Hang Yuan Management Limited v. Kishinchand Chellaram (Hong Kong) Limited

HCA003734/1986

IN THE HIGH COURT OF JUSTICE

HONG KONG

ACTION NO. 3734 of 1986

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BETWEEN

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Coram: The Honourable Mr. Justice Sears in Chambers

Date of Hearing: 21st October 1986

Date of Delivery of Judgment: 21st October 1986

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JUDGMENT

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1. The Defendants have erected certain air conditioning units on the facade of Flat A4 at Woodland Heights, 2 Wongneichung Gap Road. These are shown in a photograph on Exhibit 'CYL-13'.

2. The Defendants are the owners of the flat and they hold it subject to the terms of a Deed of Mutual Covenant dated July 28th, 1969 (Exhibit 'CYL-1'). The Plaintiffs are the professional managers of the estate and are entitled to enforce the covenants, conditions and provisions of the Deed.

3. The installation of the air-conditioners is clearly in breach of the Deed, but the Defendants raise in their Defence two matters.

4. The Defendant's affidavit deals with these two matters.

5. As far as (i) is concerned, the affidavit of the Plaintiffs and the correspondence speak for themselves.

6. This caretaker gave no consent and the Defendants well knew what the situation was with regard to the installation and the obtaining of consent thereto.

7. This matter is unarguable.

8. As far as (ii) is concerned, what the Defendants are really saying is that as there have been breaches in the past of the Deed, then it would be inequitable now to enforce it against the Defendants.

9. The precise number of breaches was in dispute, but I did not consider it inequitable for the Plaintiffs to rely on the Deed. Whatever the breaches which had occurred, the Defendants must show so complete a change in the character of the property as to render the covenants valueless-

10. See Chatsworth Estates v. Fewell (1931) 1 Ch. 224.

11. I considered there was no Defence to this action, but I hoped that some satisfactory solution could be found to the problem of siting these air conditioning units.

Representation:

Mr. Peter M.C. Lo, instructed by m/s Lo, Wong & Tsui for the Plaintiff

Mr. N. L. Sarony, instructed by m/s F. Zimmern & Co. for the Defendant