The Incorporated Owners of Kingland Apartments v. 余國偉trading As余國偉醫館 and Another
Read the full judgment text of DCCJ 4542/2015 on BabelCite. This District Court judgment was delivered on 19 February 2021.
1. When this action was commenced in 2015 for, among other things, an order for removal, only 4 items of alleged illegal structures were involved. The number of items of alleged illegal structures was increased to 9 when the Statement of Claim herein was re-amended pursuant to leave granted by the court on 25 April 2018. However, when this trial began, this court was informed that 7 out of the total of 9 items of alleged illegal structures had been removed, that the plaintiff would not pursue
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DCCJ 4542/2015 [2021] HKDC 155 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 4542 OF 2015 ------------------------- BETWEEN
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------------------------- JUDGMENT ------------------------- INTRODUCTION 1.When this action was commenced in 2015 for, among other things, an order for removal, only 4 items of alleged illegal structures were involved. The number of items of alleged illegal structures was increased to 9 when the Statement of Claim herein was re-amended pursuant to leave granted by the court on 25 April 2018. However, when this trial began, this court was informed that 7 out of the total of 9 items of alleged illegal structures had been removed, that the plaintiff would not pursue the other 2 items of structures, and that the only remaining issue which has to be resolved at the trial is the plaintiff’s claim for the sum of $48,000 which arose out of the removal of a “Metal Rooftop” which was defined in the Re-Amended Statement of Claim as:-
2.It is the plaintiff’s case that it had incurred $48,000 in removing the Metal Rooftop, and as a result, it claims against the defendants for reimbursement. 3.I should say at the outset that I doubt whether, strictly speaking, the plaintiff is entitled to make such a claim at the trial herein, for the amount of $48,000 had not been specifically pleaded in the Re-Amended Statement of Claim. However, since Mr Chiu for the defendants confirmed at the beginning of the trial that he would not take issue on the pleading point, this court accepted that, bearing in mind the very small amount of claim involved and the clarity of the plaintiff’s claim, the trial might be proceeded with without further ado. 4.The defendants do not dispute that the Metal Rooftop did exist when the writ herein was issued. Neither do they dispute that such existence could amount to trespass of the common area of Kingland Apartments (金輪大廈) (“the Building”). However, the defendants contend that the amount of $48,000 incurred by the plaintiff was not spent on the removal of the Metal Rooftop but on something else, and that it was the 2nd defendant who had paid for such removal. As far as this stance is concerned, the plaintiff accepts that the 2nd defendant did pay $48,800 to a contractor who was engaged by the 1st defendant (who in turn was the 2nd defendant’s tenant occupying Shop No.14 at the material time) for undertaking certain work, but such work, it was said, was not related to the Metal Rooftop. 5.The narrow issue herein is therefore whether the plaintiff could prove, on the balance of probabilities, that it had incurred the costs of $48,000 on the removal of the Metal Rooftop. THE UNDISPUTED FACTS 6.The following facts are undisputed:-
THE PLAINTIFF’S CASE 7.In support of its claim herein, the plaintiff had served three witness statements altogether: one from Mr Leung Kin Kwong (“Mr Leung”), the property manager who was in charge of the management of the Building; another one from Mr Tong, who was the legal consultant of the plaintiff and was previously responsible for handling this action on its behalf. He was also assigned with the task of overseeing the removal of the illegal structures at the yard of the Building. The third witness statement was from a Mr Liu. I was told that he was a member of the management committee of the plaintiff. 8.However, at the end of the day, the plaintiff did not call Mr Tong nor Mr Liu to give evidence at the trial. What was left was Mr Leung’s evidence, who admittedly did not monitor the removal process of the Metal Rooftop at the material time, because by then he was not involved in this action yet. He only started to be involved after Mr Tong’s resignation as legal consultant of the plaintiff in October 2018. Having said that, in relation to the events which happened before he took up this matter, he had given evidence by reference to the documents kept by the plaintiff. 9.As stated in the agreed chronology above, the plaintiff issued a Notice to all owners of illegal structures on the Ground Floor of the Building on 14 March 2016, and demanded them to remove such structures within 30 days (ie on or before 13 April 2016). 10.Upon the expiry of the said 30 days, the plaintiff issued a “Final Notice” on 19 April 2016[2] to the said owners for the removal of the illegal structures by 22 April 2016, and indicated that, failing action on their part, the plaintiff would cause the structures to be removed at the cost of the owners concerned. 11.On the same day (19 April 2016), the plaintiff obtained the First Quotation from New Shing Lee. In this document, a fee of $48,000 was quoted to do the following work: “清拆金輪大廈後巷僭建鐵皮屋”. 12.At the time when the First Quotation was issued, Mr Tong was still the person-in-charge of the demolition matter. Hence, the First Quotation was signed by him as confirmation of the acceptance of such a quotation. 13.As admitted by Mr Leung, the description “清拆金輪大廈後巷僭建鐵皮屋” was not referring to the Metal Rooftop. However, he said that after his clarification with New Shing Lee, the Third Quotation was issued. In this quotation, the description of work was revised to “清拆14號舖-余國偉醫館後巷加建物及還原有關牆身工程”. The cost quoted had been paid for by the plaintiff. It is on this basis that the plaintiff’s present claim is made against the defendants. 14.Against the above background, the plaintiff’s success in its claim herein hinges upon the court’s consideration of Mr Leung’s explanation as to why the quotations, and the subsequent payment of $48,000 pursuant thereto, could be said to be related to the Metal Rooftop. 15.During cross-examination, Mr Leung explained as follows:-
16.Mr Leung further explained in re-examination that:-
DISCUSSION When did Mr Leung call up New Shing Lee 17.An important matter which this court should consider is the timing when Mr Leung contacted New Shing Lee to clarify the work involved in the First Quotation. As aforesaid, Mr Leung initially stated that it was in mid-2016 when he was cross-examined, but he subsequently gave a different answer during re-examination, and asserted that he only did so after Mr Tong resigned in October 2018. 18.It is my finding that Mr Leung only called up New Shing Lee after Mr Tong’s resignation in October 2018, and he did not do so in mid-2016, for the following reasons:-
Did New Shing Lee remove the Metal Rooftop 19.With the above finding, I now consider the crucial question: whether the plaintiff has successfully discharged its burden in proving that it had paid for the removal of the Metal Rooftop. 20.In my view, it has failed to do so, and I will explain my reasoning below. 21.Firstly, great weight should be attached to the content of the First Quotation which provides that the quotation of $48,000 was for “清拆金輪大廈後巷僭建鐵皮屋”. As admitted by Mr Leung, “鐵皮屋” is not the Metal Rooftop. 22.Secondly, the First Quotation was issued on around 19 April 2016. At that time, Mr Tong was the person responsible for the removal of the illegal structures at the yard and rear lane of the Building. If there was indeed anything wrong with the description of this quotation, in my view, he would have approached New Shing Lee for the correction of such a description. However, there is no evidence that he had ever done so up to the time when he resigned in October 2018 (i.e. for a total of 2½ years). As it is my finding that Mr Leung did not approach New Shing Lee for this rectification in mid-2016 as he at one stage alleged, it follows that the First Quotation was left unamended all along, until the Third Quotation was issued in early 2019. 23.It should also be remembered that the present action was started in October 2015. In other words, when the Metal Rooftop was removed in around May 2016, this action had already been commenced. If the First Quotation was really related to the present case, it is difficult to imagine that Mr Tong did not put the matter right by requesting New Shing Lee to issue a revised quotation so as to correct the mistake contained in the First Quotation (if there was indeed a mistake as such) as it would be of utmost importance to have documentary evidence in support of the plaintiff’s claim herein. 24.The inaction on the part of Mr Tong is even more difficult to explain in the light of the fact that in around March 2018, the plaintiff had applied by summons for leave to further amend its Amended Statement of Claim pursuant to which the plaintiff sought (and subsequently granted leave) to add a few more items of alleged illegal structures (including 2 metal beams, a cement structure wall and a raised cement platform) which were said to be “leftovers” upon the removal of the Metal Rooftop (“leftovers”). By then it must be clear to the plaintiff (and in particular Mr Tong who was in charge of this matter) that no further order of removal would be required as far as the Metal Rooftop was concerned, and the plaintiff would at most be entitled to be reimbursed of the expenses incurred in the removal of the Metal Rooftop. The plaintiff’s solicitors must also be aware of this at the material time because it was clearly pleaded in the new paragraph 7(a)(vi) of the Re-Amended Statement of Claim that the Metal Rooftop had been removed by then. However, the plaintiff did not seek to amend its claim and add this item of $48,000 into its Re-Amended Statement of Claim. In my view, it is more likely than not that it is because the sum of $48,000 was not incurred for the purpose of removing the Metal Rooftop as the plaintiff now alleges. 25.Thirdly, as aforesaid, after the removal of the Metal Rooftop, the leftovers were left behind, and as a result, the plaintiff had to add these items in the Re-Amended Statement of Claim which was filed in April 2018. In my view, if it was the plaintiff’s contractor who removed the Metal Rooftop, it would be unlikely that there would be such leftovers, because the plaintiff should know well what should be removed, and one would expect that the plaintiff would give clear instructions to its contractor accordingly. Furthermore, if it was New Shing Lee who had failed to remove the leftovers, the plaintiff would naturally have instructed New Shing Lee to go back and remove those items further. However, the plaintiff did not give such instructions to its contractor. Instead, the plaintiff chased after the defendants to remove those leftovers. This reaction is more consistent with the scenario where the “new illegal structures” were not left behind by the plaintiff’s contractor. 26.Ms Wong suggested that it is possible that the plaintiff’s contractor had suspended their demolition work right after the Metal Rooftop had been removed so as to seek further instructions from the plaintiff as to how to deal with the leftovers. This suggestion is rejected because it is totally unsupported by evidence. 27.She also stated that it might well be because of the protest of the defendants that New Shing Lee did not proceed with its removal work of the leftovers. This assertion is also rejected. Judging from the 2nd defendant’s conduct at the material time, if he was still maintaining his objection, it is more likely than not that he would have instructed his solicitors to send further letters to the plaintiff or its solicitors, just like what he did in April 2016. However, it is evident that there had been no such letter. 28.Fourthly, it can be seen from the correspondence that the defendants’ solicitors had written numerous letters to the plaintiff and its former solicitors in late April 2016. The last letter sent was dated 3 May 2016, when the defendants’ solicitors maintained that the agreed grace period for the purpose of negotiation should last for 2 weeks rather than 7 days. No further letter was sent. In my view, if the Metal Rooftop was indeed removed by the plaintiff against the will of the defendants, the defendants would have instructed their solicitors to write to the plaintiff again so as to put on record their discontent. However, there was no such letter. 29.Fifthly, if the First Quotation was related exclusively to Shop No.14 as alleged, it would not have been recorded in the plaintiff’s R/E Statement that the expense of $48,000 was for “大廈維修費” without specifying that it was related to Shop No.14. It is noted that, in the said Statement, if an item of expenses was incurred for a particular unit/property, it would be set out as such clearly. For example, work of the same nature as that described in the Third Quotation (“清拆加建物及還原有關牆身工程”) but done in relation to “側門找換店”, “捷麟明記” and “油漆舖貨倉” had all been listed separately in the said Statement with the unit/property concerned specified. The fact that “Shop No.14” was not mentioned in the said Statement shows that the amount of $48,000 was not related to Shop No.14 at all. 30.Further, it was indeed confirmed by Mr Leung during cross-examination that the said entry of $48,000 (“大廈維修費”) in the plaintiff’s R/E Statement is irrelevant to the issue before this court. 31.Sixthly, according to Mr Leung, he was informed by a Ms Yip of New Shing Lee that the First Quotation was issued in relation to work done at Shop No.14 and that the actual work done was the removal of “天面鐵面”. It was because of the representation of the said Ms Yip that Mr Leung thought the First Quotation was inaccurate, and that another quotation in replacement should be issued. As a result, upon Mr Leung’s request, New Shing Lee issued the Third Quotation, which is heavily relied upon by the plaintiff herein. In these circumstances, it is important for this court to consider very carefully the appropriate weight to be given to the hearsay evidence of Mr Leung on Ms Yip’s said representation. In this regard, it is noted that:-
32.Because of the above matters, I am of the view that only very limited weight should be attached to the hearsay evidence given by Mr Leung that the First Quotation was in fact related to Shop No.14. 33.On the basis of the aforesaid, I find that while the plaintiff did engage New Shing Lee to do certain demolition work, what was demolished was not the Metal Rooftop. 34.Ms Wong argued that the plaintiff’s case should be accepted by relying, among other things, on the timing of the Final Notice of removal, the various letters of the defendants’ solicitors, and the subsequent payment by the plaintiff to New Shing Lee. With respect, I do not think these matters assist the plaintiff. Apart from the reasons which I have referred to above, I should point out two more matters. The first one is that it is evident that the plaintiff was aiming to remove illegal structures not only at Shop No.14 but also at other yard areas on the Ground Floor of the Building. It is probable that New Shing Lee did remove those other structures which were not located at Shop No.14. The timing of payment by the plaintiff is therefore not as important as what Ms Wong contended. The second one is that, as I will discuss later, in any event the 1st defendant’s payment to Kwok Ngai was also at around the same time as the plaintiff’s payment to New Shing Lee. The timing of payment would therefore become a neutral factor, and would not be particularly advantageous to either party. 35.It is evident that at the material time, the plaintiff was very eager to remove the Metal Rooftop for at least 2 reasons. The first reason is its receipt of the 2016 2nd BO issued by the Buildings Authority. The second reason is that the existence of the Metal Rooftop would create difficulties for the plaintiff’s contractor to erect scaffolding for the purpose of the external renovation of the Building. That explains why the plaintiff did send its contractors to Shop No.14 on 28 April 2016 without any delay as forewarned in its Final Notice dated 26 April 2016. It was only because of the defendants’ strong protest (to the extent that Police was called for assistance) that the demolition work was stalled. However, it was not meant to be a permanent suspension of work, as, according to the 2nd defendant, it was agreed between the parties that the work would only be withheld for 2 weeks for negotiation purpose. Taking into consideration the fact that there is no evidence of further “Final Notice” being issued by the plaintiff after 26 April 2016 for the 2nd defendant to remove the Metal Rooftop nor any more solicitors letter after 3 May 2016 between the parties’ solicitors and that a “letter of compliance” was subsequently issued by the Buildings Department on 14 July 2017, I take the view that the Metal Rooftop must have been demolished in around May 2016. 36.That being the case, my finding that New Shing Lee did not remove the Metal Rooftop for the plaintiff as alleged should be tested against my finding to be made in respect of the defendants’ case (that the defendants’ contractor had done so) – apparently it would not make sense if the evidence shows that neither party had caused the Metal Rooftop to be removed. Did Kwok Ngai remove the Metal Rooftop 37.Similar to the plaintiff’s case, the defendants did not adduce any direct evidence on the actual removal of the Metal Rooftop, as the 2nd defendant, who was the only witness called in support of the defendants’ case, confirmed in court that he did not know what exactly had been removed by Kwok Ngai (the contractor who was engaged by the 1st defendant). 38.What was left, and heavily relied upon, was the following documentary evidence:-
39.The plaintiff does not dispute that Kwok Ngai did undertake certain work at the subject location and that the 2nd defendant had reimbursed the 1st defendant by the aforesaid cheque. However, Ms Wong for the plaintiff queried what Kwok Ngai had removed. She initially argued that Kwok Ngai was paid $48,800 to remove the leftovers. However, she accepted subsequently that this was impossible, because the leftovers were still found to be there on 7 February 2018 when the parties conducted a joint inspection at the site. In fact, there is also unchallenged evidence in the form of a receipt dated 5 July 2018 that the 2nd defendant had engaged and paid another company known as “Tam Kwong Design & decoration” to do the following work:-
40.These are apparently the leftovers. 41.This reinforces the defendants’ case that Kwok Ngai could not have removed the leftovers in 2016. 42.Despite Ms Wong’s concession, she still maintained that it does not necessarily mean that Kwok Ngai was engaged to remove the Metal Rooftop. 43.If Kwok Ngai did not remove the Metal Rooftop, what could it have removed in around May 2016? 44.When this action was commenced, the plaintiff sued the defendants in relation to the following alleged illegal structures:-
45.It is undisputed that Item 1 and Item 2 were at the front-side of Shop No.14 which is an indoor area. However, the words “向通天” in Kwok Ngai’s quotation/receipt show that the work was done at an outdoor area. Item 3 admittedly does not concern Shop No.14. The only item left is therefore the Metal Rooftop, which was at the outdoor area. 46.Kwok Ngai was engaged to “清拆上址向通天違例上蓋等物” (emphasis added). If the 2nd defendant had engaged a contractor for the purpose of removing illegal structures at the rear side of Shop No.14, then apart from the Metal Rooftop, there was nothing else to be removed. 47.The above description of the work involved (“清拆…上蓋”) is also consistent with the removal of the Metal Rooftop. 48.I have not lost sight of the fact that the 2nd defendant could not tell the court in his oral evidence what exactly had been removed by Kwok Ngai. However, I note that it was stated in Kwok Ngai’s document that the contract price of $48,800 had to be paid once the removal work was done, and that it was recorded in the same document that the said price was actually paid on 17 May 2016. There is no evidence that Kwok Ngai had done anything other than those described in the said document. In such circumstances, in my view, the inability on the part of the 2nd defendant in telling the court from his personal knowledge what had been removed does not really matter. I am prepared to accept the defendants’ evidence in the form of Kwok Ngai’s document in proving that it was the 2nd defendant who had paid for the removal of the Metal Rooftop. 49.For the above reasons, it is my finding that it was Kwok Ngai which removed the Metal Rooftop. 50.This finding is consistent with the subsequent action on the part of the 2nd defendant, who engaged his own contractor in removing the leftovers. CONCLUSION 51.For the above reasons, the plaintiff’s claim against the defendants for the sum of $48,000 is dismissed. COSTS 52.As aforesaid, this action (which was commenced in October 2015) initially involved 4 items of alleged illegal structures when it was commenced in October 2015. Out of these 4 items, 1 (the Metal Rooftop) was removed by the defendants in May 2016, and another 2 were removed by the defendants before 7 February 2018. The remaining one admittedly does not concern the defendants. 53.5 additional items of alleged illegal structures were then added in the pleadings in April 2018, out of which 3 items were removed by the defendants in July 2018. The plaintiff indicated in the Pre-Trial Review hearing held on 2 January 2020 that the remaining 2 items would not be further pursued in this action. 54.It can be seen from the above summary that the plaintiff had been partly successful in this action in the sense that 6 items of the alleged illegal structures had been removed since the commencement of this action. No matter whether they were indeed illegal structures, the plaintiff had gained by these proceedings partly what it had come to the court to achieve. 55.However, on the other hand, it is now clear that the survival of this action since July 2018 was only for the sake of a mere sum of $48,000, and in the end, the plaintiff had failed in this monetary claim. 56.Having taken the above matters into account, I make a cost order nisi that there be no order as to the costs of the whole action (including all costs reserved, if any). 57.The above order nisi shall become absolute in the absence of application to vary within 14 days hereof. 58.Any application for variation of the above order nisi shall be made by letter, and such an application will be, as agreed by the parties, disposed of on papers.
Ms Carol Wong, instructed by James K L Sin & Associates, for the plaintiff Mr Peter Chiu, instructed by Liau, Ho & Chan, for the 1st and 2nd defendants | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 4542/2015