The Incorporated Owners of Kam Tao, Ngan Tao and Hoi Tao Buildings v. Duraprogress Ltd

LDBM 300/2015

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 300 OF 2015

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J U D G M E N T

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Undisputed Facts

1.The applicant (“IO”)  is the Incorporated Owners of Kam Tao Building, Ngan Tao Building and Hoi Tao Building (“the Buildings”).  Mr Leung Chi Chiu (“Leung Senior”) became the registered owner of Shop No. 16 on Ground Floor of the Buildings (“Shop 16”) since 18 June 1974 (B/68-74g).  By a Deed of Rectification, the mistake on the plan attached to the First Assignment (B/74f) was rectified to show that the area of Shop 16 should include the yard at the back of the shop (B/82) (“Yard”).  On 29 August 1986, Leung Senior transferred the ownership of Shop 16 to the respondent of which Leung Senior and his son (“Leung”) are the directors (B/61-67). 

2.The Buildings are subject to the Deed of Mutual Covenant with plans dated 27 December 1973 (“DMC”) (B/85-123).

3.In the Amended Notice of Application filed on 9 March 2016, it is the allegation of the IO that the respondent had acted wrongfully in breach of the DMC by erecting canopies at the external wall on the 1^st floor of the Buildings covering the Yard, thereby trespassing and/or illegally occupying the external wall on the 1^st floor of the Buildings which is a common area of the Buildings.

4.On Exhibit A1, the boundary walls of the Yard are marked as Wall A, B1, B2, C and D respectively in different colours (referred to as “the Walls” collectively).  The Yard is an enclosed open yard with Wall A being the dividing wall between the Yard and Shop 16, Wall C being the dividing wall between the Yard and Shop 28, Wall D being the dividing wall between the Yard and two lavatories and Wall B1/B2 being dividing walls between the Yard and Shop 16A and Shop 27A respectively.

5.There are 3 canopies involved which are named as Canopy I, Canopy II and Canopy III respectively at trial (referred to as the “Canopies” collectively).  Canopy I is one in the shape of a trapezium erected along Wall B2, C and D, ie the canopy depicted on the left of the photograph (B/84).  Canopy II is one of irregular shape erected along Wall A, B1 and D, ie the canopy depicted in the middle of the photograph (B/84).  Canopy III is one of rectangular shape erected along Wall A, ie the canopy depicted on the right of the photograph (B/84).  It is agreed that the Canopies are being erected within the height of the ground floor level.

6.It is admitted by the respondent that Canopy I and II were erected by Leung Senior but maintained that Canopy III was already there at the time of purchase of Shop 16 back in 1974.

7.By a demand letter dated 14 August 2015, the IO through its solicitors had requested the respondent to demolish the Canopies on the external walls on the 1^st floor of the Buildings and to reinstate the wall to its original condition.  Since the respondent had taken no action in answer to the letter, the Notice of Application was filed with this Tribunal on 30 September 2015.

8.In the Notice of Opposition filed on 8 April 2016, the respondent alleged that the Canopies were being fixed at the internal wall of the Yard, at a height within the ground floor level which is privately owned by the respondent and the Canopies are a necessary protective cover for those entering the Yard, including access to the only toilet of Shop 16 as well as to some common facilities of the Buildings.

9.At trial, Mr Chan (“Chan”), the property officer of the management company testified for the IO and Leung testified for the respondent.

10.It is the allegation of the IO that the Canopies were in breach of Clause 4(m)(i) and (ii) or alternatively Clause 10(a)-(c) of the DMC as well as section 34I of the Building Management Ordinance (“BMO”).

Dispute as to the liability of the respondent towards Canopy III

11.I shall deal with the dispute as to the responsibility of the respondent as far as Canopy III is concerned, before I proceed to deal with each and every allegation of the IO.  It is denied by the respondent that it is responsible for the erection of Canopy III but the IO argued that since the Canopy III was built for the sole benefit of the respondent, it must be more likely than not that all 3 are erected by the respondent.

12.I agree with the contention suggested by the IO.  Inference can be drawn that the Canopy III must be constructed by the owner of Shop 16 and the Yard since it only served the said owner and no one else and is for the sole benefit of the owner/occupier of Shop 16 and the Yard.  Shop 16 was assigned to Leung Senior by Kay Chak Development Company Limited (“Kay Chak”) who was the first owner of the Buildings according to the DMC.  It is beyond belief that Kay Chak would erect Canopy III within the Yard which is due to be sold. 

13.And even if Canopy III was already there when Shop 16 was being assigned to Leung Senior, as a successor-in-title, the respondent cannot deny liability as far as the Canopy III is concerned.  The case of The Incorporated Owners of Marina Cove v Chu Kam Tai [2012] 2 HKLRD 107 is directly on the point.  The IO in that case alleged that the respondents, who are the owners of a house in Marina Cove had constructed an iron gate and a low wall with iron fence behind their house at the common part of Marina Cove.  The respondents contended that they did not construct the structures even though evidence showed that the structures only appeared after the respondents became the owners of their house.  The respondents also relied on Discovery Bay Services Management Ltd v Buxhaum [1995] HKDCLR 7 to argue that they could not be liable for breach of covenant that had occurred before they became owners.  Cheung JA found that:

“the Buxhaum case was concerned with the enforcement of a positive covenant. The position here is the enforcement of a negative covenant which runs with the land. It clearly binds the respondents who are the current owners even if they did not build the structures themselves” (§8).

It is clear from the ruling in Marina Cove that for a breach of a negative covenant, the successor-in-title will be liable even if the breach was committed by his/her predecessor.

14.A positive covenant, as defined under Section 41(6) of Conveyancing and Property Ordinance, is “a covenant to expend money, do something or which is otherwise positive in nature”.  A positive covenant was breached when the act covenanted is not done so there is no question of a continuing breach.  A negative covenant is different in the sense that the owner is prohibited from doing something and as long as that something had been done and still in existence, it must be a continuous breach.  The terms of the DMC in this case is to restrict the respondent from altering the appearance of the exterior of the Buildings and not to erect anything to the exterior of the Buildings, this is clearly a negative covenant.  I found the existence of the Canopy III in this case must be a continuing breach of a negative covenant which runs with the land.  Hence, even if Canopy III was not erected at the Yard by Leung Senior or the respondent, they are still liable for any breach caused by it.

Clause 4(m)(i) & (ii) of DMC

15.Clause 4(m) of the DMC reads :

“4. Each owner shall be bound by and shall observe and perform the following covenants provisions and restrictions:-

...

(m) No owner shall without the consent in writing of the Manager do or cause or permit to be done any of the following:

(i) Repaint, redecorate or alter the appearance of the exterior of the said buildings or any part thereof.

(ii) Erect or affix any signboards, signs ... or thing to the exterior of the said buildings or to the common areas within the said buildings or any part thereof or to any exterior wall, door or window of his part of the said buildings.” (B/96)

16.It is not in dispute that the respondent had never obtained the consent of the Manager to erect the Canopies.  The issue is :

a.  whether the Canopies did alter the appearance of the Buildings?

b.  whether the Canopies were erected to the exterior of the Buildings; and

c.  whether the Walls are external walls and formed common area of the Buildings?

17.It is not in dispute that the Yard is an open space surrounded by the Walls without a ceiling.  Chan testified that the Canopies were visible to anyone looking down from the car parks which are on the 2^nd to 6^th floors of the Buildings as well as from the residential flats B and C on the 7^th to 30^th floors of Hoi Tao Building.  He also confirmed that the photograph of the Canopies (B/84) was taken from the car parks.  Leung disagreed and said that the Canopies are only visible if someone made the effort to look out the hinged windows at the back staircases of the 2^nd to 5^th floors of the Buildings.  As to whether the Canopies were visible to any floor above the 6^th floor of the Buildings, Leung frankly admitted he cannot tell.

18.Having considered the evidence of Chan and Leung, I accept the evidence of Chan. Given the layout of the Yard, being situated at the bottom of a building with open air space above it, the Yard must be visible both from the car parks and the residential units at the adjoining building.  Given the fact that the Yard should be of an open space in its original design, the existence of the Canopies at the Yard clearly altered the appearance of the Buildings.  And I do not accept Mr Yu’s submission that the alteration is not prominent.  As the Yard is originally designed as an open air yard, the existence of the Canopies resulted in the whole Yard being covered by it, changing it from an open yard to a covered yard.  This is a total alteration of the condition of the Yard and cannot be said to be an alteration of no significance or not prominent.

19.Ms Chong for the applicant relied on the case of Metro City Management Limited v Tsui Fee Hung Vincent & Anor (CACV 328/2005, unreported, 6 June 2006) to support the contention that the Canopies are erected to the exterior of the Buildings and the Walls are external walls, hence common parts of the Buildings.

20.In Metro City, the defendants who are the owner of a flat on the first floor and the flat roof appertaining thereto, had erected three retractable canopies and one fixed canopy on the exterior of the wall or beam above the window of the flat which if extended, would cover part of the flat roof area of their property. It is agreed that the canopies were being bolted at a level within the height of the defendant owner’s flat and there is no challenge that the canopies even when extended, will only occupy spaces within the volume to which the defendants have the exclusive right to use and occupy by reason of the assignment.  At first instance, adopting the findings in Hong Yip Services Company Ltd v Ngai Wai Man (CACV 159/1988, unreported, 22 March 1989) that “the exterior of the building is ... defined by the boundaries delineated by the external walls and not by any right to use of air space”, Mr Recorder Chan SC found that the canopies erected by the defendants did extend to the exterior of a tower (§25-26).  This finding of the learned Recorder is upheld on appeal.

21.Ms Chong also relied on the judgment of Yuen JA in Metro City on the interpretation as to what are the external walls of the property as follows:

“62. ... the issue is simply whether the walls in question are ‘external walls of the Property’. The Recorder held that they were not because the ‘Property’ comprised the flat and the flat roof as one unit.

63. With respect to the learned Recorder, that is to read the words ‘external walls of the Property’ as if they were ‘the walls marking the boundary of the Property’. Whilst with most flats that may be true, it is not necessarily the case. In my view, all that the words ‘external walls of the Property’ mean are those walls of the Property which are exposed to the outdoors (in contrast to internal walls). Take the example of a house standing in a walled garden. I would be very surprised if it were to be said that the walls of the house facing the garden are not ‘external walls’. They are as exposed to the elements as the walls of the garden itself. Those walls of the house, as well as the walls of the garden, would in my view be external walls of the owner’s property.” (§62-63) (emphasis added)

22.Mr Yu for the respondent submitted that the Walls of the Yard are not common parts of the Buildings since the First Assignment conferred on the respondent exclusive use occupation and enjoyment of the Yard and the DMC did recognise such exclusive right of the owner of the Yard (Clause 3(b) and 4(q) of the DMC refers).  Since access to the Yard can only be made through the shop front of Shop 16 and no other owners of the Buildings can make use of the Walls, this further enhanced the argument that the Walls are not common parts of the Buildings.  It is also the submission of Mr Yu that the Walls of the Yard do not fall within those named in Schedule 1 of the BMO, hence cannot be common parts of the Buildings.

23.Mr Yu also submitted that the Walls are not “exterior of the said Buildings” nor external walls of the Buildings.  Whilst “exterior” is defined as “the outward surface, the outside” in the Oxford English Dictionary, “exterior” must mean outside of a building.  The Walls encloses the Yard area of Shop 16 and they are internal or interior walls to Shop 16 and do not constitute “exterior” or “exterior wall” of the Buildings in the context of Clause 4(m) of the DMC or “external wall” under the BMO.  If the Walls are part of the external wall of the Buildings under the BMO, it would result in the anomalies that the IO would shoulder the responsibility in maintaining the Walls at the expense of all owners and the IO and other owners would have the right to enter Shop 16 to conduct repair or works on the Walls anytime they like or even pass resolution to take down the Walls or convert the Walls to a particular use.

24.Having considered the submissions above, I tend to agree with the contention of the applicant. 

25.To consider what is the exterior of a building, this must be contrasted with what is the interior of the building. For an enclosed unit, the interior must be “the space surrounded by the external walls and the ceiling and the floor slab, with the surfaces of the ceiling the floor and inner surfaces of the walls” (The Incorporated Owners of Mei Foo Sun Chuen Stage VI v Grandyield Knitters Limited, LDBM 110/2011, unreported, 5 April 2012).  Even though the Yard is enclosed by the Walls, unlike a unit enclosed by walls, ceilings and floors slab, the Yard is an open air space with no ceiling and the Yard is exposed to the view of people upstairs.  Without the ceiling, the Yard is effectively exposed to the exterior of the Buildings.  If the contention of the respondent is being accepted, that is to say that had there been a ceiling to the Yard, anywhere above and outside the ceiling is the exterior of the Buildings but if it is an open space without any ceiling, there will be no exterior of the Buildings above the Yard, granting the respondent an unlimited air space above the Yard.  This can never be right.

26.I also agree with Ms Chong that the case of Metro City is directly on the point and with similar facts.  I shall adopt the same reasoning of the learned Recorder that :

“Although the canopies were erected within a space where the Defendants had the exclusive right to use and possess, they had nevertheless extended to the exterior of the Tower. As a matter of logic, there is nothing to prevent a co-owner of a building to be given the exclusive right to use and occupy an exterior part of a building. Thus the mere fact that the canopies are within a space where the Defendants have the exclusive right to use and occupy does not mean that the canopies could not be extending outside the Building” (§26)

and found that the Canopies, being erected on the Walls within the height of the ground floor level but extended to cover the Yard, did extend to the exterior of the Buildings. 

27.Furthermore, it is found by Yuen JA that “all that the words ‘external walls of the Property’ mean are those walls of the Property which are exposed to the outdoors (in contrast to internal walls)” (§63).  Applying this findings to the present case, the Walls are exposed to the outdoors in the sense that people from upstairs can see it and given such special feature of the Yard, the Walls cannot be internal walls of the unit owned by the respondent and must be the external walls of the Buildings.

28.One must also not lose sight of the special feature that the Walls surrounding the Yard is part and parcel of a panel of wall stretching from the ground floor to the roof of the Buildings.  As far as the owners of the residential units above are concerned, such wall must be the external wall or the exterior of the Buildings since it is not within the interior of their unit but rather external to the unit they owned.  I see no room for argument that these walls are interior walls belonging to the owners of the residential units. Since the walls from the 2^nd floor to the roof are the external walls of the Buildings, it would be absurd to think that the Walls from the ground floor to the 2^nd floor of the Buildings are not the external wall of the Buildings.

29.It is not in dispute that the Assignment and the Deed of Rectification have designated parameters of Shop 16 as being for the exclusive use, occupation and enjoyment of the respondent.  The area is coloured pink on the Deed of Rectification (B/81-82) whilst the DMC Plan for the ground floor had shown all common parts on the ground floor being coloured in brown (B/124).  But the Assignment Plan (B/82) is a 2 dimensional plan only without any indication of the surrounding walls nor showing the thickness of the walls so as to tell if the surface of the walls are owned by the owners.  So, the contention by Mr Yu that the pink colour on the assignment plan is on either side of the line is untenable.

30.As for the DMC Plan (B/124), again since the plan is only of two dimensions, a common area like the external walls of the Buildings cannot be shown on it. This is why none of the external walls of the Buildings had been marked in brown on the DMC Plan.  In fact, from the layout of the DMC Plan, it is only giving an indication as to the common area inside the Ground Floor of the Buildings only.  I do not find the DMC Plan can be of any assistance to the respondent as far as the external/exterior walls are concerned.  And Clause 3(b) and 4(q) of the DMC may have recognised the exclusive right of the owner of the Yard, given my findings above, this cannot be construed to include the Walls in question.

31.Given my findings that the Walls are the external walls and the Canopies did extend to the exterior of the Buildings, the erection of the Canopies did alter the appearance of the exterior of the Buildings, and this must be in breach of Clause 4(m)(i) and (ii) of the DMC.

32.Mr Yu, relying on the case of Wing Hong Investment Co Ltd v Fung Sok Han [2016] 1 HKLRD 1, argued that availability of access is an important factor to consider whether it is a common area of the Buildings.  It is not in dispute that the only access to the Yard is through Shop 16.  But it is the findings in Wing Hong Investment that “in case of doubt on the designation of common areas in the assignments and DMCs, the availability of access to them can be an important consideration” (§131).  Given my findings above, I found no doubt whatsoever about the Walls being external walls and common area of the Buildings, I can’t see how the access to the Yard will change the nature of the Walls in this regard. 

33.Even if I am wrong in the findings that the Walls are external walls forming part of the common area of the Buildings, adopting the findings of exterior of the Buildings above, I also find as a fact that the Walls are “exterior wall ... of his part of the said buildings” under the third limb of Clause 4m(ii) of the DMC.  The erection of the Canopies to the Walls which are exterior walls of Shop 16 and the Yard, is clearly an act in breach of Clause 4(m)(ii) in any event.

Section 34I of BMO

34.Section 34I of BMO reads :

“(1) No person may –

(a) Convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners’ committee (if any);

(b) Use or permit to be used the common parts of a building in such a manner as –

(i) Unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the buildings; or

(ii) To cause a nuisance or hazard to any person lawfully in the building.

(2) Any person who contravenes subsections (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building.”

35.Schedule 1 of the BMO stipulated that the external walls of a building are the common parts of a building.  Given the findings above that the Walls where the Canopies erected are the external walls of the Buildings, it formed the common parts of the Buildings.  The erection of the Canopies on the external walls of the Buildings must be in breach of section 34I of the BMO.

Clause 10(a) of DMC

36.Given my findings on Clause 4 of the DMC and s.34I of BMO above, it should be sufficient to dispose of the whole case.  But in case I’m wrong in my findings above, I shall proceed to deal with the alternative position of the IO under Clause 10 of the DMC.

37.Clause 10 of the DMC reads :

“10. Each party hereto hereby covenants with the others as follows :

(a) Not to make any structural alterations in his part of the said buildings which may damage the other parts thereof or cause any inconvenience to the other occupiers ... and not to cut or injure the cement concrete flooring, columns, beams or girders of the said buildings or do anything whereby the structural strength thereof may be affected.

(b) Not to do anything whereby any insurance of the said buildings or any part thereof against fire may be rendered void or voidable or whereby the premium for any such insurance may be liable to be increased ...

(c) Not to use his part of the said buildings for any illegal or immoral purposes nor do or permit anything therein or thereupon which may create unnecessary noise or may be a nuisance or annoyance to or may cause damage or inconvenience to the other occupiers of the said buildings.” (B/101-102)

38.It is the IO’s contention that should this court find that the Walls are owned by the respondent, Clause 10 (a) of the DMC will be applicable and the existence of the Canopies did affect the visual aspect of the Yard and this amount to structural alterations.  Since the Canopies were being affixed onto the Walls by drilling or nailing into the Walls, there must be damage of the Walls which are “other parts” of the Buildings.  Even if the respondent is the owner of the surface of the Walls, the Walls would still form part of the Buildings and the respondent are not entitled to damage the same.  And since the management office did receive complaints of smell emanating from the rubbish gathered on the Canopies from car owners who parked their cars on the 2^nd floor of the Buildings, this amount to “inconvenience to the other occupiers”. Hence, the erection of the Canopies by the respondent must be in breach of Clause 10(a) of the DMC.

39.The respondent argued that the Canopies are erected inside the Yard area so does not affect the visual aspect of the Buildings as a whole.  There is no evidence to suggest that the Walls are structural walls or how and whether the weight of the Canopies did adversely affect the form or structure of the Buildings. Given the fact that all the Walls are internal partition walls and it is Leung’s evidence that they are not structural walls, it cannot be said that they are an integral part of the Buildings so the erection of the Canopies did not amount to structural alteration as prohibited by clause 10(a) of the DMC.

40.It is found in Incorporated Owners of Elite Garden v Profit More Co Ltd [2002] 2 HKLRD 518 that “alteration” is “something which altered the form or structure of a building” and the “form” of a building “concerned its appearance or visual aspect. ... the addition of the word ‘structural’ did not fundamentally change this meaning ... nor its context, required some special technical meaning to be ascribed to the word ‘structural’, which should be given its natural and ordinary meaning” (at page 518-519).

41.Applying such findings, the argument by the respondent as to how the form or structure of the Buildings had been affected or whether the Walls are structural or integral part of the Buildings is irrelevant.  The Walls bounding the Yard must be a framework or structure of the Buildings and the erection of the Canopies on the Walls undoubtedly pertains to the framework or structure of the Buildings.  And since it is my findings that the Yard is visible both from the car parks and the residential units at the adjoining building, the erection of the Canopies on the Walls of the Yard must affect the visual aspect of that part of the Buildings.

42.I found the respondent had made structural alterations in his part of the Buildings. But to constitute a breach of Clause 10(a), the applicant must prove that such structural alterations may damage the other parts of the Buildings or cause any inconvenience to other occupiers.

43.It is the contention of the applicant that erection of the Canopies involved drilling or nailing into the Walls and this amounts to damage of the Walls which are “other parts” of the Buildings.  But the allegation under Clause 10(a) of the DMC is “structural alterations in his part of the said buildings which may damage the other parts thereof”.  If the applicant alleged that the Canopies were erected on the Walls, which is “his part of the said buildings”, I cannot see how the Walls can be considered other parts of the Buildings at the same time.  The second limb in Clause 10(a) about damage to other parts of the Buildings is apparently unsubstantiated.

44.As for the inconvenience caused to other occupiers, the applicant is relying on the complaints of smell emanating from the Yard by car owners who are using the car parks on the 2^nd floor of the Buildings.  It is the evidence of Chan that the management staff did receive complaints of this from time to time but no record was made since the notebook for recording complaints only concerned water leakage from air-conditioners, daily maintenance or public hygiene and the complaint of smell did not fall within such categories.  Upon receipt of the complaint, the security officer will inform the person in charge of Shop 16 of the same.  Leung denied ever been informed of such complaints since he had been working at Shop 16 everyday.  As for the trash and rubbish gathered on the Canopies, Leung said that he would arrange for such to be cleaned up once every one or two months.

45.I do not accept the evidence of Chan that there were complaints of the smell from the Canopies.  If such complaints were in fact lodged time and again, one would wonder why the IO had done nothing, not even a letter to Shop 16 about it.  And I found Chan’s explanation as to the absence of written record is also unconvincing.  The notebook mentioned by Chan covered the complaint of public hygiene which should include the complaint of littering or odour from the Canopies.  It would be unreasonable for the staff of the management office not to record such complaint on the said notebook.  I do not accept that any inconvenience or disturbance of the peace of mind had been caused to other occupiers as a result of the existence of the Canopies.  Furthermore, the fact that the respondent would arrange for the cleaning of the rubbish on the Canopies is also not denied by the IO.  The photograph of the Canopies (B/84) may show trash and rubbish on the Canopies on the day the photograph was being taken, this would not rebut the fact that regular cleaning of the same had in fact been arranged by the respondent.

46.The breach alleged under Clause 10(a) of the DMC is unfounded.

Clause 10(b) of DMC

47.The IO relied on the oral evidence of Chan that the insurance company had told him over the phone that there would not be any compensation for loss from accidents involving things not in the building plans of the Buildings to support the contention that the Canopies erected were in breach of Clause 10(b) of the DMC.

48.Again, I do not accept the evidence of Chan in this regard.  Had it been the stance of the insurance company as suggested by Chan, why would the IO not ask the insurance company to put this into record for the purpose of this litigation. In any event, what the insurance company said is about coverage of the insurance policy but not about the insurance policy of the Buildings having been rendered void or voidable.  And it is also not clear as to whether the insurance company is referring to the Canopies in question.   I do not accept that the erection of the Canopies will render the insurance of the Buildings void or voidable.

49.The breach alleged under Clause 10(b) of the DMC is unfounded.

Clause 10(c) of DMC

50.The IO also relied on the complaints about the trash and debris accumulated on the Canopies to support this allegation.

51.As stated above, I found the allegation of the complaints is not substantiated by evidence so the breach under clause 10(c) must also fail.

Conclusion

52.The Walls are external/exterior walls of the Buildings.  The erection of the Canopies on the Walls are affixed to the exterior of the Buildings and did alter the appearance of the exterior of the Buildings, hence in breach of Clause 4(m)(i) & (ii) of the DMC and section 34I of BMO.

Injunctive Relief or Damages?

53.The respondent objects to the grant of an injunction and argued that the present case is a suitable case for damages to be awarded in lieu of injunction.  Mr Yu argued that :

a.   the interference of the IO’s right is trivial and the injury to the IO’s right is small;

b.   there is no evidence of any damages suffered by the IO;

c.   since the injury is small, the IO could be compensated by a small payment of damages; and

d.   injunctive relief will result in oppression and hardship to the respondent.

54.The IO has a duty to enforce the terms of the DMC and to ensure strict compliance with it.  The extent of the interference of the IO’s right or the injury suffered by the IO is not a consideration as to whether it is just and equitable to grant an injunctive relief, but rather, such injury or interference should be weighed against any hardship caused to the respondent.  Since the respondent failed to prove any hardship or oppression, I do not find it unjust and inequitable to grant an injunctive relief.  Given the fact that the respondent had failed to respond to the written request from the IO to demolish the Canopies, I am satisfied that without an injunction, it would not be able to ensure a compliance of the DMC by the respondent.

Order

55.It is ordered that :

1)  Mandatory injunction for the respondent to demolish and remove the Canopies from the Walls at the Yard at its own costs and expenses within 1 month of this order and to reinstate the Walls to its original condition;

2)  Prohibitory injunction to restrain the respondent, whether by itself or by its servants, tenants, licensees and agents whosoever from installing or erecting any canopy on the Walls of the Yard;

3)  Penal notice to be endorsed;

4)  Personal service of this order be dispensed with; and

5)  Costs order nisi that half of the costs of this application be to the applicant, to be taxed if not agreed at District Court scale with certificate for counsel. Unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.

Ms Chong Fok Ching Fiona, instructed by Cheung & Yip, for the applicant

Mr Yu Chi Hang Tim, instructed by Tang, Wong & Chow, for the respondent