March 4, 1907
SUPREME COURT.
Monday, February 25th.
IN APPELLATE Jurisdiction.
BEFORE THE FULL Court.
BUILDING ORDINANCE LITIGATION.
Jadgments were delivered in the appeal and cross appeal actions arising out of magisterial decisions under the Public Health and Buildings Ordinance. In the first case the appellant was Fung Chun-un, the respondents being the Building Authority.
Mr. M. W. Slade, instructed by Mr. D. V. Steavenson (of Messrs. Deacon, Looker and De con) appeared for the appellant, and Mr. H.H.J. Gompertz, Attorney-General, instructed by Mr. F. B. L. Bowley, the Crown Solicitor, for the respondents.
The Paisne Jadge in delivering his decision said: This matter came before the Full Court by way of appeal on two cases stated by a Police Magistrate.
The facts are shortly as follows :— On July 18th, 1906, a complaint was preferred
CHINA OVERLAND TRADE REPORT.
141
and that the word “nuisance
Fot in sections In this notion Mr. M. W. Blads, instructed 229 and 230 must not be read as "offence." by Mr. F. P. Hett (of Messrs. Bratton and "'n referring to section 229 sub-section 3 which | Hett) made an ex parte application on behalf of reads: <<
Any building or works whatsoever | the defendants under section 175 of the Com- hereafter commenced, resumed, altered or panies Ordinance for directions for the liquida. completed ia contravention of any of tor.
He stated that the Company was formed the provisions of this Ordinance". Counsel for the purpose of carrying on a newspaper argued that it ought to be read "Any build. business, the paper being known in English as ing or works whatsoever in contravention the China Times. It was the organ of a body of any of the provisions of this Ordinance of Chinese moderate reformers who wished to hereafter commenced, resumed, altered or com- reform China by moderate means. Last year pleted." However when the opening words of the paper published an article in reference to section 292 sub-section 1 are considered, vis. : 'It shall not be lawful to commence
the plaintiff in which it was alleged that the any plaintiff was a scoundrel with partionlar detail. building or works or to repair or reconstruct Referring to his collecting share money for the any existing building or works etc. it appears Kowloon-Canton Railway it warned people not to me that the word "altered in section 229
to have anything to do with a man with a past like his Mr. Slada contended that this was no libel, and that the article which they were prepared to produos in Court, documents in the possession of the defendants WHE based on
The liquidator wished information with regard to the order by which he had been joined as a personal defendant, and with regard to defending the notion brought by the plaintif against employing legal assistance.
66
W
sub-section 3 must be taken to refer to the existing building or works" mentioned in section 6 of section 229 seems to be wide enough section 222 sub-section 1. Then again sub-
to cover everything viz.: Any act, failure, neglect, omission or refusal whereby any pro- vision of this Ordinance is contravened."
I am therefore of opinion that the Magistrate was wrong on this point, certainly on the grounds he gave for his decision. As to the question
no bar in this case. He was fined first of all for having erected these partitions without having previously supplied plans for the approval of the Building Authority. A notice was the duly served on him to abate the nuisance which it is. To hold otherwise, would be to stultify still continues if it is a nuisance, as I have held the Ordinance.
|
|
|
His Lordship, in giving judgment, said: ed from chambers, and the result of the
at the Police Court by the Building Authority of res judicata I am of opinion that the fine is The consideration of this matter was adjourn.
against Fung Chun an under sections 230 and 259 of the Public Health and Building's Ordinance. (1 of 1903) charging him with neglecting to comply with the requirement of a notice dated June 29th, 1906, requiring him to remove certain illegal wrought iron partitions at Nos. 1, 2 4 and 5 Hill Road. On the hearing of the said complaint. on July 31st, 1906, the Magistrate held that the notice was bad because it did not refer to the section of the Ordinance alleged to have been contravened, but he con- vioted Fang Chun-un under Section 222 sub- section 1 of the same Ordinance for having com- menced the building of these partitions without having previously submitted proper plans to the Building Authority and imposed a fine of $100, under section 259 of the Ordinance. No objection
has been raised as to either of these decisions so for the purposes of this appeal they staud.
On October 16th, 1906, another complaint was preferred at the Police Court by the Build. ing Authority against Fung Chun-un under section 230 of the Ordinance for that he did on September 16tb, 1906, neglect to comply with the requirements of a notice dated September 8th, 1906 (duly served on him) requiring him to remove the whole of these partitions which had been erected in contravention of Section 222. For the purposes of this appeal this notice must be taken to be in order. It is admitted that the partitions
were erected without the plans having been previously sub- mitted to the Building Authority and also that subsequently plans were submitted which have been approved. The matter hearing before the Magistrate and on behalf of Fung Chun-un it was confended that in con. sequence of the previous fiue the matter was res judicata. On November 13th, 1906, the Magistrate decided against the ples of res judicata, so that one of the questions before this Court is whether the convicʻion o" July 31st, 1906, is or is not a bar to the complaint of October 16th, 1906. Having decided that point the Magistrate proceeded to consider the case. It was contended on behalf of the Building Authority that the infringement of section
Came 00 for
of the Ordinance by having erected these parti. tions without previous submission of plans was a nuisance within section 929 of the Ordinance. The Magistrate however on November 20th, 1906, decided that a nuisanos under section 229 is restricted to a contravention of the structural requirements of the Ordinance and dismissed the complaint. The other question then for the decision of this Court is whether a contravention of section 222 is a nuisance within the meaning of section 229. Those are the facts as stated in the
cases on which we have to droide the points of law. We found it convenient totake the ecoud point first. It was argued on behalf of Fang Chan-un that the Building Authority had never shown that the plans as subsequently produced were bad, and that therefore he must approve. However, it seems to me that the only fact before us is that he did not approve and that in the absence of anything else wA must infer that he had reasons for not approv. ing. It was also contended that these parti. tions do not interfere with the general structure
Fung Chun-un admits he started with illegality and as the law at present stands he seems to be continuing it. See Attorney General v. Wimbledon Home Estate Co., Ld., 19 4, 2 Ch. D. 34. I therefore consider that on this point the Magistrate was right.
argument in court has been that some points procedure in adding the liquidator as a party to have become clearer. In the first place the
The question before me therefore is not whether the action is erroneous, and the order made and steps taken consequently must be cancelled.
Mr. Lowe, the present liquidator of the defend- atant company may d-fend the notion, but whether company. The company is being wound up he may continue it in the name of the defendant latarily and the liquidator has power to do, without the sanction of the court, what an official liquidator may do with the muction of the court; inter alia, he may carry ou and defond aotions in the name of the company. But he
Mr. Slade With regard to the point of res judicata I was certainly prepared to argue and quote authorities at considerable length, but understanding that your Lordships did not wish to hear me, sat down.
The Chief Justice-I think you argued the point of res judicata.
Mr. Slade I started to argue and you told me you would call on the Attorney-General. When the Attorney-General finished I got up but had not said above three sentences when
your Lordships intimated that you did not
wish to hear me,
The Attorney-General--Mr. Slade did remark to me afterwards that he had been stopped. Mr. Slade I never argued the point. The Paisne Judge—I have no recollection of
this at all
The Chief Justice-There mast not be any misapprehension. I had formed an opinion after some difficulty, and so far as the first point goes I think we can dispose of that and let the question of res judicata be argued again. You won't object to that, Mr. Attorney?
The Attorney General ---I am entirely in your Lordships hands. The Crown Solicitor now informs me it was his impression that the Coart did stop Mr. Slade
The Court then agreed to the second point being argued.
|
|
has applied to the court, under section 175, for directions in this matter, and in view of what is in front of him, if he were to continue I am not surprised. The Court is being applied to to give of course be complied with, an `indeed seoting directions, not advice, and when given they will 175 provides. Let us see how this matter stauda: the plaintiff, having been libelled by the defend. aot company which is the proprietor of a newspaper, brings this action." The defendant justifies and afterwards goes into liquidation: the ausota are so small, about $4,000 or rather more: the damages if the plaintiff sucosoda, are anoceeding there is not the slightest chanos of likely to be heavy. In the case of the plaintiff
his costs. his recovering his damages, and probably not all Without going into details of what took place in obambers, the order I made
03 the summone amounts to an order for security failing security being
under section 572, or given for attach. ment of the funds in the hands, of the iquidator. On reconsidering the matter I think the order was rightly made in the ofream.
It is true that irregular proceeding to wind up this company, which seems to have been ▲ losing concern for a long time, were taken before the action was begun. But regular pro-
With regard to the plans, the Chief Justiceedings for a voluntary liquidation were taken held that although they were absolutely in con formity with the regulations he could not say that the Building Authority was bound (o approve them nunc pro tung. There fore. the works ia question
Laving beeu
commenced without the approval of the plans, he thought it was a contravention of section 222 (1) of the Building Ordinance which by section 239 (3) was declared to be a nuisance. With regard to what was said as to delays in approving plans he thought the remedy was by executive action and not by a deliberate infringement of the law.
In Original JCRISDICTION.
BEFORE SIR Francis Piggott (Chim JUSTICE).
A LIBEL ACTION,
His Lordship delivered his decision on certain points in the case of Yip Yon a The Man U Tong Ld. (in liquidation) and A. R. Lowe, iquidator, to recover $20,000 for alleged libel.
:
|
after it was begun, the result of which was to put the property in the hands of the liquidators, and so was a disposal of it. The intent to delay the execution of any judement that might be given against the company must be saramed from the fact that it will delay the exsoution anle it is attached. The form of the order was that the liquidator do not distribute the funds in his hands. The plaintiff is therefore to a certain extent protected, to the extent of |these funds though, as
manifestly insumcient in the event of his I may, they are obtaining judgment with substantial damages, His position is not a very mtisfactory one, bat it is one which could not be bettered by the Court, for it has no jurisdiction in such matter in the case of a voluntary liquidation. But it is put within the jurisdletion of the Court by the liquidator's application; and I think it is a matter of discretion whether in the internats of justice I showk! allow the liquidator to carry on the defence of justification. I'must therefore look into the proceedings little more closely. I was as fiat miten the impression that the
spor was going to
No comments yet.
Private notes are available after approval.