Wah Sing Property Management Limited v. Siu Wai Yin and Others

Case No.HCA 3244/1987

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA003244/1987

----------------------

Headnote

----------------------

Proceedings by manager of building to restrain owner/occupier of ground floor shop from breaching Deed of Mutual Covenant by placing items on common part constituted by covered pavement running along frontage of shop.

Dispute as to whether the word 'place' in the covenants took a meaning more restricted than its literal meaning, and, if so, whether such restriction should be reflected in the Order.

Held:

(1)

As a matter of construction, the word 'place' took a restricted meaning.

(2)

Had it not, it would have been so oppressive as to be undeserving of enforcement by the grant of a discretionary remedy such as an injunction (see Talbot v. Ford (1842) 13 Sim 173).

(3)

The restriction should be reflected in the Order (see per Cotton, LJ in Parker v. First Avenue Hotel Co. (1883) 24 Ch. D282 at p. 286; and 'Spry: The Principles of Equitable Remedies', 3rd ed. at pp. 357-358).

1987 No. A3244

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

____________

BETWEEN

	WAH SING PROPERTY MANAGEMENT LIMITED	Plaintiff
	and
	SIU WAI YIN, SHIU WAI HONG and SIU WAI MING trading in partnership under the style or firm name of PAO SUN FURNITURE CO.	1st Defendant
	WONG SIU MEI, ROSITA trading as FOOK HING RATTAN COMPANY	2nd Defendant
	WONG KUM SING and MA SHIOW CHIOW	3rd Defendant

_______________

Coram: Deputy Judge Bokhary, Q.C. in Court

Date of Hearing: 19th December, 1988

Date of Delivery of Judgment: 19th December, 1988

___________

JUDGMENT

___________

1. These proceedings have already been disposed of as between the Plaintiff and the 2nd and 3rd Defendants.

2. Subject to one point of difference between them, the Plaintiff and the 1st Defendant are agreed on the Order to be made, granting injunctive relief or embodying undertakings in the same terms. They have agreed the facts on which I am to proceed in determining the one point on which they differ. The statement embodying these agreed facts reads as follows:-

'	l.	The Plaintiff is the management company of the building known as Dominion Centre at No. 4359 Queen's Road East, Hong Kong ("the Building").
	2.	The 1st Defendants are the owners of Shops No. 2-3, Ground Floor of the Building ("the 1st Defendants' Shops") subject to and witch the benefit of a Deed of Mutual Covenant dated 30th April 1979 and registered at the Land Office by Memorial No. 1715928. A true copy of the Deed is annexed hereto as Annexure 1.
	3.	A true copy of the floor plan of the Ground Floor of the Building ("the Plan") is annexed hereto as Annexure 2. The area coloured pink on the Plan is a pavement which forms part of the common part of the Building and is situate along the side of and at the same level as the street known as Queen's Road East.
	4.	The only practical means of access to the 1st Defendants' Shops for the purpose of delivering goods and articles to and removing the same from the said Shops is via the front entrance thereof which opens up to the said pavement.
	5.	The 1st Defendants run a retail business of selling furniture items from the said Shops. As a necessary part of the said business, furniture items (some of which are very bulky) have to be loaded onto or unloaded from delivery vehicles parked on Queen's Road East next to the pavement and moved between the said vehicles and the 1st Defendants' Shops.
	6.	The Plaintiff and the 1st Defendants agree that the point of difference between them concerning the scope of order can be determined on the basis of the Agreed Facts herein and the Annexures hereto. '

3. Miss Yuen, for the Plaintiff, handed up draft minutes of order against the 1st Defendant, providing that:-

'	(1)	the 1st Defendants and each of them do forthwith remove so much of the 1st Defendant's furniture, articles, chattels and any other property of any nature whatsoever as may stand on the pavement in front of Shops 2-3, Ground Floor, Dominion Centre, 53 Queen's Road East, Wanchai, Hong Kong ("the shops"). The pavement shall mean the area coloured pink on the plan annexed hereto ("the pavement");
	(2)	the 1st Defendants and each of them do clean or cause to be cleaned (if such is necessary) the pavement of any paint or marks of painting in front of the shops;
	(3)	the 1st Defendants and each of them whether by themselves their servants or agents or otherwise howsoever be restrained and an Injunction is hereby granted restraining them and each of them from dong the following acts or any of them, that is to say:

	(a)	placing or causing to be placed any furniture, articles, chattels and any other property of any nature whatsoever on the pavement
	(b)	doing or causing to be done any painting work on the pavement;'

4. It is in respect of item (a)of para. (3) of this draft that the parties before me differ. I will refer to this item as 'the disputed item'.

5. In support of the disputed item, Miss Yuen relies on para. 11 of the Deed of Mutual Covenant, which contain, inter alia, covenants:-

	'(d)	Not to do anything in any part or parts of the said building in common use which may be a nuisance or annoyance to the other parties or the other occupier or occupiers of the said building. ';
	'(e)	Not to place any furniture or object in or to occupy any part of the said building not included in his unit and to use the parts of the said building intended for common use for the purpose of access to and egress from his unit and not otherwise. '; and
	'(o)	Not to place any merchandise or goods or stalls or carts or any other articles of any nature whatsoever on the pavement in front of the said building. '.

6. Mr Mok, for the 1st Defendant, took a number of points in the course of an able submission, which runs, as I understand it, along these lines: The word 'place' is not free from ambiguity as it appears in the Deed of Mutual Covenant. Naturally, it covers, and is intended to cover, storing or displaying furniture on the covered pavement which forms part of the common parts of the building. But, if read literally, it would cover conduct which cannot, on the true construction of the Deed, be regarded as prohibited, eg. the act of a delivery worker putting down an item of furniture to adjust his grip on it. In the course of taking furniture in and out of its shop, the 1st Defendant's servants or agents are bound, from time to time, to place an item of furniture or two down on the covered pavement momentarily. This might be done to adjust a grip, or to pause while somebody gets out of the way, or to regain balance, and so on. It cannot be intended that this sort of thing is prohibited. For, indeed, if it was so intended, the covenant or covenants embodying such intention would be oppressive, and thus undeserving of enforcement by the grant of a discretionary remedy: see Talbot v. Ford (1842) 13 Sim 173. As an alternative to construing the word 'place' so as to avoid a literal construction resulting in oppression, an implied term should, of necessity, be read into the Deed of Mutual Covenant to permit the momentary placing of furniture on the covered pavement in the course of deliveries to and from the shop.

7. Miss Yuen, in an equally able submission, developed her client's concern that if the word 'place' was in any way qualified in the Order that would open the way for the 1st Defendant to abuse the qualification by, for example, piling furniture on the covered pavement in the name of delivery. It is Miss Yuen's position, as I understand it, that the sort of thing that Mr Mok's client says it wants to do is not strongly objected to even if, strictly speaking, a breach of the Deed of Mutual Covenant. Her real objection to the sort of wording Mr Mok proposes is the risk of abuse to which it gives rise. Therefore, she submitted, the word 'place' should be used without qualification in the Order to be made - just as it is used without qualification in the covenants relied upon by her client.

8. As to this last point, it is necessary to bear in mind well-established principles which guide a court granting an injunction to as precise an expression of its order as the circumstances reasonably admit. Here, Mr Mok has drawn my attention to the statement in 'Spry: The Principles of Equitable Remedies', 3rd ed. at pp. 357-358 that:

'These principles will sometimes be found to apply even where the injunction that is sought is directed to the enforcement of contractual rights that are themselves phrased in general or ambiguous terms. '

9. This must, in my judgment, be right. In Parker v. First Avenue Hotel Co. (1883) 24 Ch. D. 282 at p.286, Lord Justice Cotton, with whose judgment the Master of the Rolls and Lord Justice Bowen concurred, said:-

We may take an instance of a little different kind, where there is an action to restrain the breach of covenant. There may be cases where it is a great question whether a particular thing is or is not a breach of the covenant, and the Court adjudicates on the question in issue between the parties. Then in my opinion the injunction ought not to be in general terms to restrain the defendant from committing any breach of covenant, because the defendant has threatened to break the covenant, but should contain an adjudication on the particular thing which is said to be a breach of the covenant, so to restrain him by injunction from doing that particular thing, and in that way to limit the generality of the injunction. '

10. In my judgment, the covenants relied upon do not, on their true construction, prohibit such momentary placing on the covered pavement of furniture as cannot be avoided by the exercise of reasonable diligence in the planning and supervision of deliveries to and from the 1st Defendant's shop. If the covenants on their own had to be construed so as to prohibit this, it would, in my judgment, be necessary to imply a term to permit the same. And if neither construction nor implication achieved this, we would, in my judgment, be left with covenants so oppressive as to be undeserving of enforcement by the grant of the discretionary remedy of injunctive relief.

11. In the present circumstances, I consider it appropriate to word the disputed item so as to spell it out that the 1st Defendant has the limited freedom which I have just described. But, at the same time, I propose to employ such wording as would, so far as practicable in the present circumstances, guard against the abuse which the Plaintiff fears. This I propose to do by adding the following words to the disputed item: `save in so far as the momentary placing of any item or items of furniture on the pavement cannot be avoided by the exercise of reasonable diligence in the planning and supervision of deliveries to and from the shops.' If the 1st Defendant prefers to give undertakings rather than be enjoined by injunctions, and if the Plaintiff is agreeable, so be it.

12. This will, I hope, be an end of the matter. But I am conscious that, as it is put in 'Spry' (supra) at p. 358,' ... it must be remembered that, should difficulties of compliance subsequently arise, further applications may be made to the court, so as to lead to a resolution of ambiguities and to the surmounting of difficulties of compliance or enforcement ...'. Accordingly, I think that both parties should be given liberty to apply.

[Argument as to costs]

13. I have now to deal with the question of costs. On November the 11th this year, the Plaintiff offered the 1st Defendant some comfort in the form of an assurance contained in a letter of that date. The relevant paragraph of the letter which is the final paragraph thereof reads:

Of course, if, in the course of your clients gaining access to or egress from the shops, they place articles on the common areas momentarily in the course of deliveries to or from the Shop (so long as the articles are not left idling on the common areas), our clients would not consider that a breach of the covenants. '

The idea of such comfort being reflected in the Order was canvassed in correspondence. The Plaintiff's attitude was that such comfort should not be reflected in the Order; and negotiations in this regard appears to have been broken off by the Plaintiff's solicitor's letter of December the 2nd this year, the last paragraph of which reads:

Our clients have already indicated the extent of the comfort they can give your clients. If your clients do not accept that, our clients are prepared for this matter to be decided by the Court and accordingly, we would not enter into any further correspondence on your apparent contention and the inferences which you seek to draw. '

14. Today, I have accepted the 1st Defendant's argument that the word 'place' requires, as a matter of construction, some limitation, and that such limitation should be reflected in the Order. On the face of it, this provides a basis for the argument that the 1st Defendant should have the costs after a certain date - there being no dispute that, subject to this, the Plaintiff is entitled to the costs of the action.

15. I have, however, to bear in mind that the 1st Defendant had been in substantial breach of covenant, and that it had denied such breach, and maintained such denial, for a considerable period of time.

16. In these circumstances, it behoved the 1st Defendant to work much harder to allay the natural fears and suspicions of the Plaintiff. But one comes back again to the fact that the Plaintiff had offered comfort, that the 1st Defendant had wished such comfort to be reflected in the Order, that the Plaintiff had refused, and that I have, in the Order which I made, placed some restriction on the word 'place'.

17. It is true that my formulation is more restricted than the Plaintiff's formulation. But the 1st Defendant cannot be blamed for proceeding on the basis of the formulation of the other side. The only question was whether it ought to go into the Order. The legal advisors of both parties have approached this matter in as reasonable a fashion as one can normally expect in the course of litigation.

18. Counsel on both sides, and I say this in all sincerity, have presented their cases with outstanding ability. Sometimes the excellence of the arguments makes the task easier; sometimes it makes it all the more difficult for being more finely balanced. Giving this matter the best consideration I can, I think the proper order as to costs as between the Plaintiff and the 1st Defendant is that the Plaintiff have the costs of the action up to the 1st of December this year, and that thereafter there be no order as to costs.

	(K. Bokhary)
	Deputy High Court Judge

Representation:

Miss M. Yuen instructed by M/s. Oscar Lai & Co., for the Plaintiff

Mr Johnny Mok instructed by M/s. Rowdget W. Young & Co., for the 1st Defendant