The Incorporated Owners of Yue Sun Mansion v. Lake Side Elderly Centre Limited
Read the full judgment text of LDBM 26/2015 on BabelCite. This Lands Tribunal judgment was delivered on 9 December 2016.
1. The applicant in LDBM 26/2015 and the respondent in LDBM 32/2015 is the Incorporated Owners (“IO”) of Yue Sun Mansion (“the Building”). The respondent in LDBM 26/2015 (“Lake Side”) is the occupier of Shop C on Ground Floor and whole of First Floor of the Building (“the Premises”).
Cited by 1 case · Cites 8 cases
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LDBM 26/2015 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 26 OF 2015 _________________
_________________ LDBM 32/2015 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 32 OF 2015 _________________
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_________________ J U D G M E N T _________________ Background 1.The applicant in LDBM 26/2015 and the respondent in LDBM 32/2015 is the Incorporated Owners (“IO”) of Yue Sun Mansion (“the Building”). The respondent in LDBM 26/2015 (“Lake Side”) is the occupier of Shop C on Ground Floor and whole of First Floor of the Building (“the Premises”). 2.The applicant in LDBM 32/2015 (“Tong”) is one of the directors and shareholders of Lake Side and the tenant of the Premises. 3.On 5 February 2015, the IO issued the proceedings in LDBM 26/2015 and according to the Re-Amended Notice of Application, the IO is seeking for an injunction to restrain Lake Side from operating the elderly home at the Premises on the ground that such use was in breach of the Occupation Permit (“OP”), the Government Lease (“Government Lease”) as well as the Deed of Mutual Covenant (“DMC”) of the Building. 4.On 12 February 2015, Tong filed the Notice of Application in LDBM 32/2015 in the capacity as the tenant of the Premises and she rented the Premises to operate a residential care home for the elderly under the trade name of Lake Side. It is alleged that the IO had unreasonably interfered with the use and enjoyment by her of the lift inside the Building in breach of section 34I(1)(b) of the Building Management Ordinance (“BMO”) and seeking an order for the IO to reconnect or restore the lift access from G/F to 1/F of the Building. 5.In the Notice of Opposition filed for LDBM 26/2015 on 6 November 2015, Tong on behalf of Lake Side denied that the Premises had ever been used for the operation of an elderly home and raised the defence that :
6.On 5 March 2015, the IO filed the Notice of Opposition in LDBM 32/2015 denying that Tong is entitled to any relief because no lift service had been provided from G/F to 1/F since the occupation of the Building and the current registered owner and/or its predecessors had enclosed the lift lobby of the 1/F by a brick wall. The IO also relied on the defence of unauthorised change of the permitted use by Tong in breach of the DMC and the OP. 7.At the trial of LDBM 32/2015 on 8 June 2015, this court was informed of the fact that LDBM 26/2015 was being dealt with by another court in the Lands Tribunal. At that juncture, LDBM 26/2015 was still in the process of mediation. In a written ruling dated 11 June 2015, this Tribunal is of the view that the parties in LDBM 26/2015 will be affected by the ruling in LDBM 32/2015 on the common issue on breach of OP and DMC so LDBM 32/2015 was then stayed pending conclusion of mediation for LDBM 26/2015. By the order dated 11 September 2015, it is directed that the 2 cases to be heard together before this court. 8.Even though directions were being made for a joint statement of issues in dispute to be filed 2 days before trial, the parties failed to do so. At trial, Mr Chong for Tong and Lake Side confirmed that the list of issues prepared by Mr Leung for the IO is accepted. Having heard the evidence and submissions at this trial, I find the issues to be determined in the 2 cases are :
Undisputed Facts 9.According to the OP of the Building, the Building is a composite building with 8 shops on the Ground Floor for non-domestic use, office on the 1st Floor for non-domestic use and 10 tenements per floor on 2nd to 14th floor for domestic use (B1/164). 10.There are 3 lifts, namely Lift No. 1, Lift No. 2 and Lift No. 3 (collectively the “Lifts”) in the Building, each serving different floors but without access to 1/F. The Lifts constitute a part of the common area as defined under section 2 and Schedule 1 of BMO. The lift opening in the lobby of 1/F of the Building (“Lift Opening”) is sealed up by a brick wall. 11.There are 2 sets of rear staircase at the Building, one to be accessed from the backyard of the Building and the other from the lobby of the Building (“Rear Staircases”) (photo at B1/66 & 71-72). There is another internal staircase within the Premises which runs from Shop C on Ground Floor to the 1st Floor of the Building (“Internal Staircase”) (photo at B1/61-62). So access to the 1/F of the Building can be via the Internal Staircase or the Rear Staircases. 12.The Building is subject to the terms of the DMC dated 19 October 1964 (B1/200-215). And the IO was incorporated on 4 April 1975 (B1/162). On 11 June 2010, Silverlite Company Limited (“Silverlite”) became the owner of the Premises. 13.By a tenancy agreement dated 11 November 2014 between Silverlite and Tong (B2/1-31), the Premises was leased to Tong for a period of 3 years from 15 November 2014 to 14 November 2017. Upon discovery of the situation of the Lift Opening, Lake Side requested the IO and the management company (“Alico”) on 20 November 2014 (A1/108) to reconnect the Lifts from G/F to 1/F but this was refused by the IO. 14.On receipt of the written request from Lake Side which disclosed the use of the Premises as an RCHE and the pending application by Tong to the Buildings Department (“BD”) for the change of use, the IO raised objection to such application with the BD and Social Welfare Department (“SWD”) (A1/136-140). Letter was also sent to Silverlite and Lake Side raising the issue that such use was in breach of the OP, the Government Lease and the DMC (A1/131-134). 15.On 1 December 2014, the BD stated in the reply letter to Lake Side (A1/145-146) that there is no in-principle objection to the proposed change in use of the Premises subject to no objection from the Fire Services Department (“FSD”). 16.Lake Side denied any breach by a reply letter dated 7 January 2015 from their solicitors (A1/142-143) and also alleged that the IO had deprived its right to use the Lifts in contravention of the DMC and BMO. Legal proceedings then ensued. 17.On 24 July 2015, staff from the SWD and the FSD showed up at the Building for inspection and on 4 August 2015, staff of the SWD confirmed that they entered the Building in exercise of their duty under the Residential Care Homes (Persons with Disabilities) Regulations (“RCHD Regulations”). The IO sought assistance from a District Councillor who wrote a letter dated 6 August 2015 to the SWD asking as to the purpose of the visit on 24 July 2015 (A1/116-117). In the reply letter dated 5 November 2015 (A1/119-120), the SWD confirmed that the department had received a licence application for the establishment of a RCHD at the Premises and the inspection is part of the assessment process for the licence application. 18.According to the Business Registration Certificates of Lake Side (“BR Certificate”) for 31 October 2014 to 30 October 2015 and 31 October 2015 to 30 October 2016, the nature of business at the Premises is for “Elderly Home” in the name of Lake Side Elderly Centre (A1/113-114). The renovation of the Premises was completed on 13 February 2015 but as of the day of the trial, Lake Side had not yet been in business. Intended Use? 19.As far as the intended use is concerned, the following is a summary of the case and/or evidence on the part of Lake Side and/or Tong:
Discussion 20.As appeared from the summary of Tong’s evidence above, there has been a change of mind on the part of Tong as to the intended use of the Premises, from a RCHE to a RCHD. Irrespective of the name to be accorded to the business, it is the nature of the business that matters and it is Tong’s evidence that the service provided for both is basically a treatment and care centre with medical treatments provided and given the nature of the treatment, the inmates have to reside at the Premises. 21.Mr Chong submitted that this Tribunal should adopt the concept of dominant or primary user laid down in the case of Mexx Consolidated (Far East) Ltd v A.G. [1987] HKLR 1210as the yardstick in considering the nature of the use. The primary user intended by Lake Side is for the inmate to receive the medical treatment and care. The fact that the inmates need to reside at the Premises is an ancillary use as it would be practically impossible for them to receive such medical treatment at their home. This is in line with the legislative intent of enacting the RCHE Ordinance. The IO’s stance that since someone would ‘live’ at the Premises would, per se, render the use ‘domestic’ is alarming and utterly ignored the concept of dominant and primary user of land. 22.Mr Leung submitted that the true business nature of the so-called “treatment and care centre” is that of a “residential care home for persons with disabilities”. The intention on the part of Tong to operate a “residential care home” is born out from the pleadings, the BR Certificates, Tong’s evidence and correspondence between Tong and Silverlight. The actual intended use of the Premises is for accommodation and the change of mind to RCHD by Tong is purely tactical to facilitate her case and to get around the restrictions imposed by the OP. 23.On the question of what is the intended use to be adopted at the Premises, there is evidence that comes from Tong and the application to the SWD for the relevant licence. According to Tong, she is minded to run a “care-and-attention home” under the RCHE Ordinance initially but had changed her mind to a “high care level home” under the RCHD Regulations instead. This is supported by the evidence from the SWD concerning the application for licence to run the different establishment. I accept the evidence of Tong in this regard. But since the IO’s application is based on the intended use of a “care-and-attention home” under the RCHE Ordinance, this Tribunal is still required to deal with such intended use even though there is a change of mind already. 24.A “care-and-attention home” is defined as “an establishment providing residential care, supervision and guidance for persons who have attained the age of 60 years and who are generally weak in health and are suffering from a functional disability to the extent that they require personal care and attention in the course of daily living activities but do not require a high degree of professional medical or nursing care” (A2/183). A “high care level home” is defined as “an establishment providing residential care for Persons with Disabilities who are generally weak in health and lack basic self-care skill to the extent that they require personal care, attention and assistance in the course of daily living activities but not require a high degree of professional medical or nursing care”. 25.According to the definition of these establishments in the relevant legal provisions quoted above, the service provided by both kinds of establishments are similar, ie to provide residential home to the elderly or persons with disabilities (“PWDs”) who are weak in health and require personal care and attention in their daily life but not high degree medical care. So providing a residential home to the elderly or to the PWDs is the main theme of a RCHE or RCHD but since the intended inmates are generally weak in health, some special care is to be provided during their stay therein. Such a finding echo with the intention of the legislation in enacting the 2 ordinances. 26.The long title of the RCHD Ordinance revealed that the intention of the ordinance is to “regulate the residential care home for persons with disabilities by a licensing system”. Section 2 of the RCHD Ordinance defined “residential care home for PWDs” as “any premises at which more than 5 PWDs, who have attained the age of 6 years, are habitually received for the purpose of residential accommodation with the provision of care” (emphasis added). The same applies to the RCHE Ordinance which is enacted to “regulate homes established for the residential care of persons who had attained the age of 60 years” (emphasis added). From these statutory provisions, it is beyond doubt that the establishments to be applicable under the 2 ordinances are in the nature of providing residential accommodation which is the main purpose for the establishments and not the provision of medical treatment and care which is only ancillary to the residential element. The argument by Lake Side or Tong that the RCHE and the RCHD are for treatment purpose and in order for such treatment to be performed, the PWDs are required to reside at the care home is putting the cart before the horse. 27.In fact, this primary use argument had been advanced before Deputy High Court Judge Muttrie in Winland Finance Limited v Profit Fine Ltd and others (unrep., HCA 1045/2005, 10 January 2006). The argument in Winland Finance Ltd that the primary use of the premises as an old people’s home is in fact a nursing home, with the provisions of food and accommodation being incidental thereto is rejected and DHCJ Muttrie found that :
28.The finding quoted above is also applicable in this case and I shall adopt the same. Mr Chong had tried to persuade this court that Winland Finance Ltd has no binding effect by submitting that the case is an interlocutory decision on the plaintiff’s application for summary judgment without any trial on the merits when evidence put forward by the parties in the affirmations had never been put to test. The issue on primary use is one that turns on legal argument only without any factual dispute. I fail to see how a testing of the evidence after trial would make any difference. In any event, even if the judgment is not binding, it will definitely have persuasive effect on inferior courts. 29.Adopting the dominant/primary user purpose suggested by Mr Chong, I found as a fact that be it a RCHE or a RCHD, the dominant/primary use of the Premises is for the service of providing a residential home setting whilst the provision of care and treatment is just ancillary to it. Breach of the OP 30.It is the contention of the IO that, be it RCHE, treatment and care centre or RCHD, all these use involved providing residential care and accommodation to the inmates and this can never be non-domestic use nor can it satisfy the definition of “office” or “shop” required under the OP. Such permitted use and restrictions on usage as stated in the OP are to be complied with and are not there for “descriptive purposes” only: see IO of Wing Ming Industrial Centre v Mantex Supplies Co Ltd. (unrep., HCA 1505/2007, 3 October 2007). And RCHD and RCHE are similar to an old age home which was held to fall within the definition of a “boarding house” and regarded as “domestic” in Aberdeen Shopping Plaza Ltd v The IO of Aberdeen Ka Ning Mansion, (unrep., HCA 9319/2000, 13 May 2003). 31.Mr Chong submitted that since Tong and Lake Side are in the course of applying for a change of use with the BD which had already indicated a “no in-principle objection” subject to compliance with provisions of the licence to be issued, and Lake Side will only commence business at the Premises after the issuance of the licence under the relevant regulations, by the time the licence is being issued, all preconditions would have been complied with so there will not be a breach of the OP. Furthermore, the IO is relying on the covenant in the DMC against ‘illegal’ use of the Premises but in the case of Wing Hong Investment Co. Ltd v Fung Sok Han & Ors [2016] 1 HKLRD 1, it is held that change of use specified in the OP does not constitute ‘illegality’. 32.The OP only permits the Premises to be used for “non-domestic” purpose. Section 2 of the Building Ordinance provided for the definition of “domestic” and “non-dometic”. “Domestic” means a part that is constructed or intended for habitation whilst “non-domestic” means a part that is constructed or intended for use otherwise than for habitation. “Habitation” is also defined in section 2 to include use of it for hotel, guest-house, boarding house, hostel, dormitory or similar accommodation. The differentiation between “domestic” and “non-domestic” use is on the element of habitation or residential accommodation. Given the findings of this court above that both RCHE and RCHD are providing accommodation or habitation to the inmates with care service ancillary to it, this can never be considered a non-domestic use. 33.I also agree with the findings in the case of Aberdeen Shopping Plaza Limited that “by its natural and ordinary meaning, the Old Age Home is a boarding house albeit restricted to elderly persons. The fact that there is an age restriction does not take it out of the normal ordinary definition of a ‘boarding house’” (at page 11). The RCHE and RCHD in this case is analogous to the Old Age Home in Aberdeen Shopping Plaza Limited which is also providing accommodation and food to the inmates and comes within the meaning of a boarding house which is a non-domestic use expressly prohibited by the OP. 34.What’s more, the OP in this case had stipulated that the G/F of the Building should be for “shops” for non-domestic use and the 1/F should be for “office” for non-domestic use. With the use of the Premises as RCHE or RCHD, this cannot be considered an office or shop use. Mr Leung for the IO had adopted the definition in the Town Planning Board (Definition of Terms), I agree. In the Town Planning Board (Definition of Terms), office means “any premises used as a place of business and for conducting clerical, administrative, documenting and other business or industrial related work” whilst shops are defined as “any premises where goods are sold or where services are provided to visiting members of the public”. The nature of running a RCHE or a RCHD is in no way falls within such definition and hence not in line with the requirement under the OP. 35.I found the intended use by Tong and Lake Side is not in line with the use stipulated in the OP, hence amounts to a breach of the OP. I also agree with the IO’s contention that the permitted use and restriction on usages as stated in the OP are to be complied with and are not there for descriptive purposes only. However, the crux of the matter is whether the breach of the OP amounts to a breach of the DMC. I shall deal with this below. The fact that the Premises had not been put to use and may be able to obtain the approval for change of use is neither here nor there since this court is considering whether the intended use is in breach of the OP and not when Tong or Lake Side obtained the approval. Breach of the Government Lease 36.The IO relied on the following terms of the Government Lease :
and argue that the operation of a RCHE or RCHD falls within the definition of “tavern keeper” since a tavern means “an inn or public house” according to the Oxford Dictionary of English. A tavern is similar to an inn which charges lodgers in return for the provision of accommodation services. And the common feature of tavern, inn, small hotel, guesthouse, boarding house and/or lodging house is that the primary purpose of them is to provide accommodation and for a “domestic” purpose. 37.Mr Chong submitted that the allegation of breach of Government Lease for intended use of the Premises as “tavern keeper” is ill founded since the Government Lease issued, apart from specifying its size, was unrestricted as to user. And “tavern keeper” denotes the sale of liquor for consumption on the premises and applying the ejusdem generis rule of construction, the phrase “noisy, noisome or offensive trade or business” must be construed as similar business to “tavern keeper”. Given the fact that no use has ever commenced at the Premises, the allegation of breach of the Government Lease can never been sustained. 38.I do not agree with Mr Chong that the Government Lease was unrestricted as to user. The part of the Government Lease cited by the IO is clearly imposing a restriction on the use by requiring the owners not to use the land for certain business including a tavern keeper. 39.Mr Chong had relied on the case of Borazio v Melbourne City Council (2010) 181 LGERA 341 in support of the definition of “tavern keeper”. But the definition of “tavern” found in Borazio was a definition defined in the Melbourne Planning Scheme. Such a finding is apparently unique to the factual background of the case and cannot be adopted across the board. I agree with Mr Leung that one should look for the definition in the dictionary instead. 40.According to the Shorter Oxford English Dictionary, a tavern means “an inn or public house”. An inn is “a dwelling place, an abode, a lodging, a house” or “a public house providing accommodation, refreshments, etc., for payment, esp for travellers” according to the Dictionary. So a tavern is similar to an inn which is closely associated with and usually grouped together with hotel, boarding house, apartment house and lodging house which charges lodgers in return for the provision of accommodation services and meals, in a gist providing accommodation and residential services. This must be for domestic purpose. The RCHE or RCHD intended to be run by Lake Side and Tong must fall within the definition of “tavern keeper” which is specifically prohibited in the Government Lease, hence in breach of the same. 41.Again, since this court is dealing with whether the intended use is in breach of the Government Lease, the fact that the Premises had not yet put into use is neither nor there. Breach of the DMC 42.Clause 10(c) of the DMC reads :
43.The IO alleged that the intended use of the Premises by Tong and Lake Side amounts to an illegal use since such use is in breach of the OP and the Government Lease and such use cannot be a “proper and lawful” use of the Premises. The “no in-principle objection” obtained from the BD is unable to rectify or remedy such breach and the BD had made it clear that the letter should not be construed as an acceptance of any building works not shown on the approved plans of the Building. In the absence of a formal approval of the change of use, Lake Side is clearly in violation of the OP and hence the DMC. The judgment of Wing Hong Investment Co Ltd is distinguishable which involved different factual circumstances with the change of use remains non-domestic at all times and the findings by L. Chan J is just obiter. 44.Moreover, the IO also contends that the use of the Lifts in the course of its business for the intended use will become a nuisance or annoyance to other occupiers of the Building in breach of Clause 10(c). 45.Mr Chong submitted that there is no specific provision in the DMC of the Building that required a compliance with the OP so any use in variance with the OP is not a breach of the DMC. And since the Premises had not been put into use, there is no evidence to show how the intended use is likely to become a nuisance or annoyance to other occupiers of the Building. 46.The IO is relying on the limb of “illegal purpose” and “nuisance or annoyance” in Clause 10(c) of the DMC to substantiate a breach of the same. 47.For the “illegal purpose” limb, the IO is alleging a breach of the OP and the Government Lease in support. 48.It is not in dispute that there is no provision in the DMC which required a compliance of the OP. The IO is only relying on Clause 10(c) based on the use for “illegal purpose”. I agree with the finding of L. Chan J in the case of Wing Hong Investment Co Ltd that any use contrary to the user stated in the OP is not illegal. Wing Hong Investment Co Ltd involved a change of use from a carport to shops and godowns which is contrary to the use stated in the OP. The defendant IO alleged that such a change of use is in breach of the DMC which is in similar wordings in this case, ie prohibits the owners to use their properties for any illegal purpose. L. Chan J found at §§234-237 that :
49.I do not agree with Mr Leung that the case of Wing Hong Investment Co Ltd can be distinguished just because the change of use is still a non-domestic use. This is never the reason behind the findings of L. Chan J. Nor do I accept that such a finding is obiter of the judgment. Even if it is obiter, it still has persuasive authority over this Tribunal. 50.I find the breach of OP is not illegal, hence not a breach of the Clause 10(c) of the DMC. 51.The breach of the Government Lease is another matter. Section 4(25) of the Summary Offences Ordinance Cap. 228 reads :
52.So a breach of the Government Lease is against the law which attracts criminal liability and illegal. The use of the Premises as a RCHE or RCHD is in breach of the Government Lease which is illegal and in breach of Clause 10(c) of the DMC. 53.As far as the “nuisance or annoyance” limb is concerned, terms of the DMC is to prohibit any use “which may be or become a nuisance or annoyance to the other party or other occupiers” (emphasis added) so the term is being framed to prevent any possible nuisance or annoyance likely to be caused and not only for nuisance or annoyance already caused. Under such circumstances, if the use by Tong or Lake Side may be or become a nuisance or annoyance to other party, it would be in breach of the DMC. 54.In the Notice of Application, the IO is alleging that “given a very small lift lobby and a very narrow main entrance of the Building, the foreseeable use of an unexpected number of wheelchairs by elderly residents of the Premises would add further nuisance and annoyance to the owners and occupants of the Building” (A1/54). 55.It is also the undisputed evidence of Madam Tse, the chairlady of the IO that the followings are the reasons in support of the likely nuisance or annoyance caused to the other occupiers:
56.I also agree with the submissions of Mr Leung that even though Tong had stated that only 15% of the inmates of the RCHE would be using wheelchairs, this is just a bare assertion. It would not be possible and improbable for Tong to confine the inmates using wheelchairs to only 10 numbers since she is running a business. And since the intended use is no longer for a RCHE but a RCHD instead, one can reasonably foresee that the number of PWDs using wheelchairs will not be just 15% of the inmates. 57.I found the use of the Premises as a RCHE or a RCHD is likely to cause nuisance or annoyance to other occupiers of the Building. 58.It is also argued by Mr Chong that since the Premises had never been put into use so there is no breach to remedy or to injunct. I do not agree that the Premises had not been put into use. The fact that the Premises had not yet received any inmates does not mean that it had not been put into use. The Premises is ready for the intended use as a RCHE or a RCHD is crystal clear. It is all evidenced from the completion of the decoration of the Premises (as revealed by Tong), the application for the change of use, application to the SWD, the BR Certificate and the correspondence between the parties. Tong and Lake Side is adamant to put the Premises into such use once the licence is approved. 59.As held by Madam Justice Mimmie Chan in David Chien v Francis Cheung & Ors (unrep., HCMP 2892/2012, 7 June 2013),
60.The principles governing the grant of quia timet (literally since he fears) injunction has been succinctly set out by the Court of Appeal in the decision of Billion Star Development Ltd v Wong Tak Chuen [2013] 2 HKLRD 714 per Fok JA (as he then was):
61.From the findings at §57 above, it is clear that by the actions and intentions of Tong and Lake Side, the breach of the OP, the DMC and the Government Lease is imminent and an quia timet injunction is just and necessary on a breach of the DMC even if the Premises had not been put into use. LDBM 26/2015 62.Mr Chong submitted that even if this Tribunal accept the IO’s case, a declaration is sufficient to dispose of the application in LDBM 26/2016 and an injunction is not necessary since there is no threatened breach on the part of Lake Side or Tong who had not put the Premises into use. 63.Given the fact that Lake Side and Tong had insisted to pursue with their application for the licence for RCHE and RCHD and the change of use even knowing full well that the IO was against such use, I found a declaration is not sufficient to stop Tong or Lake Side to comply with the DMC. LDBM 32/2015 64.In the Notice of Application, Tong alleged that the suspension of lift services to 1/F of the Building constitutes a breach of section 34I(1)(b) of the BMO in that Tong, being the occupier, had been deprived of the use and/or enjoyment of the Lifts and caused a nuisance or hazard to any person lawfully in the Building (B1/4-6). Mr Chong also submitted that Tong is enforcing her right as a tenant for access to the Lifts and it is wrong for the IO to connect such right with the intended use of the Premises since there is no such pre-condition stipulated in the DMC. 65.The IO alleged that the intended use by Tong and Lake Side is in breach of the OP, the DMC and the Government Lease, thus an improper and unlawful use of the Premises. The jurisdiction of section 34I(b)(i) of BMO is not engaged due to Tong’s improper and unlawful use of the Premises. Furthermore, no mandatory injunctive relief should be granted since Tong and Lake Side did not come to equity with clean hands in view of the unlawful use in breach of the OP, the Government Lease and the DMC and the extensive drilling in an attempt to break open the enclosure wall of Lift No. 3 on 17 March 2015 which caused serious damage to the enclosure wall. There is also no breach of s.34I(1)(b)(ii) of BMO since the IO’s refusal to restore the lift service does not constitute unreasonable interference with Tong and Lake Side’s use and enjoyment of the Premises and the common parts nor give rise to nuisance or hazards to persons lawfully in the Building. 66.Section 34I (1)(b)of BMO reads:
67.It is not in dispute that according to the original design of the Building in the Building Plan, 1/F should have access to the Lifts since there was the Lift Opening on the 1/F lobby. However, such opening was sealed up by a wall so access by the Lifts to 1/F had been denied. 68.There is also no dispute or indisputable that the Lifts inside the Building had never provided service to 1/F and there was no button for 1/F nor any indicator lamp for 1/F in the lift system. This is confirmed by Shan On, the long term lift maintenance service provider of the Building (B1/239). Even when the IO had decided to replace the Lifts in 2008, the previous owner and tenant of 1/F refused to demolish the sealed wall and to restore the lift service to 1/F. As a result, no replacement of Lift No. 1 can be arranged. 69.From the undisputable evidence above, irrespective of the original design of the Building, no lift service had ever been provided to 1/F ever since the occupation of the Building. The sealed wall on 1/F must be an act of or with the consent of the owners of 1/F otherwise no one can build a wall to seal the Lift Opening on 1/F without any complaint from the owners of 1/F for all these years. And from the design of the lift system, it is more likely than not that no lift service is intended for 1/F. The owners of 1/F had agreed to such an arrangement all these years. 70.Judging from the findings above, there can be no unreasonable interference of Tong’s use and enjoyment of the Lifts since the arrangement of suspension of the lift service is an agreed arrangement all along. The fact that Silverlite was well aware of the condition of the Lifts yet had never raised any complaint with the IO, one can come to the reasonable conclusion that Silverlite also agreed to such an arrangement of the Lifts not providing service to 1/F and with the Lift Opening on 1/F being sealed up. 71.It is also my finding that neither can Tong prove that there was nuisance or hazard caused to anyone lawfully in the Building. The allegation that suspension of lift services may delay emergency services is a non-point since the occupants of 1/F should not use the Lifts in case of emergency. 72.Having said so, I do not agree with the IO that the issue of unlawful use of the Premises should be relevant to the right of the 1/F to have access to the Lifts. As for the clean hands allegation, I cannot see how the allegation of the unauthorised drilling can be related to Tong’s request for restoration of the Lifts. 73.I found the allegation by Tong in LDBM 32/2015 had not been substantiated and the application should be dismissed. Order 74.I shall make the following orders:
Mr Adrian Leung, instructed by Huen & Partners, for the applicant in LDBM26/2015 and the respondent in LDBM32/2015 Mr KM Chong and Mr Alvin Chong, instructed by Kenneth C.C. Man & Co, for the respondent in LDBM26/2015 and the applicant in LDBM32/2015 |
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Further hearings and rulings under LDBM 26/2015