The Incorporated Owners of Wing Fai Building v. Chan Yun Choi and Another
Read the full judgment text of LDBM 29/2020 on BabelCite. This Lands Tribunal judgment was delivered on 17 November 2023.
1. This is a dispute between the Incorporated Owners ( IO ) of Wing Fai Building ( the Building ) (i.e. the applicant) incorporated in 1976 pursuant to the predecessor of Buildings Management Ordinance ( BMO ) [1] and its top (or 18/F) floor owners (i.e. the 2 respondents ( R1 and R2 and, collectively, the 2 Rs [2] ) over:
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LDBM 29/2020 [2023] HKLdT 65 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO.29 OF 2020 __________________ BETWEEN
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_____________________ J U D G M E N T _____________________ A. Introduction 1.This is a dispute between the Incorporated Owners (IO) of Wing Fai Building (the Building) (i.e. the applicant) incorporated in 1976 pursuant to the predecessor of Buildings Management Ordinance (BMO)[1] and its top (or 18/F) floor owners (i.e. the 2 respondents (R1 and R2 and, collectively, the 2 Rs[2]) over:
2.The Building is situated at Nos.189, 191, 193 and 195 Tung Choi Street. The registered deed of mutual covenant governing the Building is dated 10 October 1972 (the DMC). 3.The 3 UBWs are subject matters of an order issued against the 2 Rs by the Building Authority (BA) under s.24 of Buildings Ordinance[3] (BO) on 26 August 2019 (the 8/2019 Order). 4.It is also common ground that the 3 Alterations have been carried out at 18/F of the Building before these proceedings began. By way of Alteration A, a door to left lower corner of 18/F machine room (the Machine Room) at Point A was blocked (Former Door A). For Alteration B, an opening was made to an enclosing wall of the Machine Room at Point B to open a door to it (New Door B). For Alteration C, an opening was made to a wall at Point C (New Door C) to open a door to right flat roof (right FR) at 18/F of the Building (see [14]). B. IO’s case 5.IO alleged that the 2 Rs had, in breach of the DMC, BO and BMO, installed, permitted, made and/or adopted the 3 UBWs and the 3 Alterations. Despite IO’s demands, the 2 Rs, it was alleged, had failed to remove Alterations A & B and had delayed in removing the 3 UBWs, causing IO to delay, and to incur increased costs for, carrying out waterproofing works to the roof of the Building. By trial, the IO has completed the said waterproofing works and the 2 Rs have only removed portion of Item 1, Items 2, Item 3 and Alteration C. 6.By para 3 of IO’s closing submissions, IO now only seeks:
C. Case of 2 Rs 7.The 2 Rs alleged that, after their purchase of Rs’ Premises, they have not made any structural alterations to it. They did not install the 3 UBWs. For alleged safety reason, they had sought clarifications from BA about how to comply with the 8/2019 Order. BA had issued on 12 November 2020 against them another order under s.24 of BO superseding the 8/2019 Order (the 11/2020 Order). The 2 Rs said they had taken all reasonable steps to comply with the said 2 Orders. Moreover, they were always willing to provide IO with access to Rs’ Premises to carry out necessary works. They put IO to strict proof of its claim for increased costs of waterproofing works, including the issue of causation. 8.The 2 Rs also said they have never made nor adopted the 3 Alterations. The 3 Alterations did not, they said, damage, or cause inconvenience to, other parts of the Building or its occupiers. They said that they have reinstated Alteration C without admission of liability, that Alterations A & B have already existed when Rs’ Premises were offered for sale by the developer of the Building (the Developer), that IO by its inaction had acquiesced in the 3 Alterations, and that it is unnecessary to remove or reinstate the 3 Alterations. D. Issues to be resolved 9.Having considered list of issues agreed by the parties, the key issues that require resolution can, I think, be reduced in number and re-formulated as follow: -
E. Witnesses called at trial 10.Ms Tania Tse of counsel (Ms Tse) appeared at trial for IO. Ms Tse called Mr Lam Wai Kan (Mr Lam), chairman of management committee of IO and owner of flat 17B of the Building, as IO’s sole factual witness and also Mr Honby Chan (Honby) as IO’s expert witness on quantum. 11.Mr Kurt Ng of counsel (Mr Ng) was instructed to appear for the 2 Rs at trial. Mr Ng called R1 as his sole factual witness and also Mr Ben T.C. Chan (Ben) as his expert witness on quantum. F. Background facts 12.Having considered undisputed and indisputable documents (including registered plans and instruments, correspondences, reports, photos and videos) put before me, witnesses’ common and undisputed testimony and admissions made by witnesses, I find the following facts in this section proven. F1. Approved Plans 13.The relevant page of approved plans of the Building has been retrieved from Building Department (BD) and produced[4]. The architect of the Building signed on it on 21 October 1970. It is called “Amended General Plan”. BA approved it on 3 November 1970 (the Approved Plans). The said page consists of 1) typical floor plan from 3/F to 17/F; 2) 18/F plan; and 3) upper roof plan. F1.1 18/F Plan 14.Looking at 18/F plan in the Approved Plans, the said floor is like an inverted letter “T”. The following features shown on 18/F plan should, I think, be noted:
15.Importantly, all 3 Alterations cannot be found at 18/F plan in the Approved Plans.
F1.2 Upper roof Plan 16.Looking at upper roof plan in the Approved Plans, the following uppermost surfaces are found: -
17.On the said upper roof plan, the spaces occupied by lower portion of left FR and by lower portion of right FR at 18/F below are empty, indicating that the said 2 FRs are not “covered” at the said 2 lower portions on the Approved Plans. On the surface of right Roof, no mark, line or word indicative of any structure thereon is found. On the boundaries of right Roof, neither can one find any mark, line or word indicative of any railing[9]. As such, nothing indicative of Reduced Item 1 explained at [50], Items 2 and 3 explained at [39] are found on the said upper roof plan. Coupled with [14(4)], Item 1 explained at [39] is, one thinks, also not found on the said upper roof plan. F2. Occupation Permit 18.By Occupation Permit issued in respect of the Building dated 7 September 1972[10] (OP), “2 flats per floor for domestic use” is provided for 3/F to 17/F of the Building and only “1 flat for domestic use” is provided for 18/F of the Building. No user is provided for the roof or upper roof of the Building. 19.Construction of the Building (including its 17/F, 18/F and upper roof) has, I find, been completed as per the Approved Plans and OP by 7 September 1972. F3. The DMC 20.By the DMC dated 10 October 1972[11], the Building and the lands over which the Building was built is notionally divided into 47 equal undivided shares[12]. Lai King Development Company Limited was named as the “First Owner” thereof (the First Owner). On the DMC, the First Owner held 46 out of 47 total undivided shares. 21.Looking at the DMC, the Building has, inter alia, i) 2 flats each (Flats “A” & “B”) from 3/F to 17/F; and ii) one “Flat “A” on 18/F of the Building (including the Roof thereof)”, the latter was allocated with 1/47 undivided share and vested with the First Owner. There is no mention of “flat roof” in the DMC. No plan was annexed to the DMC either. Hong Yip Service Company Limited was appointed in the DMC as the first manager of the Building. 22.And “common parts” of the Building is defined in the DMC[13] to include: -
23.On the above DMC definition and applying BMO[14], the followings are, I find, common parts of the Building, namely: -
F4. The First Assignment of Rs’ Premises 24.Two odd years after the making of the DMC, the First Owner assigned Rs’ Premises to its first purchaser by an assignment dated 31 January 1975 (the First Assignment) annexed with identification plans of the same (the First Assignment Plans)[15]. F5. The First Assignment Plans F5.1 18/F Plan 25.Looking at 18/F plan in the First Assignment Plans, one finds basically the same structures and partitions to those of 18/F plan of the Approved Plans at [14]. 26.By way of identification of R’s Premises in the said 18/F plan in the First Assignment Plans (see [31]), flat A on 18/F and a large proportion of left FR are coloured pink while the entire right FR is coloured pink hatched red. But the following areas are not coloured pink or pink hatched red. They are: i) FS Tank and WC Tank; ii) the Machine Room; iii) the Corridor; iv) the 2 common staircases; v) a narrow lower strip of left FR to the left of the Machine Room and the Corridor (the Narrow Strip); and vi) a small area to the left of Point C connecting with right common staircases (the Small Area). 27.Regarding the 3 Alterations, though Former Door A cannot be found, an opening remains at the wall at Point A as the only access to the Machine Room. In order to enter the Machine Room after going up the Corridor (not coloured) from the left common staircase, one has to open the left door of the Corridor, enter the Narrow Strip (also not coloured) before using the said opening to enter the Machine Room (the Route not coloured). New Door B cannot be found at Point B, and New Door C cannot found at Point C. Both walls at Point B and Point C remain intact. The only access to and from right FR remains that of right door of the Corridor. F5.2 Roof Plan 28.The First Assignment Plans also include a “roof” plan. The same uppermost surfaces to those found in the “upper roof” plan in the Approved Plans at [16] are found. F.6 Assignment of Flat 17B to Mr Lam 29.Since May 1989, Mr Lam and another have become registered owners of flat B on 17/F of the Building. F.7 2 Rs have 6 predecessors-in-title 30.Since the First Assignment of Rs’ Premises was made in 1975, further assignments of it were made in 1976, 1979, 1988, 1989 and 1991 until it was assigned to the 2 Rs in 1996. F8. The 1996 Assignment to 2 Rs F8.1 Description of Rs’ Premises 31.By an assignment executed by the 2 Rs dated 18 June 1996 made without plan but made subject to and with the benefit of the DMC (the 1996 Assignment)[16], they became registered owners (and joint tenants) of Rs’ Premises described in the Schedule thereof[17] as follow:
32.Hence, Rs’ Premises have, I think, 3 parts: i) “Flat A on 18/F”; ii) including the roof thereof i.e. right Roof on upper roof of the Building; and iii) “portion of FR (roof of Flat B)”. Parts i) and iii) both on 18/F of the Building are identified by being coloured on the First Assignment Plans. 33.Considering the coloured areas on 18/F plan in the First Assignment Plans at [26], the 2 Rs did not, I think, acquire exclusive possession of those areas on 18/F (and those areas of left FR) at [26] which are not coloured. They include i) the Route not coloured at [27] for one to enter, and to exit, from the Machine Room at Point A; and ii) the Small Area at [26] allowing one to go downstairs by right common staircases. They are, I think, public route or space enjoyed by all owners of the Buildings. F8.2 Occupation by 2 Rs afterwards 34.However, on R1’s admission, after purchase of Rs’ Premises by the 2 Rs by way of the 1996 Assignment, the 2 Rs came to use and/or occupy as their domestic accommodation the followings:
35.Moreover, according to R1 in the box, Alterations A & B have already existed prior to his purchase of Rs’ Premises in 1996 and New Door B has during his occupation of Rs’ Premises been the only access to and from the Machine Room (as Former Door A has been blocked). F.9 Hitechi’s offer in mid-2019 to do waterproofing works at $49,000 36.With assistance of consultant architect and with support of Urban Renewal Authority, IO in April 2019 invited tender from contractors to carry out renovation works to the Building, including waterproofing works to upper roof, and 18/F, of the Building. 37.By its tender to IO dated 29 June 2019, Hitechi Development (Holdings) Limited (Hitechi) offered to carry out renovations works to the Building, including waterproofing works to upper roof, and 18/F, of the Building at the sum of $49,000. F10. The 8/2019 Order 38.On 26 August 2019, BA issued the 8/2019 Order[20] requiring the 2 Rs to demolish the 3 UBWs (on the ground that they were building works carried out without having first obtained approval of building plans and consent for work commencement under s.14 of BO) and to reinstate the affected parts of the Building in accordance with approved plans within 60 days. F10.1 Description of 3 UBWs & their users by 2 Rs 39.According to their descriptions stated in the 8/2019 Order (and I also find on evidence including photos and video before me), the 3 UBWs are as follows: -
F11. Renovation works to the Building 40.In about October 2019, IO entered into contract with Hitechi to carry out renovation works to the Building, including waterproofing works to upper roof, and 18/F, of the Building. 41.In November 2019, R1, as he admitted in the box, came to know that IO was to carry out renovation works to the Building. IO told R1, including at IO meetings, that UBWs at Rs’ Premises needed to be removed in order to carry out the said renovation works. F12. IO’s written warnings to the 2 Rs to remove UBWs & the Alteration(s) 42.On 20 December 2019, Hitechi gave a written notice in Chinese of roof UBW removal[25] to R1 (copied to IO and IO’s renovation consultant), saying that waterproofing works was pending at the roof of the Building and requiring owner(s) of Rs’ Premises to demolish UBWs “at the 2 sides of the Machine Room” (i.e. Reduced Item 1 at [50(1)][26]). If they did not remove them during the works period, IO, said Hitechi, would take over and handle the matter (Hitechi’s 20/12/2019 Notice). 43.On 11 January 2020, IO gave a written letter in Chinese to the 2 Rs, pointing out that renovation works of the Building was underway, including waterproofing works to be carried out at Rs’ Premises. “Site inspection by renovation consultant and contractor” revealed, said IO, that waterproofing works could not proceed if UBWs are not removed”, the 2 Rs were demanded to reply by 18 January 2020 to indicate to IO whether or not they would cooperate to demolish UBW to allow the said works to proceed (IO’s 11/1/2020 Demand). 44.R1 later in January 2020 gave a written reply in Chinese to IO that he decided “for personal reasons” not to demolish his personal items at the roof for the time being” and that he would “bear personal liability for any seepage problem for the time being”. If he decided in future to demolish his personal items at the roof, IO, R1 wrote, would be allowed to proceed with waterproofing works at the roof (R1’s 1/2020 Reply). 45.On 24 February 2020, IO’s solicitors sent a letter before action in English to the 2 Rs, claiming that they have, in breach of the DMC and the 8/2019 Order, “erected structures and railings” on Rs’ Premises “including alterations to the passageways and surrounding walls leading to the roof (bold supplied)” causing, inter alia, inconvenience to other owners and water seepage to flat below. They pointed to the aforesaid works being UBWs, Rs’ inaction under the 8/2019 Order, R1’s 1/2020 Reply to IO’s 11/1/2020 Demand. They demanded the 2 Rs to reply within 7 days whether they comply with IO’s demand to remove the aforesaid works and to reinstate the affected areas at their own costs (IO’s Letter before Action). 46.By 18 May 2020 i.e. almost 3 months later, the 2 Rs still did not respond or agree to IO’s demands in IO’s Letter before Action[27]. The IO thus commenced these proceedings at the Lands Tribunal against the 2 Rs on the same day. F13. Late removal of Items 2, Rs’ alleged clarifications with BD, and the 11/2020 Order 47.On R1’s admission, the 2 Rs did not arrange for removal of Item 2 until about June 2020. 48.From 12 August 2020 to 10 May 2021, solicitors for the 2 Rs wrote a number of times to BD to seek clarifications about alleged safety issue of the 8/2019 Order and the 11/2020 Order. 49.On 20 August 2020, R1 and R2 gave their signed written Chinese “letter of undertaking” to IO undertaking, inter alia, to carry out necessary demolition and/or reinstatement work required by BA for compliance of building orders including the 8/2019 Order (the Undertaking Letter). 50.On 12 November 2020, BA issued the 11/2020 Order[28] superseding the 8/2019 Order, requiring the 2 Rs to demolish (and reinstate) within 60 days:
51.In late 2020, Hitechi completed for IO renovation works to the Building with the exception of waterproofing works to upper roof, and 18/F, of the Building. F14. 2021 tenders to IO re fire services and waterproofing works 52.In about June 2021, tenders were sought by IO from contractors to carry out fire service works, and waterproofing works at upper roof and 18/F of the Building. Hitechi did not submit any tender of the above 2 works to IO when submission deadline expired in July 2021. Amtel Engineering (E&M) Company Limited (Amtel) did, with its offer for waterproofing works at $270,000. 53.According to Mr Lam, IO sought further tenders afterwards. In August 2021, 4 to 5 more tenders were received, including one from Hitechi at a lower sum of $192,000 for waterproofing works. As admitted by Mr Lam, IO first awarded the above 2 works to Hitechi. However, Hitechi later declined to take it up. F15. Late removal of Reduced Item 1 and Item 3, and removal of Alteration C 54.On R1’s admission, the 2 Rs did not arrange for removal of Reduced Item 1 until about August 2021. 55.On R1’s admission, the 2 Rs did not arrange for removal of Item 3 until about September 2021. 56.On 15 October 2021, by a letter sent to the 2 Rs, BA cancelled the 11/2020 Order, explaining that enforcement action was to be “suspended temporarily due to variation of UBWs sought to be demolished in the 11/2020 Order”. 57.R1 had sometime in 2021, as he admitted in the box, also arranged for removal of Alteration C at Point C. F16. Amtel engaged in late 2021 to do waterproofing works at $263,000 58.On 29 October 2021, IO resolved by majority at general meeting to engage Amtel to carry out fire services and waterproofing works in lieu of Hitechi. 59.On 2 December 2021, IO entered into contract with Amtel for the latter to carry out waterproofing works for the sum of $263,000 inclusive of insurance. In or after December 2021, Amtel did complete the said waterproofing works. G. Discussion 60.I am grateful for (and have carefully considered) Mr Ng’s submissions on assessing witnesses’ credibility at para 6 and 8 of his closing submissions and his submissions on assessing expert opinion at para 9 of his closing submissions. G1. Assessment of factual witnesses 61.All evidence and submissions considered, I find neither Mr Lam nor R1 credible or reliable witness. Neither of them have, I think, told the whole truth to this Tribunal. 62.IO, as Mr Lam admitted under cross-examination, has made “selective” tender document disclosure in IO’s favour such that this Tribunal did not have a full picture of IO’s claim for increased costs of waterproofing works. And, under cross-examination, Mr Lam gave evidence for the first time of various new complaints against the 2 Rs which differed materially from IO’s account in Form 29, his witness statements and contemporaneous documents in late 2019 and early 2020 from IO and others on IO’s behalf to the 2 Rs. These new complaints did, I think, much harm to Mr Lam’s credibility. 63.At the same time, R1 has at one stage given evidence contradicting his own witness statement. For example, he denied receiving Hitechi’s 20/12/2019 Notice which he admitted to have received in his witness statement and produced as appendix 20. R1’s testimony regarding R1’s 1/2020 Reply and Rs’ removal of UBWs in compliance with the 8/2019 Order and the 11/2020 Order was, I think, also inherently implausible and contradicted by the contents of R1’s 1/2020 Reply and of contemporaneous exchange of correspondences of Rs’ solicitors with BD. R1 further saw fit to bring a personal note[29] to the witness stand and took it out during his testimony. It is, one thinks, most questionable whether he spontaneously gave answers from his own independent recollection or gave rote answers from reading out prepared ones from his note. It did, I think, no good to his credibility either. 64.Save for such admissions given by Mr Lam and by R1 (which I give full weight) and such uncontested testimony of them in background facts section above, I accept only such further evidence given by them referred to below. G2. Issues (1) & (5) – 3 UBWs and 3 Alterations G2.1 2 Rs permitted and/or adopted 3 UBWs 65.IO has, I think, failed to prove that the 2 Rs had installed the 3 UBWs. Mr Lam gave no evidence of that. Neither is there any document or other evidence proving the same. 66.But IO has, I agree with Ms Tse, proven that the 2 Rs had permitted and/or adopted the 3 UBWs (inclusive of Reduced Item 1)[30] for the reasons below.
G2.2 2 Rs adopted the 3 Alterations 67.Moving to the 3 Alterations, Mr Lam could not tell who made them either. Absent other evidence proving the same, I find IO unable to prove that it was the 2 Rs who have made the 3 Alterations. 68.However, I also agree with Ms Tse that IO has managed to prove that the 2 Rs have adopted the 3 Alterations[33] for the reasons below.
G3. Issues (2) & (6) – Breach of BO, BMO and DMC G3.1 Provisions relied upon by IO 69.For the 3 UBWs, IO alleged that the 2 Rs are liable at law for breach of: -
70.For Alterations A & B, IO alleged that the 2 Rs are liable at law for breach of: -
71.S.34I(1) of BMO reads:
72.Clause 4(k) of the DMC reads:
73.Clause 4(m) of the DMC reads:
74.Clause 10 of the DMC reads:
G3.2 3 UBWs in breach of clause 4(m)(i) of the DMC 75.First of all, I agree with Mr Ng that s.14(1) of BO does not by itself provide any civil cause of action on the part of IO against the 2 Rs for the 3 UBWs. Ms Tse provided no authority. Indeed, she made no submission to support this plea. 76.Secondly, IO’s reliance of the Implied Term is, I think, misconceived. Ms Tse also made no submission, and gave no authority, to support such implication. While the Implied Term may be reasonable, it is not, I think, necessary to the DMC. BA could have enforced the subject matter concerned by way of administrative law alone. Had parties to the DMC found it necessary to introduce such provision into the DMC, they could, one thinks, easily have done so by making it one of the many express covenants of the DMC. 77.Thirdly, IO’s reliance of clauses 4(k)(iii) of the DMC is, I think, also misconceived. Clause 4(k) of the DMC only provides, I think, for the authority of the power and authority of the Manager. It nowhere prohibits the owners of the Building from making alteration like Alterations A & B. 78.Nonetheless, I agree with IO that the 3 UBWs (inclusive of Reduced Item 1) were made in breach of clause 4(m)(i) of the DMC in that the appearance of the exterior of the Building have been altered by their erection without (I accept from Mr Lam) written consent of IO (and/or manager) managing the Building. Item 2, being a sunshade on R1’s admission, was, I find, also made in breach of clause 4(m)(ii) of the DMC as it was erected and/or affixed to exterior of the Building and/or right Roof of Rs’ Premises. G3.3 3 Alterations in breach of s.34I(1)(b) of BMO 79.Regarding the 3 Alterations, I do not find the wordings of clauses 4(m)(i) & (ii) of the DMC applicable to them.
80.Neither do I find clause 10(a) of the DMC applicable to the making of the 3 Alterations.
81.However, I agree with IO that the 3 Alterations are in breach of s.34I(1)(b) (but not s.34I(1)(a)) of BMO.
G3.4 Liability of 2 Rs for above breaches proven G3.41 2 Rs liable for breach of the 3 UBWs 82.Clause 4(m)(i) & (ii) is, I think, negative covenant in the DMC. Breach of the same by way of the 3 UBWs is, I think, a “continuing” breach. On my above finding that the 2 Rs had permitted and/or adopted the 3 UBWs, I find the 2 Rs liable for their own breach of clause 4(m)(i) & (ii) of the DMC. 83.Moreover, on the background facts I find above, considering the potential benefits the 3 UBWs could have brought to purchasers of Rs’ Premises, I find it likely that the 3 UBWs were, after the making of the DMC, erected by 2 Rs’ predecessor(s), who were also guilty of breach of clause 4(m)(i) & (ii) of the DMC. 84.The aforesaid liability of 2 Rs’ predecessor(s) for breach of clause 4(m)(i) & (ii) of the DMC due to the 3 UBWs or Item 2 (as the case may be), I agree with Ms Tse, runs with the land over which the Building was erected pursuant to s.41 of Conveyancing and Property Ordinance (CPO)[36] such that it is also enforceable against the 2 Rs. G3.42 Objections by 2 Rs to liability on Alterations A & B 85.Regarding IO’s similar complaint of breach of DMC (and BMO) due to Alterations A & B, Mr Ng appearing for the 2 Rs defended on 2 additional grounds.
G3.43 Copy Sales Brochure admitted but limited weight 86.Ms Tse objected to the admissibility of the Copy Sales Brochure[39] on the ground that it is documentary hearsay and that its admission violates the best evidence rule. 87.Having considered all submissions made by Mr Ng[40] and Ms Tse on the Copy Sales Brochure, I decide to admit it into evidence[41]. 18/F plan thereof shows New Door B but the walls at Points A and C are intact (i.e. Alteration A is found but not Alteration C). As such, it is highly relevant. Though its veracity cannot be fully vouched by R1 in the box and it is not the original copy, I believe such and other shortcomings could be taken better care of by attaching appropriate weight to it than excluding it from evidence. 88.In considering the weight to be attached to the Copy Sales Brochure regarding Alterations A & B found on its 18/F plan, among other circumstances[42], I have had regard to:
89.Having considered the above matters, I would only give limited weight to the Copy Sales Brochure regarding Alterations A & B found on its 18/F plan. G3.44 3 Alterations likely made after the DMC 90.For reasons below, I disagree with Mr Ng’s submission at [85(1)]. Indeed, I find it likely the other way round.
G3.45 3 Alterations likely made by 2 Rs’ predecessor(s) 91.It is true that persons accessing the Machine Room (if any) stand to benefit from a shorter route after Alterations A & B are made and thus predecessor(s) of 2 Rs (and 2 Rs) might not be the only persons to benefit from these 2 Alterations. 92.But, as was demonstrated above, the Developer had by first sale of Rs’ Premises in 1975 dropped the idea of making Alterations A & B and arranged instead in 18/F plan of the First Assignment Plans for the Narrow Strip to remain as “common parts” of the Building for one to access the Machine Room by the Route not coloured, whose length is only slightly longer than that provided for under Alterations A & B. 93.As such, one begs to ask who would have taken up the decision to take the trouble and expenses to make Alterations A & B to obtain only a slightly shorter route when one already exists to access the Machine Room. The Manager under the DMC is, one should recall, related to the Developer. 94.Moreover, such access by others (if required at all) to the Machine Room would not, one imagine, be as frequent as the need of Rs’ predecessor(s) and/or the 2 Rs to return to Rs’ Premises where they resided (indeed, Mr Ng had not cross-examined Mr Lam to elicit the identity of these other persons, if any, accessing the Machine Room and the frequency of their access, if any). 95.In comparison, as was explained at [68], like what the 2 Rs did and enjoyed by occupying entire left FR, including the Narrow Strip, the predecessor(s) of 2 Rs could, one thinks, stand to benefit greatly day by day from the making of Alterations A & B. 96.The predecessor(s) of 2 Rs have therefore, I think, greater motive than others (if there is any) to make Alterations A & B and inference could still properly be drawn on balance of probabilities (and I would so draw) that it was 2 Rs’ predecessor(s) who made Alterations A & B (as well as Alteration C). G3.46 2 Rs liable for breach of the 3 Alterations 97.Hence, if it be necessary[50], regarding the 3 Alterations, pursuant to s.41 of CPO, the 2 Rs are, I find, also liable to IO for breach of their predecessor(s) under s.34I(1)(b) of BMO (which is deemed breach of the DMC). 98.Further or alternatively, the 2 Rs are, I also find, liable for their own breach of s.34I(1)(b) of BMO by themselves “adopting” the 3 Alterations, which are by themselves deemed “continuing” breach of the DMC. G4. Issue (7) – acquiescence of Alterations A & B by IO? 99.I agree with Mr Ng’s submissions that the applicable principles on acquiescence are those set out at para 92 & 93 of his closing submissions[51]. 100.Mr Ng acknowledged at para 95 of his closing submission that IO has no power to acquiesce if the 2 Rs are found to be in breach of s.34I(1)(b) of BMO. 101.As this Tribunal finds the 2 Rs in breach of s.34I(1)(b) of BMO, I hold IO lacking power to acquiesce on the same and such defence of the 2 Rs fails. 102.In any event, had IO had the power to acquiesce alleged breach(es) of the DMC and of BMO over Alterations A & B by the 2 Rs, such evidence that the 2 Rs adduced to prove alleged “assent or lying by” of IO regarding Alterations A & B is, I think, minimal.
103.Hence, only a short period of 4 years or so had elapsed since 2016 (when Mr Lam assumed his IO office with knowledge of Alterations A & B) until IO sought reinstatement of alterations in IO’s Letter before Action to 2 Rs in February 2020. We have no idea from the evidence when IO first became aware of these 2 Alterations. 104.In the circumstances, I do not think the 2 Rs have proven the necessary 1st ingredient of acquiescence. 105.Further or alternatively, with 2 Rs (and their predecessor(s)) enjoying great benefit brought by Alterations A & B and with IO under its statutory duty under s.18(1)(c) of BMO to enforce provisions of the DMC (including implied ones) regarding control and management of the Building, subject to issue (8) below, I find it not unjust to grant injunctive relief sought by IO. 106.So, if it be necessary to do so, I also reject acquiescence defence of the 2 Rs for these additional reasons. G5. Issue (8) – injunction to restore Alterations A & B? 107.Mr Ng submitted at para 100 of his closing submission that “balance of convenience” tilted against granting of injunction sought by IO over Alterations A & B. He submitted that IO has power under clause 4(k)(iii) of the DMC to reinstate these 2 Alterations on its own. He stressed that the financial resources of IO are greater than those of the 2 Rs. To require the 2 Rs to reinstate these 2 Alterations (especially when the 2 Rs did not make them) would create injustice, as IO and other owners had enjoyed the fruit of these 2 Alterations. 108.With respect, “balance of convenience” [52] is, I think, not the appropriate test for this Tribunal to apply on this issue after trial. IO has a prima facie entitlement to injunctive relief where, after trial, there is found an unlawful interference with its property right (or breach of covenant agreed) under the DMC. That said, injunction remains a discretionary remedy. The above prima facie entitlement can be departed from if special circumstances are shown to exist[53]. 109.The 2 Rs have, however, failed to advance, or make good, any special circumstances in this case to justify departing from IO’s prima facie entitlement at law.
110.All evidence and submissions considered, I will grant below suitably worded injunction demanding the 2 Rs to restore Alterations A & B and I do not go for the alternative of giving IO access to Rs’ Premises for the same purpose. G6. Issue (3) – breach causing delay and increased costs? G6.1 Same 5 areas for waterproofing works in 2019 and 2021 111.It is consensus opinion of Honby and Ben (which I accept) that, by their respective contracts with IO, Hitechi and Amtel was to carry out in 2019 and 2021 waterproofing works on the same following 5 areas at upper roof and 18/F of the Building[54] as per their respective (and, in fact, the same) contract drawing(s) (the Contract Drawing)[55], namely: -
G6.2 New complaints raised by Mr Lam in the box immaterial 112.During the course of Mr Ng’s cross-examination of Mr Lam regarding feasibility of carrying out waterproofing works on the above 5 areas in 2019 by Hitechi, Mr Lam had surprisingly raised for the first time complaints against the 2 Rs not mentioned by IO before in Form 29, his 2 witness statements and contemporaneous documents like Hitechi’s 20/12/2019 Notice, IO’s 11/1/2020 Demand and IO’s Letter before Action. 113.To give a few examples of aforesaid fresh complaints, under cross-examination, Mr Lam complained of: -
114.Except observing as I did above that the aforesaid answers of Mr Lam have adversely affected his credibility, I find it unnecessary to explore, or decide, the truth or otherwise of these new complaints. The reason is that IO has raised only one single complaint in Form 29 to make its claim of increased costs of waterproofing works against the 2 Rs i.e. the 2 Rs had rejected IO’s demand for removal of the 3 UBWs at Rs’ Premises forming subject matter of the 8/2019 Order. As such, Mr Ng’s various closing submissions on causation built on the aforesaid numerous fresh complaints of Mr Lam is, I think, neither here nor there. G6.3 IO’s demands for UBW removal rejected by 2 Rs 115.As I have found in section F12 above, it is beyond dispute that IO had in late 2019 and early 2020, either by itself or through others, demanded the 2 Rs to remove UBWs on Rs’ Premises to allow roof waterproofing works to be carried out as overall renovation of the Building[56]. R1 had flatly rejected IO’s demand for “personal reasons” in R1’s 1/2020 Reply and the 2 Rs had not acceded to IO’s demands in IO’s Letter before Action. IO thus began these proceedings in May 2020. 116.During the above period from late 2019 to May 2020, the 8/2019 Order was, I find, in effect and the 2 Rs were ordered by BA to remove the 3 UBWs situated at Rs’ Premises. 117.In this connection, R1 also admitted in R1’s 1/2020 Reply to having “his personal items at the roof for the time being” and the possibility of his “demolishing his personal items at the roof” in the future. I give full weight to such admission. G6.4 Purported explanation of R1’s 1/2020 Reply rejected 118.Of course, R1 had explained at para 20 to 22 of his witness statement that he had signed on R1’s 1/2020 Reply allegedly drafted by Hitechi “thinking that an amicable settlement had been reached” through Hitechi as IO’s agent that “demolition of the structures on the flat roof of 18B can be suspended until the reply from [BD] in relation to our enquiries above” and on his assumption of “personal responsibility” to carry out “waterproofing works” himself “on flat roof of 18B”. 119.I reject R1’s purported explanation and belief above for the following reasons.
120.One cannot but read R1’s 1/2020 Reply according to what it says on its face and I give its contents full weight. G6.5 2 Rs’ had delayed in removing 3 UBWs in compliance with BD orders 121.For reasons below, I also have no hesitation rejecting R1’s claim that the 2 Rs had not delayed complying with the 8/2019 Order and the 11/2020 Order as he sought to portray by giving evidence as per para 8 to 18 of his witness statement.
122.In my view, the 2 Rs have failed miserably to prove that they have taken taken all reasonable steps to comply with the 8/2019 Order and the 10/2020 Order. I find that the 2 Rs had delayed removing Reduced Item 1, Item 2 and Item 3 in defiant with the said 2 orders (as the case may be). G6.6 Not feasible to carry out waterproofing works in 2019 & 2020 without Rs’ removal of Reduced Item 1 123.Mr Ng spent no short time cross-examining Mr Lam on this causation topic on each of the 5 areas that required carrying out in 2019 of waterproofing works identified in [111]. He put to Mr Lam that Hitechi could have carried out in 2019 waterproofing works as required by its contract with IO on all these 5 areas. Mr Lam disagreed. 124.Notwithstanding Mr Lam’s denial, the burden remains, I think, on IO to prove on balance that Hitechi could not in fact do so in 2019 due to, or as a result of, Rs’ refusal of removal of 3 UBWs at Rs’ Premises (including Reduced Item 1, which is part of Item 1 as Ms Tse had submitted[58] and I agree). 125.As Mr Ng rightly pointed out, the renovation contractor and consultant i.e. the person(s) allegedly encountering obstacles and/or difficulties were not called at trial. However, I would not draw adverse inference against IO for their absence at trial as he submitted at para 41 of his closing submissions because Mr Ng had never cross-examined Mr Lam offering Mr Lam an opportunity to provide explanation, if any, why they were not called at trial[59]. 126.IO was left at trial with the background facts, Mr Lam’s evidence, R1’s own evidence and such limited documents produced, including so-called “self-serving” Hitechi’s 20/12/2019 Notice and IO’s 11/1/2020 Demand, to prove causation. And Mr Lam did not elaborate much on this issue of causation in his 2 witness statements. 127.Nonetheless, at law, the 2 Rs’ refusal need not, I think, be the sole cause of Hitechi’s inability to carry out the required roof and 18/F waterproofing works by late 2020. It suffices, I think, to be a substantial cause[60] of Hitechi’s inability to complete its task. 128.In this respect, the inherent probabilities support, I think, IO’s case than the case of the 2 Rs. It is common background facts that Hitechi had not carried out the required waterproofing works by completion of renovation works in late 2020. Given that it had been awarded by IO with the renovation contract and it stood to get paid by completing the said waterproofing works, Hitechi had, one thinks, every motive or incentive to complete the said waterproofing works if it could possibly have done so at R’s Premises. 129.This is, I think, all the more so on the case of the 2 Rs put to Mr Lam. As far as I gather from the various questions put to Mr Lam by Mr Ng and on R1’s own evidence, the 2 Rs had not in any ways (e.g. locking doors as alleged by Mr Lam in the box) obstructed or prevented Hitechi from having access to Rs’ Premises to carry out the required waterproofing works. 130.Among other effort of cooperation said to have been given by the 2 Rs, it was put to Mr Lam that they had given access of Rs’ Premises to IO’s contractor and consultant to “make their site inspection”[61] to arrive at their assessment that “waterproofing works to be carried on Rs’ Premises could not proceeded with if UBWs are not removed by the 2 Rs (bold supplied)[62]” as IO had pointed out in IO’s 11/1/2020 Demand at [43]. 131.Hence, the aforesaid assessment was, one thinks, made by IO’s contractor and consultant with proper foundation i.e. after a site inspection of Rs’ Premises. And there is no suggestion that they were not qualified to make such assessment. 132.And, reading the lines of R1’s own words in R1’s 1/2020 Reply, R1 apparently did not disagree with the aforesaid assessment made by IO’s consultant and contractor. He did not invite IO’s contractor to proceed nonetheless with its waterproofing works at Rs’ Premises despite his blanket refusal to “demolish his personal items on the roof” for his “personal reasons”. He told IO to take charge and handle such waterproofing works after he decided in future to “demolish his personal items on the roof”. 133.I do note that Mr Ng had put to Mr Lam that IO could exercise its power under the DMC to remove illegal UBWs at Rs’ Premises in order to allow Hitechi to carry out the required waterproofing works. Though I agree with IO having such power at law, I disagree with this unrealistic submission of Mr Ng. He overlooked the hard facts of Rs’ occupying (as R1 admitted) most surfaces at 18/F of the Building, including common parts like the Narrow Strip, and enjoying extra covered accommodation at right FR and left FR by way of Item 1. Any rash or unilateral action on the part of IO touching these without consent of the 2 Rs could well, one thinks, provoke conflict, if not injuries, if the matter does not go through proper legal procedures. 134.Reading the contents of Hitechi’s 20/12/2019 Notice and of IO’s 11/1/2020 Demand and considering also R1’s own evidence referred below, I find it likely that Reduced Item 1 (part of Item 1) was the main obstacle (or the major UBW) whose non-removal that prevented Hitechi from carrying out all the required waterproofing works in 2019 and 2020[63].
135.All evidence and submissions considered, I decide to give full weight to the above contents of Hitechi’s 20/12/2019 Notice and of IO’s 11/1/2020 Demand regarding Reduced Item 1, as well as site assessment of renovation contractor and consultant in IO’s 11/1/2020 Demand on the said item. 136.While on the evidence before me[66] that it might well be that Hitechi could carry out waterproofing works at some of the other areas identified in [111] in 2019 and 2020, I am satisfied that IO has discharged its burden to prove on the balance of probabilities that Rs’ refusal to remove Reduced Item 1 was a substantial cause of Hitechi’s inability to carry out and complete all waterproofing works required of it in its renovation contract with IO. 137.In arriving at above finding, I accept Mr Lam’s evidence in re-examination that it is not feasible for Hitechi to carry out and complete part of its required waterproofing works. In order to prevent seepage to flats at 17/F of the Building below, contractor should, he said and I agree, carry out waterproofing works on all required areas in one goal, failing which water may penetrate those areas whose works have not been done or penetrate downstairs through points connecting different areas. In other words, partial waterproofing works cannot achieve desired or intended purpose of stopping water seepage. 138.Lest it be forgotten, the 2 Rs did not remove Reduced Item 1 until August 2021, by which time the rest of renovation works required of Hitechi in its contract with IO had been completed. G6.7 Costs of waterproofing works increased in 2021 as a result? 139.On this issue, the burden remains on IO to prove that, due to Hitechi’s inability (caused by 2 Rs’ refusal to remove, inter alia, Reduced Item 1) to carry out required waterproofing works in its renovation contract with IO, it costs IO more to engage another contractor to do the same in 2021. 140.In Form 29 and Mr Lam’s 2 witness statements, IO has tried to paint a superficial simple picture of finding another contractor doing the same waterproofing works 2 years later with costs previously payable to Hitechi at $49,000 in 2019 increased to $263,000 payable to Amtel in 2021, thus making a loss of $214,000. 141.As the evidence unfolded more and more at trial, the picture became more complex than it looks at first sight. G6.71 Less expensive bid by Rich Engineering in 2021? 142.First, under cross-examination, Mr Lam disclosed that one Rich Engineering Ltd (Rich Engineering) had submitted within submission deadline in 2021 an offer to do waterproofing works for only $20,000. He further agreed that its total bid of $2,620,300 for both fire service works and waterproofing works was less expensive than the total bid of $2,858,250 quoted by Amtel. 143.Questioned by Mr Ng as to why IO did not choose a less expensive bid, Mr Lam claimed that Rich Engineering had allegedly advised afterwards that it had made mistakes in its bid and had allegedly submitted revised documents afterwards. Mr Lam admitted, however, that these alleged revised documents have never been disclosed by IO in these proceedings. G6.72 Other undisclosed 2021 tenders for waterproofing works 144.Secondly, under cross-examination, Mr Lam admitted that IO had also not disclosed other 4 to 5 tenders IO had received in August 2021 after submission deadline expired (see [53]). Their contents, importantly their offer prices, are thus unknown to this Tribunal and the quantum experts from both sides also had no chance to give their respective expert opinions having regard to their contents. G6.73 Common ground expert opinion on quantum 145.The third involves material dispute of opinion by parties’ quantum experts. Before introducing their differences, it is useful to start with their areas of agreement. 146.Both experts agreed that both Hitechi’s 2019 contract with IO and Amtel’s 2021 contract with IO contained the same clause 12 below i.e.
and same clause 15(D) below i.e.
147.Both experts further agreed on how the 2019 offer to do waterproofing works by Hitechi at $49,000 (and that of $263,000 by Amtel to do same works in 2021) was arrived at, namely: -
148.Both experts also agreed the 2 stated quantities of 35 square meter given in writing by Hitechi in 2019 and of 150 square meter given by Amtel in writing in 2021 did not form part of their respective contracts with IO[67], which had, they agreed, the same specifications forming part of their respective contracts. G6.74 Material disputes of quantum expert opinion 149.However, both experts differed on the measurement of total quantities of all areas to carry out the same waterproofing works. In their joint statement, Honby suggested 127 square metre while Ben suggested 107.6 square metre only. Their disagreements are summed up in a table at para 5.2 of their Joint Statement. For horizontal areas, their total difference is only 3.61 square metre[68]. For vertical areas, their total difference is 23.01 square metre[69] as Honby measured 2 more locations of skirting[70] and side of curb[71]. The former adds 19.55 square metre while the latter adds 3.46 square metre. 150.A greater difference is that Ben opined it reasonable to make “deemed variations” in line with the same clauses 12(B) & 15(D) of both contracts above for, he said, “obvious errors” and “missing information” in the Contract Drawing such that, on his measurement of 107.6 square metre, reasonable prices payable by IO to Amtel and Hitechi are respectively $185,966 and $150,640, thus producing a net increase in costs of carrying out, due to delay, the same waterproofing works in sum of $35,326 (i.e. $185,966 - $150,640). 151.Honby disagreed. He found Ben’s aforesaid view of “deemed variations” due to alleged “obvious errors” and “missing information” in the Contract Drawing unreasonable. Pursuant to spirit of lump sum contract, all under-measurement or over-measurement of quantities are, he said, at the tenderer’s own risk. The stated contract price remains part of parties’ contract. The stated price of $49,000 would be paid to Hitechi had it carried out the waterproofing works in 2019. And the stated contract price of $256,500 would be paid to Amtel after it completed the said job. After adding proper apportionment of preliminaries costs to these 2 prices, their net difference should, he said, be $218,054.72[72]. 152.In the event this Tribunal agrees with Ben’s view of “deemed variations”, Honby disagreed in the Joint Statement with Ben’s method of calculation of such “deemed variations” and suggested therein net price differences (in lieu from that suggested by Ben in [150]) ranging from $207,500 to $231,954.10 in 14 different scenarios (7 of them based on his own measured quantities and the remaining 7 based on Ben’s measured quantities). 153.Finally, the 2 experts suggested different treatments of preliminaries and extra insurance costs of $6,500 charged by Amtel. G6.75 Gaps of factual and expert evidence on causation 154.Before I try to resolve aforesaid disputes of expert opinion in issue (4) below, I cannot but agree with Mr Ng’s submissions that, in light of conflicting expert opinions on quantum in last section above, IO’s non-disclosure of alleged material tender documents referred to in [143] and [144] makes, I think, its task of discharging its burden to prove this causation issue more difficult. 155.While I would not go as far as Mr Ng has submitted to draw adverse inference against IO for not producing the above alleged tender documents as Mr Ng had also not cross-examined Mr Lam asking for explanation, if any, why they were not produced as evidence at trial, the substantial differences of expert opinions and further oral evidence given by Mr Lam on this issue in the box require this Tribunal to look critically beyond the stated contract prices in the 2 contracts of Hitechi and Amtel than IO has initially asked this Tribunal to do. 156.I say so because these non-disclosure causes material gaps to appear in IO’s entire collection of factual evidence on this issue, which in turn produces material gaps in related conflicting expert opinion. Had contents of these material documents, including the alleged revisions made by Rich Engineering and the stated contract prices of the other 4 to 5 alleged undisclosed tenders received in August 2021, been considered by Ben and/or Honby, one or both of them could well, one thinks, have given different and/or additional opinions to assist this Tribunal on this issue. Put it differently, IO’s material non-disclosure casts serious doubt, I think, on its limited evidence adduced to prove this issue (or reduces greatly their otherwise weight). 157.While Ms Tse is right, I think, to point out that IO was not obliged to accept the cheapest bid but could elect to accept instead a “reasonable” one, on the totality of evidence adduced before me, I am not satisfied that IO has discharged its burden to prove on balance that it had incurred increased costs to carry out waterproofing works to 18/F, and upper roof, of the Building in 2021 due to refusal of the 2 Rs to remove, inter alia, Reduced Item 1 to allow such works to proceed in 2019 and 2020. G6.76 IO’s claim of increased waterproofing costs fails 158.For want of proof of this difficult causation link, IO has, I find, failed to prove its claim for damages in sum of $214,000 for increased costs of waterproofing works. G7. Issue (4) – amount of damages payable to IO, if any 159.Were I wrong to have decided issue (3) as I did above in the last section, I would resolve issue (4) as briefly as I could below by reference to counsels’ closing submissions. 160.On the dispute set out at [150] and [151], for reasons given by Mr Ng at para 65 to 68 of his closing submissions which I agree, I prefer, and accept, Ben’s opinion that there were “obvious errors” and “missing information” in the Contract Drawing which called for “deemed variations” under clauses 12(B) & 15(D) of both contracts Hitechi and Amtel had with IO. 161.For the proper method of calculating “deemed variations”, Ms Tse has succinctly summarized at para 57 and 58 of her closing submissions the 2 different methods adopted by the 2 experts as follows:
162.For reason given by Mr Ng at para 70 of his closing submission which I agree, I prefer, and adopt, Ben’s aforesaid method in calculating “deemed variations” to be made to the 2 contracts Hitechi and Amtel had with IO. 163.I arrived at the above conclusion notwithstanding possible manipulation of “deemed variations” Ms Tse had warned against at para 59 of her closing submission. That, I believe, is the contractual rights open to a tenderer when an employer invites tenders based on contract drawings that are not professionally drawn up and/or whose measurements had not been properly arrived at and put down. 164.Moving to the different measured quantities arrived at by the 2 experts at [149], I agree with para 71 of Mr Ng’s closing submission that skirting and side of curb had already been included in specifications of Hitechi’s contract and of Amtel’s contract and thus their areas need not be measured and added as suggested by Honby. As to remaining 3.61-square-metre horizontal differences in measurement, I also prefer and adopt Ben’s measurements. Honby could not point to any error made by Ben. Ben, however, had pointed to various assumptions and errors made by Honby who had no choice but to admit under cross-examination. Accordingly, I find 107.6 square metre the correct total measured quantities after “deemed variations” have been calculated using Ben’s method of calculation in [161(2)]. 165.Preliminaries should, I agree with Mr Ng, not be included for reasons he gave at para 74(a) of his closing submission. And I agree for reasons given by Ben in his expert report that the 2 Rs, if held liable to IO at all for breach of the DMC for Item 1 (inclusive of Reduced Item 1), should only pay rateably extra insurance costs of $1,970 out of $6,500 charged by Amtel. 166.Hence, had delayed commencement of all the required waterproofing works due to non-removal of Item 1 (inclusive of Reduced Item 1) by the 2 Rs reasonably caused IO to engage Amtel and no other contractor to redo the same in 2021 on the price and terms it had entered with IO (which IO had failed to satisfy me in issue (3) above), I would have assessed IO having incurred increased costs of $35,326 as compared to such sum payable by IO to Hitechi for such works in 2019. H. Disposition 167.For reasons given above, I therefore make the following order and enter judgment as follows:
I. Costs 168.Costs of these proceedings are at the discretion of this Tribunal[73]. O.62 of Rules of High Court[74] applies to award of costs in Lands Tribunal[75]. Pertinent rules for our present purpose are O.62 r.3(2) (i.e. costs follow the event) and O.62 r.5. 169.Here we have 2 separate and distinct claims of IO. And IO has achieved different results on them.
170.Hence, it is, in my view, inappropriate to award the whole costs of these proceedings to IO. It is, I think, more appropriate to award costs in favour of IO on the claim it succeeds based on the approximate percentage of total time spent by parties on it. My rough estimate is that about 30% of time was spent on the 3 Alterations. 171.I therefore make an order nisi that 30% of IO’s costs of this application, including 30% of all reserved costs and 30% of IO’s costs of this trial together with certificate of counsel, be paid by 2 Rs to IO to be taxed at District Court scale if not agreed. 172.Finally, I thank Ms Tse and Mr Ng for their submissions.
Ms Tse Rui Teng Tania, instructed by K. B. Chau & Co., for the Applicant Mr Kurt C.Y. Ng, instructed by M. L. Tam & Co., for the 1st and 2nd Respondents [1] Cap.344 [2] They are couple, R1 being the husband and R2 being the wife. [3] Cap.123 [4] Exhibit R2 [5] R1 has marked the Corridor in orange on Exhibit R5. [6] The route is like a letter “U” turned clockwise 90 degrees. [7] It was highlighted in blue on MFI-3 [8] R1 added in the box that PW Tank was situated somewhat below lower middle Roof but above 18/F. [9] For typical floor plan and 18/F plans, railings and parapet walls at flat roofs are indicated with words and lines. [10] p.134-1 of trial bundle [11] p.115 of trial bundle [12] See First Schedule thereof [13] See clause 4(q) thereof [14] “common parts” definition in s.2 and items 2, 6, 8 and 9 of Schedule 1 thereof [15] p.113 of trial bundle [16] p.94 of trial bundle. The 1996 Assignment was preceded by a sale and purchase agreement dated 30 April 1996 whereby the 2 Rs agreed to purchase Rs’ Premises on an “as is” basis, p.215 of trial bundle. [17] p.97 of trial bundle [18] R1 marked all areas of 18/F level occupied by him in green in Exhibit R3 [19] R1 marked all areas of upper roof level occupied by him in green in Exhibit R4 [20] p.141 of trial bundle [21] Vertical railing boundary of upper portion of right FR had, on video before me, become enclosing wall of additional internal space or accommodation of Rs’ Premises stretching from 18/F up to upper roof. [22] Fig.7a at p.423 of trial bundle (with Point C at the far end) and Photo 8 (with Point C at far end) at p.369 of trial bundle [23] p.340-84 of trial bundle [24] R1 said he sat below Item 2 to enjoy the wind and fresh air i.e. 乘涼. [25] 天台加建物清拆通知 [26] I do note Mr Lam answered Mr Ng to refer to Item 1. But, to be exact and accurate, I find Hitechi likely referred to Reduced Item 1. [27] They only once asked IO in a WhatsApp group of the owners of the Building on 24 March 2020 for Chinese version of IO’s Letter before Action. [28] p.165 of trial bundle [29] Seized as Exhibit MFI-5 for record purpose [30] If necessary, I find Item 1 (and Reduced Item 1), Item 2 and Item 3 all UBWs for their absence in the Approved Plans, the issue of the 8/2019 Order by BA over them, the issue of the 10/2020 Order (and the reasons given by BA for the issue of the said 2 orders). The issue of the 11/2020 Order superseding the 8/2019 Order does not affect this finding of mine over Item 1. Nowhere in the 11/2020 Order (or in BD’s letter dated 15 October 2021 to the 2 Rs) did BA say that Item 1 was not UBW in the first place. [31] BA has as early as on 17 September 2009 already issued a warning notice to the 2 Rs regarding the same Item 1 (see letter dated 20 May 2021 from BD to solicitors for the 2 Rs). [32] Though Mr Lam also agreed under cross-examination with such alleged safety problem over PW Tank, I give no weight to his answer. He is not qualified to give expert opinion on the matter. [33] If necessary, IO has not, I think, proven that the 3 Alterations are UBWs. While they are absent in the Approved Plans, IO failed to lead further evidence (e.g. by way of order and/or letters issued by BA) that they are not exempted “non-structural” works under s.41(3) of BO and, if not exempted, that consent and approval have not been given by BA for works to be commenced on them. [34] Para 12 of Form 29 [35] Wing Ming Garment Factory Limited v The Incorporated Owners of Wing Ming Industrial Centre [2014] 4 HKLRD 52, para 125 & 126, per Godfrey Lam J. (as he then was) [36] Cap.219 [37] The Incorporated Owners of Wing Ming Industrial Centre, supra, para 277, per Godfrey Lam J. (as he then was) [38] Mr Ng relied on the case of The Incorporated Owners of Wah Fai Court v Lee Man Ho Joseph, unreported, LDBM 60/2010, 26 February 2013, para 37, per Kot DDJ (as she then was) [39] marked as Provisional Exhibit “PR1” [40] Including para 19 of Mr Ng’s closing submissions [41] Pursuant to s.47 of Evidence Ordinance, Cap.8, and/or s.10(6) of Lands Tribunal Ordinance, Cap.17. [42] Including those set out at s.49(2) of Evidence Ordinance, Cap.8 [43] Mr Ng stressed that it is consistent with the Copy Sales Brochure being an old document. [44] R1 claimed in chief that the Developer had only distributed copy sale brochures to prospective buyers. [45] The name “Sun Hung Kai Company Limited” with logo identical to that of listed Sun Hung Kai Properties Limited is found on the face of the Copy Sales Brochure. R1 claimed at para 26 of his witness statement that the First Owner is an affiliated company of the Developer. [46] R1 claimed in chief to have obtained the same from Chan Chun Wah because of renovation works to the Building but, by July 2021, such renovation works had been completed. [47] the said door at Point B looks to have been put down in handwriting and the entrance/exit concerned is marked with a thick straight line whereas other doors have either a thin straight line or no line at all [48] Compare The Incorporated Owners of Bonham Crest v Lai Felix Yirid & Another [2019] HKLdT 29, para 9, per Her Honour Judge Kot [49] Wong Kwan Yee v The Incorporated Owners of Diamond Mansion & Others, unreported, HCA 2576/2007, 4 March 2011, para 16, per Deputy High Court Judge Burrell [50] Part VIA of BMO, inclusive of s.34I, was introduced by way of amendments made to BMO that became effective as from 1993. [51] Hollywood Shopping Centre Owners’ Committee Limited v The Incorporated Owners of Wing Wah Building Mongkok Kowloon, unreported, HCA1582/2007, 16 August 2010, para 65, per Recorder Yuen SC; The Incorporated Owners of Freder Centre v Gringo Ltd & Another [2016] 2 HKLRD 190, CA, para 25 & 26, per Chu JA (as she then was) [52] In support of such test, Mr Ng cited Great Source Enterprise Ltd v Lam Ka On & Another, LDBM193/2002, 23 June 2003, para 52, per DDJ Wong (as he then was) [53] Grand Power International Ltd v Chan Sing Hoi Enterprises Ltd [2020] 2 HKLRD 142, CA, para 53 to 55, per Kwan V-P; see also Great Source Enterprise Ltd, supra, para 51, 56 to 58, per DDJ Wong (as he then was) [54] Ben identified these 5 areas in yellow in plan at p.455 of trial bundle; Honby identified them also in yellow in 2 plans at pp.373-4 of trial bundle. [55] For Hitechi’s contract drawing, it is found at p.412 of trial bundle; for Amtel’s contract drawing which is the same, it is found at p.420 of trial bundle [56] and to reinstate alterations made to common parts of the Building [57] And the provision of cat ladder within the Machine Room as the only access to the right Roof in the Approved Plans is, I think, supportive of BD’s answer to Rs’ solicitors. [58] See also para 17 to 20 of Form 29 [59] See Li Sau Keung v Maxcredit Engineering Ltd & Another [2004] 1 HKC 434, CA, 443H-444B, per Le Pichon JA [60] Li Sau Keung, supra, 450H per Cheung JA [61] 承建商及顧問公司實地評估後 [62] 若貴業主不拆除該僭建部分，是無法進行上述的防水工程的 [63] Ms Tse has made same concession at para 39 of her closing submissions. [64] These Chinese words are not, I think, a reference to a particular “method” of carrying out waterproofing works as submitted by Mr Ng in his closing submission. [65] R1 marked its position with a blue cross in Exhibit R5 [66] Mr Ng pointed to Mr Lam’s answer under cross-examination that Amtel had managed to do waterproofing works at upper portions of left and right FRs in 2021 despite UBWs therein had not been demolished. [67] The 2 experts used different English terminology. Honby called it quantities in the “Schedules of Rates” while Ben called it quantities in the “Bill of Quantities”. But, whatever the name may be, both agreed that these quantities are not part of contract. [68] See para 5.2.1 of Joint Statement [69] See 5.2.2 of Joint Statement [70] 0.3m-high base of the walls connecting left and right FRs on 18/F [71] 0.1m-high interface between floor tiles and building structure on right Roof at upper roof [72] This sum is greater than the amount of damages sought by IO in Form 29. [73] S.12(1) of Lands Tribunal Ordinance, Cap.17 [74] Cap.4A [75] S.12(7) of Lands Tribunal Ordinance, Cap.17 |
Cases cited in this judgment
Further hearings and rulings under LDBM 29/2020