Case Detail

CACV 279/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 279 OF 2009

(ON APPEAL FROM HCA NO. 1251 OF 2003)

________________________

BETWEEN

	LEE THEATRE REALTY LIMITED	Plaintiff
	and
	TONG WAH JOR（湯華佐）	1^st Defendant
	ALL OCCUPIER(S) OF THE PRIVATE LANE OF LEE THEATRE PLAZA OF NO. 99 PERCIVAL STREET, HONG KONG	2^nd Defendant
	LAM CHIM CHING（林暹貞）	3^rd Defendant
	TONG WAH HEI（湯華喜）	4^th Defendant

________________________

Before : Hon Cheung, Kwan JJA and McWalters J in Court

Date of plaintiff’s written submissions : 16 May 2013

Date of 1st, 3rd and 4th defendants’ written submissions : 16 May 2013

Date of Judgment On Costs : 5 June 2013

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JUDGMENT ON COSTS

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Hon Cheung JA (giving judgment of the Court) :

1. The defendants ask for the costs of the appeal and below.

2. The plaintiff, likewise, asks for the costs of the appeal and below, alternatively 90% of the costs of the appeal and below.

3. In the Court below the plaintiff succeeded in the entirety of its claim in respect of the lane and the defendants failed in their counterclaim on adverse possession.

4. In this Court, although the defendants succeeded in the appeal, it was confined to a very small part of lane, the exact area is based on a concession made by the plaintiff at the closing submission in the Court below. Nonetheless the defendants had to come to this Court in order to overturn the judgment below. It was the successful party. On this basis, we are of the view that the defendants are entitled to 25% of the costs of the appeal.

5. Had the Court below found for the defendants on the same basis as our judgment, the plaintiff would have succeeded substantially there. In our view the plaintiff is entitled to 90% of the costs below.

(Peter Cheung)	(Susan Kwan)	(Ian McWalters)
Justice of Appeal	Justice of Appeal	Judge of the Court of First Instance

Mr Bernard Man, instructed by Woo, Kwan, Lee & Lo, for the Plaintiff

Mr Kenneth C. L. Chan and Mr Billy Ma, instructed by Lily Fenn & Partners, assigned by Director of Legal Aid, for the 1^st, 3^rd and 4^th Defendants

CACV279/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 279 OF 2009

(ON APPEAL FROM HCA No. 1251 OF 2003)

___________________________

BETWEEN

	LEE THEATRE REALTY LIMITED	Plaintiff
	and
	TONG WAH JOR (湯華佐)	1^st Defendant
	ALL OCCURPIER(S) OF THE PRIVATE LANE OF LEE THEATRE PLAZA OF NO. 99 PERCIVAL STREET, HONG KONG	2^nd Defendant
	LAM CHIM CHING (林暹貞)	3^rd Defendant
	TONG WAH WEI (湯華喜)	4^th Defendant

___________________________

Before : Hon Cheung JAin Chambers

Date of Hearing : 25 February 2010

Date of Decision : 2 March 2010

___________________________

D E C I S I O N

___________________________

Stay of execution pending appeal

1. After a five day hearing, Deputy High Court Judge Carlson gave judgment for the plaintiff and ordered, among other things, the defendants to pull down the obstructing structures constructed over an area which encroached on the plaintiff’s property and also on a property to which the plaintiff has a right of way. The defendants lodged an appeal against the judgment and now apply for a stay of execution pending appeal.

Principle

2. The principle is that a successful litigant should not be deprived of the fruit of its judgment and the Court will only grant a stay of the judgment pending appeal if the appellant can show that it has a reasonable prospect of success of the appeal and the appeal will be rendered nugatory if the judgment is not stayed.

The judgment below

3. The defendants’ case is that they have been in adverse possession of the relevant area which extinguished the plaintiff’s title. The relevant area is a lane connecting Matheson Street and Percival Street in Causeway Bay. The Judge found that the relevant area has only been enclosed and in the exclusive possession of the defendants from 1990 onwards which is not sufficient to defeat the plaintiff’s title to its property. He accepted the evidence of two witnesses, the Leung brothers, who gave evidence for the plaintiff on this issue. No issue was taken at the trial by the defendants, who were then legally represented, on the right of the plaintiff to bring the action against them also in respect of the area in which it has a right of way. Mr. Man, counsel for the plaintiff, has referred to Gale on Easements 18^th Ed, paragraphs 1―01, 13―03 and 14―33 which shows that a person who enjoys a right of way is entitled to sue those who disturbed the right of way.

Reasonable prospect of success not shown

4. The Judge decided the case on facts. The Court of Appeal is unlikely to disturb a finding of fact by a trial judge unless the finding was based on a material wrong consideration of the evidence, such as, for example, the finding was made contrary to some material uncontroverted evidence.

5. In support of their application the defendants merely repeat their stand below of their long occupation but they have not shown why the Judge’s acceptance of the evidence of the Leung brothers was wrong.

6. In my view the defendants have not shown that they have a reasonable prospect of success of the appeal. Having failed on the first hurdle, it is not necessary to consider whether the execution of the judgment will render a successful appeal nugatory. In this connection it is noted that the defendants stated that the remaining structure on the area is used for storage and the 4^th defendant only sleeps there from time to time.

Conclusion

7. Accordingly the application is dismissed with costs to the plaintiff.

(Peter Cheung)
Justice of Appeal

Mr Bernard Man, instructed by Messrs Woo Kwan Lee & Lo, for the Plaintiff

1^st Defendant, in person, present

3^rd Defendant, in person, present

4^th Defendant, in person, present

LEE THEATRE REALTY LTD v. TONG WAH JOR AND OTHERS

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