Fairview Park Property Management Ltd v. Sun Wai Chun

HCA005782A/1994

IN THE HIGH COURT OF THE HONG KONG SAR

COURT OF FIRST INSTANCE

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Coram: The Hon. Mr. Justice Waung in Court

Date of Hearing: 2, 3, 4, 5, 6, 11, 12, 16 November 1998

Date of Handing Down of Judgment: 9 February 1999

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JUDGMENT

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1. Fairview Park is a very large development in Yuen Long, New Territories consisting of some 5,000 houses built in the mid nineteen seventies. A Deed of Mutual Covenant binds the owners of the houses and the manager of Fairview Park. The Plaintiff is the manager of Fairview Park under the Deed of Mutual Covenant. The Defendant is the present owner of House 43, First Street, Section G of Fairview Park ("House"). The House was first sold in 1976 by the developer Canadian Overseas Development Company Ltd. to one Lam Wai King who in turn sold the House to Christina Ma Kit Yi in 1987. In 1990, the Defendant Sun acquired the House from Christina Ma. Unlawful alterations were made to the House in 1987 probably on the instructions of Christina Ma and thereafter the Plaintiff had sought, without success to have the alterations reinstated. This Action was brought by the Plaintiff to have the unlawful alterations reinstated by the Defendant or alternatively by the Plaintiff but at the expense of the Defendant.

2. Fairview Park was a development consisting of various types of houses. The House in question is what was known as house type 5/2. Page D28 which is part of the Report of Dr. Vessey (the expert of the Plaintiff) shows that the house type 5/2 being divided into two houses separated by a party wall. The House, being on the right hand side of that plan is of two floors, with the ground floor consisting of the entrance through an open arch porch, by way of the main door of the House which opens into the Living and Dining Room, with the Kitchen being separated by a wall which faced the main entrance door. The open porch was formed by two arch openings at right angles to each other and two walls namely W11a and W11b. What happened was that these two walls W11a and W11b were knocked down and the open porch area was enclosed by erecting two different external walls (called at the Trial walls W12a and W12b) and the new main entrance door was set into wall W12b. The third wall which was knocked down was the Kitchen wall W7. The complaint of the Plaintiff is that there were altogether five unauthorised and wrongful alterations to the House, namely:-

(1) the removal of wall W11a;

(2) the removal of wall W11b;

(3) the removal of wall W7;

(4) the erection of wall W12a;

(5) the erection of wall W12b.

3. The Deed of Mutual Covenant contains the following material provisions:-

(1)	Clause 5 which provides that each Owner (which by definition under Clause 1(d) includes the Defendant) shall be bound and shall observe and perform the covenants and provisions and restrictions set out in the Second Schedule:-
(2)	The Second Schedule provides as follows:-
	Paragraph 4(b)
	"Not to make any alterations or additions to the exterior of any Unit or any building or to any walls and fences without the approval in writing of the Company."
	Paragraph 7(a)
	"Not to make any structural alterations to the Unit or sub-section or any part thereof nor to cut, maim, damage, interfere with any common plumbing wiring equipment apparatus and services."
	Paragraph 15
	"To observe and perform all the covenants conditions and provisions of this Deed and the Estate Rules."
(3)	Clause 7(a) provides the Plaintiff Manager is to manage and provide services to Fairview Park and the Manger shall be responsible and shall have the full and unrestricted authority to do all such acts and things as may be necessary or requisite for or in connection with Fairview Park and any of the buildings thereon and the management thereof. The Clause further provides that the Manger shall have the powers and obligations set out in the Third Schedule.
(4)	Clause 7(d) provides that it is lawful for the Manager at all times and from time to time to make revoke and amend such Estate Rules as it shall think fit for the management of the said Land etc.
(5)	The Third Schedule provides as follows:-
	Paragraph 1(d)
	"The Manager shall have the........power........to remove any structure or installation.......which is illegal unauthorised or which contravenes the terms of these presents......"
	Paragraph 1(h)
	"The Manager shall have the........power......to make vary or annul any Estate Rules and any rules relating to the use of the open yards, gardens, lawns, parks, grounds, artificial lakes, bunds and rivers (if any) within the said Land and the estate roads."
	Paragraph 2(d)
	"To take such steps as may be necessary to enforce the terms of these presents and the Estate Rules."
(6)	The Estate Rules provide as follows:-
	Rule A10
	"......As owner means each person in whom for the time being the legal estate in a unit is vested, successors in title are liable for any obligation under the Deed of Mutual Covenant left undone by their predecessors in title......"
	Rule B4(b) and (h)
	"No owner is allowed:-

	(b)	to alter the main structure, e.g. columns, beams, structural walls and etc. of any unit; ...................
	(h)	to alter or to seal up any doorways or window openings......"

	Rule B6
	"In existence at present are quite a number of unauthorised additions/alterations: the commonest being fixed type canopies. Upon discovery, owners are notified in writing and are given ample time to redress the breach. The Estate Management prones to persuasion rather than immediately resorting to legal proceedings.
	Should persuasion fail, legal proceedings will be initiated in order of priority according to date of discovery and nature of breach. All unauthorised additions/alterations sooner or later have to be removed or rectified by owners themselves as the final solution, either forcibly (by Court Orders) or voluntarily (through persuasion and understanding.) Please don't follow suit other owners' breach. Prior consultation can alleviate future inconvenience."

4. On the 7^th of June 1987, the staff of the Plaintiff discovered that unauthorised alterations works were carried out at the House. The unauthorised works were the following:-

(1) the removal of wall W11a;

(2) the removal of wall W11b;

(3) the removal of wall W7;

(4) the erection of wall W12a;

(5) the erection of wall W12b.

Photographs were taken by the Plaintiff's staff and by letter dated 2^nd July 1987, the Plaintiff wrote to Madame Lam Wai King (whom the Plaintiff thought to be the then owner of the House) about the unauthorised removal of the kitchen and porch walls and the erection of the unauthorised external walls. The letter asked the unauthorised alterations be reinstated. No reinstatement took place and so by letter dated 25^th September 1987, another letter was written but this time addressed to Christina Ma, the new owner of the House and asking that wrongful alterations be reinstated. A warning letter was written dated 22^nd July 1988 by the Plaintiff to Christina Ma asking for reinstatement and said this case has been placed under constant review and as final resort, the Plaintiff would institute legal action to seek removal according to the Plaintiff's priority list.

5. On the 6^th of October 1990, Christina Ma (known as Mrs. Chow) came to the office of the office of the Plaintiff when it was explained to her by the staff of the Plaintiff the necessity for the breaches to be reinstated and she agreed to such reinstatement but said that she required the assistance of her family to carry out the reinstatement works. She promised she would inform the Plaintiff office in 10 days about her decision as to the reinstatement works. She did not so inform the Plaintiff office nor did she carry out the work but instead it would seem that the House was sold to the present Defendant, Madame Sun. An important letter dated 1^st November 1990 was then written by the Plaintiff requiring reinstatements and setting out the unauthorised alterations. In early 1993 according to the record of the Plaintiff, the necessary reinstatement works were observed as not having been carried out. So further letters requiring reinstatement were sent out by the Plaintiff and these were dated 3^rd March 1993 (addressed to Christina Ma), 20^th March 1993 (addressed to the Defendant Madame Sun) and 27^th March 1993 (addressed to the Defendant Madame Sun). The letter dated 27^th March 1993 was particularly relevant because in that letter the Plaintiff agreed to grant further time to the Defendant to rectify the alterations as result of the Defendant requesting Li Wan Hing of the Plaintiff to grant her more time to carry out the reinstatement works. The Plaintiff gave until the 30^th of June 1993 for the Defendant to carry out the reinstatement works and a written undertaking was enclosed with the letter for the Defendant to sign. The Defendant did not sign the undertaking so Li Wan Hing wrote another letter dated 20^th April 1993 to chase for the undertaking. By letter dated 30^th April 1993, the Defendant Madame Sun wrote to Mr. Li and after acknowledging the necessity to carry out the reinstatement works, she asked for a further extension until 30^th September 1993 to carry out the works saying that she had been obtaining quotations for the reinstatement works. This was the second request by the Defendant for more time to do reinstatement. Plaintiff again chased for the Undertaking to be signed by its letter dated 4^th May 1993. On the 21^st of June 1993, the Defendant Madame Sun came to the office of the Plaintiff to register her change of ownership of the House and it was on that occasion that the Defendant promised to the Plaintiff's staff that she would rectify all the breaches by 30^th September 1993. This was the third request by the Defendant for time to do reinstatement. By letter dated 11^th August 1993, the Plaintiff again chased for the signed Undertaking. On 14^th September 1993, the Plaintiff's file record relating to the House ("Record Sheet") shows that the House was observed not to have rectified the unauthorised alterations and by letter dated 20^th September 1993, solicitors for the Plaintiff wrote the formal letter to the Defendant giving formal notice of legal proceedings unless reinstatement works were carried out within 3 days. On the 25^th of September 1993, the Plaintiff commenced the present action in the District Court. On the 24^th of May 1994, this action in the District Court was transferred to the High Court.

ISSUES

6. The issues which were raised at the start of the Trial are the following:-

CREDIBILITY OF WITNESSES

7. At the Trial, I heard oral evidence from six factual witnesses from the Plaintiff and one factual witness from the Defendant. The Plaintiff's six factual witnesses were:-

The factual witness of the Defendant was the Defendant, Madame Sun Wai Chun herself. Two experts of the Plaintiff gave evidence, Mr. Wong Lup Yue and Dr. Vessey. No expert of the Defendant came forward to give evidence.

8. The factual witnesses of the Plaintiff gave good evidence and their evidence to a large extent were also supported by documents. I find they are credible and reliable witnesses. Madame Sun the Defendant however was not a good witness. She did not give her evidence well but her evidence was however of only marginal significance in terms of the issues which the Court has to decide for the Trial. All the factual witnesses were examined, cross examined and re-examined.

9. The two expert witnesses were however not cross-examined because of the unusual turn of events which I will describe later. On the basis of their evidence not being subjected to cross-examination, I find their evidence reliable and I accept their evidence. In particular I find the evidence of Dr. Vessel particularly compelling as he is not only technically highly qualified but impressive in every way when he gave his evidence with the aid of plans, drawings, blocks, model, pictures and demonstrations. He was an excellent witness.

UNUSUAL TRIAL PROCEEDINGS

10. Before I proceed to consider the various Issues, I should describe briefly the unusual features of the Trial as they might have a bearing on my findings.

11. The Trial started on the 2^nd of November 1998 in the usual way with Mr. Johnson Lam appearing for the Plaintiff on the instructions of Messrs Kwan & Chow, Solicitors for the Plaintiff and Mr. Hubert Woo for the Defendant on the instructions of Messrs Hong Lee & Co. After the opening of Mr. Lam, the first day was taken up with PW1, Mr. Lau Chung Hing. 3^rd of November 1998 was taken up by the evidence of PW2-Mr. Li Wan Hing, PW3-Mr. Chan Kin Sun, PW4-Miss Ivy Wong and PW5-Mr. Chan Ming Sze. That afternoon and the better part of the next day, 4^th November however was taken up with legal question of scope of the Defendant's defence and whether they were material to the Trial. Mr. Chan resumed his evidence in the afternoon of the 4^th November and his evidence was completed in the morning of the 5th November. PW6-Mr. Yuen then gave evidence followed by the remaining factual witness namely the Defendant Madame Sun who completed her evidence in the afternoon of the 5^th November. The next day, 6^th November 1998 was to be the start of the experts giving evidence, the Court having directed on day one of the Trial that the factual witnesses of both sides were to give evidence first and then followed by the experts on both sides. The relevance of this to the Defendant was the presence of Mr. Bing Choy who had originally scheduled to give evidence both as a factual witness and as an expert for the Defendant. On the 5^th of November, Mr. Woo informed the Court that the Defendant would only be calling Mr. Bing Choy as an expert and not as a factual witness.

12. In the morning of the 6^th November 1998, the Trial took a dramatic turn. After a ruling from me refusing Defendant leave to amend the rejoinder to plead illegality of the House, a discussion on the matter of Mr. Bing Choy giving admissible evidence as expert of the Defendant and the possible discovery of previous hearing relevant to the matter of Bing Choy, there was an outburst from Mr. Bing Choy. This then led to Mr. Woo making an application to disqualify me as the Trial Judge from further continuing with the Trial. I gave directions for the hearing of such application by Motion. I also gave directions for the hearing of the Plaintiff's Summons for discovery of the documents relating to the Defendant's Solicitors earlier application to the Court to cease to act. The matter was adjourned to 11^th November 1998. In the morning of the 11th November however Mr. Woo sought an adjournment of the Motion to disqualify the Trial Judge. That application to adjourn the Defendant's Motion was opposed and after hearing argument from the parties I refused the application to adjourn the Defendant's Motion. Accordingly the Defendant's Motion to disqualify the Trial Judge failed and I indicated that I would give my reasons later. I then proceeded to hear the Plaintiff's Summons application. Mr. Lam for the Plaintiff completed his opening submissions in the morning and Mr. Woo started his answering submission when it was adjourned for lunch.

13. At the commencement of the afternoon hearing, Mr. Woo announced to the Court that the Defendant wished to appeal the Court's morning order refusing adjournment of the Motion, that the Defendant was withdrawing her instructions to her solicitors and Counsel and that Mr. Woo as Counsel without instructions from his solicitors could no longer act and therefore he was withdrawing from appearing at the Trial and the Plaintiff's Summons. Mr. Woo then left the Court. Miss Chung of the Messrs Hong Lee & Co. of course remained in Court as the firm was formally on record as Solicitors for the Defendant and the firm remained as such solicitors until either there was a formal filing of the Notice of Intention to Act in Person by the Defendant or an Order of the Court pursuant to a proper application by the solicitor to cease to act for the Defendant. The case was adjourned to wait for the arrival of Madame Sun who was coming to act in person, so it was said to the Court. The Court waited from about 3 p.m. to 6 p.m. for Madame Sun but there was no sign of Madame Sun even though again and again when the Court made inquiries the Court was informed that she was on her way from Yuen Long to the Court. Eventually at about 6 p.m. the Court adjourned the hearing to the next morning.

14. In the morning of the 12^th November 1998, Madame Sun was not in Court and there was no filing of any formal Notice of Intention to Act in person. Miss Chung of Messrs Hong Lee & Co. which firm was still the solicitors formally on record as the Solicitors for the Defendant informed the Court that Madame Sun fell down in the Underground the night before and was taken to the hospital which was the reason why she could not attend the Court the previous day. Miss Chung told the Court that she spoke with the Defendant's daughter the evening of the 11^th November and informed the daughter of the Trial continuing the next day and said that if Madame Sun wanted to act in person she would have to sign the Notice of Intention to act in person, a copy of which was then faxed by Miss Chung that night so that it could be returned to Miss Chung signed by Madame Sun. But upon returning to the office in the morning of the 12^th November Miss Chung found that there was no Notice of Intention to act in person signed by Madame Sun but instead there was a three page fax in Chinese enclosing what is purporting to be a medical certificate. The three page fax shown to the Court by Miss Chung purported to say that Madame Sun was terminating the instructions to Messrs Hong Lee & Co. The Court took the view that the formality must be observed and that if the Defendant wished to act in person she must file formally the official Notice of Intention to Act in Person and that if Messrs Hong Lee & Co. wished to formally cease to act as solicitors for the Defendant they must issue the necessary Summons supported by Affidavit and that in the meantime the Court must regard Messrs Hong Lee & Co. as still being formally the Solicitors for the Defendant and the case would proceed on that basis. Miss Chung informed the Court that she had nothing to say and in the circumstances, the Plaintiff's Summons for discovery was completed. The Court then proceeded to give Judgment on both the Plaintiff's Summons for Discovery as well as on the Defendant's application to adjourn the Defendant's Motion to disqualify the Trial Judge. In the afternoon of the 12^th November 1998, the Trial resumed with the expert Mr. Wong Lup Yue and Dr. Vessey giving evidence and with Miss Chung sitting in Court but refusing to either instruct Counsel or to participate at the Trial although the Court gave her leave to do so. There was accordingly no cross-examination of the two experts by the Defendant or her lawyer. The Trial was then adjourned to 16^th November for final submissions. The first matter which had to be dealt with on 16^th November was the Summons of Messrs Hong Lee & Co. to cease to act, the Summons and supporting Affidavit having been formally served on the Defendant. The Summons was heard in the absence of the Plaintiff's Counsel and solicitor and an order was made. However subject to and until the full compliance of Order 67 rule 6(1), Messrs Hong Lee & Co. remained formally as solicitors for the Defendant. The Trial then continued with Miss Chung being present in Court, but declining the invitation of the Court to participate in the Final Submission. The Final Submission was concluded in the afternoon of the 16^th November 1998 with Judgment reserved.

ISSUE 1 - WHETHER ANY ALTERATION

15. The case of the Plaintiff is that there were five unauthorised alterations to the House, namely removal of walls W11a and W11b (porch walls), removal of wall W7 (kitchen wall) and erection of wall W12a and W12b (new external walls). At the Trial Mr. Woo for the Defendant had in fact admitted that there were these alterations but argued that they were not breaches. But even disregarding the admission of Mr. Woo, there was overwhelming evidence (which I accept) that there were these five alterations made to the House. First of all we have the Record Sheet of the Plaintiff (3/36-7) supported powerfully by the contemporaneous photographs (B40-41). Then there are all the letters from the Plaintiff to various owners (2^nd July 1987, 25^th September 1987, 22^nd July 1988, 1^st November 1990, 3^rd March 1993, 20^th March 1993, 27^th March 1993, 20^th April 1993, 4^th May 1993, 11^th August 1993, 20^th September 1993) in addition to which there is also the letter dated 30^th April 1993 from the Defendant to the Plaintiff admitting breaches and asking for more time to do reinstatement. In terms of documentation, there is also what was recorded in the Record Sheet the admission of alterations by Christina Ma on 6^th of October 1990 and by the Defendant on 21^st June 1993 to the Plaintiff's staff when each was seeking more time to do the reinstatement works. As said earlier the Defendant on three separate occasions acknowledged the breaches and asked for time to do reinstatements works.

16. At the Trial, the Court also heard the oral evidence from:-

I accept both the documentary and the oral evidence of the Plaintiff.

17. In the light of all the above, I have no doubt and I find as a fact that the aforesaid five unauthorised alterations were made to the House.

ISSUE 2 - WHETHER ALTERATION STRUCTURAL

18. This Issue arises because the Plaintiff is seeking the injunction relief of having all five alterations reinstated. It is therefore necessary to consider in respect of each of the five alterations whether such alteration was a breach of the Deed of Mutual Covenant. Paragraph 4(b) of the Second Schedule is the primary provision relied on by the Plaintiff to establish that in respect of each of the five alterations, there was a breach. It is to be noted that the prohibition against making alteration or addition in Paragraph 4(b) is directed generally to walls and there is no reference in Paragraph 4(b) to structural wall or structural alteration. This is to be contrasted with Paragraph 7(a) of the Second Schedule where the prohibition is directed to making structural alteration and Rule B4(b) of the Estate Rules where the prohibition is against alteration to the structural wall. According I find that in respect of all five alterations, these alterations were in breach of Paragraph 4(b) of the Second Schedule.

19. In relation to Paragraph 7(a) of the Second Schedule and Rule B4(b) of the Estate Rules, the case of the Plaintiff is that the kitchen wall (W7) is a structural wall and that therefore the removal of the kitchen wall was a structural alteration. Both Chan Ming Sze and Dr. Vessey by their reports and by their oral evidence informed the Court that the kitchen wall was a structural wall. I accept their evidence. I found the evidence of Dr. Vessey both as contained in his report and in his oral evidence to be compelling. In essence, his opinion that the kitchen wall was structural is that it was load bearing when it supports the appropriate ceiling slabs. I accept that opinion.

20. This opinion is to be contrasted with the opinion or assertion of Mr. Bing Choy who did not give evidence to the Court and whose expert report and witness statement therefore could not be accepted by the Court but who drew the conclusion that there was no structural alteration or there was no alteration to structural wall because there was no structural danger to the premises. As said by Mr. Lam, a safe structural alteration is nevertheless a structural alteration. I find as a fact that the kitchen wall was a structural wall and the removal of the kitchen wall was a structural alteration and accordingly this was in addition to being a breach of Paragraph 4(b) of the Second Schedule, also a breach of Paragraph 7(a) of the Second Schedule and Rule B4(a) of the Estate Rules.

ISSUE 3 - WHETHER ALTERATIONS BREACHES OF DMC OR ESTATE RULES

21. It follows from what was said earlier that in respect of the kitchen wall W7, my finding is that its removal was in breach of Paragraph 4(b) and Paragraph 7(a) of the Second Schedule and Paragraph 15 of the Second Schedule by reason of breach of Rule B(4) of the Estate Rules.

22. As for the removal of walls W11a and W11b (the porch walls) and the erection of walls W12a and W12b (new external walls), in my judgment these alterations all constitute breaches of Paragraph 4(b) of the Second Schedule.

23. It follows therefore that in respect of each and every one of the five unauthorised alterations, there was a breach of the Deed of Mutual Covenant and accordingly there is a right of the Plaintiff to seek reinstatement.

ISSUE 4 - WHETHER ESTATE RULES ULTRA VIRES

24. Reinstatement under the Deed of Mutual Covenant can take two forms. It can be either in the form of the Plaintiff Manager doing the work of reinstatement pursuant to the power given by Clause 7(a) and Paragraph 1(d) of the Third Schedule of the Deed of Mutual Covenant or alternatively in the from of forcing the Defendant owner, Madame Sun to do the reinstatement works pursuant to Rule B6 of the Estate Rules. This Issue relates to the question of whether the Defendant is obliged to do the rectification works pursuant to Rule B6 of the Estate Rules.

25. This point was raised by paragraph 3A of the Re-Amended Defence. As I understand the argument of the Defendant (which was made difficult sometimes by the way the submissions were made to me by Mr. Woo before his withdrawal from the Trial), the making of Estate Rules are limited to the use of open yards, gardens, lawns, parks, grounds, artificial lakes, bunds or rivers of the Fairview Park (these areas hereinafter referred to collectively as "common open areas") and any Rules made outside or not covered by the above purposes are ultra vires the Deed of Mutual Covenant. It should be noted that the Second Schedule provides under Paragraph 15 that each Owner (which includes the Defendant) "shall observe and perform all the covenants conditions and provisions of ........ the Estate Rules." Paragraph 2(d) of the Third Schedule provides that the Manager shall have the obligation "to take such steps as may be necessary to enforce the terms of ...... the Estate Rules". So far as these provisions go, there is nothing in these provisions to suggest the enforcement of the Estate Rules would only apply narrowly in respect of open common areas. I can then turn to Clause 7(d) giving the power of the Manager to make Estate Rules for the management of the Land and Paragraph 1(h) of the Third Schedule which gives two separate powers to the Manager, namely:-

Under Clause 7(d), the power of the Manager to make Estate Rules is not limited to those relating to common open areas. The plain meaning of Paragraph 1(h) of the Third Schedule is that the Manager can make Estate Rules and in addition can also make rules relating to the use of common open area. The Estate Rules is thus seen to be different from rules relating to common open areas and in the face of that difference there is simply no room for an argument that the Estate Rules which can be made are limited to the use of common open areas and any provision-in the Estate Rules which relates to non common open areas is ultra vires Paragraph 1(h) of the Third Schedule or Clause 7(d) of the Deed of Mutual Covenant. There is with respect no merit whatsoever in this point of the Estate Rules being ultra vires the Deed of Mutual Covenant.

ISSUE 5 - DISCRETIONARY REMEDY

26. A large number of issues were raised on behalf of the Defendant (the Defendant herself in her evidence seemed to have no idea of what was said on her behalf) suggesting why the discretionary remedy of reinstatement should not be ordered by the Court, in the event that the Court finds that there were breaches of the Deed of Mutual Covenant. It seems to me that my starting point in respect of breaches of negative covenant is that the parties should be held to their bargain and although the well known principle as laid down by Lord Cairns in Doherty v Allman (1878) 3 A.C. 709 that injunction is "the specific performance, by the court, of that negative bargain which the parties have made, with their eyes open, between themselves" is now applied less vigorously than before, notwithstanding decision such as Sheperd Homes v Sandham [1971] 1 Ch. 340 (see page 351), the court still gives a great deal of weight to the principle and the remedy of injunction will only be withheld by the court at trial if the court is persuaded that this will not produce a fair result. All the relevant circumstances therefore could be looked at in persuading the court that the remedy of injunction of reinstatement should be denied to the Plaintiff.

Acquiescence by Non Enforcement of Breaches of other houses in Fairview Park

27. It was said by the Defendant Madame Sun that it was unfair to single out her House for enforcement and that there were many other houses which had identical or similar breaches. She herself however did not elaborate or call any factual evidence to support her allegation. I find in any event that she was not a very reliable witness. So far as the Plaintiff's evidence is concerned, which I accept, the picture shown is quite the contrary and that there has been no case where the Plaintiff had expressly tolerated or impliedly acquiesced in the removal of identical or similar walls or in the erection of identical or similar walls. The evidence reveals in fact that it has been the consistent policy of the Plaintiff to object to unauthorised alterations such as the five alterations in question and it was pursuant to such policy that the Plaintiff acted in the way it did by steadfastly objecting to the existence of these alterations. There was no credible material admitted in evidence at the Trial to persuade the court that the Plaintiff had acquiesced in similar kitchen wall W7 or porch walls W11a and W11b being demolished or similar external walls W12a and W12b being erected. I find as a fact that there were no similar breaches which the Plaintiff had tolerated and did nothing about. The nature of the breaches seem to be different. Further, the fact that there might be similar breaches did not mean that the Plaintiff did not take steps to require reinstatement. There was no credible evidence that the Plaintiff did not take steps to require reinstatement and in fact the evidence seem to point to the fact that the Plaintiff did take steps. The Plaintiff might have been slow in taking steps to enforce reinstatement in cases of similar breaches but that is not acquiescence. I find as a fact that there was no acquiescence by Plaintiff with other similar houses in respect of similar breaches. In fact there is not even adequate evidence that there had been similar breaches in relation to similar houses.

Delay by the Plaintiff

28. In order to succeed with the defence of delay so as to defeat the grant of the injunction remedy, the Defendant must show first that the delay was unreasonable and secondly that the unreasonable delay had rendered unjust the grant of the injunction. The facts show that the Plaintiff had adopted a particular policy in relation to breaches which could be described as first persuasion and only when that had clearly failed then resort to legal proceedings. This policy was in fact set out in the Estate Rules and becomes part of the contractual arrangement between the Plaintiff and owners of houses in Fairview Park.

29. The Plaintiff followed this well-known policy and it could be said that there were positive responses from the owners. Christina Ma in fact in 1990 agreed to do the reinstatement but required time to seek assistance from family. The Defendant herself also agreed by letter of 30^th April 1993 to undertake the reinstatement but requested time to do so. In June 1993, the Defendant also orally agreed at the office of the Plaintiff to undertake the reinstatement works. In these circumstances, I do not take the view that the Plaintiff had been unreasonable with its delay in seeking to have the breaches remedied. It has to be borne in mind that by reason of the huge size of the estate, the not infrequent occurrence of breaches of varying severity and the limited manpower resources of the Plaintiff, the Plaintiff was not unreasonable in adopting a priority system in considering legal action after the persuasion method failed. When the persuasion method was finally shown to have failed, the Plaintiff did not take long to institute proceedings. In the particular circumstances of this case having regard to the evidence given at the Trial, I find that there was no unreasonable delay. It follows that the first requirement of delay barring injunction failed. As for the second requirement of the Defendant showing that it was unjust in the circumstances to grant the remedy as result of the delay, the evidence is all one way in favour of the Plaintiff. There is every advantage and necessity for the Plaintiff to enforce the compliance with the Deed of Mutual Covenant and the Estate Rules and there has been no credible evidence that the Defendant had suffered any disadvantage or prejudice or changed her position adversely as result of the Plaintiff's unreasonable long delay. Therefore I conclude and find that there had been no unreasonable delay and that in the circumstances it is not unjust for the court to grant the remedy requiring reinstatement.

Structural effect of Kitchen Wall removal on House

30. The Kitchen Wall W7 was removed in 1987 some 11 years ago and the House has not fallen down. So does it mean that the removal of the kitchen wall has not adverse structural effect. Dr. Vessey was very fair in his evidence and said that the structural effect of the removal of the kitchen wall was not major but nevertheless real. It weakened the structural support and reduced the safety factor and this cannot be desirable or dismissed as totally insignificant. In all the circumstances, this aspect reinforces the necessity to grant the remedy and is not a reason for refusing the making of an order.

Plot Ratio Change

31. The enclosing of the Porch by Wall W12a and W12b and the knocking down of Wall W11a and W11b gave to the House an extra 35 sq. ft. This changed the plot ratio for the House which if tolerated would adversely affect the plot ratio calculation for Fairview Park as a whole and adversely affect the rights of other owners of Fairview Park and would expose the Plaintiff and Fairview Park to possible enforcement by the Hong Kong Government. (see paragraph 1C(e) of Re-Re-Amended Reply). This is another factor in favour of the court exercising its discretion to grant the injunction remedy.

Conclusion on Discretionary Remedy

32. My conclusion on the exercise of my discretion as to whether the remedy of injunction should be granted as opposed to an award of damages is that there are compelling and good reasons which require the Court to grant the injunction and there is no persuasive or powerful reasons which call for the remedy to be withheld. My judgment is that it is just and right that there should be injunction against the Defendant to compel reinstatement works to be undertaken to be done either by the Defendant or by the Plaintiff at the Defendant's expense.

CONCLUSION

33. The result is that judgment is to be entered in favour of the Plaintiff in the following terms:-

As for costs, having regard to the right of the Plaintiff under the Deed of Mutual Covenant to have its costs on an indemnity basis, the nature of this Action, the course of the proceedings and the submissions made to me on costs of the Action, in the exercise of my discretion I make an order of costs of the Action against the Defendant and hereby assess such costs by way of gross sum assessment under Order 62 rule 9(4)(b) at $1,600,000. This sum of $1,600,000 is in addition to the gross sum costs of $133,000 assessed by me under my Reasons for Decision dated 12^th November 1998.

Representation:

Mr. Johnson Lam instructed by Messrs Kwan & Chow for the Plaintiff

Mr. Hubert Woo instructed by Messrs Hong Lee & Co. for the Defendant (from 2^nd Nov. to 11 ^th Nov.) & Miss Chung of Messrs Hong Lee & Co. (from 11 ^th to 16^th Nov.)