Goodyear Property Management Ltd v. Lana Wong

HCA001790/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

CASE NO. 1790 of 1972

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Coram: Mr. Commissioner M. Morley-John in Court

Date of Judgment: 5th July, 1973.

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JUDGMENT

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1. The Plaintiff is a company carrying on business as an Estate Agent and Property Manager in the Colony, and by a Deed of Mutual Covenant dated the 31st March, 1971 inter alia was appointed to undertake the management, operation, servicing, maintenance, repair and insurance of 5 blocks of residential buildings known as Grenville House, Magazine Gap Road. Clause 9(b) (24) of the said Deed of Mutual Covenant, which was produced, empowers the Plaintiff to enforce the due observance and performance by the owners of the said buildings of the terms and conditions contained in the said Deed of Mutual Covenant and to take action in respect of any breach thereof including the commencement, conduct and defence of legal proceedings. The Defendant is the owner of Apartment No. D on the 12th floor of Block "CD" and Roof "D" of the premises, known as Grenville House which is the block of flats. The said premises were assigned to the Defendant by the Owners and such assignment was subject to and with the benefit of the said Deed of Mutual Covenant. The Deed of Mutual Covenant inter alia provides that the owner of each apartment is required to abide by certain House Rules which are contained in the Third Schedule to the said Deed of Mutual Covenant. House Rule 6 provides as follows.

"No external shades, awnings or window guards shall be used in or about the building until such shall have been approved in writing by the Managers, and no owner shall without the previous written consent of the Managers paint the outside of the building or any part thereof nor alter the exterior window glass nor do any other act or thing which would alter or affect the exterior appearance of the said building."

2. The Plaintiff claims that in breach of that rule, the Defendant has without the consent of the Plaintiff, in fact enclosed the balcony of her apartment with a structure of glass and aluminium, and has removed the original black wrought iron railing of the balcony and substituted therefore a wider aluminium railing. That by her action she has altered and affected the exterior appearance of Grenville House. By a letter dated 6th June 1972 from the Plaintiff and by a further letter dated the 22nd of June 1972 addressed by the Plaintiff's solicitors to the Defendant, the Plaintiff brought to the notice of the Defendant the provisions contained in Rule 6 of the said House Rules and required the Defendant to restore the said balcony to its original appearance, but that in spite of the said letters, the Defendant has failed or refused to restore the balcony to its original appearance. The Plaintiff therefore seeks an order that the Defendant do forthwith remove the structure and restore the said balcony of the premises to its original appearance.

3. In her defence the Defendant pleaded firstly that in effect the Plaintiff has ceased to have authority to represent the owners of Grenville House as the Management Company and secondly that whatever she has built on her balcony is not in breach of the Deed of Mutual Covenant nor of the House Rules. In her defence the Defendant admits being bound by the provisions of the Deed of Mutual Covenant. After having heard Counsel for the Plaintiff the Defendant abandoned her first ground of defence and I shall, therefore, not go into Counsel's argument on this first point save as to say that he proved quite conclusively that according to the Deed of Mutual Covenant the Plaintiff had not ceased to have authority to represent the owners of Grenville House in this matter.

4. Evidence was given by Mr. J.B. Carlsen an employee of the Plaintiff whose sole function is the management of Grenville House. He produced 3 photographs of the offending structure and explained how the balcony had been enclosed on two sides by sliding glass windows on the upper part and glass backed aluminium railings on the lower part, and he explained how the aluminium railings had been substituted for the original black wrought iron balcony railings. He also identified the letter written by his company to the Defendant requesting her to remove the structure : he said no reply was ever received to this letter, and he also identified the letter written to the Defendant by the Plaintiff's solicitors requesting her to remove this structure. He also confirmed that to date the balcony had not been restored to its original condition. In cross-examination the Defendant put it to him that a member of the staff of the Management had told her that when she originally went into the premises that she could do what she liked to the premises. Mr. Carlsen said that he knew nothing of such matters. In any event in accordance with the provisions of House Rule 6 any approval given by the managers must be in writing.

5. The Defendant very briefly gave evidence. She said that by the time she had received the letters from the Plaintiff and their solicitors, she had already put up the enclosure and she did not know how she could dismantle it. She said that at first she thought she was allowed to put up such an enclosure and she then said that in her view such enclosure does not affect the exterior appearance of the building, because her flat is on the 12th floor and it cannot be easily seen unless by use of a telescope.

6. From a perusal of the photographs it is quite clear, to quote Counsel for the Plaintiff, that this structure "sticks out like a sore thumb" in relation to the other one hundred and ninet balconies of Grenville House, and I have no hesitation in finding that the Defendant is in breach of the terms of the Deed of Mutual Covenant, in particular of House Rule 6 which is binding upon her, and I therefore give judgment for the Plaintiff with costs. Counsel for the Plaintiff has already stated that he wavies any claim for damages.

7. I order that the Defendant remove the aluminium grilles an ...(illegible) the present balcony railings, and restore the balcony to its origin ...(illegible) appearance within one month, with liberty on behalf of the Defendant to apply if the work cannot be carried out within such period, and with liberty on behalf of the Plaintiff to apply for directions as to the implementation of this order, if necessary.

Representation:

5th July, 1973.

J. Swaine and R. Tang (Sonsae & Co.) for Plaintiff.

Defendant in person.