默許與針對(續)
上回提及答辯人慣常使用「默許」為抗辯理由，那麼在什麼情況下以「默許」為由才有較合理成功抗辯機會或勝訴?
根據LDBM 230/2018 富康花園業主立案法團及CHAN Nga Lai 、YAU Cheong Man經營「榴槤屋」(Durian House)又名「流連屋快餐/小食」的判案書︰
「
1.就有關業主立案法團默許 (acquiesce) 大廈使用者就違反大廈公契的行為，若以這理由要成功抗辯的話，第一，使用者必須展示業主立案法團一方對使用者有作出贊同 (assent) 或視若無睹 (lying by) 的作為；第二，基於該贊同或視若無睹的作為，在所有情況下批准有關濟助會造成不公。可參見Freder Centre (IO) v Gringo Ltd :“25.As to whether the applicant has in fact acquiesced in the respondents' breach, there is no disagreement between counsel on the relevant legal principles. As stated by Thesiger LJ in De Bussche v Alt (1878) 8 Ch D 286 , 314, the defence of acquiescence arises:
If a person having a right, and seeing another person about to commit, or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing that act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the fact.
26.Hence, to succeed in a defence of acquiescence, it must be shown firstly, there was on the part of the plaintiff, an assent or lying by in relation to the acts of another person; and secondly, in view of the assent or lying by and consequent acts it is unjust in all the circumstances to grant the relief in question: see Spry, Equitable Remedies, (9th ed.), p.56.”
」
(原文並無底線)
根據HCA 1582/2007 HOLLYWOOD SHOPPING CENTRE OWNERS COMMITTEE LIMITED and THE INCORPORATED OWNERS OF WING WAH BUILDING MONGKOK KOWLOON的判案書︰
第65段︰
「65. In summary, the position can be stated as follows :
(1) whether or not acquiescence can be set up as a defence to a claim for breach of mutual covenants (whether express or implied by reason of section 34I(2) of the BMO) depends on the nature or type of breach in question;
(2) if the breach of mutual covenants in question is within the power of the incorporated owners to acquiesce, acquiescence can be a valid defence provided all the requisite elements giving rise to acquiescence are established; and
(3) on the other hand, if the breach of mutual covenants in question is beyond the power of the incorporated owners to acquiesce, the defence of acquiescence will not be available since the incorporated owners cannot acquiesce in acts which they in law cannot do.
」
事實上，其實尚有許多判案書對於「默許」也曾經有過有不少討論及著墨，包括「默許」的條件、「默許的」「formulation」等，並非單純答辯人一句”對方「默許」”就可以說的過去。
根據LDBM 230/2018 富康花園業主立案法團及CHAN Nga Lai 、YAU Cheong Man經營「榴槤屋」(Durian House)又名「流連屋快餐/小食」的判案書︰
「
1.就有關業主立案法團默許 (acquiesce) 大廈使用者就違反大廈公契的行為，若以這理由要成功抗辯的話，第一，使用者必須展示業主立案法團一方對使用者有作出贊同 (assent) 或視若無睹 (lying by) 的作為；第二，基於該贊同或視若無睹的作為，在所有情況下批准有關濟助會造成不公。可參見Freder Centre (IO) v Gringo Ltd :“25.As to whether the applicant has in fact acquiesced in the respondents' breach, there is no disagreement between counsel on the relevant legal principles. As stated by Thesiger LJ in De Bussche v Alt (1878) 8 Ch D 286 , 314, the defence of acquiescence arises:
If a person having a right, and seeing another person about to commit, or in the course of committing an act infringing upon that right, stands by in such a manner as really to induce the person committing that act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the fact.
26.Hence, to succeed in a defence of acquiescence, it must be shown firstly, there was on the part of the plaintiff, an assent or lying by in relation to the acts of another person; and secondly, in view of the assent or lying by and consequent acts it is unjust in all the circumstances to grant the relief in question: see Spry, Equitable Remedies, (9th ed.), p.56.”
」
(原文並無底線)
根據HCA 1582/2007 HOLLYWOOD SHOPPING CENTRE OWNERS COMMITTEE LIMITED and THE INCORPORATED OWNERS OF WING WAH BUILDING MONGKOK KOWLOON的判案書︰
第65段︰
「65. In summary, the position can be stated as follows :
(1) whether or not acquiescence can be set up as a defence to a claim for breach of mutual covenants (whether express or implied by reason of section 34I(2) of the BMO) depends on the nature or type of breach in question;
(2) if the breach of mutual covenants in question is within the power of the incorporated owners to acquiesce, acquiescence can be a valid defence provided all the requisite elements giving rise to acquiescence are established; and
(3) on the other hand, if the breach of mutual covenants in question is beyond the power of the incorporated owners to acquiesce, the defence of acquiescence will not be available since the incorporated owners cannot acquiesce in acts which they in law cannot do.
」
事實上，其實尚有許多判案書對於「默許」也曾經有過有不少討論及著墨，包括「默許」的條件、「默許的」「formulation」等，並非單純答辯人一句”對方「默許」”就可以說的過去。