Fine Right Enterprise Ltd v. Wealth Fine Ltd
Read the full judgment text of HCA 524/2018 on BabelCite. This High Court CFI judgment was delivered on 29 December 2022.
1. The parties are neighbours. Each owns a house within Marina Cove (“ Marina Cove ”). Separating their houses is a strip of ground (the “ Lane ” for convenience). The Lane belonged to the defendant (“ D ”). The plaintiff (“ P ”) has been carrying out repair and maintenance works (the “ Works ”) to its house. Those Works include renovation to the exterior of the enclosing wall of its house facing and adjacent to the Lane [1] . P says that under the Deed of Mutual Covenants of Marina Cove
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HCA 524/2018 [2022] HKCFI 3840 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 524 OF 2018 ________________________ BETWEEN
________________________ Before: Hon K Yeung J in Court Date of Hearing: 6-10, 13-15 December 2021, 13 May 2022 Date of Judgment: 29 December 2022 ________________________ J U D G M E N T ________________________ D........ The DMC, and its relevant terms 8 E......... The pleadings, and parties’ cases 10 F......... The agreed facts (and those which are not in serious dispute) 12 G........ The correspondence between the parties 25 H........ Evolution of the disputes between the parties 44 K........ The proper interpretation of Clause A(4) 49
L......... Whether the Notice Limb fulfilled. 78 M........ Whether the Purpose Limb fulfilled. 79
N........ Whether denial of P’s Clause A(4) Right 85
O........ The relief sought by P. 96
P......... D’s Counterclaim. 107
Q........ Overall disposition. 130 1.The parties are neighbours. Each owns a house within Marina Cove (“Marina Cove”). Separating their houses is a strip of ground (the “Lane” for convenience). The Lane belonged to the defendant (“D”). The plaintiff (“P”) has been carrying out repair and maintenance works (the “Works”) to its house. Those Works include renovation to the exterior of the enclosing wall of its house facing and adjacent to the Lane[1]. P says that under the Deed of Mutual Covenants of Marina Cove (the “DMC”), it is entitled to gain access to the Lane in order to do that. For different reasons which I will come to, access had not until after the commencement of the trial[2] been obtained, or at least not in a manner that was agreeable to both parties. The dispute has been going on for several years. Parties are unable to resolve the matter amicably. Loss and damage are said to have been suffered. They need this Court to decide on a solution to break the impasse – hence this action and trial. 2.P is represented by Mr Paul Lam SC leading Ms Sabrina Leung. D is represented by Mr Hectar Pun SC leading Ms Carol Lee. B. D’s objection to the admissibility of certain materials and documents in the hearing bundles 3.I record that at Section F of his written opening submissions, Mr Pun disputes the admissibility of certain materials in Hearing Bundles D, F1, F2, and F3. They are:
4.Mr Lam has filed his supplemental opening submissions in reply to the objections. 5.Having heard parties on the first morning of the trial, and with parties’ agreement, I allowed those documents and materials to be placed before this Court on a de bene esse basis. I indicated that I would if necessary come back to them after the trial and consider their admissibility in my Judgment. 6.In the course of cross-examination, no challenge has been made to any of those materials. In fact, Mr Pun has referred extensively to a lot of those documents and materials. During his closing, Mr Pun confirmed that D is no longer maintaining the challenge. 7.I allow all those documents and materials to be admitted. 8.P is the owner of House J15 (“J15”) of Stage IV of Marina Cove. 9.P’s directors and shareholders have been Yick Yin Ha (“Yick” or “Mrs Chan”) and Chan Chor Keung (“Mr Chan”, collectively “Mr and Mrs Chan”). 10.D is the owner of House J14 (“J14”, and together J15, the “Houses”), also of Stage IV. J14 is next to J15. 11.D’s two shareholders and directors are Kwong Yik Hung William (“Mr Kwong”) and his wife Hiu Ping Sum (“Mrs Kwong” or “Senior Mrs Kwong”). 12.The Lane is between J14 and J15. There is no dispute that the Lane forms part of J14. 13.I will later describe the Lane and certain relevant structures and features of the Houses in some detail. To enhance understanding of those descriptions, I attach to this Judgment a copy of the agreed Ground Floor Plan (“Annexure A”)[3]. While not all the descriptions of the structures and features shown therein are agreed (which are subject to a number of explanatory notes), the general location and relative position of those structures and features are. 14.The manager of Marina Cove is Creative Property Services Consultants Limited (the “Management Office”). D. The DMC, and its relevant terms 15.The DMC is dated 8 July 1985. It is registered at the Land Registry by Memorial No. SK 110898. The rights and obligations of the co-owners of Marina Cove are regulated thereby. 16.The following terms of the DMC are of particular relevance:
E. The pleadings, and parties’ cases 17.The Writ was first issued on 7 March 2018. It was indorsed with a Statement of Claim. It has since been amended twice, resulting in the current Re-Amended version of 9 September 2021 (“RASOC”). 18.P claims that it is entitled under the DMC to gain access to the Lane in order to carry out the Works, but that it has been unable to do so due to D’s continuous breach of the DMC. P therefore sought[9] an injunction compelling D to discharge its legal obligation in the regard. It also claims loss and damage said to have been caused by the resulting delay in the Works. 19.The Defence and Counterclaim was first filed on 8 June 2018. It has been amended a number of times. The current version is the Re-Re-Re-Amended Defence and Counterclaim of 27 October 2021 (“RRRAD&C”). 20.D denies P’s claim. As summarized by Mr Pun[10], D’s case is as follows:
21.The current version of the Reply and Defence to Counterclaim is the Re-Re-Amended version of 27 October 2021 (“RRAR&DC”). F. The agreed facts (and those which are not in serious dispute) 22.Parties have lodged a Statement of Facts and Chronology of Events. A lot of the contents therein are however not agreed. For some facts, 2 different versions have been set out. I set out below those which are agreed. In respect of those which are not, I will qualify them (by adding words like “P says” or “D says”, or qualifications to similar effects). A lot of the disagreements are in fact not material for the resolution of their disputes. Others turn out not to be in serious dispute. In respect of those facts, and when convenient, I will also state my findings in this section. 23.It is useful to set out such facts at this stage. They will help define the terms used in the latter parts of this Judgment. 24.P has been the owner of J15 since 5 June 2004. It is agreed that Mr and Mrs Chan, Ms Chan Heung Fa (Mr Chan’s elder sister, “Madam Chan”), Ms Ting Hoi Ting (the niece), and a domestic helper reside there. P says that Mr Chan Man Hon and Ms Chan Sin Yee (respectively of Mr and Mrs Chan’s son and daughter) also reside there. D disagrees. 25.I find that Chan Man Hon went to work in Beijing some years ago. He only came back to live in J15 when he was on holidays. 26.I find that Chan Sin Yee got married in November 2016. Upon marriage, she moved out of J15 and lived with her husband at Ma Wan. 27.D has been the owner of J14 since 22 June 2001. Eight people have been residing there, namely Mr and Mrs Kwong, their son Mr Kwong Man Hong, his wife Miss Susanna Kong Sze Man (“Susanna” or “Kong”) and their son, and 3 domestic helpers. 28.A layout plan is attached at P’s RASOC. For all practical purposes, it is the same as Annexure A. P says that it shows the boundaries of J14 and J15. D is not prepared to agree to that. The following features are however agreed for the purpose of this trial (or not in serious dispute):
29.Towards the end of 2016, P engaged four contractors to carry out extensive repair, maintenance, renovation and refurbishment works for J15 (i.e. the Works). Those works included waterproofing and plastering of the Yellow Wall. D prefers to call them “Early Renovation Works” which preference I note, though how they are to be referred to will have no effect whatsoever on my adjudication of the facts. The four contractors are: (a) K&F Engineering Ltd (“K&F”), (b) Elite House Design Limited and Ficus Home Design Limited of Centro Group (“Centro”), (c) 中英設計裝飾有限公司 (“中英”) and (d) 榮光空調有限公司 (“榮光”). 30.On 2 December 2016, the Building Authority issued a building order (No. C/TC/003703/16/NT) ordering D to remove 6 unauthorized structures at J14. 31.P says that prior to the start of the Works, D had been invited to visit J15 to discuss logistical issues in relation to the Works. Parties agree that at the end of December 2016, Susanna visited J15 for 10 minutes. 32.According to the Incident Report prepared by the Management Office[22] (the “Incident Report”), P applied to renovate J15 on 5 December 2016. I accept Mrs Chan’s evidence[23] that the Works were formally commenced in January 2017. 33.Starting from December 2016, Mrs Chan and other resident members of her family started to move out of J15. 34.In or around July (P says July and August, D says July to September) 2017, D started making various complaints about the Works and/or P’s contractors. They were made to Madam Chan and the Management Office. They were mostly recorded in the Incident Report. 35.Whilst this is not part of the agreed fact, there is no dispute between the parties, and I so find, that:
36.By letter of 29 September 2017, K&F wrote to D for access to the Lane[24]. 37.On 25 and 30 October 2017, P and K&F, through the Management Office, respectively made formal requests to D for access onto the Lane so to carry out the Works[25]. P, through its solicitors, wrote to D on 8 November 2017[26] and reiterated its request. It further requested D to remove the Red Structure so that it could carry out the Works on the Yellow Wall. 38.On 21 November 2017, D wrote to P. D showed no intention of removing the Red Structure. It further imposed a set of terms and conditions on P and/or its workers (“Conditions”) if they were to continue carrying out the Works. D says that it did so because of the various disturbances caused by P and P’s workers. P says it sent D a written apology dated 11 December 2017 apologizing for the inconvenience caused while the Works were being carried out. D says that it was only a purported apology, and was disingenuous. D says that it also considered that the Conditions were reasonably required in light of the numerous disturbances and damages caused by P during the period when the Works were carried out. Parties agreed nonetheless that D therefore denied P access to the Lane so as to continue carrying out the Works. 39.The Works were halted in December 2017. The full scaffolding was dismantled on 7 December 2017[27]. 40.On 20 February 2018, P engaged its current solicitors to write to D, reiterating their request for the Red Structure to be demolished and to access the Lane so to complete the Works. 41.On 21 February 2018, D through its solicitors rejected P’s requests. D says that it re-iterated the Conditions and invited P to take a constructive approach instead of simply imposing the Works and the work schedule on D, and that no damage had ever been made good by P in respect of the numerous disturbances caused. 42.On 7 March 2018, P commenced the present action. 43.After commencement of the Action, in about August 2018, D removed the 1/F Red Structure. By November 2018, D had entirely demolished the Red Structure. Also removed was a small part of the Violet Structure which used to adjoin the 1/F Red Structure towards the sea side and protruded over the entrance from the Sea End of the Lane (the “Dismantled Violet Corner”)[28]. Apart from the Dismantled Violet Corner, D has left intact the Violet Structure, which precise location and orientation has become visible only after the demolition of the Red Structure. 44.I add the following description about the Violet Structure. While they are not part of the agreed facts, they are borne out by the evidence adduced before me, and are not seriously contested:
45.On 16 January 2019, P and D attempted mediation but to no avail. 46.Multiple correspondence was exchanged between P and D (through their respective solicitors) from 12 February 2019 to 27 August 2021. The matters discussed were, in gist and amongst other matters, as follows[35]:
47.D says that it has at least since 15 October 2020 (P says purportedly) expressed its agreement to open whatever gates/doors of D’s property to allow P’s workers to access to the Lane and has even (P says again purportedly) agreed to accept whatever route suggested by P’s workers for such access. 48.On 26 August 2021, P and D met at J14 for a without prejudice site visit. G. The correspondence between the parties 49.I have set out the gist of some of the correspondence between the parties. Those are part of the agreed facts[36]. There were however more than what parties are prepared to agree. As will be clear from the latter parts of this Judgment, a lot of those other correspondence is highly relevant when it comes to considering whether it was D who had denied P’s Clause A(4) Right, or whether it was P who had failed to enter upon the Lane despite proposals from D. I hence summarize them as follows. 50.The first written notice for access to the Lane was given by P’s contractor K&F on 29 September 2017[37]. 51.The second written notice dated on 25 October 2017 was given by K&F to the Management Office[38] and passed on by the Manager to D on 30 October 2017[39]. Three weeks of access were sought. At that stage, there was intention on P’s part to carry out the Works on the Covered Part of the Yellow Wall without demolition of the Red Structure[40]. 52.According to Mrs Chan, by the end of October 2017, she finally realized that unless the Red Structure was demolished, the Works could not be completed[41]. 53.The third notice was served on 8 November 2017 by Messrs Katherine YW Or & Co, (P’s then solicitors, “Or & Co”) to D[42]. The demolition of the Red Structure was also demanded, that:
54.D’s solicitors were Messrs ST Cheng & Co (“Cheng & Co”). On 21 November 2017, Cheng & Co replied on D’s behalf[43]. Therein the Yellow Wall was said to be “mutual”. Various complaints against P were in turn made. It was sought to be argued that if Clause A(4) granted a licence to P to enter upon the Lane, the licence would expressly incorporate a condition that there be “as little disturbance should be caused thereby as possible”, and as the condition had been breached, the licence “is therefore revoked by your client’s breach of the Condition”. 55.On that same date, another letter was issued by Cheng & Co to Or & Co[44]. It was said that D was, in order to maintain neighbourly relationship, amenable to making arrangements for P to complete its renovation. D however demanded 4 conditions to be fulfilled (i.e. the Conditions):
56.Mrs Chan was during cross-examination asked as to whether those Conditions were reasonable. She did not agree. 57.On 11 December 2017, Or & Co replied[45]. Arguments were raised in respect of the first letter of Cheng & Co of 21 November 2017. In respect of the Conditions demanded in the 2nd letter, it was said that:
P’s previous demand made in its letter of 8 November 2017 for demolition of the Red Structure was re-iterated. It was said that unless D did so, P would have no alternative but to take such appropriate action(s) including making an application for injunctive reliefs. Mr Lam referred that[46] as P’s 4th written notice for access. 58.D was not happy with P’s response. Cheng & Co replied in its letter of 20 December 2017[47]. The apology was said to be “insincere, phony and preposterous”. It was further said that reasonable steps had not been taken by P. The demand for an undertaking for damages was repeated. 59.When asked about that demand for an undertaking during cross-examination, Mrs Chan said that she would do things according to the law. 60.In the meantime, P changed its legal advisers and engaged Messrs Tang & So (“Tang & So”). A letter of 20 February 2018 was issued[48]. Mr Lam referred to that[49] as P’s 5th written notice for access. The letter of 8 November 2017 from Or & Co was referred to. It was said inter alia that the Red Structure had made it impossible for P to carry out the necessary repair and maintenance works, and that it was inevitable that D would need to demolish the Red Structure. P formally gave D notice under Clause A(4), and that it was estimated that the works would take approximately 30 working days. 61.In reply, Cheng & Co sent its letter of 21 February 2018[50]. Amongst other things, the Conditions demanded previously were repeated. 62.In the meantime, the Writ herein was issued on 7 March 2018. 63.After the commencement of the present action, D started to demolish the Red Structure. By their letter of 29 August 2018[51], Tang & So pointed out that the 1/FRed Structure had been demolished. They asked whether D would demolish the Red Structure completely. 64.Mrs Chan was asked whether D had extended an olive branch (釋出善意). She said that she did not know why D did that. 65.In about November 2018, D demolished the entire Red Structure and the Dismantled Violet Corner. 66.Another issue then emerged. After demolition of the Red Structure and the Dismantled Violet Corner, the exact layout of the Violet Structure became clear, and the Lane/Lawn Portion of the Violet Basement was exposed. 67.By their letter of 12 December 2018[52], Tang & So pointed out the new problem (with 2 photographs as illustration) and asked whether D intended to remove the Lane/Lawn Portion of the Violet Basement. It is noted that in that letter, P estimated the number of days required to complete the Works was adjusted from 30 to 45 days. 68.On 25 March 2019[53], Cheng & Co set out 2 proposals, as follows:
69.Tang & So replied on 26 March 2019[54]. They reiterated that the access to the Lane was blocked. They stated that D did not respond to P’s request for indication as to whether the Lane/Lawn Portion of the Violet Basement would be removed. In respect of the proposed access through the Podium, they commented that the Violet Basement was one floor high, and that climbing up and down involved serious risks and practical difficulties to P’s workers. In respect of the proposed access via the Front Wall, they criticized it as lacking particulars. Seven questions were raised (as to e.g. where the door was to be built, its ownership, approvals from authorities, costs, whether the door was to be temporal or permanent, timing and risk). Tang & So counter-proposed that either the Lane/Lawn Portion of the Violet Basement be removed, or that P’s workers should be allowed to pass through the Violet Basement via an existing door of J14. 70.Cheng & Co replied on 27 March 2019[55]. P’s counter-proposal of allowing access through the Violet Basement was accepted. Cheng & Co said on D’s behalf as follows:
71.On 28 March 2019, Tang & So replied by saying that they are in the course of taking instructions from P[56]. 72.On 29 March 2019, Tang & So replied[57]. Further complaints and questions were raised, and amongst others:
Those questions were said to be vital. It was stated that P needed “concrete proposal, as opposed to comments which lead the parties to nowhere” (original emphasis). D was further asked whether, after providing answers to the questions asked, D would agree to a prior site visit. 73.On 2 April 2019, Tang & So issued another letter[58]. Specific queries were “put on record”, that:
74.Cheng & Co replied on 4 April 2019[59], materially as follows:
75.On 9 April 2019, Tang & So wrote back[60]:
76.Cheng & Co replied on 18 April 2019[61] and stated:
77.Tang & So’s reply is dated 2 May 2019[62]. It is a 5-page letter:
78.After the letter form 2 May 2019, at least in so far as one can gather from the disclosed correspondence, parties became involved in matters like filing of pleadings and witness statements. On 7 July 2020, Cheng & Co wrote to Tang & So[63], referred to the negotiations between the parties back in March and April 2019 on access to the Lane, pointed out that the trial would still be some time ahead, and suggested that parties should realistically reopen the negotiation to facilitate P’s works. Specifically, Cheng & Co referred to its letter of 18 April 2019 and reiterated that:
79.However, for reasons which are not apparent, one of the proposals put forward by D were changed from walking through the Violet Basement, as was discussed in March to May 2019, back to walking on the Podium with hoarding built to separate the work area and D’s living quarters (as originally suggested on 25 March 2019). 80.That letter sparked off another 5-page reply from Tang & So on 23 July 2020[64]. Multiple questions were raised or repeated on inter alia the suggested access by walking on the Podium, or through the Violet Basement, or via the Front Wall, the definition of “reasonable” multiple visits, and particulars of the “responsible persons for access”. An alternative was suggested, that access from J15 to J14 be permitted via the Sea Side Path, through the Sea Side Path Cross Gate, to the Garden and through the Violet Basement via its doors. 81.Cheng & Co replied on 15 October 2020[65]. It is apparent that they mistook the suggested access via the Sea Side Path as one via the Floating Bridge (the term they used was “the pontoon bridge”). They stressed that the bridge was narrow with no fence preventing one from falling into the sea. Having disclaimed liability for any accident, they said that:
They further said that:
82.Tang & So wrote back on 21 October 2020[66]. They observed that Cheng & Co had not in their letter of 15 October 2020 mentioned the other proposals of walking on top of the Podium, the building of hoarding thereon, or access via the Front Wall. They took it that those proposals had been aborted. They said that the use of the Floating Bridge was out of the question as it would float up and down. They asked what D’s proposed route was. They asked for “a draft plan/map with assistance of photos for the route from outside, pass through the inside and finally reach out to the Lane for maintenance.” They said they expected the route to be fixed during maintenance. They required written confirmation that P be allowed to leave its tools and construction material inside the Lane. They asked D’s confirmation that the number of daily access be “unlimited multiple”. They requested again the name and contact number of the maid to be assigned to take care of the access. 83.Cheng & Co replied on 30 October 2020[67], wherein they:
84.Tang & So replied on 4 November 2020[68]. It was a 4-page letter. Amongst other things, they clarified that P’s proposal was to use the Sea Side Path but not the Floating Bridge. They asked for details of the route to be fixed from the Garden to the Lane. They sought “a draft plan/map with assistance of photos for the route from outside, pass through the inside and finally reach out to the Lane for maintenance.” And despite what Cheng & Co had said in their previous letter concerning multiple entries and domestic helpers, Tang & Co insisted upon further confirmation. As restated in the last paragraph of that letter:
85.Cheng & Co replied on 3 December 2020[69]. Certain arguments were, with reference to the Sea Side Path Cross Fence, raised as to whether the route suggested by Tang & So was an accessible one. But despite that, Cheng & Co continued and stated that:
86.On 17 December 2020 Tang & So issued another 4-page letter in reply[70]. Multiple issues were raised and discussed. They concluded by saying that: “We sincerely hope that your client can address our concern in one go in order to enable our client to mitigate her damages as soon as possible upon a clear logistic on:-
87.Cheng & Co replied on 14 January 2021[71]. Amongst other things, they criticized P for having recently erected a Sea Side Path Cross Fence on the J15 side when P had in their previous letter asked D to remove the Sea Side Path Cross Gate on the J14 side and to replace it with a swing gate. But having said that, Cheng & Co continued to say that:
88.Tang & So replied on 4 February 2021[72]. They said that the Sea Side Path Cross Fence on the J14 was actually erected by the Club Marina Cove. Cheng & Co and D were criticized for having made wrong accusations against P, having made a wrong assumption, and having adopted “persistent irrational approach which grossly compromise the efficiency of our dialogues.” It was recorded that upon enquiry made by P, Club Marina Cove indicated that it had no objection to P removing the Sea Side Path Cross Fence at its own costs for maintenance purpose once the proposed route was agreed upon. A number of other issues were raised and discussed. In particular, on the issue of site visit, D was demanded to provide beforehand a proposed route to the Lane for examination during the visit, confirm a number of matters to made the site visit “meaningful”. They concluded by requesting D:
89.Cheng & Co replied on 6 May 2021[73]. Amongst other things, they reiterated that D was prepared to accept whatever route so long as P’s contractor confirmed that the same was practical and accessible to them. The determination of the access route should be left to P’s contractors as they were the persons who would carry out the maintenance work, and that they had the expertise to do so. A site visit was to be arranged for that purpose. During the site visit, D would not restrict P or its contractor to gain access to any area within J14 which could lead to the Lane. They would also be allowed to take photographs, take measurements and draw plans to decide the access route, subject to P’s undertaking that any such photographs, plans etc should be“on a without prejudice basis and cannot be relied upon in any court proceedings and can only be used for the purpose of deciding the access route.” D further said that it was prepared to replace the Sea Side Path Cross Fence on the J14 side with a swing gate. 90.Between 12 May and 27 August 2021, more correspondence was exchanged between the parties. Amongst various matters, 2 main issues were debated. One concerned the logistical arrangements for the site visit. P proposed that D should suggest a route with photographs before any site visit[74]. D was not minded to do so, would leave that to P’s contractors, but repeated that D would accept whatever route P’s contractors proposed so long as they confirmed that the route was practical and accessible[75]. The other one related to the use of any photographs and measurements to be taken, and in particular whether they were to be supplied on a without prejudice basis. No consensus was reached. Despite that, a site visit did take place on 26 August 2021. 91.As things turned out, the site visit achieved no breakthrough. Even after the site visit, various options of access continued to be debated[76]. Issues as to who was to bear what costs, concern over the risks involved in the options, question of indemnity etc contained to be argued. Ultimately, nothing came out of the site visit, and legal proceedings got pressed on. H. Evolution of the disputes between the parties 92.One can distil from above a timeline of the initial evolution of the parties’ disputes:
93.The nature of the parties’ dispute has continued to evolve. 94.At the time when the present action was commenced, the Red Structure had not been demolished. One main goal of P’s claim was for a mandatory injunction against D compelling demolition of the Red Structure so that P could complete the Works on the Covered Part of the Yellow Wall. 95.By November 2018, the entire Red Structure had been demolished. The Covered Part of the Yellow Wall has since been exposed. The disputes unfortunately subsisted, the focus of which (as can be seen from the correspondence since about December 2018) got shifted to the means and manner of access onto the Lane to carry out the Works. 96.As at the commencement of the trial, parties were still unable to reach consensus on various matters, including notably the means and manner of access onto the Lane. P had still not recommenced the Works at J15. 97.As I have recited above, one of the Options which parties had been discussing involved the use of the Front Wall Door and the Front Wall Metal Stairs. Parties had not been able to agree on their use as there were disputes over the ownership of the Front Wall, the legality of the Front Wall Door, and the legal implications which their use would give rise to. P’s case is that the Front Wall is a common part of Marina Cove, whilst D’s case is that it owns the same. 98.On the first day of the trial, in the course of Mr Lam’s opening submissions, this Court enquired whether, irrespective of the strict legal position in relation to the ownership of the Front Wall, parties had approached the Management Office to see whether it might consent to the removal of the Front Wall. It turned out that parties had not. If the Front Wall could be removed, accessing the Lane via the Road End would be the obvious option. 99.On that same day, both parties wrote to the Management Office. Both did so without prejudice to their case on the ownership of the Front Wall. Both parties expressed their intention to demolish the Front Wall so as to allow P’s workers to access the Lane for completion of the Works. On that very same day, the Management Office wrote back and said that they had in principle no objection to the proposal. 100.Despite that consent from the Management Office, the disputes somehow remained unresolved, and the trial continued. 101.In his written submissions of 18 March 2022, Mr Lam informed this Court that D had by 24 February 2022 demolished the Front Wall and the Front Wall Metal Stairs. On 1 March 2022, the workers of P’s contractor entered the Lane and commenced what was outstanding of the Works. 102.On 13 May 2022 when parties came back before me to deliver their closing submissions orally[77], I was informed that the Works were progressing well, and there had been no further major issues. 103.So, even the question of access to the Lane had by then been resolved. The disputes however still subsist, being primarily parties’ respective claims for loss and damage, and D’s counterclaim for injunctions against P for removal of the J15 Lightwell Structure, the Pond-like Structure, and the Alleged Unauthorized Drainage Pipes. 104.Parties have not been able to agree on a list of issues. 105.I have considered their respective formulations. Their differences are more matters of emphasis, and whether the main issue in relation to the interpretation of Clause A(4) should be split up into a number of sub-issues in accordance with D’s case based on the 4 Limbs and the Means and Arrangement (as Mr Pun submits it should be). The issues that parties have framed can be re-stated in broad terms as follows:
106.P has called 2 factual witnesses[78]:
108.I have considered their evidence. The versions of events they each gave are not inherently improbable, and are materially consistent with the contemporaneous records and correspondence. Whereas their recollection and impressions on certain matters are not entirely the same, I find that they have all made the best effort to relate to this Court what they recalled and believed. I find all of them to be honest witnesses. 109.In any event, I agree with Mr Lam’s submissions that how the issues are to be determined does not depend so much on the witnesses’ oral evidence, as most of the material facts and events are documented by contemporaneous records and photographs. Mr Pun does not dispute that. 110.I will deal with their evidence below on an issue-by-issue basis when necessary. K. The proper interpretation of Clause A(4) K.1. LEGAL PRINCIPLES ON THE INTERPRETATION OF A DEED OF MUTUAL COVENANTS 111.This court has in Pierhead Garden Management Co Ltd v Incorporated Owners of Pierhead Garden [2021] HKCFI 678 at §51 summarized the applicable legal principles in interpreting a DMC. Both leading counsel accept them as correct. They are as follows:
112.In Eminent Investments (Asia Pacific) Ltd v DIO Corp (2020) 23 HKCFAR 487, Ribeiro PJ and Lord Collins of Mapesbury NPJ at §§42-45 restated the general approach to interpretation of contracts, and explained at §44 that:
113.I highlight the observations of Chan PJ in Grande Properties Management at §2, that the “provisions of the deed … are usually aimed at facilitating the management of the building by reducing conflicts among co-owners on the one hand and preventing abuse by the manager and the majority owner on the other.” In my respectful view, the provisions of a DMC should also aim at the prevention of abuse by co-owners between themselves. That must be part and parcel of the aim of reducing conflicts among co-owners. 114.Mr Pun submits[79] that the Court should always adopt a narrow interpretation in construing clauses in a DMC which affect the rights and obligations of parties. The only case he relies on is Incorporated Owners of Kam Man Fung Factory Building v Chewy International Foods Ltd [2019] HKLdT 69 §§28-29. I do not accept that proposition. Kam Man Fung concerned certain exemptions to “repairing and maintaining” costs of the lifts provided in the deed of mutual covenants to certain owners. The issue was whether those costs should be in the context of that deed construed narrowly to include only recurrent costs, or widely to cover other non-recurrent or capital costs. It does not support the wide proposition put forward by Mr Pun. 115.I have set out D’s case above. It is Mr Pun’s submissions that D is entitled to exercise a right to refuse entry (or continuous entry) by P into its property if any of the following 4 Limbs is not satisfied by P (or if any prior breach has not been remedied). He submits that “[in] other words, P’s right to enter into D’s property is subject to all of these 4 Limbs being fulfilled”[80]. 116.Mr Lam does not dispute that for the Clause A(4) Right to be exercised, the Notice Limb and the Purpose Limb should be fulfilled. What he disagrees with is D’s stance that the Minimum Disturbance Limb and the Damage Limb are also in effect conditions precedent for the exercise of the Clause A(4) Right. 117.Whilst Mr Pun has indeed said that P’s right to enter upon J14 is “subject to” all 4 Limbs being fulfilled, he said[81] that Mr Lam has misunderstood D’s case to mean that the Minimum Disturbance Limb and the Damage Limb “are condition precedents to P’s exercise of its rights”. He clarifies and submits that the contractual remedies are separate and in addition to D’s common law entitlement to sue for damages, that every instance of disturbance in and of itself constitutes an actionable wrong, and that “D must be contractually entitled to terminate the grant of entry (or refuse further entry) if P breached any of the Limbs.” 118.My views are as follows. 119.The Fist Schedule (of which Clause A(4) forms part) sets out the “easements rights privileges and obligations” which “each undivided share” and “the full and exclusive right and privilege” are made subject to and with the benefit of (Clause 3 of the DMC). 120.The enjoyment and reservation of such “easements rights privileges and obligations” are vital if a co-ownership scheme regulated by a deed of mutual covenants is to work. 121.One main purpose of the scheme and the related clauses in the DMC is clearly to facilitate enjoyment of the rights of co-owners between themselves. Those “easements rights privileges and obligations” set out in Clause A, whilst important, they comprise mostly daily and routine ones, like pass and repass, lateral support, passage of water, sewage and electricity, and the carrying out of necessary work for maintenance and repair. They are meant to form an informal regime, not one that is technical or legalistic in nature laden with procedural difficulties that only lawyers know how to negotiate through. 122.The DMC in general, and the First Schedule in particular, are there to reduce conflict between co-owners. 123.Depending upon the perspectives, there are two sides to those “easements rights privileges and obligations”. A co-owner who wants to exercise the Clause A(4) Right for example (I will call him for convenience the “Requesting Co-owner”) will regard it as a benefit, whereas a co-owner whose property the first co-owner is seeking to enter upon (the “Requested Co-owner” for convenience) will probably see it as an obligation. 124.There will always be tension between the Requesting and Requested Co-owners. 125.Such tension will not be eased, and any conflict arising not resolved, by allowing the Clause A(4) Right to be construed too legalistically, introducing concepts which invite arguments, or by shifting the balance of rights and obligations unduly toward one particular side. Common sense should instead be adopted. 126.The exercise of the Clause A(4) Right is expressly stipulated to be “on written notice (except in case of emergency)”. The requirement of written notice represents a good balance between the rights and obligations of the Requesting and Requested Co-owners. Whether a written notice has been served is also easy to ascertain. No unnecessary dispute will be introduced. In my view, the fulfilment of the Notice Limb is clearly intended to be a condition precedent. 127.The clear and express language of Clause 4(A) is that the Clause A(4) Right is reserved “for the purposes of carrying out any work necessary for the maintenance and repair of [the Requesting Co-owner’s] own premises or its services.” The Purpose Limb is in my view reasonable, screen out any attempt to carry out works which are not necessary for the stated types of works (for example trivial works for decorative purposes), achieve a good balance between the rights and obligations of the Requesting and Requested Co-owners, accords with common sense, and is consistent with the overall purpose of reducing conflict. 128.The Purpose Limb may give rise to questions as to what works are for “maintenance and repair”, and whether they are “necessary”. Submissions have been made to me in those regards. Mr Lam in his written opening submits that it must mean “necessary in the honest opinion of the [Requesting Co-owner]”[82]. In his oral opening, upon my request for assistance, Mr Lam modified the test to a sort of irrationality test, in the sense of the honest opinion of the Requesting Co-owner being subject to the objective criterion that no reasonable owner in the circumstances would have considered the works to be necessary. In his written closing[83], Mr Lam accepted that it should not be the case that the Requesting Co-owner’s subjective judgment be subject to no legal control. He puts forward the test applicable to contractual discretion, that a contractual discretion must be exercised in good faith and not arbitrarily or capriciously though the courts will not substitute themselves as the decision-maker (FWD Life Insurance Co (Bermuda) Ltd v Poon Cindy [2019] 3 HKLRD 455 at 464, §§35-36.) Mr Pun on the other hand put forward what is in effect an objective test based on a common sense approach[84]. 129.There is no direct authority on this point. The 2 cases cited by Mr Pun, Dr Simon Yeung v Darius Potel & Marie Christine Summers [2014] EWCA Civ 481 and Tse Chit Sang v Ho Mei Ling (unreported, DCCJ 2404/2005, 19 June 2009), with respect, contain no reasoned discussion on the test to take. 130.As I will make clear in the latter part of this Judgment, I agree with Mr Lam that there is no need for me to reach any final view on this issue because on the evidence, whatever tests I am to adopt, the Purpose Limb was satisfied. 131.In deference to submissions made, I only make the following observations. As Mr Lam has accepted, the test for “necessity” cannot be entirely subjective without any legal check. The “contractual discretion” test is in my view too technical and complicated for a DMC scheme. The exercise of Clause A(4) Right is also not an exercise of discretion. If I were to rule on the matter, I would be inclined towards the application of a common sense approach (which is neither entirely subjective nor entirely objection) with reference to all circumstances known at the material time, including the views of the Requesting and Requested Co-owners and the reasonableness thereof. 132.As I have mentioned above, Mr Pun’s submission is that the Requesting Co-owner’s exercise of Clause A(4) Right is “subject to” also the fulfillment, and continuous fulfillment, of the Minimum Disturbance Limb and the Damage Limb. 133.To start with, I note that, different from the cases of the Notice Limb and Purpose Limb, that is not what the wording of Clause A(4) expressly stipulates. The phrase “causing as little disturbance as possible” presupposes a stage when the Requested Co-owner’s land has been entered upon and the works already started, and the stage of “making good any damage” even later. 134.Subjecting a Requesting Co-owner’s exercise of the Clause A(4) Right to the fulfillment and continuous fulfillment of the Minimum Disturbance Limb and the Damage Limb introduces into Clause A(4) highly controversial issues not set out in the Clause. 135.Given the wording of Clause A(4) in relation to those 2 limbs, it is not easy to decide whether they have been fulfilled. What is “as little disturbance as possible”? Who is to decide whether the disturbance has been more than “as little as possible” so that the Clause A(4) Right could no longer been exercised? The Requesting Co-owner may argue a high degree of tolerance. The Requested Co-owner may argue the extreme opposite. Even the adoption of a reasonable standard[85] may not reduce conflict, as it may give an unreasonable or unduly subjective Requested Co-owner the platform to refuse entry by the Requesting Co-owner to effect what can be urgent repair. That may lead to abuse. 136.Further, “as little as possible”, in addition to be vague, is a very low threshold. Mr Puns’ submission in effect is that as soon as there is a disturbance higher than “as little as possible”, which may still be relatively minor, the Requested Co-owner can automatically refused the Requesting Co-owner’s Clause A(4) Right. In my view, and viewed objectively, that cannot have been intended by the parties. 137.Even assuming that there has been disturbance which is beyond minimum, and assuming damage has been caused, how should the damage be made good? If payment of compensation is involved, what should be the quantum? The assessment of the quantum may take time. Parties may not be able reach agreement on the same. Does it mean that pending agreement as to the quantum or how the damage is to be made good, the Requesting Co-owner should vacate or be refused his benefit under the DMC regime to effect necessary maintenance and repair? 138.The adoption of the approach argued by Mr Pun has the opposite effect of reducing tension and conflict, and is in my view not the practical object which Clause A(4) is intended to achieve. To do so would be shifting the balance far too much towards and in favour of the Requested Co-owner, beyond what a reasonable person would understand Clause A(4) to mean. 139.I accept Mr Pun’s submission[86] that by the incorporation of the Minimum Disturbance Limb and the Damage Limb, Clause A(4) has expressly made the common law entitlement of the Requested Co-owner to sue for damages contractual terms binding on co-owners. That however does not elevate the status of those 2 limbs to conditions precedent. 140.Mr Pun then states it is not D’s case that the Minimum Disturbance Limb and Damage Limb are conditions precedent. He says that it is a misunderstanding of D’s case to say so. He submits that “D must be contractually entitled to terminate the grant of entry (or refuse further entry) if P breached any of the Limbs.” There is however no elaboration in his written reply as to the legal basis of that submission. 141.I therefore reject Mr Pun’s submissions, and accept Mr Lam’s submission in this regard[87]. There may be extreme cases of non-compliance with the Minimum Disturbance Limb and Damage Limb which warrant the application for an immediate injunction. The non-compliance of those 2 limbs may entitle the Requested Co-owner to claim damages. But that does not mean that the causing of disturbance beyond what is “as little as possible” or the failure to make good damage would axiomatically and automatically entitle the Requested Co-owner to refuse the Requesting Co-owner access or further access. K.3. IMPLIED DUTY OF CO-OPERATION 142.Clause A(4) only provides for the “right … to enter into and upon”. It contains no provision as to whether the Clause A(4) Right comes with any ancillary rights and obligations, for examples[88] the rights to erect scaffolding or working platform, or the obligation to allow the erection thereof. 143.Mr Lam’s submissions are that Clause A(4) is subject to the implied term of co-operation, and based on the test of “reasonable necessity”[89], D’s obligation of co-operation shall include the duty to do all reasonable acts to enable P to exercise the right (including all ancillary ones) under that clause, so that D shall for examples allow P’s workmen not only to enter J14 but also to erect scaffolding or working platforms as they see fit[90]. 144.According to Lewison, The Interpretation of Contracts (7th ed.):
145.As explained in McMeel on The Construction of Contracts (3rd ed., 2017), §9.56: “…A famous statement, quoted in innumerable cases, is that of Lord Blackburn in Mackay v Dick:
146.On this issue, Mr Pun submits that “for the [Clause A(4) Right] to be exercised and fulfilled by parties, it would inevitably require reasonable cooperation from both parties concerned”[91], that that “given the nature of the easement which affects lands of different parties, cooperation between parties is inevitably”[92], “but the scope of cooperation must be reasonable and not to the extent as demanded by P in the present case”[93]. He therefore does not appear to dispute the existence of an implied obligation of co-operation. This in my view is consistent with the authorities. But in so far as he submitting that the extent of the obligation is governed by “reasonableness”, I do not accept the submissions, as being inconsistent with the authorities cited above. 147.On the authorities before me, I am satisfied that in respect of the performance of Clause A(4), there exists an implied duty of co-operation between the Requesting Co-owner and the Requested Co-owner to the extent that is necessary to make Clause A(4) workable. K.4. THE MEANS AND ARRANGEMENT 148.Clause A(4) does not expressly define the means and route of access, the mechanism to establish the route, which party shall be responsible for arranging such means, or parties’ duties in those regards. 149.As I have described above, since the removal of the Red Structure, the focus of the parties’ disputed have shifted to the means and manner of access onto the Lane to carry out the Works. The Means and Arrangement have developed into an important issue. 150.Parties differ as to both the nature and extent of the Clause A(4) Right. 151.There is no direct authority on the issue. 152.Mr Pun calls the A(4) Right a “right of entry” but not a right of way[94]. He submits that:
153.Mr Lam’s position is as follows:
K.4.B. NEITHER RIGHT OF ENTRY SIMPLICITER, NOR AN ORTHODOX RIGHT OF WAY 154.The difficulty Mr Pun faces is that he can produce no authority in support of his distinction between a right of way as we normally know it and “a right of entry” as he calls the Clause A(4) Right, or what a “right of entry” entails. He accepted in the course of his oral closing that he was aware of no such authorities. 155.To the extent of this being Mr Pun’s position, I accept Mr Lam’s submission that the Clause A(4) Right is not a right of entry simpliciter. I repeat my views on the implied duties of co-operation above. 156.On the other hand, approaching the Clause A(4) Right as if it were an orthodox right of way (as Mr Lam seeks to do) also has its difficulties:
157.Given the above distinguishing features of the Clause A(4) Right, I do not find the 3 principles put forward by Mr Lam useful. They all presuppose the existence of a terminus a quo and terminus ad quem, hence a particular route, and hence parties’ rights and obligation when its comes to the alteration of such route or the provision of an alternative. Applying those principles to the Clause A(4) Right is in my view a mis-match. K.4.C. MEANS AND ARRANGEMENT GOVERNED BY THE DMC 158.Except perhaps for the purpose of drawing analogy from principles applicable to right of way when considering the extent of the Means and Arrangement (see below), it is in my view not necessary to strictly classify what right the Clause A(4) Right belongs. Afterall, Clause A of the First Schedule simply uses the catchall phrase “easements rights and privileges” when referring to inter alia the Clause A(4) Right. 159.What is however important is to decide whether the Means and Arrangement are provided for or governed by the DMC. Mr Pun submits that it is not. 160.The Clause A(4) Right is an express mutual grant and reservation. The mutual grant and reservation are however imperfect, in the sense that there is no provision regulating the Means and Arrangement. 161.As part of his written reply, Mr Pun has placed before me The Rule in Pearson v Spencer – selecting the route of a right of way by Thomas Braithwaite [2009] 73(2) Conv. 93 (the “Braithwaite Article”). The article addresses the issue as to who should choose the route in the context of a grant or reservation of a right of way. The following views of the learned author are by analogy relevant:
162.In the above regard, I respectfully find the observations by Li CJ in Kung Ming Tak Tong at §50 also useful, and am guided thereby:
Along the same line are the observations of the English Court of Appeal in St Edmundsbury v Clark (No 2) [1975] 1 WLR 468 at 476G-H, that:
163.In my view, whilst the Means and Arrangement are not expressly provided for, they are part and parcel of the Clause A(4) Right. They are akin to the case of “imperfect express grant” referred to in the Braithwaite Article. Their nature and extent are a matters of implication as a matter of necessity. 164.I therefore do not accept Mr Pun’s principal submission that the Means and Arrangement/right of way are not governed by the DMC. K.4.D. SO WHO CHOOSES, AND HOW? 165.There is again no direct authority on the point. As Mr Lam confirmed during his oral closing, neither parties had been able to locate any authoritative judgment on the matter, and there is a certain degree of uncertainty in this area of the law. 166.I for analogy refer again to the Braithwaite Article:
167.I do not accept Mr Lam’s submissions that there is upon a proper construction of Clause A(4) an “intended route”, or that that Intended Route should be “the most convenient route to reach the place where the necessary works need to be carried out in accordance with approved plans of the premises where access is required”:
168.Nor do I accept Mr Pun’s unqualified original position that the extent of the Means and Arrangement/right of way should be determined by the Requested Co-owner (or D in the present case). Mr Pun relies on D’s property right and privacy right protected by the Basic Law and Bill of Rights. I agree with Mr Lam that those rights have little to do with the interpretation of Clause A(4) which is akin to a contract between two private parties. Further, in the context of a DMC, giving the entire say to the Requested Co-owner shifts the balance of rights and obligations unduly towards the Requested Co-owner. I have discussed in this regard the tension between the Requesting Co-owner and Requested Co-owner. Nor do I accept Mr Pun’s original unqualified submissions that they should be a matter of further agreement or mutual understanding. Leaving aside the strict legal position as to whether that leave the Clause A(4) unenforceable[114], it leaves unregulated the position where parties fail to agree. Such an approach is also not a principled one, and is not conducive towards any reduction of tension and conflict between co-owners. 169.In the absence of any direct authorities, but with reference to the limited authorities cited before me, I state my views and conclusion on the Means and Arrangement are as follows:
170.I apply the above when I consider below whether any of the parties have been in breach of the Means and Arrangement aspects of Clause A(4). L. Whether the Notice Limb fulfilled 171.I have cited the evidence above. To recapitulate, P has given the following 5 written notices to D and requested access:
172.On the evidence, I find that the Notice Limb has been fulfilled. It was first fulfilled on 29 September 2017. M. Whether the Purpose Limb fulfilled M.1. THE OWNERSHIP OF THE YELLOW WALL 173.To be precise, the Purpose Limb in fact comprises 2 sub-limbs:
174.It is necessary to split up the Purpose Limb as Mr Pun submits[116] that D has never admitted that the Yellow Wall or its exterior belongs to P, and that P has failed to prove that. 175.Mr Lam objects to Mr Pun taking that point, on the basis that it has not been pleaded. 176.In my view, Mr Lam’s objection on pleading is justified. It is a point which, unless specifically raised, would take P by surprise. It is unfair for D not having pleaded the point, and then to criticize P for “not adducing expert and/or factual evidence to proof [sic.] the boundary of J15”[117]. 177.In any event, my view is that the point is not a valid one. 178.In contending that the exterior face of the Yellow Wall (i.e. the face facing the Lane) belongs to D, Mr Pun relies principally on the First Agreement concerning J15[118], that “the saleable area” shall mean (with emphasis added):
179.Mr Pun submits therefore that “measurement of the floor area of J15 shall be taken only to the middle of the Yellow Wall”[119]. 180.However, as is clear from Annexure A, J14 and J15 are separate houses. Each has their own enclosing walls on either side of the Lane (the Yellow on its left, and the enclosing wall of J15 on its right). The Yellow Wall is not shared. On a proper interpretation of the First Agreement, I accept Mr Lam’s submissions that the exception in the definition applies only to “two adjoining units”, i.e. those semi-detached houses within Marina Cove which share a dividing wall. There are indeed a lot of such semi-detached houses[120]. 181.The other matters put forward by Mr Pun (the Management Office’s view and the alleged understanding of P’s witnesses) in my view do not advance his contention further in this regard. The view of the Management Office or the subjective understanding of the parties are of little relevance to the issue. 182.According to Hope Brothers Ltd v Cowan [1913] 2 Ch 312, and as applied by Cheung J (as he then was) in Wealthy China Trading Ltd v Huie Man Kit & Ors [1999] 3 HKC 832 at 836A-F, the demise of a room or an office bounded in part by an outside wall prima facie includes both sides of that wall, unless there be an exception or a reservation or something in the context to exclude it. 183.I do not accept Mr Pun’s submissions[121] that Mr Lam’s submissions based on Wealthy China apply equally to J14. The Yellow Wall is clearly shown on Site Plans of the First Agreement and the Assignment of the J15[122] as an enclosing wall of J15. In contrast, the Yellow Wall is not shown on the Site Plan attached to the Assignment of J14[123], which has its own separate enclosing wall. 184.On the evidence, I find that P has proved to the requisite standard that the Yellow Wall (including the external face) is P’s property. 185.In any event, as I have raised with Mr Pun in the course of his oral closing:
M.2. WHETHER “WORK NECESSARY FOR THE MAINTENANCE AND REPAIR OF” J15 186.I have considered the evidence before me. 187.Mrs Chan testified that water leakage was a common problem at Marina Cove. She first discovered leakage problem inside J15 in about 2007 or 2008. Cracks, water stains and water blisters were found in many areas of the house. She engaged a contractor to do some repair works, but the problem was only abated briefly. 188.From 2011 to end of 2015, the leakage problem became more and more serious. In about 2015 or 2016, the rooftop collapsed. She wanted to do a major and fundamental maintenance and renovation. However, her daughter was planning to get marry, and wanted to do that from J15. So Mrs Chan decided to engage some urgent repair works to the rooftop first, and the major renovation would only take place after her daughter’s marriage. 189.Mrs Chan’s evidence in the above regards is clearly supported by the photographs produced[124], some of them depicting specifically the Yellow Wall[125]. 190.Letters from K&F[126] also support P’s case that P needed to access the Lane to carry out the Works. 191.I note that under cross-examination, Mrs Chan was challenged on the basis that there was no photograph showing the leakage before 2016. The subsequent and more contemporaneous photographs however clearly support P’s case. I accept Mrs Chan’s evidence in that regard. 192.I note Kong’s evidence. At §11 of Kong/1, she talks about a visit into J15. She did so upon the invitation of Madam Chan. It was a brief visit, lasting less than 15 minutes. That was her only time inside J15. To her knowledge, no other members of the Kwongs had been inside J15. 193.In her witness statement, she said that she did not notice any sign of leakage inside J15. She however accepted during cross-examination that she was not there intent on checking for signs of leakage. She was shown during cross-examination photographs[127] showing signs of leakage inside J15 close to the sea side. She said that she did not go that far into J15. 194.I find that J15 indeed had serious water leakage problems. That is well supported by the photographs produced. Kong might not have seen those signs. She might simply have missed them, as she was not there looking for them. 195.Mr Pun takes the point that no expert evidence has been adduced by P in support of its case. However, it is not necessary in my view for expert evidence to be adduced. The evidence before this court is of sufficient probative value to make good the point. In any event, D’s previous application[128] to adduce expert evidence “on the source of water leakage in [P’s] property and whether access to [D’s] property is necessary to carry out rectification work” has been refused, and D has not sought to appeal against that ruling. 196.In his written closing, Mr Pun makes reference to a number of cases on water leakage. He submits in those types of cases, the onus is on the plaintiffs to “establish on balance that the source of water was the defendants’ flat”[129], and that “the existence of water stain marks at certain position(s) alone is not necessarily conclusive proof of the source of leakage”[130]. 197.With respect, this is not one of those water seepage cases. P is not claiming against D for water seepage from J14. All P is required to fulfill is the Purpose Limb, whatever the source of the seepage. The reference to those cases is in my view of no assistance. 198.Mr Pun also submits[131] that “Clause A(4) only allows entry of P into D’s property for the purpose of carrying necessary ‘repairing and maintenance’ works for P’s property, it does not entitle the said entry to be for the purpose of ‘renovating and refurbishing’ its property”. I agree with Mr Lam that such contention verges on turning the interpretation exercise into a game with word, which Lord Hoffmann NPJ has warned against in Jumbo King. 199.On the evidence before me, whether the test for “necessity” is subjective or objective, and whether the irrationality test or the common sense approach is to be adopted, I find that P has clearly established and fulfilled the Purpose Limb. N. Whether denial of P’s Clause A(4) Right 200.With the above in mind, I proceed to consider whether D has been in breach of Clause A(4) by having denied P access to the Lane. N.1. ALLEGED BREACH OF THE MINIMUM DISTURBANCE LIMB AND THE DAMAGE LIMB 201.Mr Pun submits that at the latest by October 2017 when the First and Second Notices were given, P had already breached the Minimum Disturbance Limb and the Damage Limb. 202.D refers to and relies on a numbers of acts and incidents in support of its case that P has failed to fulfilled the Minimum Disturbance Limb and the Damage Limb (the “Alleged Substantial Disturbances”)[132]. 203.In D Closing/Annex, Mr Pun groups the Alleged Substantial Disturbances under the following headings:
204.I have ruled on D’s case in relation to the Minimum Disturbance Limb and Damage Limb, and have concluded that any non-fulfillment of the Minimum Disturbance Limb and Damage Limb would not automatically and axiomatically entitle D to refuse P access or further access to the Lane. I have considered the nature and extent of the Alleged Substantial Disturbances. I do not accept that they, even if substantiated, whether individually or together, gave D any contractual entitlement to deny P its Clause A(4) Right. 205.Mr Lam accepts, and I agree, that the Alleged Substantial Disturbances are relevant to D’s Counterclaim. I will come back to them in the latter part of this Judgment. N.2. THE DENIAL OF ENTRY IN OCTOBER 2017 206.Mr Pun submits[133] that it was reasonable for D to deny P access in October 2017 despite the First and Second Notices. He submits that in those notices, the term “共用牆” was used when referring to the Yellow Wall, that it was reasonable for D to have checked the ownership of the wall, and that there was no reference to Clause A(4). 207.I do not accept those submissions. Those Notices clearly conveyed the message that P requested entry upon J14 to effect work on the Yellow Wall. Use of the term of “共用牆” by laymen when referring to the Yellow Wall is understandable. I repeat further my discussions and ruling above on the ownership of the Yellow Wall. There is further no requirement that Clause A(4) should be expressly mentioned. N.3. REFUSAL SINCE NOVEMBER 2017 208.Mr Pun criticizes[134] the Third Notice as being given on a wrong basis (on the basis that P owned the Yellow Wall), and was conditional upon the unreasonable condition of requiring D to demolish the Red Structure. He comments that P had not demanded for the demolition of the Red Structure before, did so when solicitors were engaged, that “P’s change of position was sudden and awkward”[135], and that “P’s insistence on demolishing the Red Structure must thus not be motivated by genuine necessity but aimed at creating difficulties for D because P was discontent with D’s complaints during the period of the Early Renovation Works”[136], so that “[it] was therefore unreasonable for P to insist on P’s Condition.” 209.I reject those submissions. I have ruled that P owns the Yellow Wall. It was D who had erected the Red Structure. It blocked up the Covered Part of the Yellow Wall. P had been trying to undertake the Works with the Red Structure there. D complained that the steps its contractors took were causing damage to the Red Structure[137]. Mrs Chan said she felt frustrated, and finally came to realize that unless the Red Structure was demolished, there was no way P could complete the Works. I accept her evidence in those regards. Mr Pun’s above criticisms made against Mrs Chan and P are without basis. Cheng & Co’s argument in their letter of 21 November 2017 about revoking any licence which D had given to P is also legally not correct. The Clause A(4) Right is a contractual right, but not a licence. N.4. THE CONDITIONS IMPOSED BY D 210.Mr Pun submits that the Conditions imposed via the letters of 21 November 2017 by Cheng & Co on D’s behalf upon P were reasonable. 211.I have recited in Section G above parties’ correspondence. Those between 21 November 2017 and 21 February 2018 are relevant to the Conditions. 212.The Clause A(4) Right is a contractual right binding on the parties. D had no legal rights to impose any conditions on P’s exercise of the right. I accept Mr Lam’s submissions[138] in this regard 213.I note and add that P did give an apology. D however criticized it as being “insincere, phony and preposterous”. Such choice of words is unfortunate, and is hardly helpful towards reduction of conflicts between neighbours. N.5. PARTIES’ SUBSEQUENT CONDUCT AND EXCHANGE 214.Mr Pun submits[139] that in any event, entry has been allowed by D at the latest since 25 March 2019[140] when Option 1 and Option 2 about Means and Arrangement for the entry was proposed. 215.On the evidence, and for the following reasons, I accept Mr Pun’s submissions in this regard. 216.I have summarized the evolution of the disputes between the parties in Section H above. In February 2018, D remained insistent on P’s fulfilment of the Conditions. At the time when the present case was initiated in March 2018, the Covered Part of the Yellow Wall remained blocked and covered by the Red Structure. 217.By November 2018, the entire G/F Red Structure and 1/F Red Structure had been demolished, and the Covered Part of the Yellow Wall exposed. The focus of the parties’ dispute shifted to the Means and Arrangement. 218.I have set out the extensive correspondence between the parties between November 2017 and August 2021. I have in particular set out the material contents of Cheng & Co’s letter of 25 March 2019. 219.In respect of Option 1:
220.In relation to Option 2:
221.Parties have taken me extensively to the correspondence between the parties. I have set them out in some details above. My overall observations and findings on parties’ conduct as evinced thereby are as follows:
222.For the above reasons, and on the evidence before me, I find that D had between 29 September 2017 (which the First Notice was served) and 25 March 2019 been in breach of Clause A(4) by denying P access to the Lane for carrying the Works on the Yellow Wall, and in particular the Covered Part of the Yellow Wall. On 25 March 2019, D proposed Options 1 and 2. I find both to be reasonable and sufficiently convenient. I do not accept P’s case based on the Intended Route. I find that after 25 March 2019, it was P who had refused to accept the same and enter upon the Lane to complete the Works. The other way to look at it, as accepted by Mr Lam in the course of his oral closing, is that P had since then failed to mitigate its loss. 223.As I have recorded above, the G/F Red Structure and 1/F Red Structure had been removed. The Works have re-commenced upon removal of the Front Wall. P is no longer seeking any injunction. The order being sought that “[D] shall allow [P] and its contractor (including its workmen) to have access to the Lane by a route to be determined by the Court”[148] is also no longer necessary. I note that in §144 of his written opening, Mr Lam invites this Court to make a consequential order that D shall, within a reasonable time, demolish the Violet Structure or such part thereof, so that P’s workmen may access the Lane without passing through the interior thereof. Such a consequential order is also no longer necessary, and I refuse to make any. 224.The remaining relief being sought by P is entirely monetary in nature. 225.The particulars of loss and damage sought are pleaded in §15 of the RASOC. They have also been set out in the Scott Schedule. The Scott Schedule is however not as useful as it ought to be. D simply states therein that “As [D] does not admit liability, it is not in a position to propose amount of damages (if any).” Such an attitude is not helpful, and is most unfortunate. 226.P’s claim fails into 2 categories: (1) alternative accommodation costs, and (ii) additional construction costs. O.1. ALTERNATIVE ACCOMMODATION COSTS 227.Relating to this limb of the claim, I make the following findings:
228.In respect of quantum as pleaded in §15(a) of the RASOC and the table thereunder:
O.2. ADDITIONAL CONSTRUCTION COSTS 229.The additional constructions costs are pleaded at §§15(b) to (e) of the RASOC. The contractors concerned are K&F, 中英, Centro and榮光, in the respective sums (according to the Scott Schedule) of HK$382,000, HK$50,378, HK$1,580,412 and HK$12,395. 230.I first of all repeat my findings set out in §§227(a) and (b) above, which are also relevant to this head. 231.In relation to K&F:
232.In relation to中英:
233.In relation to Centro:
234.In relation to榮光:
235.In summary, I allow P’s claim for additional construction costs, and assess the quantum at HK$1,576,600 (HK$382,000 + HK$37,800 + HK$1,147,000 + HK$9,800). O.3. CONCLUSION ON P’S MONETARY CLAIM 236.For the reasons set out above, I allow P’s monetary claim to the extent of HK$2,547,600 (HK$971,000 + HK$1,576,600). 237.The monetary part of D’s Counterclaim is pleaded on the basis of P’s breach of common law duty[161], breach of Clause A(4), trespass and/or nuisance[162]. The total particularized damage is HK$230,700[163]. As I have mentioned above, injunctive relief is also sought to compel removal of the J15 Lightwell Structure, the Pond-like Structure, and the Alleged Unauthorized Drainage Pipes. 238.At Section B.2 of his written opening, Mr Pun addresses the relevant general principles applicable inter alia to trespass, nuisance and negligence. They are not controversial. I apply them when necessary. 239.At §98 of his written closing, Mr Pun, in the context of the Minimum Disturbance Limb, submits that it is proper to adopt the “unreasonable user and foreseeability” test (as applicable to private nuisance) when determining what amounts to “as little disturbance as possible”. 240.Mr Lam does not dispute the application of that test[164]. He highlights the following passages from Clerk & Lindsell on Torts 23rd ed., at §19-35, that:
241.In my view, the material circumstances that need to be taken into account when deciding whether there has been any private nuisance or breach of the Minimum Disturbance Limb also include the implied duty of co-operation between the parties as discussed above, which I repeat. I agree with Mr Lam[165] in this regard, that the correlative of D’s duties under the implied term of co-operation is P’s ancillary rights under Clause A(4). P.1. THE ALLEGED SUBSTANTIAL DISTURBANCES 242.Except those relating to the injunctive relief, the Alleged Substantial Disturbances are alleged to have taken place during the phase of Works between about December 2016 and October 2017 (which D defines as the Early Renovation Works). 243.I shall go through the Alleged Substantial Disturbances in the way as structured by Mr Pun in D Closing/Annex. The evidence and materials cited therein are extensive. I may not recite and discuss them in full below, but I have considered them. P.1.A. “NUMEROUS SAFETY MATTERS” 244.Under the heading of “Numerous safety matters”, submissions on 4 matters have been made. P.1.A.I. “NO REGULAR SAFETY INSPECTION OF THE SCAFFOLDING” 245.By letter of 9 August 2017, the Management Office complained to K&F that, amongst other things, there was no safety certificate on the scaffolding. Rectification within 7 days was requested. The situation had been rectified by 16 August 2017[166], and an inspection conducted on 14 August 2017[167]. 246.The complaint was based primarily upon Kong’s evidence[168], that based upon a safety certificate she had seen, only 2 inspections (of 14 August and 27 October 2017) were recorded, she “suspected” that the scaffolding had not been inspected in accordance with the law. She otherwise has no evidence of the exact state of the inspections. 247.In my view, the evidence does not establish any actionable breach. P.1.A.II. “COLLAPSE OF SCAFFOLDING ON TWO OCCASIONS” 248.On 23 and 27 August 2017, Hong Kong was hit by respectively Typhoons Hato and Pakhar. They were both very powerful typhoons. 249.As recorded in the Incident Report[169], on 23 August 2017 a bamboo fell into the Garden and damaged certain properties. It also recorded that P’s contractor would accept responsibility for the same. I will deal with the loss separately below (as it was dealt with separately in D Closing/Annex). 250.As further recorded in the Incident Report, part of the scaffolding collapsed on 27 August 2017. It was also recorded that P’s contractor would handle the dangerous parts as soon as possible. When giving evidence, Kong also fairly accepted that the situation was understandable, and that P’s contractors would need time to deal with the problems, as it was dangerous for them to do so in the middle of the typhoons. According to the Incident Report, the dangerous scaffolding was removed on 29 August 2017 by P’s contractor. 251.On the evidence, and as clarified by Mr Pun[170], it is not D’s allegation that there was any delay on P’s part in dealing with the fallen scaffolding after the typhoons, but that their collapse together with the alleged lack of inspection “show that no sufficient preventive measure was implemented by P.” 252.In my view, in all the circumstances of the case, given the cause of the matters, their ad hoc nature, and the remedial actions taken, save the properties actually damaged (the glass table etc.) which I will come back to, no actionable breach has been established. P.1.A.III. “RENOVATION WASTES” 253.In gist, the complaint is that P failed to properly manage and handle its renovation waste, thereby creating serious safety concerns[171]. 254.I accept that according to the evidence, and as highlighted by Mr Lam at section E1(x) of his written closing, P’s contractors did from time to time clear and otherwise deal with them. They did not ignore the complaints. I do not however agree that such occurrences were “inevitable”. P’s contractors could have done more. Permitting debris to fall onto J14 should have been prevented. The bottom part of the canvas nets covering the scaffolding for example could also have been secured (which they were not according to Kong, whose evidence in this regard I accept). 255.The dropping of renovation debris in the absence of precaution is foreseeable. It is unreasonable. It is preventable. Nuisance and breach of the Minimum Disturbance Limb has been established. 256.No special damages are being claimed under this sub-heading. P.1.A.IV. “SAFETY OF P’S WORKERS” 257.I accept Kong’s evidence about she having seen workers working without safety equipment. However, no authority has been cited to me that such conduct constituted “disturbance” or “nuisance”. 258.No actionable breach has been established. P.1.B. “VARIOUS OTHER SECURITY AND PRIVACY MATTERS” 259.The second heading is “Various other security and privacy matters”, under which there are 4 sub-headings. P.1.B.I. “BLOCKING THE DOOR OF THE RED STRUCTURE” 260.The evidence establishes that the door of the G/F Red Structure leading to the Lane had been blocked by certain wooden planks and structures built by P’s contractors at the Lane. The door was blocked for several days towards the end of July and early August 2017. That was not reasonable, and more than minimum disturbance. 261.No special damages are being claimed. P.1.B.II. “DAMAGING D’S SECURITY SENSORS” 262.D’s case is that sometime in August 2017, P’s contractors cut off the wirings at the Lane connecting the security sensors of J14. 263.P admits having done so. I however do not accept the suggestions put to Mrs Chan during cross-examination that she instructed the workers to cut the wires because the sound of the system was noisy.
265.I have concluded above that the Yellow Wall belonged to J15. 266.However, even though one of the sensors was mounted on the Yellow Wall, it does not necessarily mean that P was entitled to cut off the wiring. P is not putting forward a case of self-help. There is no suggestion that the sensor could not have been dislodged from the Yellow Wall, so that the wiring had to be cut. 267.The incident may have been a one-off matter. But that does not mean that the cutting of the wire cannot be an act of trespass, which I hold it is. 268.I have considered Mr Lam’s criticisms of D’s evidence[173]. Despite those criticisms, I accept Kong’s evidence that the security had been re-connected. The costs and expenses involved were HK$12,000[174], which I allow. P.1.B.III. “SCAFFOLDING ERECTED ON THE CANOPY OUTSIDE SENIOR MRS KWONG’S ROOM” 269.The complaint is that part of the scaffolding blocked the window of the master bedroom of J14, caused inconvenience to the residents there, created security risk, and compromised the occupants’ privacy. 270.I have considered the evidence. I have in particular considered the relevant photograph[175]. Bearing in mind the proximity between J14 and J15 and the extent of the inconvenience, I am on balance of the view that it was not excessive as between neighbours. Any possible trespass should also be considered in the context of P’s ancillary rights under the implied duty of co-operation. 271.No actionable breach has been established in this regard. 272.D’s complaint is that P allowed its contractors to leave a long ladder and a moveable metal platform unattended overnight in the Lane, thereby creating significant security risks for D. 273.I accept Mr Lam’s submissions that the use of scaffolding, metal platform and long ladder are within P’s ancillary rights under Clause A(4)[176]. In terms of security risk, I also accept Mr Lam’s submissions that as J15 was locked and secured, there was no real or substantial risk of trespassers entering J15 and then access the Lane via the scaffolding, metal platform or long ladder. 274.In terms of scaffolding lights, D complained that it took P’s contractors some 10 days to install one scaffolding light, and that even so, it was not dutifully turned on afterwards. 275.The timeous installation and use of scaffolding lights would have enhanced the level of security. I see Kong’s concern. But on the facts of the case, and as submitted by Mr Lam[177] which I have to accept, it is difficult to see why the absence of scaffolding lights could constitute a “disturbance”. Nor has any authority been shown to me showing that that could constitute a nuisance or trespass. 276.On the evidence, no actionable breach has been established. 277.I now come to the third main heading, under which there are 4 sub-headings. P.1.C.I. “MISBEHAVIOUR OF P’S WORKERS” 278.D’s complaints relate to the misbehavior of P’s workers and hygiene issues. Kong says that the Lane smelt of urine. Shorts and soft drink cans were squeezed into the gaps between the Glass Brick Walls. 279.On the evidence, I am of the view that the disturbances were more than minimum, unreasonable, foreseeable and avoidable. 280.No special damages are being claimed. P.1.C.II. “ACCUMULATION OF RENOVATION WASTE” 281.The complaint is that P allowed various renovation wastes, debris and rubbish to accumulate in and around J14, which created serious hygiene concerns. 282.I have considered the various photographs, entries in the Incident Report and the communications between P’s contractors and the Management Office. Renovation waste and debris had in fact been shown to have been allowed to be accumulated on places like the Lane and the top of the Red Structure. I have considered the evidence discussed by Mr Lam at section E1(x) of his written closing, and in particular the steps taken by P’s contractors to clean up. I repeat Kong’s evidence that the bottom part of the canvas nets covering the scaffolding was not secured. I accept also her evidence that despite the undertakings given by P’s contractors to the Management Office to finish work earlier every day to clean up the site, that was not done. 283.I have considered the intrinsic nature of renovation works which Mr Lam has emphasized. However, on the evidence, I am of the view that the disturbances were not minimum, unreasonable, foreseeable and avoidable. 284.I will deal with quantum together with the claim relating to blockages of J15’s drainages. P.1.C.III. “P’S POND-LIKE STRUCTURE” 285.The complaint is that any stagnant water in that structure would be the source of mosquitos. 286.The so-called Pond-like Structure was originally part of the basement of J15. It became a bit of a void upon commencement of the Works. It however remained under cover. Mrs Chan has confirmed that it would be closed back up upon completion of the Works. 287.D’s first official complaint through its solicitors to P was only made on 6 May 2021, to which P through its solicitors replied that P had instructed a contractor to spray insecticide on 11 December 2020. 288.D’s concern at one stage was the uncertainty in respect of the time when the Works would be completed. As I have recorded above, with the opening up of the Front Wall, the Works had been resumed. 289.In my view, no actionable breach has been established. P.1.C.IV. “P’S UNAUTHORISED LIGHTWELL STRUCTURE” 290.I have described the J15 Lightwell Structure above. 291.Kong’s concern is that the roof of canopy of the J15 Lightwell Structure would be another source of mosquitos. 292.The photograph shows that there is a drain hole on the canopy of the J15 Lightwell Structure. There is no evidence which suggests that it did not or does not function. 293.No actionable breach has been established. P.1.D. “DESTRUCTION OF AND/OR DAMAGE TO D’S PROPERTIES” 294.I now come to the fourth main heading, under which there are 9 sub-headings. P.1.D.I. “DEMOLISHMENT OF THE LIGHTWELL WALL AND MOSAIC TILES” 295.There is no dispute that at the early state of the Works, P took down the Lightwell Section of the Yellow Wall. It has since been rebuilt. Parties’ dispute lingered on as to how it should be refurbished. 296.I have ruled that on the evidence, P has proved to the requisite standard that the Yellow Wall (including the external face) is P’s Property. 297.This limb of D’s Counterclaim is not made out. P.1.D.II. “DAMAGE TO THE RED STRUCTURE CAUSING WATER LEAKAGE” 298.It is Mrs Chan’s evidence[178] that:
299.The Red Structure at that stage did block the Covered Part of the Yellow Wall. 300.According to the photographs, the cut appears consistent with the reasons given by Mrs Chan for its creation. P’s contractor also stated that the gap would be closed up upon completion. 301.The entire Red Structure had shortly afterwards been demolished. 302.In my view, and having taken into account all the factors, the cut was reasonable. Not actionable breach has been established. P.1.D.III. “DAMAGE TO D’S GLASS BRICKS ON ITS GARDEN WALL” 303.I have described the Glass Brick Walls above. 304.Photographs show that part of the scaffolding rested on the J14 Glass Brick Walls[179]. 305.On the evidence, I am satisfied that the Works had resulted in damage to a number of bricks of the Glass Brick Walls. 306.Such damage is not minimum, unreasonable, foreseeable, and avoidable. 307.I will deal with quantum later together with the part of D’s Counterclaim in respect of the floor tiles of the Lane. P.1.D.IV. “DAMAGE TO THE GLASS TABLE IN D’S GARDEN” 308.It was damaged by certain bamboo sticks that got blown off the scaffolding during Typhoon Hato. P in my view is liable to compensate D for the same. 309.Having considered the evidence, including Mr Lam’s criticisms of the same, I assess the damages (costs of a new glass table together with transportation costs) at HK$7,700[180]. P.1.D.V. “DAMAGE TO THE D’S SPOTLIGHT IN THE GARDEN” 310.A spotlight in D’s Garden was damaged by bamboo sticks fallen from the scaffolding. P is liable to compensate for that. Having considered the evidence, including Mr Lam’s criticisms of the same, I assess the damages at HK$2,500[181]. P.1.D.VI. “BLOCKAGES OF D’S DRAINAGES ON TWO OCCASIONS” 311.Given the discussions above, I accept that the Works would have caused blockages to the drainages both at the Lane and the canopy outside the master bed room. They were more than minimum and unreasonable. 312.I however do not accept that Works necessitated the reconstruction and relocation of the drainage outside the master bedroom. I disallow the claim in this regard. 313.I assess the damages, together with the part of the Counterclaim in relation to accumulation of renovation waste, at HK$2,500[182]. 314.In respect of Item 12 of the Scott Schedule in relation to the clearing and reconstruction of the drainage at the canopy outside the master bedroom, I allow only HK$2,500 as the costs for its clearing[183], but not the balance of HK$32,000 for its reconstruction. P.1.D.VII. “PORSCHE VEHICLE PARTS PLACED IN THE LANE” 315.The complaint is that P’s workers unwrapped the Porsche vehicle parts placed by D inside the Lane, which acts caused rainwater, debris and dust to have accumulated and damaged those parts. 316.I accept Kong’s evidence under cross-examination that those parts were originally covered and protected by plastic. The covering was removed in the course of the Works. The inherent likelihood is that it was removed by P’s workers. 317.The disturbance is more than minimal and unreasonable. 318.I accept Kong’s evidence that a replacement had been purchased and paid. 319.I assess the damages at HK$28,000[184]. P.1.D.VIII. “THE WATERPROOFING LAYER ON THE [FRONT] WALL” 320.On the evidence, I accept that the part of the scaffolding had rested on the Front Wall. The waterproofing on it had as a result been damaged. The damage and disturbance was more than minimal, unreasonable, foreseeable and avoidable, it not also a trespass. 321.I assess the damage at HK$12,000[185]. P.1.D.IX. “DAMAGE OF THE FLOOR OF THE LANE” 322.On the evidence, I do not accept that Kong’s evidence that concrete had been used to fixed the scaffolding onto the floor of the Lane. Rather, it appears to squares of wood or concrete were placed between the floor and parts of the scaffolding support with the apparent purpose of protecting the floor tiles. 323.However, and I have observed above, supported by various photographs, there had been renovation debris on the floor of the Lane from time to time. There were also stains which could not be removed. All those resulted in disturbances beyond being minimum, and were unreasonable. 324.On the evidence, I accept that D has suffered loss, assessed at, together with the part of the Counterclaim in relation to the glass bricks and the reasonable costs for their replacement, HK$125,000[186]. 325.I also allow the “Miscellaneous works including general and protection works”, at HK$6,500[187]. P.1.E. “THE UNLAWFUL INTRUSION OF P’S UNAUTHORIZED DRAINAGE PIPES INTO D’S PROPERTY” 326.I will come back to the Alleged Unauthorized Drainage Pipes when I deal with the injunctive relief sought by D. P.2. CONCLUSION ON THE MONETARY PARTS OF D’S COUNTERCLAIM 327.At §28 of the RRRAD&C, D particularized damages in the total sum of HK$230,700. 328.At §1 of the Prayer, D seeks “The sum of HK$230,700 as pleaded in paragraph 28 above, or alternatively damages to be assessed”. 329.For the reasons set out above, I allow part of D’s Counterclaim, and assess and award damages in the total sum of HK$198,700 (i.e. the total amount as particularized and prayed for save the amount of HK$32,000 in relation to the re-construction of the drainage at the canopy outside the master bedroom. P.3. THE INJUNCTIVE RELIEF SOUGHT P.3.A. THE POND-LIKE STRUCTURE 330.I have described the Pond-like Structure above. I repeat that it will be closed back up upon completion of the Works. 331.On the evidence, I see no basis for any permanent injunction for its demolition. 332.D’s latest position, as revealed in D Closing/Annex[188], is that it is no longer insisting upon an injunction for demolition of the Pond-like Structure. There, Mr Pun says that:
333.There is no evidence in support of or explaining why the period of 60 days proposed is appropriate or otherwise reasonable. 334.As things turned out, and as I have recorded above, the oral deliveries of parties’ closing submissions have been delayed. When parties ultimately came back on 13 May 2022, parties informed the Court that the Works were progressing well, and there had been no further major issues. That proposed period had also lapsed. 335.I decline any injunctive relief in relation to the Pond-like Structure. P.3.B. THE J15 LIGHTWELL STRUCTURE 336.I have also described above the J15 Lightwell Structure. 337.D’s latest position, also revealed in D Closing/Annex[189], is that it is no longer insisting upon an injunction for the wholesale demolition of the J15 Lightwell Structure. There, Mr Pun says that:
338.I do not accept that the proposed order is “still warranted”. 339.I have stated my views on the drain hole on the canopy of the J15 Lightwell Structure, which I repeat. 340.Further, such “scaled-down” injunction has never until D Closing/Annex been part of D’s case. P has never been afforded the chance to answer it. It would be grossly unfair to P if one is to be ordered at this stage. 341.I refuse any injunction relief in relation to the J15 Lightwell Structure. P.3.C. THE ALLEGED UNAUTHORIZED DRAINAGE PIPES 342.D’s complaint is that P has, as part of the Works, moved some portion of the drainage pipes serving J15 to the outside of its external wall above the Lane, thereby encroaching upon the airspace of D’s property. 343.I have studied the photographs produced by Kong in support of her complaint[190]. Two sets of pipes are impugned:
344.As explained by Mrs Chan[193] and supported by the photograph she has produced[194], Set A is actually outside the Lane. I accept her evidence in this regard. No trespass has been established. 345.In relation to Set B[195], they were mounted along a section of the Yellow Wall towards the sea side, comprising a horizontal and vertical section. The horizontal section is mounted at a height at about the roof top of J15. The vertical section runs from the roof of J15 to somewhere where the top of the 1/F Red Structure used to be, and then turns towards the front wall of J15 facing the sea (and hence no longer within the Lane). The “thickness” of those pipes projects several inches into the airspace of the Lane. 346.Mr Lam relies on the following passage from §18-03 of Clerk & Lindsell, that:
347.However, reading that paragraph of Clerk & Lindsell as a whole, it is quite clear that the learned authors are principally discussing the question of trespass of airs-space by aircrafts, and whether intrusion into air-space “at any height” is automatically wrongful. 348.A more relevant case is Laiqat v Majid [2005] EWHC 1305 (QB) cited by Mr Pun:
349.I respectfully agree. 350.I find that Set B, in so far as they project into the airspace of the Lane, constitutes trespass. 351.Mr Lam submits nonetheless no mandatory injunction should be granted. He points to the fact that prior to the Works, there were some horizontal pipes on the Yellow Wall that similarly protruded into the airspace of the Lane. D had not complained. He also relied on Wilmes Lai Shim v Ng Jess (unreported, LDBM 266/2013 & LDBM 280/2013, 3 December 2014) where the Lands Tribunal held that where no damage has been occasioned and the grant of a mandatory injunction would inflict damage on the defendant out of all proportion to the relief given to the plaintiff, the court ought to refuse it. 352.Wilmes Lai Sim is of different facts. It related principally to breaches of DMC for unauthorized alteration and occupation of common area. In the present case, we are concerned with the property right of D, which the law has to uphold, protect and respect. 353.For the same reasons, the absence of any objection by D of the old pipes does not deprive them of their entitlement to uphold their property right. In any event, the old pipes are different from Set B. The consideration will be different if Set B had been there for a long time without objection. 354.Mr Lam submits that it is wrong to say that re-routing the pipes would cause no hardship to P, as P would need to find another place to relocate them at extra costs. I do not see those as hardship, but the necessary consequence of trespass. 355.Mr Lam, with reference to §37 of Laiqat v Majid, subject that it is relevant to consider whether the trespass is de minimis. 356.On the evidence before me, I am of the view that the trespass constituted by Set B cannot be described as de minimis. 357.For completeness, I come back to Set A and add the following. I have concluded that on the evidence before me, no trespass has been established in respect of Set A. If there were any, for example if a small part of Set A had protruded over the airspace of the Lane at the point where it had turned from outside into J15 near the top of the Front Wall, such trespass might properly be de regarded as de minimus. 358.I therefore grant a mandatory injunction for the removal of Set B, namely the horizontal and vertical set of pipes mounted along a section of the Yellow Wall towards the sea side which protrude into the airspace of the J14 (and as shown in the photograph at [F1/84]). P.4. CONCLUSION ON D’S COUNTERCLAIM 359.For the reasons set out above, I allow part of D’s Counterclaim to the following extent:
360.For the reasons set out above:
361.In terms of interest, I make the following order nisi:
362.In terms of costs:
363.Both the interest order nisi and costs order nisi shall become absolute in 21 days of the handing down of this Judgment. Any application for variation may be made during the interim by letter to this court, upon receipt of which further directions may be given, with the view of the same being disposed of on the papers.
Mr Paul Lam SC leading Ms Sabrina Leung instructed by Tang & So, for the Plaintiff Mr Hectar Pun SC leading Ms Carol Lee instructed by ST Cheng & Co, for the Defendant Annexure A Agreed Ground Floor Plan
[1] I describe the wall as such without ignoring parties’ disagreement over the ownership of that wall or its external face. [2] In circumstances which I will describe. [3] The Revised Agreed Plan (2) (the Explanatory Notes not incorporated). [4] [D1/9]. [5] [D1/9-10]. [6] [D1/43]. [7] [D1/47-48]. [8] [D1/49-50]. [9] I say “sought” as parties’ disputes have evolved over the course of last several years, in the manner which I will explain. Whilst P started off seeking an injunction, it no longer does so. [10] At section E of his written opening. [11] See e.g. §§10 and 19D of the RRRAD&C. [12] [F3/531]. [13] [F2/265]. [14] [E1/139]. [15] The stretch of the Yellow Wall from the Pedestrian Road to the Front Wall was given during the trial the co-ordinations of A to B on Annexure A. [16] [F1/133]. [17] [F3/531]. [18] Which was given during the trial the co-ordinations of B to C on Annexure A. [19] [F1/4]. [20] The stretch of the Yellow Wall the lower part of which having been covered by the Red Structure was giving during the trial the co-ordinations of C to D on Annexure A. [21] Parties cannot agree on what it should be called. I will simply refer to it neutrally as “the Violet Structure”. [22] [D2/376-378]. [23] §4 of Yick/2 (as defined below). [24] [D2/364]. [25] [D2/366-367]. [26] [E1/1-6]. [27] §11 of Yick/2. [28] Marked by an orange rectangle on Annexure A, and explained by Note 11. [29] [F2/298 and 299]. [30] Compared [F2/298] with [F2/299], and see [E1/217-222]. [31] The fence facing the sea is marked as “White Gate” on Annexure A. [32] Marked on Annexure A as the “Green Gate”. [33] Which according to the assignment plan at [D1/132] is 5.40m. [34] See the photograph at [F1/245]. [35] Compared with §17 of the Agreed Statement of Facts. [36] In fact even §17 of the Agreed Statement of Facts are not fully agreed. [37] The handwritten notice at [D2/364], and transcript of the same at [D2/399-2]. [38] [D2/401]. [39] [D2/400]. [40] See [D1/194]. [41] §45 of Yick/1. [42] [E1/1-3]. [43] [E1/7-14]. [44] [E1/41-42]. [45] [E1/44-45]. [46] At §82 of his written opening. [47] [E1/49-51]. [48] [E1/52-54]. [49] §88 of his written opening. [50] [E1/55-57]. [51] [E1/58-59]. [52] [E1/105-108]. [53] [E1/120]. [54] [E1/121-125]. [55] [E1/126]. [56] [E1/127]. [57] [E1/129-131]. [58] [E1/132-133]. [59] [E1/134]. [60] [E1/135-138]. [61] [E1/139-142]. [62] [E1/143-147]. [63] [E1/177-178]. [64] [E1/179-185]. [65] [E1/186-187]. [66] [E1/188-190]. [67] [E1/191-192]. [68] [E1/193-196]. [69] [E1/197-199]. [70] [E1/200-213]. [71] [E1/214-216]. [72] [E1/217-222]. [73] [E1/224-232]. [74] See eg [E1/235-239] and [E2/245-262]. [75] [E1/240-244], and [E2/273-274]. [76] [E2/279-286]. [77] Which has been delay due to the pandemic. [78] Although Mr Chan has made 1 statement dated 6 May 2019, he has not been called. [79] §17 of his written closing. [80] §50 of his written opening. [81] §§19 to 20 of his written reply. [82] §44 of his written opening. [83] §16. [84] §§57-59 of his written closing, and Parts II.1 and II.2 of his written reply. [85] See §98 of Mr Pun’s written closing, arguing that it is proper to adopt the “unreasonable user and foreseeability” test for finding private nuisance. [86] §§34 to 35 of his written closing. [87] §23 of his written closing. [88] Which are given by Mr Lam at§54 of his written opening. [89] §26 of his written closing. [90] Sections G of his written opening, and D of his written closing. [91] §51.1 of his written opening. [92] §72.1 of his written closing. [93] §72.2 of his written closing. [94] §8 of his written closing and §44 of his written reply. [95] At §54 of his written opening. [96] At §§24-25 of his written closing. [97] §2 of his written reply. [98] which include Greenwich Healthcare National Health Service Trust v London and Quadrant Housing Trust [1998] 1 WLR 1749, Ford Chamber Ltd v Deanminster Ltd and another [2006] EWHC 1961 (Ch), Crane Road Properties LLP v Hundalani [2006] EWHC 2066 (Ch), Heslop v Bishton and others [2009] EWHC 607 (Ch), Kettel v Bloomfold Ltd [2012] EWHC 1422 (Ch), Lea v Ward [2017] EWHC 2231 (Ch), Regency Villas Title Ltd and otehrs v Diamond Resorts (Europe) Ltd and another [2017] Ch 516 at 530, Tsan Luk Yuk Lin v Secretary for Environment, Transport and Works [2008] 2 HKLRD 33. [99] §81 of his written closing. [100] §84 of his written closing. [101] §87 of his written closing. [102] §4(b) of his written closing. [103] §88(c) of his written closing [104] See §89 of his written closing. [105] §34 of his written opening. [106] As explained by Lord Hoffmann NPJ – see Kung Ming Tak Tong §22. [107] As explained by Li CJ at §44 of Kung Ming Tak Tong. [108] Page 93. [109] Because if for example a path already exists over the servient tenement leading to the dominant tenement. [110] That “the right of way is chosen in the first instance by the person whose grant gave rise to the need for the way” (p.95). [111] That “the right of selection vests in the owner of the servient tenement. Sometimes a gloss is added: that if the owner of the servient tenement does not exercise the right of selection the owner of the dominant tenement may do so”(p.96). [112] Pages 100 to 101 under the heading of “What factors apply?” [113] See section F2. of his written closing. [114] Which I do not believe so noting that Clause A(4) is an express mutual grant and reservation. Any mechanism for deciding the route may be decided by recourse to issues of construction. I accept Mr Pun’s submissions at §57 of his written reply in this regard. [115] §57.3 of his written reply. [116] Section E.1 of his written closing. [117] §84 of Mr Pun’s written closing. [118] [D1/63]. [119] §79 of his written closing. [120] See [E1/4], [F1/6, 151-152] and [F2/280]. [121] §6 of his written Reply. [122] [D1/82 and 85] respectively. [123] [D1/132]. [124] [F1/10-50]. [125] For examples [F1/11], [F3/552], [F1/16-1], [E2/252-254] and [F1/47-50]. [126] For examples [D2/364 and 367]. [127] [F1/11]. [128] By summons of 4 January 2019, [B/36-39]. [129] §88 of his written closing. [130] §92 of his written closing. [131] §59 of his written opening. [132] See “Annex to Part F” (“D Closing/Annex”), which is a 29-page document attached to his written closing. [133] Section G.1. of his written closing. [134] Section G.2.1 of his written closing. [135] §112 of his written closing. [136] §113 of his written closing. [137] §§39(g) and (h) of Yick/1, [C1/15]. [138] §66 of his written closing, and §18 of his written reply. [139] §45 of his written opening, and Section H of his written closing. [140] And see also §19D(1) of the RRRAD&C. [141] [F2/299]. [142] In particular Section G of his written reply. [143] §136 of his written closing. [144] §131 of this written closing. [145] See §1 of the letter of the Management Office of 18 May 2019, [D1/207]. [146] See §3 of the letter of the Management Office of 18 May 2019, [D1/207]. [147] §143 of his written closing. [148] §(1) of the Prayer. [149] Section K.1.1 of his written closing, repeated in §225 of the same. [150] [D1/232-233]. [151] §226.1 of his written closing. [152] §152 of his written closing, and §28(a) of his written reply. [153] §226.2 of his written closing. [154] [F1/40]. [155] And see also §109(5) of Yick/1. [156] [D2/326]. [157] At Section K.1.2(c). [158] [D2/276-277]. [159] §204 of his written closing. [160] [D2/268-273]. [161] §27 of the RRRAD&C. [162] §28 of the RRRAD&C. [163] §28 of the RRRAD&C, and see Items 8-16 of the Scott Schedule. [164] §§15 and 22 of his written reply. [165] §26 of his written closing. [166] [D2/447]. [167] [F1/208]. [168] §21 of Kong/1. [169] [D2/376]. [170] §§266 and 267 of D Closing/Annex. [171] §274 of D Closing/Annex. [172] §32 of his written closing. [173] Section H2(ii) of his written closing. [174] Item 4 on [C3/550], and Item 9 of the Scott Schedule. [175] [C2/260]. [176] §39 of his written closing. [177] §43 of his written closing. [178] §39(g) of Yick/1, [C1/15]. [179] See for example [F2/316]. [180] Item 16 of the Scott Schedule, and [D2/406]. [181] Item 13 of the Scott Schedule, and item 5 on [D2/407]. [182] Item 10 of the Scott Schedule. [183] The last item of item of [D2/407]. [184] Item 15 of the Scott Schedule, and [C3/554]. [185] Item 11 of the Scott Schedule, and item 3 on [D2/407]. [186] Item 8 of the Scott Schedule, and [D2/406] (quoted costs plus insurance). [187] Item 14 of the Scott Schedule. [188] At §335. [189] At §340. [190] Kong/1, §43, and the photographs at [C2/278-280]. [191] And also Note 21 on Annexure A. [192] And also Note 20 on Annexure A. [193] Yick/1, §92. [194] [C1/156]. [195] See also the photograph at [F1/84]. |
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