Incorporated Owners of Mirador Mansion v. Tecowin Development Ltd.
Read the full judgment text of HCA 4069/1996 on BabelCite. This High Court CFI judgment.
1. The Plaintiff is the incorporated owners of the Mirador Mansion. It sues as such. It also sues as the owner of Flat A10 on the 8th floor of the Building.
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HCA004069/1996 1996 No.4069 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE RGION COURT OF FIRST INSTANCE
Coram: The Hon. Mr. Recorder Tang S.C. in Court Date of hearing : 1, 2, 3, 4, 8 and 9 June1999 Date of handing down of Judgment: 30 June1999 ________________ J U D G M E N T ________________ Introduction 1. The Plaintiff is the incorporated owners of the Mirador Mansion. It sues as such. It also sues as the owner of Flat A10 on the 8th floor of the Building. 2. Mirador Mansion is a 16 storey building. It is a well known building in Tsimshatsui. It has shops on the lower 3 floors. On the upper floors are residential flats. However, because of its convenient location, many of these residential flats have been converted into guesthouses. 3. This litigation is about the Roof of the building which is owned by the Defendant. 4. The Occupation Permit for Mirador Mansion was issued on 8th July 1959. There is a Deed of Mutual Covenant ("DMC") dated 28th April 1960 made between Chan Tak Tai ("CTT") and 4 named owners. These owners were the owners of certain shops on the Basement, 1st and 2nd floors, as well as flats on the 4th floor. For the present purpose, I can proceed on the basis that CTT, a well known developer in his day, was the developer and original owner of Mirador Mansion. 5. The DMC is a simple document e.g. there is no express restriction on the use to which individual units may be used. CTT was allotted the exclusive use, occupation and enjoyment of the Roof. 6. One can gather from the First Schedule that the interest in land was notionally divided into 752 shares. CTT was allotted 741/752nd shares and the exclusive use of all other units excluding those assigned to the 4 named owners. 7. Apart from providing in Clause 4 that the Basement should be deemed to consist of 36 units, it seems that CTT was free to allot as many or as few shares to the units allotted to him in the DMC. 8. There are specific provisions relating to access to the Basement in respect of certain common facilities there. Clause 12(d) (China Light & Power), Cl.17(e) flushing and electric pumps. It is silent so far as the Roof is concerned. It is, however, common ground, that there are common facilities installed on the Roof e.g. water tanks. There are also 3 machine rooms for 3 sets of lifts. It is accepted that the machine rooms are common area. However, they are about 6 feet above the Roof. Whether the area below the machine rooms (so-called lower levels) are common area is hotly disputed. I should add the fire escape staircases all lead up to the Roof. 9. By an Assignment dated 19th June 1962, CTT assigned 4/752nd shares as well as "ALL THAT the right to the exclusive use occupation and enjoyment of ALL THAT the ROOF" of the building to one Hoe Hin Investment Co. Ltd. for $40,000. This assignment contained a restrictive covenant. The restrictive covenant can be found in the following provision in the assignment:-
10. The Defendant is the registered owner of 4/752nd parts of and in the land on which Mirador Mansion is erected, and as such is entitled to the exclusive use occupation and enjoyment of the Roof. 11. The Defendant purchased the Roof from Pak Fah Yeow Investment (Hong Kong) Co. Ltd. (previously Hoe Hin Investment Co. Ltd.) for $150,000. After the purchase, the Defendant caused certain works to be done on the Roof which have led to the present litigation. I will deal with these works later. Issues 12. The first dispute between the parties is over the enforceability of the restrictive covenant. It is the Defendant's case that the restrictive covenant is not enforceable against it. In any event, the Plaintiff has no standing to sue. This issue will involve a consideration of the provisions of the Conveyancing and Property Ordinance ("CAPO") as well as the Building Management Ordinance ("BMO"). 13. It is also in issue whether in any event the matters complained of amounted to a breach of such restrictive covenant. 14. Lastly, it is in issue whether the Plaintiff must be taken to have abandoned or waived the enforcement of the restrictive covenant. 15. The second dispute between the parties is over the status of the lower level of the 3 machine rooms on the Roof. This requires some elaboration. Mirador Mansion is served by 8 lifts. They are divided into 3 groups. Hence there are 3 machine rooms. Machine Room 1 ("MR1") controls 4 lifts. MR2 and 3 control 2 lifts each. The machine rooms themselves are situated 6 feet above the Roof. There are stairs to provide for access to each machine room from the Roof. It seems quite clear that because of the possibility of overruns, there must be some allowance between the slab of the machine room and the Roof. I should also mention that the lower level of MR2 has been occupied by one Chan Tak On as his home since about 1961. 16. A visitor to the Roof and the machine room today will find that the lift shafts in respect of each group of lifts are completely enclosed up to the slab of the machine rooms. The walls now enclosing the lift shafts between the floor slab of machine rooms and the Roof are called the partition walls. On the slabs are holes measuring approximately 20 cm by 20 cm through which the lift cables pass. No other ventilation is provided to the lift shafts at the top. It is in issue whether the partition walls were part of the original design for Mirador Mansion. The Plaintiff's case is that the lift shafts ended at the Roof level so that on the floor of the Roof there is a big hole. Between the hole and the slab of the machine room there was nothing apart from the lift cables. The Plaintiff's case is that although the lift shafts were not enclosed beyond the floor of the Roof, the lower level perimeter of the machine room is enclosed by walls. These walls have been referred to by the parties as the perimeter walls. It is said vents were built into these walls to provide ventilation for the lift shafts. This allegation is supported by Dr. Sammy Chan, a structural engineer, called on behalf of the Plaintiff. This is hotly disputed by Mr. Bing Choy, an architect, who testified on behalf of the Defendant. 17. I was taken through some of the building plans for Mirador Mansion. According to Dr. Chan, these plans show clearly that the partition walls were not part of the design, whereas the perimeter walls were. Mr. Bing Choy came to the opposite conclusion. 18. The relevance of all these is that the Defendant has blocked up the vents on the perimeter walls. It is the Plaintiff's case that the areas below the machine rooms and enclosed by the perimeter walls are common area, and that they are required for the ventilation of the lift shafts. 19. It is clear, however, if the partition walls were part of the original design, the vents on the perimeter wall would not have ventilated the lift shafts, because the lift shafts are completely enclosed by the partition walls. 20. So far as the rest of the Roof is concerned, the Plaintiff's main complaints are that:- 21. First, the Defendant has enclosed substantial parts of the Roof by parapet walls as well as metal frame structures on top of the parapet walls with spotlights and decorative lights. 22. Second, that such areas are used by guests staying at the Defendant's guesthouse or guesthouses at Mirador Mansion and they cause nuisance or inconvenience to other residents. 23. The Plaintiff also relies on Clause 11(c) of the DMC which provides:
24. It is in issue whether e.g. the parapet walls may be in breach of Clause 11(c) because of potential danger in the event of fire. 25. There was a fire at Mirador Mansion in 1988. It started in the shopping arcade in the middle of the night. Two persons were killed. Because of the fire, many residents had to take refuge on the Roof. According to Pang Kam Kwong, Chairman of the Plaintiff since 1997 and a long time resident of Mirador Mansion, he had to take refuge on the Roof with his family until they were rescued by firemen the following morning. He said depending on the wind direction, they had to move from one part of the Roof to the other. It is obvious that if there were another fire at Mirador Mansion today, the areas enclosed by the Defendant will be inaccessible. I have no doubt that the Plaintiff is genuinely concerned about the Roof as a fire escape. Fire escape staircases lead directly from the ground floor to the Roof. Restrictive covenant 26. I will deal first with the restrictive covenant. 27. Mr. Warren Chan S.C., who appears for the Defendant has submitted that the restrictive covenant is not enforceable because:
I will deal with these submissions in turn. 28. The Defendant derived its title to the Roof through Pak Fah Yeow (Hoe Hin). The Assignment to the Defendant dated 7th January 1991 contains an identical restrictive covenant. However, I am principally concerned with the covenant contained in the 1961 Assignment. If the 1961 covenant relates to the land, then the 1991 Assignment adds nothing. Furthermore, since it seems Pak Fah Yeow owned no other interest in the Building, the covenant in the 1991 Assignment could not be intended to benefit any land of Pak Fah Yeow. Thus, even if the covenant does relate to the Roof, it is irrelevant to the present proceedings. 29. Now, in my opinion, it is clear that a covenant not to use the Roof "otherwise than for erecting or placing thereon one or more signs ..." relates to the land of the covenantor. 30. The classic formulation is to be found in the words of Farwell J. in Rogers v Hosegood [1900] 2 Ch.388, 395:-
31. Surely, the covenant must at least affect the mode of occupation of the Roof. 32. But is the covenant "expressed and intended to benefit the land of the covenantee and his successor in title"? 33. The 1962 Assignment began with a description of the parties. The designation Vendor was stated to include where not inapplicable CTT , his "executors and administrators". The designation of purchaser however was stated to include, where not inapplicable, the Company Hoe Hin "and its successors and assigns". Mr. Chan made the point that the omission of successors and assigns from the designation of Vendor was deliberate. 34. Mr. Chan turned next to the covenant itself. There, he says, the purchaser merely covenanted with the Vendor. It does not say e.g. "with intent that the covenant may enure to the benefit of the vendors their successors and assigns and others claiming under them to all or any of their lands adjoining" or some similar words. 35. Now, assuming that CTT was the covenantee, did the covenant relate to the land of CTT? 36. Mr. Chan makes the further point that there is no evidence that by the time of the 1962 Assignment, CTT owned any other interest in Mirador Mansion. Mr. Wong Yan Lung, who appeared for the Plaintiff, disputes that. The evidence on this is not satisfactory. However, I think, on balance, I am able to conclude that CTT had not divested himself of all his interests in Mirador Mansion. I think the best foundation for such a finding is to be found in the 1962 Assignment. There, the Assignment expressly excepted and reserved "unto the Vendor and the other owners for the time being the right to the exclusive use occupation and enjoyment of all the other flats shops and units in (Mirador Mansion)". This shows that CTT must still own some units in Mirador Mansion. There is also evidence that on 8th May 1969, CTT assigned Flat B5 on the 9th floor of Mirador Mansion to a purchaser. Mr. Chan made the point that the fact that CTT assigned a flat in 1969 does not mean that he was owner of the flat in 1962. I agree that it does not necessarily follow. Theoretically, CTT could have sold that unit before the 1962 Assignment, and then re-acquired it prior to selling it again on 8th May 1969! However, having regard to the fact that CTT owned (and probably developed) the Mirador Mansion, and that according to the DMC he owned 741/752nd part of the landed interest as at 28th April 1960, it is permissible for me to conclude that the Roof was not the last property sold by Chan after 28th April 1960. 37. Now, if the covenant relates to any land of CTT, then s.39 CPO provides that, it shall be deemed,
38. I do not believe the 1962 Assignment expressed a contrary intention. I do not forget the designation of Vendor in the 1962 Assignment. But I do not regard that as a sufficient expression of a contrary intention. Indeed, the designation only applied "where not inapplicable". I do not believe that the covenant was intended or understood by the parties as personal to CTT. I agree with Mr. Chan that it is theoretically possible. But I am not concerned with theoretical possibility. I have to give to the covenant, the meaning, which I believe the parties intended, having regard to the fact that they were dealing with the roof of a 16 storey building. It is of relevance in this context to note that fire escape staircases were designed and built to enable occupiers to escape to the Roof in the event of fire. So it would have been prudent for CTT to restrict the user on the Roof so as not to affect the use of the Roof as a refuge in case of fire, not just for himself but for his successors in title. The absence of such a covenant might affect the value of his remaining units. Mr. Wong has referred me to Megarry and Wade, The Law of Real Property, 5th edition where it is said it may not be an invariable rule that annexation must appear from the covenant itself,
39. As Mr. Wong has emphasized, the covenant goes on to provide that the purchaser would "make good any damage caused to the said roof by the erection of such signs". This positive covenant also gives some support for the view that the restrictive covenant was not intended for the personal benefit of CTT alone. 40. I have no hesitation in concluding that the restrictive covenant was not merely for CTT's personal benefit. It was at least meant to benefit CTT's remaining interest in the Building. 41. However, the more difficult question is: who was the covenantee? Was it CTT and his successors in title only? If so, then it may be that the covenant is only enforceable by them. s.18(2)(g) BMO 42. Here, the Plaintiff purports to sue on behalf of all the owners pursuant to s.18(2)(g) of the BMO. By an amendment in the course of the Opening, leave was given, against Mr. Chan's objection, to amend so that the Plaintiff could also sue in its capacity as the owner of an unit in the Building. The intention was to overcome the possibility that the restrictive covenant was only enforceable by CTT and his successor's title and not by all the owners of Mirador Mansion. However, as Mr. Chan has demonstrated, it has not been proved that Flat A10 on the 8th floor was owned by CTT at the time of the 1962 Assignment. 43. If the restrictive covenant is enforceable by all the owners of the Mirador Mansion, then I have no doubt about the Plaintiff's locus to sue. I think this action would fall squarely within s.18(2)(g) of BMO. s.18(2)(g) provides that
44. In my opinion, the owners have a common interest over the user of the Roof, particularly, as a means of fire escape. Incorporated owners of Block F1 - F7 Pearl Island Holiday Flats v Incorporated Owners of Pearl Island Garden and Another [1994] H.K.C.424 is directly in point. There, the Court of Appeal held the incorporated owner could take action to enforce a right of way over a road which was not part of the common parts, because the owners have a common interest in respect of the right of way. Mr. Chan has referred me to Incorporated Owners of Tak Cheong Building (Battery Street) v Tong Wai Tak and another [1999] 1 H.K.C.238, also a decision of the Court of Appeal. However, it seems to me that this decision turned on the Court's finding that the user of the external wall in question was not a matter of common interest. In other words, the incorporated owner was held to have no locus because the action was not over something which the owners had a common interest. This is not the case here. 45. However, if Mr. Chan is right that the restrictive covenant was only enforceable by CTT and his successors, then since at the time of the 1962 Assignment CTT no longer owned the entirety of the Mirador Mansion, then I am bound to hold that the Plaintiff has no locus. That is not because all the owners do not have a common interest over the user of the Roof. Rather, it is because the cause of action would not be vested in all the owners. The cause of action would be vested in some of the owners (it is not known how many). I do not believe the Plaintiff can by virtue of BMO institute proceedings against the Defendant. 46. Mr. Wong sought to rely on some Minutes of the meetings in 1997 and 1998 of the incorporated owners. However, I do not believe they are sufficient to overcome this difficulty. As Mr. Chan has submitted, one does not even know whether any of CTT's successors in title attended the meeting. Take the Minutes of 21st November 1998 as an example, it seems to me that the meeting only purported to authorise or confirm the Plaintiff's continued prosecution of the present action. That is to say an action on behalf of all the owners and not just those who could enforce the restrictive covenant. 47. Moreover, even if some of CTT's successors in title had attended the meeting, it is doubtful that they meant to authorise an action on behalf of themselves only, having regard to possibly serious costs implications. 48. I shall not pause to consider the other formal difficulties in the Plaintiff's way if this action is supposed to be brought on behalf of some of the owners only. Who were the covenantees? 49. Mr. Wong has submitted that CTT and the other owners for the time being of the Mirador Mansion were the covenantees. Mr. Wong relies in particular on the positive covenant which followed the restrictive covenant. He asked: why should CTT be concerned to protect the Roof at all? He said the answer is plain. The Roof must be protected for the sake of other units in the Mirador Mansion. Mr. Wong also relies on the fact that the assignment of the exclusive use of the Roof was expressed to be
50. This provision has also given rise to an argument. Mr. Wong has asked me to read "Together with" as "subject to" when it comes to the right of access". I think it is permissible to do so. In the context, the parties must have intended that the exclusive use and enjoyment of the Roof must be "subject to the right of access ...". Now it does not say who was to have such right of access. In my opinion, the right of access must have been intended to be for the benefit of the other owners (which in this context would include the Vendor), their successors and assign. 51. Mr. Chan submitted that such right of access was superfluous. He said although the DMC was silent on access to the Roof, the other owners are entitled to access as an easement of necessity. He relied on Winland Investment Limited Apesole Limited [1989] 1 HKLR 541 as an example of an easement of necessity arising. I am prepared to accept that the other owners would have been entitled to an easement of necessity. But it does not follow that it would not make sense to provide for an express reservation of a right of access. An easement of necessity is limited to what is necessary. The right of access provided in the 1962 Assignment is not confined to what is merely necessary. 52. However, it will be noted that this right of access is limited to the water tanks etc. It does not permit the other owner to roam freely on the Roof. Nor will it permit the other owners to be present on the Roof except where access to the water tanks etc. is necessary. Subject to this limited right of access, there is no restriction on the user of the Roof. 53. Thus, this right of access will be of limited relevance to this action and I need not pause to consider who can enforce this right by action. 54. Now as will have been seen, the 1962 Assignment also expressly excepted and reserved "unto the Vendor and the other owners for the time being ... the right to the exclusive use" of the other parts of the Mirador Mansion. 55. Mr. Wong has submitted that in such context, it is obvious that the restrictive covenant was not meant to benefit CTT and his successors alone. He says it is obvious that the intention was to benefit CTT and the other owners as well. 56. But the restrictive covenant refers expressly to the Vendor only. Could the other owners be intended as the covenantees as well? Also, is intention alone sufficient? 57. Mr. Wong wishes me to read the covenant as being made with CCT "and the other owners for the time being of the said building". If that had been expressed, then the covenant would be enforceable by them, although these other owners were not parties to the 1962 Assignment. See s.26, CAPO, (s.56, Law of Property Act 1925). See Foster v Elvet Colliery Co. Ltd. [1908] 1 K.B.629. 58. A covenant, to be enforceable must relate to (at common law) or be expressed and intended to benefit (s.41(2)(c) CAPO) the land of the covenantee. A restrictive covenant will run with the land of the covenantee. Thus, if CTT was the only covenantee, even if a covenant relates to or is expressed and intended to run with his land, only CTT and his successors can enforce the covenant. If the covenant is intended to benefit a third party and his land, neither he nor his successor can enforce the covenant unless s.26 or s.41(2)(c) CAPO is satisfied. 59. According to Sir Wilfred Greene M.R. in White v Bijou Mansions Limited 1938 1 Ch.351 at 365
60. However, as Beswick v Beswick [1968] a.C.58 shows, although perhaps in a different context, s.56 LPA is a difficult provision. 61. There is a highly illuminating discussion on the true scope and ambit of s.56 in Megarry and Wade at pp.764 - 767. 62. According to the learned authors, the better view is that
63. I do not believe Sky Heart Limited v Lee Hysan Estate Co. Ltd. [1999] HKLRD100 helps. Mr. Wong refers me to the judgment of Lord Hoffmann who said, in reference to the requirement in s.41(2)(c) CAPO that the covenant be not only intended but also expressed to be for the benefit of the dominant tenement, that "the distinction between 'expression' and 'intention' (objectively ascertained) is somewhat elusive". However, as will be noted, Le Pichon J. came to the conclusion at first instance, Lee Hysan Estate Co. Ltd. v Sky Heart Limited [1997] 1 H.K.C.313 at 339B, that the covenant was sufficiently expressed to be for the benefit of the land of the covenantee. There, she was dealing with the annexation of the covenant to the land of the covenantee. She was not dealing with identification of the covenantee. Here we are concerned with identifying the "covenantee", because it is his land which must be expressed and intended to be benefited. So Lord Hoffmann's dictum should be taken in context. 64. Be that as it may, Lord Hoffmann's judgment does provide some support for Mr. Wong's argument. 65. Lord Hoffmann went on to say
66. Now it seems to me that by this statement, Lord Hoffmann was extending "his successors in title" in s.41(2)(c) to include persons who have already succeeded to the covenantee's title in respect of other parts of the building scheme. If so, then, such successors can enforce the covenant under s.41(2)(c) CAPO if their land were expressed and intended to be benefited by the covenant. If it had been sufficiently expressed, it might also come within what according to Megarry and Wade was the ambit of s.56 LPA. 67. Lord Hoffmann was dealing with a building scheme and he said "For my part, the overriding consideration is that s.41 must have been intended to apply to building schemes". s.41 must have been intended to apply to a multi-storey building too. 68. But I do not feel able to conclude that "successors" in s.41(2)(c) included persons who had derived their titles to units in the Building from CTT prior to the 1962 Assignment. Nor do I feel able to say that the restrictive covenant here "is expressed and intended to benefit" their land. 69. A building scheme requires reciprocity. Insofar as the covenants are mutually enforceable, ascertainment of the parties to a building scheme should pose no real problem. But a multi-storey building may pose greater difficulty. 70. Suppose A owns the roof as well as the floor immediately below. If A sells the roof and obtains a restrictive covenant, it by no means follow that the covenant is meant to benefit all the other owners of the building. Thus, unless the other owners are expressed to be the covenantees, therefore satisfying both s.26 and s.41(2)(c), the covenant would not be enforceable by these other owners or their successors. 71. I believe the weight of the authorities is against any finding that "the other owners for the time being" can enforce the restrictive covenant pursuant to s.26 CAPO or s.41(2)(c) if they were merely intended to be benefited by the restrictive covenant. 72. In this respect, I also bear in mind what Litton P.J. said after agreeing with Lord Hoffmann,
73. I feel bound to hold that the other owners were not also the covenantees. It follows, although use of the Roof is of great common interest, the Plaintiff has no standing to enforce the restrictive covenant. Waiver and acquiescence 74. In case I am wrong I must consider Mr. Chan's other arguments. 75. I turn to consider the Defendant's case on waiver and acquiescence. Mr. Chan no longer relies on any waiver or acquiescence after the Defendant's acquisition of the Roof. However, he relied on the Plaintiff's conduct prior to 1991. I agree with Mr. Wong's submission that there was no waiver or acquiescence. Mr. Chan relies on
76. I think Mr. Wong is right that the conduct of the Plaintiff on the Roof prior to 1991 is not inconsistent with or in breach of the restrictive covenant. The restrictive covenant is imposed on the owner of the Roof, it does not apply to the incorporated owners. For there to be waiver by conduct, there must be conduct on the part of the Plaintiff which is "inconsistent with the continuance of the right". 77. As for acquiescence, the test is whether, on the facts of the particular case, the situation has become such that it would be dishonest or unconscionable for the Plaintiff to continue to seek to enforce it. See Shaw v Applegate 1977 1 W.L.R.970. Or in the words of Oliver L.J. (as he then was) in Habib Bank Limited v Habib Bank A.G. 1981 1 W.L.R.1265 at 1285
78. I do not think it would be dishonest or unconscionable for the Plaintiff to seek to enforce the restrictive covenant. Indeed, given the parapet walls, I believe the Plaintiff is acting responsibly in pursuing this action. But for my decision that the plaintiff lacks standing to sue, I would have no hesitation in enforcing the restrictive covenant. 79. Here, additional factors are that on the evidence, as late as early 1991 and hence probably before 1991, the officers of the Plaintiff were not aware that the Roof was not common area. 80. Also, the users complained of by Mr. Chan were quite limited in area having regard to the size of the Roof. In any event, I will not infer a general waiver or abandonment. 81. I find that waiver, acquiescence or abandonment has not been established by the Defendant. Action Premature 82. Mr. Chan has also argued that even if the restrictive covenant is enforceable by the Plaintiff, the presence of the parapet walls is not a breach of the restrictive covenant. He has referred to Morsley v Swarn (1881) 51 L.J. Ch.576 where the headnotes read
Webb v Fagotti Brothers (1898) 79 L.T.683 is to similar effect. According to Chitty L.J.
83. In my opinion, these decisions simply turned on the fact that it was not possible to tell whether or not a house when it was in the course of building was intended for a hotel or tavern etc. but that the use of the building would have to be looked to before an injunction should be granted. They are no authority that in all cases, one has to look to the actual user before one can decide whether a covenant has been breached. 84. In my opinion, the building of the parapet walls and the enclosure of the areas covered by them is inconsistent with the restrictive covenant. The effect of the restrictive covenant is that no user than that of the permitted user would be permitted on the Roof. Thus, in my opinion, if the Plaintiff has the standing to sue it has not acted too soon. They would have been entitled to appropriate remedies Clause 11(c) DMC 85. In this claim, the Plaintiff also relies on Clause 11(c) of the DMC which I have set out earlier in this Judgment. 86. The Plaintiff has obtained a report by Janice Chan Yueh Hing, an Architect, dated November 1992. According to Janice Chan, she has found the following alterations on the Roof since 1991: e.g. the parapet walls; the lower levels of the 3 machine rooms have been turned into storage areas with metal doors and lock; stair 3 - an extra exit gate was opened, and stair 4, blocking up of the original exit and opening of a new one. 87. The alterations which have been subsequently remedied included the removal of the dead bolt locks as well as the communication antenna. 88. According to her, because of the parapet walls, the clearance of part of an exit route has been reduced to 750 mm at a certain location which was not desirable from a fire escape point of view. 89. Now the other owners are not entitled to use the Roof otherwise than in the case of an emergency, e.g. fire. I think the other owners (indeed other occupants) are entitled to resort to the Roof in case of fire, because the designs of the building show clearly that in case of fire the Roof is meant to provide a refuge. Because of the design of the building, the Defendant seems to accept that. Hence the deadbolts have been removed. 90. That being the case, in my opinion, it is a breach of Clause 11(c) for the Defendant to permit anything on the Roof which may be or become "a nuisance damage or inconvenience" to the other occupiers of the said building. In the context, I think damage must include danger or what is dangerous. Damage or inconvenience is wide enough to cover e.g. the Defendant deadbolting the entrances to the Roof from the staircase. I think they are also wide enough to cover the parapet walls and other obstructions on the Roof which have substantially reduced the area available for refuge in the event of fire. 91. So far as the enforcement of Clause 11(c) is concerned, the Plaintiff plainly has standing. s.18(1)(c) BMO. Machine Rooms 92. I turn to consider the lower levels of the Machine Rooms. 93. Despite the evidence of Dr. Sammy Chan and Mr. Bing Choy, I do not believe the building plans are clear enough to show whether the perimeter walls or the partition walls were or were not part of the design. 94. Dr. Chan is a Chartered Structural Engineer. I believe he knows enough about building plans (especially structural plans) to be able to interpret them. However, he has never designed any lift systems. 95. Neither the partition walls nor the perimeter walls are part of the structure of the building. Thus, their existence would have to be gathered from the non structural plans. 96. Unfortunately, the parties have not been able to produce the building plans (non structural) of the Roof as such. 97. Dr. Chan relied substantially on a roof plan (drawing No.186/5A). This is a building plan showing non-structural elements on the Roof. In particular, he compared the roof plan with a upper roof plan (drawing 186/2K). However, it seems likely that drawing No.186/5A was overtaken by a later plan. It is obvious that after drawing No.186/5A was prepared, the size and locations of machine rooms 2 and 3 had been altered. 98. I believe whatever these plans may or may not show, they provide too slender a basis for a finding that the partition walls were not part of the original design. 99. In Dr. Chan's second supplemental report, he produced a sketch which according to him "reflects the ventilation part of the lift shaft". That sketch shows a parapet wall below the lift machine room "for ventilation of lift shaft". 100. Dr. Chan has since revised his opinion. He is now of the opinion that there were no parapet walls. Below the machine room was a big hole, through which if one was not careful, one could drop all the way down to the top of the lift cart wherever that might be. 101. I find Mr. Choy's evidence that the partition walls were required under s.34 of the Building Ordinance 1950 persuasive. s.34(1) provides
102. As a matter of plain language and certainly of common sense, I do not believe the Building Authority would have been satisfied with the design which according to Dr. Chan was adopted for the lift shafts here. I believe "shall be inclosed" must mean enclosed all the way up to the machine room. 103. Indeed, if Dr. Chan is right, the hole on the Roof would have been a trap for the unwary. Now the opening in the perimeter wall requires a person to stoop before he could enter the lower level. Let us imagine 2 persons wanting to get in e.g. to effect some repair to the lifts. The first person goes in. Before he has time to adjust his eyes to the dim interior, no doubt he will move inside to make room for his colleague to enter. Furthermore, there is not enough head room inside the lower level for a 5' 6" person to stand up straight. In such circumstances, it is not impossible that he would just fall into the lift shaft. 104. Now, it is quite clear from an inspection of the partition walls that they were built of very strong material, most probably re-inforced concrete. According to Dr. Chan, such partition walls would have taken 1 or 2 weeks to build. Now, it is obvious that those walls must have been there since about 1961. The evidence of Chan Tak On is that the partition walls were there, when he and other cleaners started to use the lower levels as their living quarters. It seems beyond dispute that if the partition walls were not there from the inception, they were built shortly thereafter. 105. Now Chan Tak On has lived in the lower level of the machine room since about 1961. According to him there were perimeter walls with wooden windows from the beginning. 106. He said around 1961, he and 2 to 3 of his colleagues, who were cleaners for Mirador Mansion, were permitted by CTT's company, Tai Cheung, to live in the lower level. According to him, all male workers were living on the roof. After Chan Tak On ceased to be employed as a cleaner, he was allowed to stay on. He worked as a handyman for residents in the Mirador Mansion. He continues to live there today. He has not been made a party to the present proceedings. If the lower level is common areas, I do not believe the Defendant can be held responsible for Chan Tak On's presence there. Whether Chan Tak On is entitled to remain is not a question I can decide in this action. 107. I have no hesitation in concluding that the partition walls are as old as the machine room and was part of the design of the Building. 108. In the case of the perimeter walls, I am inclined to the view that they were built as part of the original design. Unfortunately, there is not a non structural roof plan later than drawing No.186/5A. I believe the fact that Chan Tak On and his colleagues could live in the lower levels from about 1961, by which time the perimeter walls must have been built, support the view that the perimeter walls were there as part of the original design. Dr. Chan's interpretation of the plans, though far from compelling, also provides some support for my view. According to Dr. Chan, Amended Plan, BOO Ref.2/4380/57, shows that the perimeter walls were part of the original design. 109. Mr. Choy refers to the fact that the floor of the Roof both outside and inside the perimeter walls are paved with the same tiles. That may be so, but that does not necessarily show that the perimeter walls were not there all along. It might have been more cost effective to use the same material throughout, whether enclosed or not. Or one might not have bothered to order a different floor covering for the enclosed area. It might have been more expensive to make special provision for such a small area. 110. Thus, although the evidence is far from compelling, I am of the opinion that the perimeter walls were built together with the rest of the Building. 111. I return to the question: are the lower levels common area? 112. Now, in view of my findings over the existence of the partition walls, the lower levels did not help to ventilate the lifts. But that is not necessarily fatal to the Plaintiff's case. I still have to decide whether the lower levels were intended to be common area. 113. On balance, I have come to the conclusion that they were. Principally because they are directly below the machine rooms and were enclosed so that the lower levels form part of the structure which house the machine room and the lift shaft on the roof level. 114. I believe in deciding whether the lower levels were common area the relevant date is the date of the DMC. The DMC is silent on the subject. The exclusive use of the Roof was reserved to CTT. However, it is obvious that it could not mean the entire roof. Common facilities on the Roof must be excepted. It is common ground that the machine room is common facilities. So too the enclosed lift shaft. The question here is whether the area enclosed by the perimeter walls are common area. I believe so. Complaints 115. I turn now to consider the specific complaints by the Plaintiff:
Relief 116. I turn now to consider the reliefs sought by the Plaintiff. 117. I am prepared to make an Order in terms of para.(2), (3) and (4) of the prayer. 118. As for Injunction, I make an Order in terms of (5)(B). So far as 5(C), the inconvenience, nuisance or hazards referred to should be confined to para.21(1), (2) and (3) of the Amended Statement of Claim. 119. I make an Order ordering the Defendant forthwith, at its own costs and expense, to remove the parapet walls, fences and gates referred to in para.21 of the Statement of Claim. 120. I grant an Order restraining the Defendant from enclosing by any means whatsoever any part of the Roof, and from erecting the parapet walls and the fences thereon, or otherwise from causing nuisances or hazards to the residents of the Building in the event of fire. 121. I suggest that Counsel should submit a draft order (preferably by consent) for my approval. Costs 122. The Plaintiff has succeeded in part. The Plaintiff's claim based on the restrictive covenant has failed. Although the Plaintiff has succeeded on its claim that the lower levels are common area or common parts, the Plaintiff has failed to establish that the partition walls were built by the Defendant. The Plaintiff has also failed in its claim based on inconvenience or nuisance so far as use of the Roof by the Defendant's guests are concerned. Although the Plaintiff has succeeded substantially, the time taken on the unsuccessful issues was substantial. On the other hand, the Defendant has failed in relation to the perimeter wall. It has also abandoned its defence for waiver after 1991. 123. The question of costs is not an easy one. At one time I was inclined not to make an Order Nisi at all. On reflection, it seems to me that some costs might be saved, if I were to make an Order Nisi. 124. Doing the best I can, it seems to me I should make an Order Nisi that the Plaintiff should only have half of its costs.
Representation: Wong Yan Lung instructed by Messrs. Liu Chan & Lam for Plff. Warren Chan SC & Miss Jennifer Tsui instructed by King & Co. for Deft. |