Hong Yip Service Co Ltd v. David Wong and Others
Read the full judgment text of HCA 2610/1973 on BabelCite. This High Court CFI judgment was delivered on 10 December 1974.
1. The plaintiff is a limited liability company and brings these proceedings by virtue, it alleges, of powers conferred on it by a Deed of Mutual Covenant to manage, for the benefit of all the owners, a parcel of land at No.1 Sheung Hoy Street and with the messuages, erections and buildings thereon. A building, in self-contained flats, known as Everwell Garden, is erected on this parcel of land.
Cited by 3 cases
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HCA002610/1973 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 2610 OF 1973 -----------------
----------------- Coram: Trainor, J. Date of Judgment: 10 December 1974 ----------------- JUDGMENT ----------------- 1. The plaintiff is a limited liability company and brings these proceedings by virtue, it alleges, of powers conferred on it by a Deed of Mutual Covenant to manage, for the benefit of all the owners, a parcel of land at No.1 Sheung Hoy Street and with the messuages, erections and buildings thereon. A building, in self-contained flats, known as Everwell Garden, is erected on this parcel of land. 2. The defendants respectively are the occupiers of three flats, A, B and C on the ground floor of the said building and the plaintiff seeks:
3. At the conclusion of the hearing I dismissed the case and said I would hand down my reasons. This I now do. 4. At the hearing of the case Miss Leung, Counsel for the plaintiff, conceded that by "illegal structures" was meant structures erected or to be erected which are or would be contrary to legislation. No evidence was produced by the plaintiff, save such as was to be derived from photographs and a statement by its only witness that the defendants were erecting "a canopy", to establish that what was being done was in breach of any Ordinance. The evidence of the defendants did perhaps add a little, but in my opinion the totality of the evidence fell far short of proving that the defendants had commenced or completed or intended to commence and complete building works as defined in Section 2(1) of the Buildings Ordinance and contrary to the Ordinance. 5. On that ground alone I would have dismissed the plaintiff's claim. But the case was not fought on such a net issue and as my decision is likely to be considered on appeal I feel I had better deal with the case as argued. 6. It might, perhaps, be helpful to set out the background to these proceedings. 7. It would appear from agreed documents handed in to the Court that the parcel of land in question was held by Yiu Kay Development Company Limited (to which I shall refer hereafter as "the Company") under a lease for 75 years and it constructed on it a building in flats, which building is now known as Everwell Garden. One of the flats on the 14th floor was assigned to one, Chan Ying Hing and a Deed of Mutual Covenant (hereafter referred to as "the 1st Deed") was entered into between the Company and Chan Ying Hing. When this was done I do not know as the document handed in and purporting to be a copy of the deed does not set out the date, nor, indeed, the execution. 8. On the 14th June, 1972 an agreement was entered into between the Company and the first defendant whereby it was agreed that the company would sell and the purchaser would purchase
9. It was provided in the agreement that on completion of the sale
10. I am given to understand that pursuant to that agreement the Vendor duly executed an assignment, and both parties a Deed of Mutual Covenant. More than that I cannot say because the assignment was never produced nor was the Deed of Mutual Covenant, and I do not know if there were more parties to it than the Company and the first defendant. 11. It would appear from the statement of claim that the second defendant is an immediate assignee of the Company and the third is a successor in title to an assignee of the Company. 12. It is alleged in the statement of claim that the three defendants "and all other owners of the said land and building" hold their interests in the property subject to a Deed of Mutual Covenant registered in the Land Office, the memorial of which is numbered 923772. Whether that is the 1st Deed or the one which I have been told the first defendant signed I do not know. It could well be that the assignments to the second and third defendants were subject to the 1st Deed, but it would seem the first defendant did not expressly take subject to the 1st Deed because he told me he signed a separate one. Whether he took subject to the first Deed despite his signing a second invites an excursion into the field of equity but is not one which I feel called on to take today. It is also possible that the other two defendants signed the same Deed of Mutual Covenant as the first defendant and that all the other owners of flats, save Chan Ying Hing, signed the same one. I just do not know, nor was I given any satisfaction when I asked for the original assignment to the first defendant, instead of the agreement for sale, or enquired about the respective Deeds of Mutual Covenant. 13. In the 1st Deed paragraph 4. reads "Each owner shall be bound by and shall observe and perform the following covenants provisions and restrictions:-
14. What (if any thing) is said in the Deed signed by the first defendant about the plaintiff being Manager I do not know but the case proceeded as if the effective document was the 1st Deed, and I shall deal with the case as if that is so. 15. The defendants in their defence admitted the existence of the Deed of Mutual Covenant registered in the Land Office but say that the plaintiff was not a party to it. Though it is not expressly pleaded the defendants at the hearing disputed without objection the plaintiff's right to sue on the ground that it lacked privity to the contract. 16. I do not consider the point of privity to be well taken. Indeed, I think the defence may well have missed the real point, and by reason of vague pleading the Court is placed in a somewhat difficult position. However, Counsel for both parties dealt with the case as if the power of the plaintiff to sue was an issue; and even if the basis of their argument may be wrong I propose to deal with the matter as if the issue were fully pleaded. 17. The 1st Deed in addition to the mutual covenants contained therein appointed the plaintiff as Manager of the premises in question. It gave him certain powers to be exercised on behalf of the parties to the Deed. This document, being under seal is, therefore, a Power of Attorney and must be construed as such. 18. The powers of the Manager are set out in clause 4 of the 1st Deed, and the power to sue as argued by the plaintiff, is to be found in sub-clause (k). It reads:
19. In my opinion that clause while granting a power to sue is explicit in limiting the field in which it may be exercised: the power to recover by civil action arrears of certain specified contributions which each flat helder was obliged to make towards providing facilities to be mutually enjoyed by the holders of the flats. To give emphasis to this the clause stipulates that a defaulter may not dispute the power of the Manager to sue and recover "unpaid contributions". 20. A Power of Attorney must be strictly construed and where a power in it is alleged by a plaintiff and challenged by a defendant it must be shown that within the deed itself or by necessary implication that power exists. 21. In my opinion there does not exist in the 1st Deed an express power to enable the plaintiff to sue for the relief it seeks, nor can it be said that such a power arises by necessary implication. Rather would it appear to me that on the basis of the principle contained in the maxim expressio unius est exclusio alterius the plaintiff is denied such a power. May I add that in a case such as this I would require the most positive evidence that the donors intended to grant such a power before I would feel constrained to construe its existence by implication. 22. On that ground also I would dismiss the plaintiff's claim. But there are other reasons: the merits of the case. 23. No documents relating to the title of the second and third defendants to their flats were produced. With the copy of the agreement for sale to the first defendant there was produced a plan of the flat he obtained and it appeared to be taken for granted by Counsel for the parties that I should assume that the interests of the second and third defendants were identical to his. 24. Each defendant has a flat on the ground floor level and they are adjacent to each other. A terrace runs in front of them, and constitutes the flat roof of car spaces below: the flat roof appurtenant to the premises and referred to be the agreement. None of the flats above have such a terrace and the windows of the upper flats look down on to the terrace. Many of these windows have had flower boxes installed by the occupants of the flats to which they belong. 25. For some time unknown occupants of flats above have been throwing all sorts of filth and debris from their windows on to the terrace below. Among the things thrown on to the terrace were excrement wrapped in newspapers, bottles, glass and pieces of iron. In addition water fell from the window boxes. The defendants complained of this to the plaintiff's caretaker and showed him the filthy state of the verandah. A photograph of the verandah produced by the defendants shows that the epithet "filthy" is fully justified. 26. As a result of the complaint, a letter was sent "To all Tenants" on the 12th June, 1973 signed "Everwell Garden Management Quarters" which after referring to the "Keep Hong Kong Clean Campaign" said:
27. The second defendant said he spoke to Mr. Cheung Po, the caretaker employed by the plaintiff with regard to erecting some form of protection. He said that Mr. Cheung told him he could arrange for a contractor to put up a canvas covering but the defendant did not agree to this. 28. The first defendant is an engineer. He prepared a plan for a covering for the verandah to which the other defendants agreed. The plan in its final form would involve welding a number of upright supports to the railing in front of the terrace and inserting others in the floor of the terrace near the wall of the building. To these there would be attached light high-tensile steel trusses to support a covering of 100% acrylic - a light fire-resisting stain-free material. The pitch of the roof was to be such as would prevent objects bouncing on to the ground below. The colour was to match the existing colour of the building. The materials were imported from Australia at a cost of $40,000. 29. Some work was done and on the 17th June, 1973 about 10 a.m. about 7-8 strangers placed a ladder from the ground to the railing of the terrace at Flat C. Without a word to anyone they mounted the ladder to the terrace, crossed a dividing railing between the parts of the terrace belonging to flats C and B and dismantled the frame work that had just been erected. The 2nd defendant asked them who they were and who sent them. They left his part of the terrace without answering him and climbed over the railing to the terrace in front of Flat A. The first defendant asked them the same question and receiving no reply dialled 999. As a result of this the first defendant went to a police station and made a complaint. I was told that a solicitor, Mr. Wu Kwok-yin, the occupant of Flat C on the floor above the defendants and Mr. Pau of Flat A of the same floor were also there. What transpired there can be gathered from a letter, which was among the agreed documents. handed in to Court from the Superintendent, Divisional Headquarters, Kowloon City Police Station. The letter was written to the defendants' solicitors. In it the Superintendent wrote;
30. What interest Sun Hung Kai Real Estate Agency Ltd. had in the premises I was never told but I see that letters from the plaintiff's solicitors were copied to it. 31. According to the first defendant preliminary work commenced on the 7th June, 1973. A letter of that date was written by Messrs. Woo and Kwan, solicitors on behalf of Yiu Kay Development Company Ltd. - the Company - the vendor to the first and second defendant and the predecessor in title of the third. The letters are identical and are as follows:-
32. By what authority the Company wrote that letter it is difficult to see. The Company had already executed an assignment of all its interest to the first defendant in fulfillment of the Sale and Purchase Agreement. That agreement, stipulated that on completion of the sale the purchaser would, if required, enter into a Deed of Mutual Covenant with the vendor and other parties, or accept an assignment subject to a Deed of Mutual Covenant. A Deed of Mutual Covenant was entered into, at least by the first defendant, on the completion of the sale and on that happening the terms of the agreement were fulfilled and the vendor - the Company - was placed in the same position as any other flat occupier with regard to any flats to which it was entitled. It had no authority to give or refuse permission as to alterations to a flat. I am assuming the other two defendants were in an identical position because that is how the case was presented. 33. By the 1st Deed each of the parties to it "for himself, his executors, administrators and assigns" granted to each other the full right and privilege to the exclusive use occupation and enjoyment of the part of the building, flats and car parks set out opposite to their names in the schedule to the deed. The deed having provided as in clause 4 then proceeded to provide:-
34. By that the Company had as much right or as little, as the defendants or the solicitor, Mr. Wu, or Mr. Pau to grant or withhold permission to an occupant of a flat to do something to his flat. 35. I deal with this correspondence, although I cannot see its relevance, because counsel for both parties referred to it, and the solicitors for the defendants referred to the Company as "the Management of Everwell Garden" in a letter of the 22nd June when they wrote to the Company's solicitors to ask if it was responsible for strangers climbing on to the defendants' terraces and damaging their property. The plaintiff's solicitors replied by sending a copy of the letter sent to the defendants on the 7th June stating that the copy letter was self-explanatory. 36. Again on the 26th July, 1973 the defendants' solicitors wrote to the Company's solicitors:-
to which they received a reply dated the 20th August.
37. All this correspondence between the solicitors about the management rights of the Company and the reference to it by Counsel for both parties seems to me to be completely irrelevant; if it is otherwise the reason for it escapes me. I have dealt with it as I have last a higher tribunal may one day be asked to consider this judgment. In my opinion solicitors and Counsel have misinterpreted the 1st Deed. 38. The case as argued appears to lie in the provisions of Clauses 4(k)(iii) and (m) set out in the statement of claim and Clauses 3(c), 4(c), 9 and 10 of the Deed of Mutual Covenant. 39. 4(k)(iii) reads as follows:-
40. Clause 4(m) reads:-
41. Clause 3 reads:-
42. Clause 4(c) reads:-
43. Clause 9 reads:-
44. Clause 10 reads:-
45. Assuming that the plaintiff had the power to institute the present proceedings it could only do so for the benefit of all the subscribers to the 1st Deed, or held subject to a similar one, or those who acquired their interest in the premises subject to it. As the original subscribers to the 1st Deed represented all the flats in the premises it is safe, I think, to assume that all the occupants of the flats hold subject to it. However, it is really a matter of indifference as if there are some not subject to its benefits and obligations clearly the plaintiff could not, in those circumstances, institute proceedings on their behalf. Each occupant of a flat had a right of protection from the occupants of every other flat and those other occupants had the obligation to afford him that protection. If they failed to afford him that protection they could hardly complain if he proceeded to take steps to ensure the protection they denied him. If they could not complain the plaintiff, who represents them, could not do so. 46. But apart from an occupant's right to protection there is the provision in Clause 9 that each owner may erect "in his own part of the said building" any additions or improvements. This is qualified by clause 10(a) which precludes structural alterations which may damage other parts of the building or cause any inconvenience to the other occupants. 47. It is to be noted that there is no objection there to structural alterations; only those which cause damage or inconvenience to other occupants. I think it follows from that that an occupant may make structural alterations in his part of the building provided they are not harmful to the premises and do not cause inconvenience to other occupants. 48. Assuming for the moment that what the defendants erected and intend to re-erect is a structural alteration what is the position? I have had no evidence from the plaintiff that would establish that it was or will be harmful to the premises. I have had, however, evidence that what is contemplated is essential for the protection of defendants' right to the exclusive use, occupation and quiet enjoyment of their premises. I have been told of the great care they intend to exercise to ensure that no damage is done to the building. So far as inconvenience to other occupants is concerned I have not heard one other occupant say that he has been, or will be, inconvenienced. I have been told of the behavour of the solicitor Mr. Wu and the other gentleman, and if it is correct their conduct was disgraceful. According to the evidence of the plaintiff's sole witness these gentlemen, occupants of flats above the defendants, on their own initiative and without a word to him, the plaintiff's representative, or to the defendants brought in workmen twice to dismantle what the defendants had erected. Whether the defendants' work caused these people inconvenience or not I do not know; they did not give evidence. 49. The position then is that with the exception of instituting proceedings the plaintiff has never made any objection or complaint to the defendant nor has it dismantled in purported exercise of its powers under the 1st, or any, Deed what the defendants erected. 50. A basis on which the plaintiff could succeed in this action is to be found in 4(m)(i) which precludes the altering the appearance of the exterior of the building, and (ii) which precludes the erection of bracket fitting or things to the exterior of the building. But those limitations on the defendants' "exclusive use, occupation and enjoyment" of their part of the premises must be subordinate to their right to shelter and protection from other portions of the building, and their right to place and erect additions and improvements in their parts of the premises provided they are not structural alterations which might damage the building or cause inconvenience to other occupants. It has been said that the defendants had no right to do what they did without the consent of the manager. I had evidence which I accept, that they approached the Manager's representative who said he would have a movable canopy erected; an offer that was unacceptable, and not surprisingly so, to them. 51. In my opinion if the Manager, or, indeed, the other occupants of the flats were not prepared to provide adequate protection for the defendants they were entitled to make their own provisions. 52. Counsel for the plaintiff contended that any right given to an occupant to make additions or improvements in Clause 9 only extended to such "in" the premises, and what the defendants erected was not "in" the premises. What was assigned to the defendants (if one accepts that similar properties were assigned to all) specifically included the flat roof apprutenant to their flats and it was on it that they erected the protection. The flat roof constituted the terrace or verandah and clearly from its construction was intended to be enjoyed as such. I would hold, if it were necessary so to do, that in the context the erections were in the premises. 53. For all the reasons given I dismissed the plaintiff's claim with costs.
Representation: Miss J. Leong (Woo. Kwan, Lee & Lo) for Plaintiff. Mr. William Wuang (Ng & Yung) for Defendants. |
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