Double Proof Ltd v. Ho Kwok Wing

DCCJ 5753/2019

[2023] HKDC 1128

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5753 OF 2019

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JUDGMENT

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(A)  Background

1.The plaintiff and the defendant are neighbours. The plaintiff complains that the defendant has cut off the sewage or waste pipe of its toilet. The plaintiff alleges that the sewage or waste pipe of its toilet runs through the defendant’s unit and then connects to the main drainage pipe of the building eventually. The plaintiff further alleges that the subject sewage or waste pipe has been running through the defendant's unit, including the defendant's toilet, for many years. The defendant's conduct had interfered with its easement or quasi easement, constituted a breach of deed of mutual covenant and nuisance. The plaintiff claims for injunction orders against the defendant.

2.The defendant denies that there is such a sewage pipe and put the plaintiff to strict proof. The defendant counterclaims that the plaintiff wrongfully stops the fresh water supply to the defendant’s unit for about one month.

(B)  Undisputed and Indisputable Facts

3.Workshop Unit 4 on the 12^th Floor, Harbour Centre, Tower 2, No 8 Hok Cheung Street, Kowloon (“Unit 4” hereinafter) situates in a multi-storey industrial building called Tower 2 of Harbour Centre. Tower 2 of Harbour Centre (“the Building”) was on the Remaining Portion of Kowloon Marine Lot 113. According to the deed of mutual covenant of the Building (the “DMC” hereinafter), Unit 4 was allotted 66 undivided shares out of a total of 5,767 undivided shares.

4.By an assignment dated 7 May 1990 (“1990 Assignment” hereinafter), the plaintiff became the owner of Unit 4. There was an original toilet inside Unit 4. The original toilet was connected to the main sewage or drainage pipe of the Building by a pipe.

5.In around mid-1991, the plaintiff partitioned Unit 4 into Unit 4A and Unit 4B (“1991 Partition” hereinafter). At the time of the 1991 Partition, a new toilet (“Toilet 4A” hereinafter) was constructed for the exclusive use of the occupiers of Unit 4A. It can be seen from the terms of assignment and the assignment plan that Unit 4A actually contains both the office area of Unit 4A and Toilet 4A. Hence, Toilet 4A actually forms part of Unit 4A.

6.Upon the 1991 Partition, the original toilet of Unit 4 fell into the internal area of Unit 4B (“Toilet 4B” hereinafter). Unit 4B (including both office area and Toilet 4B) was allotted 40/66 of 66/5767 undivided shares. Unit 4A (including both office area and Toilet 4A) was allotted 26/66 of 66/5767 undivided shares.

7.The floor plan of Unit 4 at the time of the 1990 Assignment is annexed as Annexure 1 hereto; and the floor plan of Unit 4A and Unit 4B after the 1991 Assignment and 1991 Partition is annexed as Annexure 2 hereto. It can be seen that after the 1991 Partition, Toilet 4A had been constructed and it did not physically abut the office area of Unit 4A. The main door of Unit 4B was between the main door of the office of Unit 4A and the door of Toilet 4A.

8.Immediately after the 1991 Partition, Unit 4B was assigned by the plaintiff to the defendant on 16 July 1991 (“1991 Assignment” hereinafter); and Unit 4A was assigned to the plaintiff.

9.Also on 16 July 1991, a Sub-Deed of Mutual Covenant (“Sub-DMC” hereinafter) was executed by the plaintiff and the plaintiff’s mortgagee on the one part and the defendant on the other part. The sub-DMC was registered against both Unit 4A and Unit 4B at the Land Registry.

10.Toilet 4A and Toilet 4B were connected by a sewage and drainage pipe as defined at paragraph 13 hereinbelow.

11.In about 2001, repair work was carried out to the Pipe or any part thereof.

12.On about 11 June 2019, the defendant sent a letter to the plaintiff and requested the plaintiff to remove the Pipe.

(C)  The Pipe

13.Upon confirmation by the counsel for the parties, the subject pipe in question is in fact one waste and sewage pipe, despite the term “Pipes” was used in their pleadings and the witness statements. It is a discharge pipe which carries away the flushed waste water from Toilet 4A and it ran along the wall of the office area of Unit 4B and then extended into Toilet 4B before it joined the main drainage or sewage pipe of the Building. For easy reference, the pipe in question (“the Pipe” hereinafter) can be described by the following four portions in terms of the flow of the waste water:-

(a)  the first portion of the Pipe is within the area of Toilet 4A;

(b)  the second portion of the Pipe is inside the office area of Unit 4B and it connects both Toilet 4A and Toilet 4B at its two ends;

(c)  the third portion of the Pipe is inside Toilet 4B and it merged to the fourth portion; and

(d)  the fourth portion of the Pipe is also inside Toilet 4B, it is the original pipe installed by the developer and it connects the original toilet (later known as Toilet 4B) to the main sewage pipe of the Building.

14.It is the plaintiff's case that the abovementioned fourth portion of the Pipe was installed by the developer and this portion was there all along. Upon the 1991 Partition, the original toilet fell into the internal area of Unit 4B and a new toilet had to be constructed as Toilet 4A for the use of the occupiers of Unit 4A. Hence, the abovementioned first, second and third portions of the Pipe were installed and connected to the fourth portion of the Pipe, so that the flushed waste water could be discharged from Toilet 4A, through other portions of the Pipe in Unit 4B including Toilet 4B, to the main sewage pipe of the Building.

15.The plaintiff complained that the defendant had wrongfully cut off and blocked the Pipe in about July 2019. The plaintiff did not exactly know whether it was the second or third portion of the Pipe was cut off or blocked by the defendant. The plaintiff only knew that if its tenants flushed the toilet, waste water would come out from the toilet bowl and cause flooding in Toilet 4A.

(D)  Pleadings

16.The plaintiff pleaded that:-

(a)  by the 1990 Assignment, Unit 4 was assigned to the plaintiff together with “all other subsisting rights of way (if any) and other rights and privileges easements and appurtenances belonging to or appertaining to [Unit 4]” pursuant to Clause 1(C)(ii) of the Schedule of the 1^st Assignment; and with the benefit of the DMC.

(b)  pursuant to Clauses 1(b) and 1(c) of the Second Schedule of the 1991 Assignment, Unit 4B was assigned to the defendant subject “to such rights and rights of way as are more particularly described mentioned and/or referred to in the [1990 Assignment]”

17.It is the plaintiff’s case that by virtue of the 1990 Assignment and Clause 3 of Sub-section A of Section II of the DMC, the plaintiff had already acquired the right of sewage easement. Further, the plaintiff also pleaded that by virtue of the 1991 Assignment, the plaintiff had reserved the sewage easement right over the Pipe.

18.In particular, the plaintiff averred that when Unit 4B was assigned to the defendant by the 1991 Assignment, the plaintiff had expressly reserved its right of sewage easement at Clauses 1(b) and 1(c) of the Second Schedule of the 1991 Assignment. Furthermore, Unit 4B was assigned to the defendant subject to the plaintiff’s easement right over the sewage pipe under the 1991 Assignment and Clause 2 of Section III of the DMC as well.

19.Further or alternatively, the plaintiff averred that it had acquired implied easement rights over the use of the sewage pipe in Unit 4B upon execution of the 1991 Assignment.

20.Further or alternatively, the plaintiff pleaded that it was the common intention of the plaintiff and the defendant that by executing the 1991 Assignment, the plaintiff had acquired the implied easement rights over the use of the sewage pipe situated in Unit 4B.

21.The plaintiff complained that in or around late July 2019, the defendant wrongfully interfered with the plaintiff’s easement right over the sewage pipe by blocking, removing and/or cutting off the Pipe which were inside Unit 4B. The plaintiff averred that the defendant’s conduct was also in breach of Clause 3 of sub-section A of Section II, Clause 2 of Section III, Clauses 7 and 24 of Section IV of the DMC; and Clause 3(g) of the Sub-DMC.

22.The plaintiff claimed that the defendant’s conduct of blocking, removing and/or cutting off the Pipe had constituted nuisance.

23.As a result of the defendant’s wrongful conduct, Toilet 4A remained inoperative up to this date.

24.Despite repeated complaints, the defendant refused to reinstate the connection of the Pipe.

25.Hence, the plaintiff claimed against the defendant for a mandatory injunction for reinstatement of the connection of the Pipe and an injunction restraining the defendant from cutting off the connection of the Pipe again. At its opening submission, the plaintiff confirmed that it did not pursue its claim against the defendant for damages anymore.

26.The defendant denied the plaintiff’s claim. By her defence and counterclaim, the defendant denied that:-

(a)  Unit 4 was partitioned into Unit 4A and Unit 4B in about mid-1991;

(b)  Unit 4A and Unit 4B were subject to the Sub-DMC dated 16 July 1991.

The defendant only admitted that the plaintiff was the owner of Unit 4 and she was the owner of Unit 4B. The defendant put the plaintiff to strict proof.

27.Furthermore, the defendant pleaded that:-

(a)  she did not admit that portion of the Pipe had been installed in Unit 4 when the plaintiff became the owner of Unit 4 on 7 May 1990 by 1990 Assignment; and that between 7 May 1990 and mid-1991, the plaintiff had been using the Pipe as part of the flushing system of the toilet of Unit 4.

(b)  she denied that after the 1991 Partition, portion of the Pipe was located at Unit 4B and the same was connected to Toilet 4A and Toilet 4B.

(c)  she also denied that the Building Authority had regarded the the partitioning work including the building of a new toilet, ie Toilet 4A, as exempted work under the Buildings Ordinance.

28.The defendant categorically denied all of the plaintiff’s case on easement.

29.The defendant averred that:-

(a)  at all material times, Toilet 4B had its own pipes for drainage and flushing system;

(b)  the Pipe did not exist on or before 10 July 1991;

(c)  the Pipe was installed after the signing of the sale and purchase agreement dated 10 July 1991;

(d)  the Pipe was installed without the defendant’s consent;

(e)  the Pipe was installed without the defendant’s knowledge until June 2019;

(f)  the Pipe was installed against the property right of the defendant in Unit 4B, adversely affecting the enjoyment of Unit 4B by the defendant and her tenants;

(g)  from June 2019, the defendant started objecting the existence of the Pipe;

(h)  in June 2019, the defendant had to renovate Unit 4B. The defendant demanded the plaintiff to remove the Pipe but the plaintiff refused to comply with her demand;

(i)  in late July 2019, the defendant removed the Pipe.

30.The defendant complained that in early August 2019, the plaintiff wrongfully stopped the fresh water supply to both Unit 4A and Unit 4B. As a result, the defendant could not perform its renovation work in Unit 4B. Water supply to Unit 4B was only resumed in September 2019. Hence, the defendant counterclaimed for loss and damage under three headings:-

(a)  loss due to the reduced rental income since the assignment of Unit 4B to the defendant due to the existence of the Pipe, against and offending the property right of the defendant in Unit 4B with quantum to be assessed;

(b)  loss due to the loss of rental income for delay of the renovation of Unit 4B with quantum to be assessed;

(c)  extra expenditures on the renovation with quantum to be assessed.

31.At the closing submission, Miss Wong, counsel for the defendant, submitted that the quantum of the defendant's counterclaim was HK$62,000 per month for a period of 6 months. Alternatively, the quantum was HK$58,000 per month for a period of 6 months. Furthermore, the defendant alleged that the plaintiff had stopped the water supply to both Unit 4A and Unit 4B for about one month. The defendant contended that the plaintiff’s conduct had caused delay to the renovation work allegedly performed at Unit 4B. The defendant counterclaimed for damages of HK$3,000 per day for a period of 30 days.

(E)  Issues in Dispute

32.By the order of the court dated 7 February 2022, the parties were to file the signed statement of issues in dispute and set out their disagreements thereto (if any) on or before 17 May 2022. By an unless order dated 17 May 2022, it was ordered that the defendant shall provide comments to the plaintiff’s proposed statement of issues on or before 31 May 2022. Otherwise, the defendant be debarred from filing and serving her statement of issues.

33.By the order of the court dated 17 May 2022, the plaintiff shall file the agreed/deemed agreed statement of issues on or before 7 June 2022. The agreed/deemed agreed statement of issues dated 7 June 2022 filed by the plaintiff was as follows:-

(a)  whether the defendant is entitled to remove and/or cut off the pipes for toilets in Unit 4A but situated at Unit 4B;

(b)  If not, the quantum of damage to be awarded to the plaintiff;

(c)  If the answer to (a) is in the negative, whether injunctions sought should be granted;

(d)  If answer to (a) is in the positive, the quantum of damage be awarded to the defendant.

(F) Evidence

34.The plaintiff called two factual witnesses, namely Ms Lin Kwai Fong (“Madam Lin”) and Mr Chatlani Lakshman Kumar (“Mr Chatlani”). Both of them adopted their own witness statement as their evidence-in-chief.

Evidence of Madam Lin

35.Madam Lin has been working for the plaintiff as an employee since 1990. Her duties included secretarial and administrative work at the material times. She had knowledge about the present dispute because of her job duties and her position in the plaintiff. She had communication with her boss, who was the then director of the plaintiff at the material times and she had also read the documents of the plaintiff.

36.Madam Lin testified and said that the plaintiff became the registered owner of Unit 4 on 7 May 1990. She described the Pipe as a sewage and drainage pipe which had been installed by the developer at the rear portion of Unit 4.

37.Regarding Toilet 4A, Madam Lin said that Toilet 4A was not inside Unit 4B. Toilet 4A was constructed next to the entrance of Unit 4B. But the Pipe that served Toilet 4A had to run through Unit 4B before it was connected to the main sewage or drainage pipe of the Building. Madam Lin said that the plaintiff had been using the Pipe for around 28 years from 16 July 1991 to June 2019. She said the defendant never asserted any right over the Pipe and the plaintiff had never received any complaint from the defendant about the installation and the use of the Pipe by the plaintiff at the material times.

38.Madam Lin mentioned two incidents in her witness statement to prove that the defendant did have actual knowledge of the Pipe and the defendant had acknowledged the plaintiff’s use of the Pipe.

39.Regarding the first incident, Madam Lin said that the pipe of Toilet 4A was blocked in about July 2001. Madam Lin then contacted the management office of the Building. She also contacted Ms Jenny Leung of or on behalf of the defendant to discuss the repair issue. Eventually, Madam Lin engaged a plumber company called Lun Kee Plumbing and Electricity Engineering Company (“Lun Kee” hereinafter) to fix the blockage problem. Lun Kee found out that the Pipe was blocked by waste paper and other garbage. Since the blocked portion of the Pipe, presumably the fourth portion of the Pipe as mentioned hereinabove, served both Toilet 4A and Toilet 4B, the plaintiff asked the defendant to share part of the repair costs.

40.By a letter dated 26 July 2001 issued by the plaintiff to Wallon Industries Limited of which the the defendant was the director and company secretary, it was stated that:-

“As agreed we have replaced the pipes of the toilet and repair work is completed on 23 July 2001. As per our agreement we request you to please issue us a cheque for HK$2,500. We also request you to inform your tenant not to flush the unnecessary objects in the toilet as plumber found these objects in the pipes. We have requested same thing to our tenant as well.

We also like to draw your attention that pipes of the toilet are originally placed and is clearly shown in the original plan of the flat. It seems you have overlooked to see the details of the flat while purchasing it. Pipes placement is approved and permitted by BUILDING ORDINANCE OFFICE under Building Ordinance Section 41(3) in their letter dated 16 May 1991. So obstructing these pipes in any way will be illegal and proper action will be taken in that case.”

41.Madam Lin said that out of the total repair costs of HK$5,800, the defendant had paid HK$2,500 as her contribution and the plaintiff paid HK$3,300.

42.The second incident referred to by Madam Lin was in about March 2005. She said that the plaintiff received a letter in Chinese from the defendant dated 1 March 2005.

43.By the defendant’s 1 March 2005 letter, the defendant complained that there was water leakage problem in Unit 4B which was caused by the Pipe. According to the inspection of the defendant’s plumber, the portion of the Pipe inside Unit 4B but connecting from Toilet 4A caused the leakage problem. The tenant of Unit 4B had agreed to let the plumber to fix the leakage problem. Hence, the defendant demanded the plaintiff to arrange for the repair work of the Pipe within 7 days. Otherwise, the defendant would engage her own contractor to cut off the portion of the Pipe that was within the area of Unit 4B. The terms of the letter are as follows:-

“  茲因 租客華利珠寶公司（下稱“租客”），位於九龍鶴翔街8號維港中心二期1204B室之單位，通知單位漏水，本人已於二零零五年二月二十八日下午四時三十分委派梁小姐連同師傅到單位進行視察工作，並發現1204A室廁所喉管通往1204B室單位造成嚴重漏水，經與租客商討，租客答應作相應安排及方便給維修師傅進行更換漏水喉管工程。

現特此通知 貴司需於七天內安排維修工程，及負責此項更換連接1204B室廁所漏水喉管之工程費（附工程報價單），否則本人會安排維修師傅切斷經1204B室單位內之喉管，並保留一切追究責任。”

44.Madam Lin said that the plaintiff paid HK$6,500 on about 10 March 2005 as the replacement and repair costs of the Pipe.

45.In the cross-examination, Madam Lin’s evidence is as follows:-

(a)  it was put to her that when the Pipe of Toilet 4A was blocked in 2001, Unit 4B Toilet could still function properly. Madam Lin denied. She added that because the portion of the Pipe situated at Toilet 4B was blocked, the flushed water from Toilet 4A had no way to go. It was further put to her that in about 2001, only the portion of the Pipe between Toilet 4A and Toilet 4B was repaired. Madam Lin denied, she said that the whole Pipe was replaced in 2001.

(b)  the plaintiff’s letter dated 26 July 2001 was the idea of her boss, but the letter was typed by her.

(c)  after the 1990 Assignment, Unit 4 was used by the plaintiff. Upon the 1991 Partition of Unit 4 into Unit 4A and Unit 4B, Unit 4A was used by the plaintiff. Later on, Unit 4A was rented to several tenants over the years. The plaintiff’s tenants occupied Unit 4A as their office.

(d)  because the defendant blocked the Pipe in July 2019, the flushed water had no way to go. Therefore, the plaintiff stopped the water supply to both Unit 4A and Unit 4B for about one month.

(e)  water supply to both Unit 4A and Unit 4B was resumed after about one month in late August 2019. Water supply was resumed because the defendant wanted to use water.

(f)  she denied the defendant’s allegations contained in defendant's letter dated 13 August 2019.

Evidence of Mr Chatlani

46.Mr Chatlani was and is the director of the plaintiff. At the material times, he was responsible for the daily operation of the plaintiff. He had the direct knowledge of the matters in dispute. Mr Chatlani said that the plaintiff was a property holding company with no actual commercial dealings.

47.He said that when the plaintiff purchased Unit 4, there was an original toilet at the rear portion inside Unit 4. In about mid-1991, the plaintiff intended to partition Unit 4 into two units, namely Unit 4A and Unit 4B. The original toilet of Unit 4 would fall into the area of Unit 4B after the intended partition. After the intended partition, Unit 4A would have no toilet facility. As the plaintiff would be using Unit 4A after the intended partition, it was the plaintiff’s concern. Hence, the plaintiff sought advice from its architect who provided the plaintiff with four options in relation to the intended partition.

48.Eventually, the plaintiff decided to build a new toilet of about 100 sq ft for the exclusive use of the occupiers of Unit 4A after the partition. The location of the new toilet was outside and next to Unit 4B. That meant the area of Unit 4B would be reduced by 100 sq ft when comparing with the original idea. The area of the new toilet would form part of the area of Unit 4A although the new toilet was not inside the office area of Unit 4A.

49.The plaintiff’s architect had submitted the partition plans to the Building Authority. By a letter dated 16 May 1991, the Building Authority informed the plaintiff’s architect that the proposed building works might be regarded as exempted works under section 41(3) of the Buildings Ordinance provided that the Building (Standard of Sanitary Fitments, Plumbing, Drainage Works and Latrines) Regulations were not contravened.

50.At the same time, the plaintiff had discussed with the defendant who was a prospective purchaser that the originally intended area of Unit 4B would be reduced by 100 sq ft because the plaintiff needed the 100 sq ft as a new toilet area of Unit 4A. The plaintiff proposed that the new toilet would be constructed at the purchaser’s expense and the plaintiff would agree to reduce the selling price of Unit 4B by 50 sq ft. The defendant agreed with the plaintiff’s proposal.

51.Therefore, the plaintiff proceeded with the partition. Unit 4 was partitioned into Unit 4A and Unit 4B. Unit 4B was then assigned to the defendant. The original toilet, ie Unit 4B Toilet, was inside Unit 4B. After the partition, the plaintiff occupied Unit 4A. The new toilet was Toilet 4A. Toilet 4A was outside the office area of Unit 4A.

52.Concerning the Pipe, Mr Chatlani said that an original pipe was installed by the developer at the rear part of Unit 4. It connected the original toilet to the main drainage or sewage pipe of the Building. Upon the 1991 Partition, Toilet 4A was constructed and further portions of the Pipe were installed in Unit 4B. Those portions of the Pipe connected Toilet 4A to the main drainage pipe of the Building. The plaintiff had been using the Pipe for drainage and flushing purpose from 16 July 1991 until June 2019 without complaints from the defendant.

53.Mr Chatlani also referred to the two incidents in July 2001 and March 2005. His evidence about these two incidents was consistent with that described by Madam Lin. His evidence was also supported by contemporaneous evidence, including a letter dated 26 July 2001 from the plaintiff to Wallon Industries Limited, an official receipt dated 23 July 2001 issued by Lun Kee for HK$5,800 and the plaintiff’s debit note of HK$2,500 issued to Wallon Industries Limited on 23 July 2001. In addition, Mr Chatlani also produced the defendant’s letter dated 1 March 2005 as an exhibit to his witness statement.

54.In about 11 June 2019, the defendant notified the plaintiff of her intention to remove the Pipe. Mr Chatlani produced the defendant’s letters dated 11 June 2019 and 17 June 2019 in which the defendant stated that she would dismantle the Pipe.

55.In about late July 2019, the Pipe or any part thereof within the area of Unit 4B was cut off and blocked. As a result of the removal of the Pipe or any part thereof, the plaintiff had no choice but to stop the water supply to Unit 4A (including Toilet 4A) to prevent the risk of flooding after flushing. Mr Chatlani said that the drainage and flushing system of Toilet 4A was seriously impaired by the defendant's conduct. The plaintiff requested the defendant to reinstate the Pipe but the defendant ignored the plaintiff’s request. In about one month later, the plaintiff resumed water supply to both Unit 4A and Unit 4B.

56.In his cross-examination, Mr Chatlani’s evidence is as follows:-

(a)  when he was about 22 years of age, he started working for an associate company of the plaintiff called Kaybee International Limited (“Kaybee”) in about 1977. In about 2000, he also worked for the plaintiff. He said that Kaybee and the plaintiff were his family business.

(b)  he had direct knowledge of the 1990 Assignment and the 1991 Assignment.

(c)  the size of Unit 4 was around 4,000 sq ft originally.

(d)  in about 1990, the plaintiff purchased Unit 4 and Unit 5 on the same floor of the Building. After using Unit 4 for about one year, the plaintiff thought that Unit 4 was too big and the plaintiff intended to partition Unit 4 into two smaller units. Therefore, the plaintiff engaged its architect for advice and for lodging application to the Building Authority for partition of Unit 4.

(e)  by the Building Authority’s letter dated 16 May 1991, the Building Authority replied that the plaintiff’s proposed partitioning work was regarded as exempted work, provided that the partition did not contravene other regulations. Mr Chatlani regarded the proposed partitioned work as approved.

(f)  in around June 1991, the plaintiff was approached by the defendant and her estate agent. Then, Mr Chatlani met the defendant in the presence of her estate agent. Mr Chatlani told the defendant that the plaintiff needed a toilet after the intended partition. Therefore, a new toilet of about 100 sq ft would be constructed and the plaintiff would reduce the selling price by 50 per sq ft. As the defendant was keen to purchase Unit 4B, the defendant agreed with the plaintiff.

(g)  it was put to Mr Chatlani that they only talked about building a new toilet in the meeting, without mentioning any pipes. Mr Chatlani admitted that they did not separately talk about any pipes. But he added that when they talked about building a new toilet, they were referring to an operative toilet.

(h)  it was put to Mr Chatlani that the new toilet, ie Toilet 4A, was built after the 1991 Partition. He denied and said that the partitioning work of Unit 4 and Toilet 4A were done at the same time.

(i)  Mr Chatlani said that in about 1991 when the partitioning work was done and Toilet 4A was constructed, the portion of the Pipe between the two toilets was not covered by a wooden cabinet at the office area of Unit 4B.

(j)  Mr Chatlani said that each unit of the Building had one toilet. The toilets were connected to the Building’s main sewage pipe by the pipes of the toilets. After Unit 4 had been partitioned, the original pipe system as well as the original toilet remained in Unit 4B. As the plaintiff would occupy and use Unit 4A after the partition, the plaintiff decided to reserve an area of about 100 sq ft as a new toilet for Unit 4A. Therefore, Unit 4B was about 100 sq ft smaller than its original intended area. After the 1991 Partition and construction of Toilet 4A, the sewage pipe of Toilet 4A had to be connected to the original pipe system, ie the pipe of Toilet 4B, so that flushed waste water could go to the main sewage pipe of the Building.

(k)  Toilet 4A was actually constructed at the costs of the defendant who agreed. He also referred to a contemporaneous letter issued to the plaintiff's architect dated 28 May 1991 in which it was stated that the new toilet of an area of 100 sq ft was constructed at the buyer’s expense and the plaintiff would reduce the selling price by 50 sq ft.

(l)  each of the original unit of the Building had its own single water supply system. Each original unit had a single pipe system. Despite the fact that Unit 4 was partitioned into Unit 4A and Unit 4B in 1991, both Unit 4A and Unit 4B still shared a single pipe system. Hence, after the Pipe was cut off by the defendant in 2019, the plaintiff had to stop the water supply to both Unit 4A and Unit 4B at the same time, including Toilet 4A and Toilet 4B, together. This was to prevent the possible flooding caused by the flushing at Toilet 4A.

57.The defendant failed to file any witness statement and give evidence at the trial whether by herself or by her witnesses. As the defendant had been in breach of the court orders for failing to file and serve her witness statement, by the court order dated 27 October 2022, it was ordered that the defendant was debarred from filing and exchanging her witness statement(s) and be debarred from relying on the evidence of factual witnesses at the trial. Hence, the defendant’s allegations as pleaded in her defence were unsubstantiated or unproven, unless the same were expressly admitted by the plaintiff.

58.The testimony of Madam Lin and Mr Chatlani is materially consistent with the contemporaneous documentary evidence. Both of them gave their evidence in a strict forward way. Their evidence makes sense in the light of the particular background of this case. I accept their evidence.

59.I have not lost sight to the fact that Madam Lin did not know how to answer a question during her cross-examination. She was asked for the reason of resuming water supply to both Unit 4A and Unit 4B by the plaintiff in late August 2019. She thought for a while and did not know how to answer this question. This matter will not affect my assessment of her overall credibility. It is because it is not a material or disputed matter. There is no dispute to the fact that water supply to both Unit 4A and Unit 4B was suspended for about one month and water supply was only resumed in late August 2019. Madam Lin was not the decision maker of the plaintiff and the mere fact that she did not know the reason of resuming water supply will not affect my assessment of her overall credibility and I find her a truthful and credible witness.

60.Mr Chatlani struck me as an honest and reliable witness. He was cross-examined on matters back in 1991 which was some 30 years ago but he had clear recollection of the old events. His testimony was supported by contemporaneous documents and records. Under cross-examination, he admitted that he did not retain all of the plans which the plaintiff’s architect had submitted to the Building Authority by the plaintiff's architect for the purpose of the 1991 Partition in about 1991. He said that those documents were old documents many years ago. Because of the present proceedings, he sorted out the old documents in the plaintiff’s factual possession which made sense to him and which appeared to be relevant to the present case. Mr Chatlani was also cross-examined on the plans which was submitted to the Building Authority in 1991 before the 1991 Partition. In particular, the plaintiff issued a letter to the defendant on about 26 July 2001 in which it was stated that “We also like to draw your attention that pipes of the toilet are originally placed and is clearly shown in the original plan of the flat ... Pipes placement is approved and permitted by Building Ordinance Office under Building Ordinance Section 41(3) in their letter dated 16 May 1991. So obstructing these pipes in any way will be illegal and proper action will be taken in that case”. The defendant complained that the plans disclosed in the trial bundle did not show any pipes at all. Mr Chatlani said that he was not an expert and when the plaintiff issued the above letter to the defendant in 2001, he thought that the double straight line on the plan attached to the plaintiff’s architect’s letter dated 24 May 1991 represented the Pipe. The purpose of sending the letter dated 26 July 2001 to the defendant was to remind the defendant not to obstruct the Pipe. As a matter of law, the Building Authority only regard the 1991 Partition as exempted work. There is a fine difference between exempted work and approved work. As a layman, even if Mr Chatlani was mistaken about the meaning of approved work or whether the Pipe was actually shown on the plan, it will not affect my assessment of his overall evidence and his overall credibility. Other than this minor matter, the rest of his evidence is persuasive. I am satisfied that he is a truthful witness.

(G) Legal Principles and Analysis

61.As a general principle, an owner cannot enjoy an easement over his own land as a matter of law. Real easements do not arise as between co-owners.

62.In the present case, the plaintiff became the sole owner of Unit 4 pursuant to the 1990 assignment. Hence, there was no issue of real easement while the plaintiff was the sole owner of Unit 4. The plaintiff’s right to discharge waste water from the original toilet of Unit 4 derived from the DMC.

63.Clause 3 of sub-section A of Section II of the DMC provides that:-

“A. Rights

Subject to the House Rules and ... the Owner of each said undivided share shall have the benefit of the following easements rights and privileges:-

...

3. The free and uninterrupted passage and running of water, sewage, ... from and to the Unit owned by the Owner through the sewers, drains, watercourse, cables, pipes ... which now are or may at any time hereinafter be in under or passing through the Land and Building for the proper use and enjoyment of the Unit owned by the Owner.”

64.Clause 2 of Section III of the DMC provides that:-

“The following are the easements rights and privileges subject to which each of the said undivided shares and the exclusive right to hold use occupy and enjoy each Unit is held:-

...

2. Easements rights and privileges over along and through each Unit equivalent to those set out in Clause 3 of Sub-section A of Section II hereof.”

65.Clauses 7 and 24 of Section IV of the DMC provide that:-

“7. Each Owner shall be responsible to the other Owners for the time being for the acts and omissions of all persons occupying with his consent expressed or implied any part or parts of the Building owned by him and shall pay all costs, charges, and expenses incurred in repairing or making good any loss or damage caused by the act, neglect or default of any such person. ...

...

24. No Owner shall do or suffer or permit to be done anything whereby the flushing or drainage system of the Building may be clogged or the efficient working thereof may be impaired.”

66.Clause 3(g) of the Sub-DMC provides that:-

“Each of the parties hereto shall observe and perform the covenants terms and conditions contained in the said Principal Deed of Mutual Covenant so far as they relate to or affect the unit of which the party is entitled to the exclusive use occupation and enjoyment in the same manner and to the same extent as if the parties hereto had been jointly and severally made a party thereto...”

67.In Pierhead Garden Management Co Ltd v Incorporated Owners of Pierhead Garden [2021] HKCFI 678, Hon K Yeung J summarized the applicable principles in interpreting a deed of mutual covenant as follows:-

“51. The applicable legal principles in interpreting a DMC are not in serious dispute, and may be summarized as follows:-

(a) A DMC is a contract which runs so as to bind all owners and their assignees and the manager: Grande Properties Management Ltd v Sun Wah Ornament Manufactory Ltd (2006) 9 HKCFAR 462, §2 (per Chan PJ);

(b) 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. Such conflicts should be resolved by a purposive construction and common sense application of the relevant provisions of the deed and the DMC: Grande Properties Management, §2 (per Chan PJ);

(c) The construction of a document is not a game with words. It is an attempt to discover what a reasonable person would have understood the parties to mean. This involves having regard, not merely to the individual words they have used, but to the agreement as a whole, the factual and legal background against which it was concluded and the practical objects which it was intended to achieve. The overriding objective is to give effect to what a reasonable person rather than a pedantic lawyer would have understood the parties to mean: Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKCFAR 279 at 296C-297H (Lord Hoffmann NPJ); Smart Essence Development Ltd v Hong Kong Housing Authority, unrep, HCA 450/2016 (28 April 2016), per DHCJ Paul Lam SC at §§44 and 47 citing Multi Link Leisure Developments Limited v North Lanarkshire Council [2010] UKSC 47 at [11];

(d) In commercial contracts, the construction of the contract should generally accord with commercial common sense: Tai Fat Development (Holding) v Incorporated Owners of Gold King Industrial Building, unrep, CACV 22/2014 (23 December 2014) at §16 (per Barma JA);

(e) The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear. But on the other hand, the Court must be alive to the possibility that one side may have agreed to something which with the benefit of hindsight may not have served his interest: Building Authority v Appeal Tribunal (Buildings) (ENM Holdings Ltd) (2018) 21 HKCFAR 194 at §54;

(f) When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time that the contract was made, and which were known or reasonably available to both parties: Smart Essence at §46 (DHCJ Paul Lam SC). Subsequent conduct of the parties is generally inadmissible when construing a contract: SNE Engineering Co Ltd v Chim Kee Machinery Co Ltd, unrep, CACV 101/2016 (11 July 2017) per G Lam J at §52 citing James Miller & Partners Ltd v Whitworth Street Estate Ltd [1970] AC 583 at 603; Marble Holding Ltd v Yatin Development Ltd (2008) 11 HKCFAR 222, §22; The New China Hong Kong Group Ltd (in liquidation) v AIG Asian Infrastructure Fund LP, unrep, CACV 24/2008 (12 February 2009), §78; and

(g) While construing a DMC, the Court is entitled to consider other relevant documents such as the first assignment, the government grant and the approved building plans: Tai Fat Development at §17.” (per Hon K Yeung J at para. 51) (emphasis added)

68.Upon the 1991 Partition, Unit 4 was partitioned into Unit 4A (including Toilet 4A) and Unit 4B (including Toilet 4B which was the original toilet). When Unit 4B was assigned to the defendant, the Sub-DMC was executed at the same time.

69.I accept the plaintiff’s case that the plaintiff had reserved an area of about 100 sq ft as the new toilet of Unit 4A after the intended partition. This explains why, upon the 1991 Partition, a new toilet of about 100 sq ft formed part of the area of Unit 4A. I accept Mr Chatlani’s evidence that, before the sale of Unit 4B, he had informed the defendant about the reservation of about 100 sq ft as a new toilet for Unit 4A after partition. I also accept his evidence that because the defendant was keen on purchasing Unit 4B, the defendant agreed with the plaintiff. Therefore, a new toilet, ie Toilet 4A, was constructed at the defendant’s cost and the plaintiff agreed to reduce the original intended selling price by reference to the unit price of 50 sq ft.

70.I reject the defendant’s unsubstantiated allegations on pleadings that she did not know the existence of the Pipe at the material times or the Pipe was installed without her consent or otherwise against her property right. The defendant did not testify at the trial. I find that that it was the common intention of both parties that the new toilet, ie Toilet 4A, must be an operative and functional toilet which must necessarily involve a flushing pipe at least. Therefore, a new pipe had to be installed and connected to the main sewage pipe of the Building by passing through certain area of Unit 4B. I also find that the defendant had direct knowledge that the Pipe was installed upon the 1991 Partition. In particular, the defendant had actual knowledge of the second portion and the third portion of the Pipe. These two portions of the Pipe were apparent and visible. I accept Mr Chatlani’s evidence that the second portion of the Pipe was not covered by a wooden cabinet at the time it was installed. The second portion of the Pipe was exposed and it was visible and apparent to the defendant. The second portion of the Pipe was only covered by a wooden cabinet subsequently for cosmetic reason. The defendant must have direct knowledge that the second portion of the Pipe actually connected Toilet 4A and Toilet 4B. This was the reason why when there was leakage from portion of the Pipe inside Unit 4B in about 2005, the defendant demanded the plaintiff to arrange for a plumber to repair it at the plaintiff’s own costs.

71.The two incidents mentioned by Madam Lin were supported by contemporaneous documents and records. They clearly showed that the portions of the Pipe installed at 1991 Partition actually merged to the original pipe which was installed by the developer before they joined the main sewage pipe of the Building. The defendant clearly knew that the plaintiff was using the Pipe as a flushing pipe and that the Pipe ran through Unit 4B, ie along the wall of the office area of Unit 4B and Toilet 4B. That was why when the Pipe was blocked in 2001, both the plaintiff and the defendant had to share and bear the repair costs of the Pipe in respect of the first incident in 2001. Further, when there was a leakage of water from the Pipe within the area of Unit 4B in about 2005, the defendant had demanded the plaintiff to repair the Pipe. Otherwise, the defendant threatened to cut off the portion of the Pipe which was within the area of Unit 4B.

72.I find that when Toilet 4A was constructed in 1991, it was the parties’ common intention that Toilet 4A must be an operative toilet. A pipe would be connected from the new toilet to the existing pipe within the original toilet, then it joined the main sewage pipe of the Building. The pipe was clearly visible after the 1991 Partition. When portion of the Pipe within the area of Unit 4B was blocked or damaged in about 2001 and 2005 respectively, the plaintiff was demanded by the defendant to shoulder the responsibility. Hence, I find that both parties have intended that after 1991 Partition and the 1991 Assignment, the plaintiff had the right to discharge the sewage water by the Pipe which would run through Unit 4B and then connect to the main drainage and sewage pipe of the Building. This is one of the reasons why the parties executed the Sub-DMC which is binding on the defendant.

73.I find that the defendant was bound by the DMC and the Sub-DMC. I also find that the defendant has wrongfully removed, cut off and/or blocked the Pipe or any part thereof in about late July 2019. In the premises, the defendant was wrongfully in breach of Clause 3 of sub-section A of Section II, Clause 2 of Section III, Clauses 7 and 24 of Section IV of the DMC; and Clause 3(g) of the Sub-DMC. Hence, injunction orders should be granted.

Quasi-easement

74.Further or alternatively, in deference to the argument of counsel for both parties, I shall deal with the plaintiff’s case on easement and quasi-easement.

75.The plaintiff and the defendant were co-owners of each other. As discussed hereinabove, real easement does not arise from one’s own land.

76.In Kung Ming Tak Tong Co Ltd v Park Solid Enterprises Ltd (2008) 11 HKCFAR 403, the Court of Final Appeal held that quasi-easement could arise in two senses in the context of a multi-storey building in Hong Kong. The first sense is contractual quasi-easement and the second sense is quasi-easement in the sense of Wheeldon v Burrows. The Court of Final Appeal held that:-

“41. And the rights of co-owners over the common parts are often described in the DMC as involving “easements” (as in Jumbo King Ltd v Faithful Properties Ltd & Others) even though, as we have noted, the view is generally (correctly) held that real easements do not arise as between such co-owners. As Lord Hoffmann pointed out in that case, while not real easements, they can be called “quasi-easements” and function for all practical purposes as if they were easements. ...

42. In the course of argument, the word “quasi-easement” was used in two different senses. The first is in the sense just described, that is, as a shorthand description of rights arising between or among co-owners as a matter of express agreement or contractual implication being rights which mirror on a contractual plane the rights which the owner of a dominant tenement would enjoy by way of an easement over a servient tenement. ... We will refer to these as “contractual quasi-easements’ to distinguish them from quasi-easements in the second sense.

43. That second sense of the term is explained in Megarry and Wade as follows:

“Rights habitually exercised by a man over part of his own land which, if the part in question were owned and occupied by another would be easements, are often called quasi-easements. ... Quasi-easements are of some importance, for they may sometimes become true easements if the land is subsequently sold in separate parcels.” (per Li CJ at paras 41 to 43)

77.Based on the factual findings of the present case hereinabove, the plaintiff had contractual quasi-easement at the time he became owner of Unit 4. When Unit 4 was partitioned in 1991, the plaintiff had clearly reserved such quasi-easement when it assigned Unit 4B to the defendant. This was one of the reasons why the plaintiff and the defendant executed the Sub-DMC at the same time when Unit 4B was assigned to the defendant.

78.Furthermore, I find that a quasi-easement in Wheeldon v Burrows sense also existed in the present case. The Pipe was clearly necessary to the reasonable enjoyment of Unit 4A, including Toilet 4A. Without the Pipe or a sewage right, Toilet 4A could not be functional. As pointed out in para 49 of Kung Ming Tak Tong Co Ltd case (above), there could be an overlap between contractual quasi-easement and the rule in Wheeldon v Burrows.

79.In the premises, the defendant’s wrongful conduct had constituted a wrongful interference of the plaintiff's quasi-easement right of sewage. Injunction orders against the defendant should be granted

80.Further or alternatively, the defendant's wrongful conduct had also constituted private nuisance.

(H) Disposition

81.In conclusion, I find that the defendant was in wrongful breach of the DMC and the Sub-DMC. Furthermore, the defendant had wrongfully interfered with the quasi-easement enjoyed by the plaintiff or had constituted nuisance. The plaintiff did not pursue its claim for damages. There was no claim by the plaintiff for a declaration of easement in its prayer. The plaintiff mainly claimed for injunction orders.

82.Hence, the plaintiff’s claim is allowed with costs and the defendant’s counterclaim be dismissed with costs. It is ordered that:-

(a)  A mandatory injunction is granted against the defendant. The defendant shall at her own expense reinstate the Pipe or any part thereof to its original state as in July 2019 to the satisfaction of the plaintiff within 30 days from the personal service of this judgment and order.

(b)  An injunction be granted against the defendant that defendant be restrained from removing, obstructing or otherwise interfering with the Pipe or any part thereof or otherwise interfering with the sewage right of the plaintiff over Toilet 4A, whether by herself, her tenants, agents, employees, licensees or any person on her behalf, directly or indirectly.

(c)  There be liberty to apply for further directions regarding the enforcement of the injunction orders.

(d)  A costs order nisi that the costs of the action, including the costs of the counterclaim and any costs reserved (if any), be to the plaintiff, to be taxed if not agreed, with certificate for counsel. This costs order nisi shall become absolute after 14 days of this order.

83.I thank counsel for their assistance to this court.

Mr Sunny Chan, instructed by Lo, Wong & Tsui, for the plaintiff

Ms Karen WL Wong, instructed by Benny Kong & Tsai LLP, for the defendant