Read the full judgment text of CACV 000006/1979 on BabelCite. This Court of Appeal judgment was delivered on 5 October 1979 before Huggins, J.A., Leonard and Cons, JJ..
Property law – building scheme – Deed of Mutual Covenant – mandatory injunction to enforce covenants against extensions of flats – acquiescence – whether prior breaches by other owners constituted acquiescence – open balcony different in nature from enclosed room, but many owners had enclosed their extensions – extensions to sitting rooms walled in on inner side of staircases – no substantial difference between Defendants' extensions and those of other owners permitted to remain – Defendants not relying upon an illegality although they had failed to obtain approval of Building Authority – Plaintiff acquiesced in the erection of extensions, not in the erection of extensions without Building Authority approval – it is always a matter of degree – court conducted view of premises and differed from trial judge on question of fact – appeal allowed in part – injunction set aside in respect of front (east side) extensions facing Knight Street – injunction to remain in respect of kitchen extensions and w.c. – damages not a sufficient remedy for the w.c. addition, which was analogous to a bay window under Lord Manners v Johnson.
Legal issues: Acquiescence in breaches of covenant by prior conduct · Whether illegality under the Buildings Ordinance bars reliance on acquiescence · Sufficiency of damages as remedy for the w.c. addition · Propriety of the terms of the mandatory injunction
Outcome: Appeal allowed in part: the mandatory injunction requiring the Defendants to remove the structures erected at the front (east side) of their flats was set aside; the injunction remained in force in respect of the other structures (the kitchen extensions and the w.c.).