Sino Estates Management Ltd v. Chun Man Tsun

LDBM 157/2025

[2026] HKLdT 39

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 157 OF 2025

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BETWEEN

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J U D G M E N T

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INTRODUCTION

1.This is the Applicant’s application for an injunction order against the Respondent for the purpose of restraining the Respondent from placing any matter or thing or allowing any matter or thing to be placed (other than motor vehicle) in a car parking space owned by the Respondent (“Subject Space”).

BACKGROUND

2.The Subject Space is registered at the Land Registry as car parking space no. 171 on carpark level, Dynasty Heights, No. 2 Yin Ping Road, Kowloon.

3.The management of the Dynasty Heights (“Development”) is governed by the Deed of Mutual Covenant and Management Agreement dated 19^th January 1999 (“DMC”), which was registered in the Land Registry on 13 February 1999. Upon the execution of the DMC and pursuant to Clause 9 of it, the Applicant has since been named and appointed as the “Manager” of the Development under the DMC.

4.The Respondent has been the sole registered owner of the Subject Space holding 2 equal undivided 8781^th parts or shares of and in the Development by virtue of an assignment dated 2 July 1999. The location of the Subject Space is shown coloured pink in the Plan (“Subject Plan”) annexed to the said assignment. The Respondent is also the registered owner of one of the residential units of the Development.

5.In the present action, it is the Applicant’s claim that notwithstanding its repeated requests and warnings, the Respondent has been continuously in breach of the covenants under the DMC by placing, leaving or causing/ allowing to be placed or left, at the Subject Space, matters or things other than motor vehicle, necessitating an injunction order to stop, remedy and prevent such breach.

6.The Applicant has arranged its sole witness, Mr Luk Man Wai (“Luk”), to give evidence in the trial. Luk has been engaged as the Property Manager of the Development since 20 May 2019.

SERVICE OF DOCUMENTS

7.According to the five affirmations of service filed by the Applicant, the Notice of Application, Form 31, the Checklist, the witness statement of Luk, the order dated 10 February 2026, the skeleton submissions and the trial bundle have been properly served on the Respondent. On the other hand, the Notice of Hearing and the Notice of Trial have also been sent to the Respondent unreturned.

8.In the circumstances, I am satisfied that the Respondent should have been aware of the progress of this action and this trial. He however has not attended any hearing or this trial. Nor has he filed any Notice of Opposition or documents for the purpose of this action. I therefore allowed the trial to be proceeded in the absence of the Respondent.

DMC

9.The DMC contains the following clauses which are relevant to the present action: -

(i) Clause 4 provides: -

“The Owner or Owners for the time being of each Undivided Share shall at all times hereafter be bound by and shall observe and perform the covenants, provisions and restrictions contained herein and in the FOURTH SCHEDULE hereto so far as the same relate to such Undivided Share held by him or them and shall hold each Undivided Share subject to the easements, rights and privileges set out in the FIFTH SCHEDULE hereto.”

(ii) Clause 36 provides: -

“The management of the Development shall subject to Clause 9 of this Deed be undertaken by the Manager and each Owner hereby APPOINTS the Manager as agent for all Owners in respect of any matter concerning the Common Areas and Facilities duly authorized in accordance with the provisions of this Deed with full power of delegation to enforce the provisions of this Deed against the other Owner or Owners. In addition to the other powers expressly provided in this Deed, the Manager shall have full and unrestricted authority to do all such acts and things as may be necessary to expedient for or in connection with the Development and the management thereof including in particular but without in any way limiting the generality of the foregoing:-

……

(ae) To enforce the due observance and performance by the Owners of the terms and conditions of the Conditions of this Deed and to take action in respect of any breach thereof including the commencement, conduct and defence of legal proceedings and the registration and enforcement of charges as herein mentioned;”

(iii) Clause 29 of the 4^th Schedule provides: -

“No owner shall use the Car Parking Spaces in the Development for any purpose other than for the purpose of parking licensed motor vehicles only and no articles, goods or other things except motor vehicles shall be allowed thereon. The Car Parking Spaces shall be used solely for the purpose of parking licensed motor vehicles belonging to the Owners or the residents of the Residential Accommodation or their bona fide visitors.”

THE APPLICABLE LAW

10.An injunction is a discretionary remedy. It should be granted where the defendant is continuing to breach an obligation undertaken in a deed of mutual covenant unless there are good reasons not to: The Incorporated Owners of Yee Fung Garden v Basic Tech Limited and Tin Shing Company Limited HCA6622/1998 unreported 23 January 2003 §130.

DISCUSSION

11.Being the registered owner of the Subject Space holding undivided shares of the Development, the Applicant is one of the co-owners of the Development and accordingly, shall be bound by and shall observe and perform the covenants, provisions and restrictions contained in the DMC.

12.Under Clause 29 of the 4^th Schedule to the DMC, the Respondent is not allowed to use the Subject Space for any purpose other than parking licensed motor vehicles and no articles, goods or things except motor vehicles shall be allowed thereon.

13.On the evidence before me, it is clear to me that since at least around August 2022, the Respondent has been placing, leaving, or causing/ allowing to be placed or left, at the Subject Space, matters or things, other than motor vehicle, as evidenced by a number of letters and photographs (“Subject Photographs”) issued or taken during the period between 5 August 2022 and 17 March 2026 as exhibited to Luk’s witness statement.

14.During this trial, Luk also gave evidence in Court that he had personally visited the Subject Space on various occasions and confirmed that the Subject Space as shown in the Subject Plan is at the space with boundary outlined by white paint with its number “171” painted on the floor as shown in the Subject Photographs.

15.As depicted in the Subject Photographs, it can be seen that since at least around 29 May 2023, various matters and things have been placed or left at the rear end of the Subject Space, near the wall adjacent to the rear end of the Subject Space. They include but not limited to a bicycle, some carton boxes containing unidentified items, a luggage, some fluorescent tubes, a cabinet and some other unidentified objects.

16.Recently, the photographs taken on 17 March 2026 show that a number of folded carton boxes, furniture, some rolls of paper, some paintings, some fluorescent tubes, a feather duster, some umbrellas and some other unidentified objects in some large carton boxes were placed at the Subject Space.

17.Worse still, due to the space of the Subject Space was reduced by those things and matters placed thereat, the motor vehicle parked thereat extruded from the boundary of the Subject Space and actually encroached the area of the common pathway of the car park lot.

18.Luk gave further evidence (with photographs in support) in court that he had conducted another inspection to the Subject Space on 25 June 2026. During the inspection, he found a wooden chest, some ceramic articles, a carpet and an umbrella were placed at the Subject space.

19.Given Luk’s evidence is detailed and well supported by contemporaneous documentary proof and in the absence of any evidence to suggest otherwise, I have no reason not to accept his evidence. Thus considered, I accept the submission of Mr Ng, solicitor acting for the Applicant, that by placing those matters and objects or allowing them to be placed or left at the Subject Space, the Respondent has been in clear breach of Clause 29 of the 4^th Schedule to the DMC and the breach is continuing.

20.In further consideration of the facts that: -

(a) the Respondent has been in breach of a restrictive covenant of the DMC;

(b) the breach has been continuing for more than three years despite the Applicant’s numerous requests and warnings, i.e. by way of five letters issued by the Applicant or its solicitors to the Respondent;

(c) the breach is continuing and there is no indication that the breach will cease in the near future;

(d) the Development is a densely populated estate, and its owners shall abide by the DMC to ensure each other’s rights are not infringed;

(e) the Applicant has received complaints from other owners about the Respondent’s unreasonable conducts;

(f) Pursuant to Clauses 9 and 36 of the DMC, the Applicant is duty-bound to enforce the covenants and provisions of the DMC as well as to ensure proper management of the Development and its failure to do so may have adverse impact on it, the Development and the owners.

I am of the view that the injunctions sought should be granted for there have been no good reasons not to. Absent any suggestion or evidence to suggest otherwise, there is no good reason for the Respondent to place matters or things or allow them to be left at the Subject Space, which amount to a clear breach of Clause 29 of the 4^th Schedule to the DMC.

21.Further, I share the view of Mr Ng that the efforts and costs required of the Respondent complying with the injunctions are apparently minimal. All the Respondent has to do is to remove the things and matters, which are not huge fixtures or structures, and obviously could be easily removed from the Subject Space.

22.At the end of the trial, further time has been given to the Applicant to define and clarify the scope of the injunction sought. Having taken further instructions from the Applicant, Mr Ng subsequently clarified and further confirmed in writing that the scope of the injunction is confined to the floor area and ground space of the Subject Space.

ORDER

23.Having considered the Applicant’s submissions and all the relevant evidence before me, I am satisfied that the Applicant has successfully proved its claim with solid evidence. I make the following order: -

(1) An injunction that the Respondent, whether by himself or by the servants or agents appointed by the Respondent or otherwise howsoever, be restrained from placing or leaving, or causing/ allowing to be placed or left, any articles, items, matters or things other than motor vehicle, at the Subject Space.

(2) A mandatory injunction that the Respondent do remove all the articles, items, matters or things, other than motor vehicle, from the Subject Space at his own cost and expenses within 14 days from the service of this Order.

COSTS

24.As to costs, the general rule is that costs should follow the event. There are no special circumstances in this action to depart from the general rule.

25.Having considered all the relevant circumstances and the Statement of Costs of the Applicant, I make an order that the Respondent do pay the Applicant the costs of this action, including all costs reserved and the costs of the trial, summarily assessed at HK$40,000.

26.I thank Mr Ng for his assistance.

Mr Michael C.W. Ng, of Liu, Chan & Lam, for the applicant

The Respondent was not represented and did not appear