as may be approved in writing by the Director of Public Works subject in each case to separate building conditions on such portion in which the amount to be expended in building on such portion will be allocated by the said Director (not necessarily in proportion to area) and such portion shall be subject to right of re-entry by the Crown in the event of default in respect of such portion as if such separate conditions and separate allocation had been specified in the said Conditions of Sale. Subject also to right of re-entry by the Crown on such portion in the event of default in respect of such portion in any of the conditions contained in the said Conditions of Sale in so far as such conditions are applicable to such portion but without prejudice to the Crown's right of re-entry on the remainder of the original Lot in the event of failure to expend the sum of six hundred thousand dollars (including sums allocated as aforesaid) on at least thirty-five houses on the original Lot, or on failure in respect of the said remainder to comply with any other condition contained in the said Conditions of Sale and such right of re-entry on the remainder of the original Lot shall be deemed to be severable and will not involve re-entry on such portion."

3. It was also agreed that the Purchaser or its permitted assigns would execute and take up a Crown Lease for each portion when called upon so to do by the Land Officer.

4. The property was subsequently divided into lots and the plaintiffs are now the owners of two which they acquired on the 18th December, 1968 and the 30th April, 1972 respectively. The plaintiffs by a Deed of Exchange dated the 30th November, 1972 merged the two properties for the purposes of development.

5. It might be helpful to review here the history of the two lots from the time of the acquisition of the first by the first plaintiff.

6. The first plaintiff having acquired his lot, (which I shall hereafter refer to as 28 Braga Circuit) wrote to the Superintendent of Crown Lands and Survey on the 30th July, 1971 a letter headed "Re: No.28 Braga Circuit Kadoorie Avenue, Kowloon" asking if the Government was prepared "to permit modification of the term of the Crown Lease for full development of the property and, if so, what are the terms, height and percentage of area allowed". The Department could scarcely be accused of undue haste in replying but they did eventually on the 28th December, 1971. The reply headed "K.I.L.2657 S.A. s.s.8 28 Braga Circuit" states: "..... no modification to permit more intensive development can be offered"; and continues "The owner was advised in 1952 that there is no objection to the erection of flats on the section subject to the height of the building not exceeding 24 feet above Braga Circuit. This ruling still applies".

7. Acting on this letter tentative drawings with respect to 28 Braga Circuit were prepared by the first plaintiff's architects and submitted to the Building Authority on the 28th January, 1972. A reply dated the 4th April, 1972 was received by the architects and reads as follows:

"Dear Sir,

Tentative plans for proposed New Building
28 Braga Circuit
K.I.L.2657 S.A. s.s.8 R.P.
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I refer to your submission of tentative plans received on January 28th. I am sorry for the delay in replying which has come about because of the need for the most careful consideration to be given to the question of restricting development on this lot to 2 storeys with Zone III coverage - a question which has still not been resolved but to which I hope you will have a final answer within a week or two.
2. In the meantime you may wish to note the following points:-
(a) The lot dimensions and site area do not agree with out records.
(b) A clear distance of not less than 20' between the building face and the
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