Cheung Yuet and Another v. The Incorporated Owners of Oriental Gardens
Read the full judgment text of CACV 6/1979 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.).
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CACV000006/1979 Building scheme - extensions of flats by Defendants in breach of covenant - whether prior breaches by other owners constituted acquiescence - open balcony different in nature from enclosed room, but many owners had enclosed their extensions - Defendants not relying upon an illegality although they had failed to obtain approval of Building Authority.
----------------- Coram: Huggins, J.A., Leonard and Cons, JJ. Date of Judgment: 5 October 1979 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. Yang, J. granted to the respondent Plaintiff mandatory injunctions requiring the Defendants to demolish structures which they had erected upon their respective flats. The Defendants appealed on a large number of grounds, but those with which we are now concerned can be summarised as follows:
By a Respondent's Notice the Plaintiff has contended that it is not open to the Defendants to rely upon acquiescence, because the structures complained of were erected in breach of the Buildings Ordinance. Alternatively they say that the form of the mandatory injunction should be different. 2. Before us it has not been denied that the structures in question constitute breaches of covenant, so it is unnecessary to set out the terms of the deed of mutual covenant. Both Defendants have extended their sitting rooms and kitchens beyond the authorized building lines. The 2nd Defendant has extended her kitchen along only half the length of the kitchen, whereas the 1st Defendant has extended hers along the whole length. The kitchen extensions are situated in a light well, as is a w.c. which the 1st Defendant has also added. 3. Mr. Eddis has very properly thought it wrong that he should attempt to defend the kitchen extension of the 1st Defendant, for he concedes that if the owners of all the flats abutting the light well on one level were to build similar extensions the light well would, for all practical purposes, cease to exist. Although the extension of the 2nd Defendant is shorter, I am satisfied that it also causes very substantial interference with the enjoyment of the flats below. Although there have been other, smaller, encroachments by some of the other owners, I am not persuaded that the Plaintiff has acquiesced in breaches of covenant to such an extent as would excuse the Defendants in respect of these structures. 4. As to the w.c. the 1st Defendant submits that damages would be a sufficient remedy. I think the learned judge was justified in coming to the conclusion that the w.c. was analogous to the bay window in Lord Manners v Johnson 1875-6 1 Ch. D. 673 and that it ought to be removed. 5. The main argument has centred upon the extensions to the sitting rooms, which are alleged to constitute a serious alteration to the facade of the block. Here the view which we had, not only of this building but also of the other blocks making up Oriental Gardens, has proved to be of inestimable value. The Appellants have provided us with copies of only some of the photographs which were placed before the trial judge and these do not give a satisfactory impression of what has been done. We take this opportunity to say further that it is the duty of an appellant to provide the court with proper photographic prints of all photographs which have been used in the court below. Photostat copies just will not do and in future failure to provide proper prints may lead to an adjournment at the expense of the offending party. 6. The Defendants submit that the extensions they have made do not substantially exceed what has been done by other owners against whom no proceedings have been taken. I appreciate that several of the structures which we saw are alleged to be subsequent additions and we are told that proceedings have been instituted against the owners of the offending flats. As I understand the Plaintiff's objection it is that the Defendants have not merely extended their flats beyond the building line but have also enclosed the extensions by a wall, in which windows have been set. This, the Plaintiff says, goes beyond what anyone else has done in the past and what ought now to be allowed. 7. It should perhaps be explained that the four blocks which make up Oriental Gardens were all designed with recesses which, to say the least, would be likely to be regarded by the majority of Hong Kong flat owners as constituting an invitation to extend their flats. We saw only one flat among the many on this site which had not been extended in one way or another. 8. The facade with which we are concerned has an irregular building line. At each end there is a projection which lies approximately eight feet in front of the centre section. Half way between the centre section and the projection is a common staircase, which lies about eight feet behind the line of the centre section. On the inner side of this staircase, for a distance of seven feet nine inches, the building line lies ten feet three inches behind the line of the centre section and on the outer side, for a distance of nine feet three inches, the building line lies about twenty feet behind that line and twenty-six feet eleven inches behind the line of the projection at the end. The result is that the flats on the inner side of the staircases lie some two feet three inches behind the line of the staircases and those on the outer side of the staircases some ten feet eleven inches behind the line of the staircases. As was to be expected, the owners of the flats on the outer side of the two staircases have all extended their flats to a line which is approximately that of the staircases. This gives an additional ten feet eleven inches or thereabouts of floor space. Some owners have moved their windows out the full distance and some have enclosed only part of the additional area, the remainder being an open balcony enclosed by a railing. The owners on the inner side of the staircases had the same desire to extend their flats, but to attain anything approaching the extensions of their neighbours they would be forced to go beyond the line of the staircases. Some were content with the additional two feet three inches which brought them to that line, but the majority were not: they came out anything between a further foot to a further four feet or more. However, on this inner side only the Defendants at the southern end of this facade have closed in their extensions with a wall: all the other extensions at this end are enclosed with iron bars of one kind or another. One of the other extensions is of equally massive construction and of comparable size, and there is a similarly large but unenclosed extension at the other end of this facade. 9. Yang, J. took the view that "a balcony is quite different in nature and user to a room" and that the Defendants had passed "a point where a line has to be drawn". He relied upon the paragraph at the bottom of p. 231 of the judgment in Chatsworth Estates Co. v Fewell 1931 1 Ch. 224 and thought that by allowing the previous breaches of covenant the Plaintiff had not represented to the Defendants that they could extend their flats by the addition of a room. The fact remains that many of the other owners, including more than a dozen whose flats are in this very facade, had previously extended those flats by the addition of a room. The only difference is that those extensions are on the outer sides of the staircases and most do not project substantially beyond the line of the staircases. However, as breaches of covenant they are no less grave than the breaches committed by the Defendants and could reasonably be considered by the Defendants as a representation that the addition of a room of equivalent size would be tolerated. That does not mean to say that we are concerned solely, or even primarily, with measurements: we have to consider the whole nature of the breaches committed by the Defendants and by the other owners. 10. It has been argued that the Defendants did not in the court below rely upon the additions on the outer sides of the staircases as relevant to the issue of acquiescence, but I think it is clear that they did. Exhibit D19, for example, would otherwise have been inadmissible in evidence. 11. In the event the effective case for the Plaintiff is no more than that a projecting enclosure on the inner side of the staircases is more objectionable than a projecting enclosure of similar size on the outer side of the staircases because it is more apparent and spoils the aesthetic appearance of the facade. In this connection one must be careful not to attach undue weight to photographs of a small section of the facade, e.g. photographs 6 and 7 of Exhibit P13. We are all agreed that aesthetically these additions are far less obtrusive than the photographs would suggest and, indeed, are more in keeping with the general appearance of the facade than some of the balconies which project equally far. They are also considerably less obtrusive than some of the balconies in the facades of the other buildings in Oriental Gardens. 12. It is argued that if the Defendants' flats are allowed to remain the Plaintiff will be able to do nothing to prevent further breaches of covenant, however serious. That is not so. It is not contended by the Defendants that the conduct of the Plaintiff has been to destroy the whole object for which the covenants were originally entered into, but that the Plaintiff has acquiesced in the particular kinds of breach which the Defendants have committed. It does not follow that the owner of the unextended flat on the eighth floor would be at liberty to build out as and where he chose, but merely that he could not be prevented from doing what others have been allowed to do. It is always a matter of degree (Osborne v Bradley 1903 2 Ch. 446) and I am loth to disagree with the trial judge on such a matter, but having reached a clear decision upon it I am bound to say that I think it would be inequitable to compel the Defendants to remove their extension at the instance of the Plaintiff. Entirely different considerations would arise if the Building Authority were to ask for the removal of these structures. 13. The Plaintiff has sought to uphold the mandatory injunction in respect of the facade extensions on the ground that there can be no acquiescence in a breach of covenant which is illegal. The answer to that is that what the Plaintiff has done is to acquiesce in the erection of extensions and not to the erection of extensions without the approval of the Building Authority. In setting up their equitable defence the Defendants do not have to rely upon an illegality. 14. I would allow the appeal to the extent of setting aside the injunction requiring the Defendants to remove the structures erected at the front (or east side) of their flats. 5th October 1979.
----------------- Coram: Huggins, J.A., Leonard & Cons, JJ. Date of Judgment: 5 October 1979 ----------------- JUDGMENT ----------------- Leonard, J. : 15. I agree. My view of all four blocks of flats constrains me to hold that the respondent and its predecessor, the management committee under the Deed of Mutual Covenant, had so conducted themselves in relation to their management of the four blocks of flats that it would be inequitable to compel the appellants to remove the extensions made by them insofar as these extensions abut on Knight Street. To my mind it is not open to the respondents to complain unless they can show that these extensions differ substantially from the multitudinous extensions permitted to other owners. 16. Viewed in isolation it might appear that the appellants had, in 1977, overstepped the limits of extensions of the type condoned by the management committee earlier because they had walled them in. Others in Block C facing on Knight Street had not walled in their extensions although these protruded outwards from the original building as far as did those of the appellants. Our view disclosed that many occupants of Block C towards the south end and Block D towards the north end had walled in similar extensions facing on to Knight Street. These walled in extensions protruded equally far from the building line but were flush with the staircase. Occupants of Blocks C and D where the same fronts on to the car park on the west side had so walled in their extensions that it required careful inspection before one realized that the extensions were not part of the original building line. Inspection did however reveal that these extensions were not absolutely "flush" with one another and that they had not necessarily been added at the same time. There was no substantial difference between these and those which the respondents sought to have removed and no difference other than that the latter protruded beyond the staircase and were therefore a shade more noticeable. 17. The basis of the appellants' claim is the Deed of Mutual Covenant. Its essence is mutuality and it cannot be enforced by mandatory injunction capriciously against one to the exclusion of others. 18. I would therefore set aside the injunction so far as it requires the appellants to remove the structures facing Knight Street. It must remain insofar as the other structures are concerned.
Representation: Mr. Francis Eddis (H.H. Lau & Co.) for appellants/defendants. Mr. Robert Wei, Q.C. and Mr. Edward Chan (Wilkinson & Grist) for respondent/2nd plaintiff.
----------------- Coram: Huggins, J.A., Leonard and Cons, JJ. Date of Judgment: 5 October 1979 ----------------- JUDGMENT ----------------- Cons, J.: 19. I also would allow this appeal to the extent already indicated. However as we are disagreeing with the learned trial judge on what is basically a question of fact I feel it right to add a few words. It is unusual to disturb a finding of fact, but in this instance we are equally as well placed to come to a conclusion as was the judge, for his finding was not based upon an assessment of evidence given by witnesses, but upon a view of the complex of flats in question. And we too have paid a visit to those flats and have seen them for ourselves. 20. I am in full agreement with the distinction drawn by the judge between the extension of a flat and the addition of a balcony. Architecturally speaking they are quite different creatures. But in applying that distinction he, with respect, overlooked the fact that a host of other owners in the same block as the appellants had already built on extensions to which neither the respondents nor their predecessors had raised objection. It may be that he concentrated too much upon that one particular column of flats for, like photograph No. 7 in Exhibit P13, that would give a misleading impression. When one looks at the whole of that side the appellants' extensions are no more obtrusive than many other extensions or balconies in the block. This result has been helped by the redecoration of the whole complex since the photographs were taken for now the whole face of the building, whether original or by extension, is an uniform colour. In my view the appellants have gone no further than many others and they ought not therefore to be required to remove their extensions on this side. 21. I do not think there is anything in the question of illegality raised by the respondent. It is admitted that the extensions are illegal with respect to the Building Ordinance. But the appellants do not need to rely upon any unlawful transaction between themselves and the respondent as did the plaintiff in Chalmers v. Pardoe (1) to which we were referred. Our attention was also drawn to Bowmaker, Ltd. v. Tabor (2). That was a case under war time legislation which required a party to obtain the leave of the court before taking certain action. The defendant consented to the plaintiff's taking that action without leave. It was argued unsuccessfully that by so doing he had contracted out of or waived his statutory protection. I do not see myself how that has relevance to the present situation. Representation: F. Eddis (H.H. Law & Co.) for the appellants. R. Wei, Q.C., and Edward Chan (Wilkinson & Grist) for the respondent. (1) [1963] 3 All E.R. 552 (2) [1941] 2 K.B. 1 |