Yee Kin Development Co Ltd and Another v. Lui Mo Wang

HCA009398/1983

IN THE HIGH COURT OF JUSTICE

BETWEEN

Coram: Hon. Power, J.

Date: 24th October, 1983.

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JUDGMENT

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1. In this action, the plaintiffs Yee Kin Development Company Limited and Yim Ho Kee seek an order against the defendant Lui Mo Wang restraining him from constructing a structure in front of the side wall of the 1st plaintiff's premises situated at the ground floor of No. 24 Bulkeley Street, Kowloon. It is alleged that this structure constitutes a nuisance and/or trespass. The plaintiffs seek an order that the defendant be required to demolish the said structure and damages.

2. The plaintiffs in the application before me seek an interlocutory injunction ordering the defendant to demolish the structure or alternatively restraining him from continuing to erect the structure and from using it.

3. The 1st plaintiff is the registered owner of the building situated at No. 24 Bulkeley Street, and it is the side wall on the ground floor facing Gillies Avenue which is the subject matter of this action.

4. In April 1981 the 1st plaintiff, intending to redevelop the building, began a series of actions in the District Court to recover vacant possession of all the units therein. The 1st plaintiff obtained vacant possession of all of them either by settlement or by Court order. Subsequently in consequence of the drastic drop in the property market, the 1st plaintiff decided not to proceed with the development project and made an application to the District Court for leave to let out some of the domestic units although the two year statutory limit had not expired. An order was obtained from His Honour Judge Leathlean allowing the 1st plaintiff to re-let the domestic units on condition that they first be offered to the former tenants who, if they so wished, upon refunding all the compensation they had received, could reoccupy them. None of the former tenants wished to relet and all domestic units in the building are still vacant.

5. The disputed area is referred to as a "shop space" at the side wall of the ground floor facing Gillies Avenue. It is a misnomer to call it "a shop space" as the area is not a shop space in the ordinary sense of the word at all. The area, in fact, comprises an area of public pavement and the wall of the ground floor adjacent thereto. The defendant has a Fixed Pitch (Wall Stall) Hawker Licence allowing him to operate a wall stall at this area. He was granted this licence in 1979 and, according to the 1st plaintiff, his predecessor-in-title allowed the defendant to use the wall and rented him a cockloft, half of which is situated immediately above this space. The other half is on the other side of the wall over the defendant's land. The cockloft incidentally appears, as regards the half which is Crown land, to be an illegal structure. In April 1981 the 1st plaintiff, when seeking to recover vacant possession, took an action against the defendant in the District Court to obtain possession of the "area" rented to him. This case was settled and the 1st plaintiff obtained a consent order for vacant possession of the "shop space" from the defendant and paid him an ex gratia sum of $17,856. On the 24th May 1982, the defendant vacated the said "shop space" and sent a letter to the 1st plaintiff tendering vacant possession. The defendant did not, however when he moved out, dismantle the structure which he had built against the wall for the purpose of trading from his wall stall.

6. After the 1st plaintiff determined not to proceed with the development project, he let the "shop space" at the side wall to the 2nd plaintiff. The 1st plaintiff said that the 2nd plaintiff intended to renovate the said "shop space" and to start business in August 1983. It is to be noted that the 2nd plaintiff did not have any hawkers licence and without such a licence would not have been permited to trade from the said "shop space".

7. The defendant disputes that he ever rented the "shop space" from the 1st plaintiff's predecessor-in-title. He says that what he rented from the predecessor-in-title was the cockloft, half of which is immediately above the said "shop space". Whether or not that be so, what seems to me to be clear is that he was operating the stall upon the wall with the consent, initially, of the predecessor-in-title of the 1st plaintiff and, later, after he became owner of the 1st plaintiff.

8. The defendant says that he had been occupying the pavement since about 1970when he commenced business selling domestic utensils. He said that from 1970 to 1979 he was charged with obstruc-tion repeatedly because of his occupation of the public pavement until, in 1979, he was granted a Hawker Stall licence. The defendnat said that, once he discovered that the building was not to be demolished, he decided to resume operation from his stall. He said that his Fixed Pitch Hawker Licence was renewed on the 1st June 1983 and that he then asked friends to renovate his hawker stall which was done later in June by demolishing the old iron structure and erecting a new structure which the defendant said "measured 22 feet by 3 feet in accordance with the approved size stipulated in my Fixed Pitch Hawker Licence". The defendant contends that a new structure stands entirely on Crown land and is an independent structure no part of which comes into contact that the side wail of the ground floor of the 1st plaintiff's property. He contends that the outer surface of a wall cannot be the subject matter of a tenancy that the 1st plaintiff cannot, therefore, have let that area to the 2nd plaintiff. If this so then it seems to me clear that the agreement between the 1st plaintiff and the 2nd plaintiff must be regarded as one of licence rather than lease. He further contends that this is a bare, wall without windows or doors, and that his structure in no way interferes with the rights of the 1st plaintiff and in no way causes any nuisance to it.

9. It is further argued on behalf of the defendant that the renting by the 1st plaintiff to the 2nd plaintiff was illegal in so far as it was in contravention of the order of His Honour Judge Leathlean. There doesn't seem to me to be any real materiality in this point as it is clear that the order of Judge Leathlean inadvertently referred to the ground floor which should not have been included in the order as it was business premises. Anyway, the matter has now been rectified by the learned judge upon applica-tion having been made in that regard by the 1st plaintiff.

10. The licence granted to the defendant is for a "Fixed Pitch (Wall Stall) Hawker Licence". It refers to Pitch No.6 Gillies Avenue on the pavement along side No. 24.   Under the Hawker By-Laws, Cap. 132 the words "wall stall" means "a stall which is a fixed stall placed against any external part of any building or similar structure and which faces onto a street". The structure erected by the defendant is, clearly, not a wall stall. He has been at great pains to ensure that the structure in no way touches the wall so that he can be in a position to argue that he has not interfering in any way with the property rights of the let plaintiff.

11. Section 41 of the Hawker By-Laws provides that: -

"the Council may permit a licensee who holds a Fixed Pitch Hawker 1icenee on receiving the written application from him for the purpose to erect on it any fixed pitch, that is for the time being allocated to hi under By-Law 33 .. ........ a wall stall that is designed, constructed in accordance with specifications previously approved by the council".

12. The Fixed Ditch Licence under which the defendant presently operates was issued to him on the let June 1983. At that time, his original stall which rested against the wall of the 1st plaintiff was still in position. It was only after that date that he demolished that original stall and constructed the present stall. There is no suggestion anywhere in the material provided by the defendant that he submitted a written application to the Council asking approval of the design and construction of this present stall. The defendant was invited if he wished to do so to place further information before the Court in this regard, but no such further information has been forthcoming. I am satisfied that] must act upon the assumption that the present stall was erected without any approval having been granted by the Council.

13. It is further to be noted that in Condition 10 of the Licence Conditions, it is stated that, "Any disputes between the licence holder and owner of any private land over the use of any part of the stall situated in private land must be resolved between the licensee and the owner of the land". The definition of "wall" stall" makes it clear that such a stall must be placed against an external wall. I am satisfied that this can be lawfully done only when the stall-holder has both a licence from the Urban Council and the permission of the owner of the wall. Indeed it would seem from Condition 10 that the Urban Council envisages that any permission that is required from the owner will be obtained by the stall holder.

14. The defendant is clearly lot intending to operate a wall stall in accordance with the meaning of that term as it is used in the Hawker By-Laws and would, therefore, if lie carried out his intentions, be in breach of those By-Laws. Further he would, it seems to me,be in breach of the By-Laws by reason of the fact that he would be operating from a structure which has not been approved by the Council. Further he has not got any permission from the owner that would allow him to use the wall if he did attempt to operate within the terms of his licence. It has, however, been argued, that these are matters for the Urban Council, and that it is for them to take whatever action is appropriate to deal with contraventions of their By-Laws. Further, it is suggested that common sense indicates that, although the 2nd plaintiff may intend to set up a stall in the same position, it is most unlikely that' the Urban Council, even if the defendant is restrained from using the stall, would grant a licence to the 2nd plaintiff pending the outcome of the trial. It is argued that the defendant will then, between now and the trial:

15. In such circumstances it is submitted that it would not be appropriate, to issue an interim injunction, either requiring him to demolish the structure or to refrain from putting it to any use. It is submitted, that such an order would make little sense as its only practical effect would be to ensure that between now and the trial the area was not being used by anyone. The same argument could not, however, be advanced if the defendant was not only intending to operate a stall in contravention of the Hawker By-Laws, but was also interfering with the property rights of or causing a nuisance to the 1st and/or 2nd plaintiff.

16. On the 13th August 1983, the 1st plaintiff submitted building plans to the Building Development Department for permission, inter alia, to convert the yard of the building behind the wall into shop premises and to demolish the wall in question to form a shop front. The 1st plaintiff said that if permission were granted, it was its intention after conversion to 1et the premises to the 2nd plaintiff. Clearly if permission is granted, then the existence of the stall of the defendant beside the wall would gravely interfere with steps the 1st plaintiff intends to take to demolish the wall and to install a shop.

17. When the matter came on for hearing before me on the 13th September, no permission in this regard had been granted by the Building Authority and Building Development Department and the 1st plaintiff asked for, end was granted an adjournment until the 3rd. October as, it was anti that the question, as to whether or not permission would be granted, would he resolved by that date.

18. On the 3rd October the 1st plaintiff produced of Plans" from the Building Authority which approves alterations and additions which would involve the demolition to the hall.This approval further states that it will still necessary to obtain the consent of the Building Authority to the commencement and carrying out of the works shown on the plan.

19. It was not argued that the defendant's structure would not constitute a nuisance if the 1st plaintiff went ahead with the works. What was submitted was that given that a further consent is necessary the 1st plaintiff had not shown that he is in a position to proceed and so had not established that there is any presently effective nuisance.

20. As the matter originally stood the defendant had in his affidavit said that he wanted to operate his stall in accordance with his licence. It was clear that to do so he would have to make unauthorized use of the 1st plaintiff's wall which the 1st plaintiff has given to the 2nd plaintiff to use. He has tried to avoid the accusation that he is using the wall by erecting a structure which stands a few inches off the wall. Should he operate therefrom he will be operating in contravention of the terms of his licence. Such being the circumstances it seems to me that, even if the facts stood as they were before the approval of plans was given, the plaintiffs might well have been entitled to interlocutory relief upon the basis that the defendant plainly has no defence as he is interfering with the right of the 2nd plaintiff to use that wall in accordance with the grant from the 1st plaintiff.

21. The position is, however, now changed as the 1st plaintiff now has approval of its plan to demolish the wall so as to create a proper shop space which he will let to the 2nd plaintiff. It is true that the 1st plaintiff has not yet got consent to commence work. No reason of any sort, however, has been advanced that would suggest that there is any ground upon which such consent might be withheld and I am satisfied that I should proceed upon the basis that, given that the plans have been approved and that there is nothing to suggest that consent to commence work might be withheld, it will be given.

22. The defendant plainly has no defence to the claim that his structure is a nuisance insofar as it will interfere with access to the premises and with the building works to be carried out thereon.

23. In the circumstances of this particular case, I am satisfied that it is proper to grant an interlocutory injunction requiring the removal of the structure even though by so doing I will be granting the relief claimed in the action.

24. I make an order nisi as to costs. The defendant is to pay the plaintiffs' costs of action except for the costs of 10th August which have already been dealt with and the costs of adjournment on 13th September, which the plaintiffs are to pay to defendant, to be taxed.

Representation:

Mr. Patrick Chan (Chu & Lau) for plaintiffs

Mr. Walter Lau (Chan & Cheng) for defendant