Metro City Management Ltd v. Tsui Fee Hung Vincent and Another

HCA 4327/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4327 OF 2003

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BETWEEN

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Before: Recorder Edward Chan, SC in Court

Dates of Hearing: 5-6 January 2005

Date of Judgment: 13 January 2005

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J U D G M E N T

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1.Metro City is a property development at Tseung Kwan O.  Phase II of this development consists of 11 residential blocks erected on a podium.  There are various floors below the podium level used as shops, car parking areas and other non-residential purposes.  Each of the residential blocks stands on the podium.  (I would have to make it clear that when I use the word “podium” in the last 3 sentences, I use the word in its ordinary meaning and sense.  This may not be the meaning of the word when used in the Deed of Mutual Covenant (the “DMC”) in this case).  What is identified as the first floor of the block is in fact the first level of the building used for residential purposes.  The blocks of residential flats are called Towers in the assignments.  For each of the blocks, there is also a flat roof at the same level as the floor of the first floor of the block so that access to the flat roof could be gained through some of the flats on the first floor. This action concerns flat G on the first floor of Tower 4 and the flat roofs immediately adjacent to it.   In fact for Flat G, there are 2 flat roofs adjacent to it.  The bigger one is the one adjacent to flat H and access to this flat room is through a French window at the living room of the flat.  There is another smaller flat roof, which is at the side of flat F.  Access to this smaller flat room is through a door next to the kitchen of the flat.

2.By an assignment dated 3 June 2000, the Defendants became what is commonly called the registered owner of flat G on the first floor and the flat roof appertaining to it of Tower 4 of Metro City.  The description of the property assigned to the Defendants is as follows:

“ALL THOSE 593 equal undivided 2,300,000^th parts or shares of and in ALL THAT piece or parcel of ground registered in he Sai Kung new Territories Land Registry as TSEUNG KWAN O TONW LOT NO 27 (which for the purposes of identification is hwon on the Site Plan hereto attached and thereon coloured Pink)(“the Lot”) And of and in the messuages erections and buildings constructed thereon now known as “METRO CITY PHASE II” No. 8 Yan King Road, Tseung kwan O, Sai Kung, New Territories, Hong Kong (“the Estate”) TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THOSE Flat G on the First Floor and Flat Roof appertaining thereto of Tower 4 of the Estate as shown on the floor Plan hereto attached and thereon coloured Pink.”

3.There was also an exception and reservation to the property assigned and the relevant part of the exception and reservation is in the following terms:

“Exceptions and Reservations:-

(ii)     Except and Reserved unto the Vendor its successors in title and assigns other then the Purchaser the right to the exclusive use occupation and enjoyment of the whole of the Estate SAVE AND EXCEPT

(a)    the Property; and

(b)   such areas and facilities (if any) as defined and designated as Common Areas in the Deed of Mutual Covenant and Management Agreement or are intended for common use.”

4.The Plan attached to the assignment is a 2 dimensional plan.  On this plan the whole area of the flat G and the flat roofs next to it are coloured pink.  The wall separating the flat and the flat roof outside is denoted by just a line.  The pink colour is there on either side of the line.  “The Property” in fact referred to the whole of the property assigned to the Defendants under the assignment.  Of course the property assigned is expressly made subject to and with the benefit of the DMC.

5.In September 2000, the Defendants erected or caused to be erected 3 retractable canopies which if extended would cover part of the flat roof area of his property.  The first one (canopy 1) extended from the exterior of the wall or beam above the French window of the living room.  The size of this canopy 1 is about 10 feet wide (i.e. along the frontage of the French window) and it can be extended for about 6 feet into the flat roof.  The second one (canopy 2) is erected above the exterior of the wall above the window of a bed room facing the larger flat roof, and it is about 3 feet wide and can be extended for about 3 feet.  The third one (canopy 3) is about 18 feet wide and can be extended for about three and a half feet covering a large part of the smaller flat roof facing flat F.  There is also a fixed canopy which is trapezium in shape.   The 2 parallel sides of the trapezium are of approximately 2 feet and 4 feet and the distance between the 2 parallel sides is about 4 feet.  

6.In view of the pleading, the Plaintiff would not contend that in fact the frames of the canopies was bolted to the wall at spots above the level of the ceiling slab of first floor flat G.  Instead the argument in this case before me proceeded on the basis that the frames are bolted at a level within the height of the Defendants’ flat.

7.There is no suggestion that any of the canopies were erected in breach of the Building Ordinance.  The arguments before me proceeded on the basis that they were all exempted building works.

8.According to the Defendant, at first he put up canopy 1 and the fabric used was green and blue in colour.  However after some contacts with the management company, he changed the colour of the fabric to pink and white.  He then erected canopy 2 and canopy 3 which were both pink and white.  At the time he was given to understand that the management company would prefer canopies to be in pink and white.  Hence he made the change.   After about 2 years, he had disputes with the management company over the issue of canopies and he found that the management company was opposed to any canopy regardless of the colour.  As a result, when he found that he had to replace his canopies, he replaced all 3 of them with blue and green fabric as those were the colours of his choice. 

9.I would like to record that as the Defendants have through out these proceedings acted in persons, I have pointed out to the first named Defendant that the evidence relating to his dealing and contacts with the management company may be relevant to a defence of waiver and estoppel but if he would like to rely on such defence, he would have to amend the Defence to expressly plead such defence.  The first Defendant indicated that he did not want to amend the Defence and did not want to rely on such defence.   Hence I have also ruled that the Plaintiff is not entitled to probe into the details of the dealing and contacts between the Defendants and the management company over the fabric issue as such evidence would not relevant to the present case.

10.The Plaintiff’s case is that the canopies were erected in breach of the DMC and for that reason, the Plaintiff asked for a mandatory injunction for their removal.  The Defendants contended that there was no breach of the DMC properly construed, and that in any event, even if there was any breach, no injunction ought to be granted because the canopies were necessary for the protection of the Defendants from falling objects from the floors above.   Furthermore the Defendants also counterclaim against the Plaintiff for various relieves.  Some of the relieves relate to the description of their properties and others are directed against the Plaintiff for not taking effective measures to protect the building safety.

11.The Plaintiff’s case is that the Defendants were in breach of the following clauses in the DMC:

“Clause B1 – No external signs, etc. allowed

No external signs, signboards, notices, advertisements, flags, banners, poles, cages, shades, sculptures, or other projections or structures whatsoever extending outside the exterior of any of the Towers shall be erected, installed or otherwise affixed to or projected from any part of the Towers.

Clause B2 -   No alteration of external appearance

Air-conditioning units shall only be placed at the spaces provided and no Residential owner shall do or permit to be done any act or thing which may or will alter the external appearance of the Towers.

Clause B9 -   Restrictions regarding Residential Common Areas

No part of the Residential Common Areas shall be obstructed or incumbered nor shall any refuse be placed thereon.  No part of the Residential Common Areas can be converted to one’s own use Provided (sic) such conversion is sanctioned by the Owners’ Committee and no Residential Owner shall do or permit or suffer to be done anything in the Residential Common Areas as may be or become a nuisance or cause annoyance to any other Residential Owners.”

The claim under clause B1

12.The Plaintiff’s case under this clause is simple.  It is contended that the canopies would clearly fall within the meaning of “other projections or structures” and that they extended outside the exterior of Tower 4 and that they were affixed to Tower 4.  

13.The Defendants’ contention is that first the clause properly construed only deals with the erection or affixing of advertising signs or objects for advertising or commercial purposes.  Further it is contended that the canopies had not extended to the exterior of Tower 4 because they only extended to a space the right of exclusive use and occupation of which is granted to the Defendants.   Further or alternatively, it is contended that because of the definition of “Towers” in the DMC, the canopies were not affixed to any part of a tower as defined in the DMC and it must also follow that where the canopies extended could not be the exterior of any tower (as defined in the DMC).  Thus on this covenant, there are 2 main issues:

(a)    what is true ambit of the clause, whether it is limited to signs and objects connected with advertising or commercial purposes only,

(b)    whether the canopies extended to the exterior of a tower.

14.The Defendant relied on the decision of Taikoo Shing (Management) Ltd v Trillon (HK) Ltd. [1997] 4 HKC 304.   It is a case where the management company sought an injunction against the owner of a top floor and the roof for the removal for certain structures erected by the owner at the balcony of the flat and also on the roof.  What the owner did was to erect a partially enclosed metal frame that was anchored on and stretched over almost the entire roof.  For the balcony, the owner put window frames and glazing to enclose the entire balcony.   One of the clauses in the Deed of Mutual Covenants relied on the by management company was in the following terms:

“[clause 18(a)]…. No external signs, signboards, notices, advertisements, flags, banners, poles, cages or other projections or structures whatsoever extending outside the exterior of the buildings or any boundary walls shall be erected, installed or otherwise affixed or projected from the premises of any owner or any part of the said buildings in common ownership, and no washing, clothing or other articles shall be hung, dried or otherwise exposed outside any of the said buildings except in the places specifically provided for such purposes.”

On the effect of this clause Deputy Judge ZE Li said (at page 308B-C):

“In my view, clause 18(a) does not apply to the present case.  The list of prohibited articles or thing there, i.e. external signs, signboards, notices, advertisements, flags, banners, poles, cages or other projections or structures, defines a genus of advertising devices.  The present roof structure and the balcony enclosure clearly do not belong to such genus”.

15.In my view, although there are a lot of similarities between clause 18(a) in the Taikoo Shing case and clause B1 of the present case, there is a material difference in that “shades” and “sculptures” were included amongst the various objects or structures listed in the present clause B1.  Plainly with the inclusion of “shades” and “sculptures” amongst the list of prohibited objects or structures, it is impossible to say that there was a genus amongst the prohibited objects or structures that they are all for advertising or commercial purposes.  I agree with the Plaintiff’s contention that “canopy” should be treated as being within the genus of “shades” so that the canopies in the present case would be properly included in the words “projections or structures whatsoever”.  I would thus conclude that the canopies in the present case are within the list of prohibited objects or structures in clause B1.

16.The next question is whether the canopies extended outside the exterior of any Tower, and an associated issue is whether it is affixed to any part of the Tower.

17.The DMC contained the following provisions on the definition of “Podium” and “Towers”:-

““Podium” – The 8-level podium complex in the Estate comprising basement levels 1 and 2, ground floor level, mezzanine floor level, levels 1 and 2, deck level and first floor level as shown on the Approved Plans.

“Towers” – The eleven residential towers erected on top of the Podium and known as Towers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of Metro City, Phase II and in the singular means one of the Towers.”

18.The contention is that the Defendants’ first floor flat G is not part of a Tower as defined in the DMC.   This is because the floor below the Defendants’ flat is the deck level of the podium.  Since the podium is defined to have 8 levels, the first floor level (i.e. the level of the Defendants’ flat and flat roof) is part of the podium.  As “Towers” is defined to mean the towers erected on top of the podium, hence the “tower” would only start from the 2^nd floor.  Since for the purpose of this litigation, it is conceded in the canopies are bolted at a point below the 2^nd floor level of Tower 4, the canopies are not affixed to “any part of the Towers”, nor are they extended to the “exterior of any of the Towers”.

19.The Plaintiff’s case is that the Defendants’ property is part of a tower viz. Tower 4 because although podium is defined to be the 8 level podium complex consisting of 8 levels, emphasis should be placed on the words “podium complex”.  This would refer to a particular complex and this complex is the one below the 11 towers of residential flats.  Although the definition described this complex as having 8 levels there is no requirement that every part of this podium complex would have to have 8 levels.  While at the part of the podium where the towers of residential flats are found there are only 7 levels (i.e. up to the deck level only) my attention is drawn to the fact that at other part of the podium complex where the club house is, there are in fact 8 levels.   In fact this is clear from the definition of “Club House” in the DMC:

““Club House” – The covered area designated as Club House at the deck and first floor levels of the Podium shown on the Approved Plans including the facilities therein and also the open-air swimming pool, sun deck and children’s swimming pool adjacent thereto…..”.

20.Thus it is contended and I accept the argument, that when “Towers” is defined to be the residential towers erected on top of the Podium, it does not mean that the towers would have to be on top of the first floor level of the podium and that not every part of the podium would have a first floor as the 8^th level of the podium.  Furthermore this construction would receive support from the First Schedule to the DMC which sets out the allocation of shares to various units or parts of the Estate.  From this schedule it can be seen that there are references to each of the 11 residential towers.  For Tower 4 for instance, there are 38 levels starting from the first floor.   If “Tower” in the context of the DMC is to be understood as starting from only the 2^nd floor of the block, then “Tower” 4 in the schedule could not have 38 levels. 

21.Furthermore “Residential Development” is defined in the DMC to mean “The Towers and the Residential Common Area and Facilities as more particularly indicated on the Approved Plans”.  If the Defendants’ property is not part of a tower because a tower (as used in the DMC) would only start from the 2^nd floor level, it would follow that the Defendants’ property would not be within the residential development as defined in the DMC.  Plainly, however, the first floor flats of any of the residential blocks could not be with common area or commercial development.   In the premises, the only logical conclusion is that the assumption that a Tower as defined in the DMC should only begin from the 2^nd floor level of a residential block must be wrong.

22.Accordingly I am of the view that the canopies are affixed to part of the Towers for the purpose of clause B1 of the DMC.

23.The next issue is whether the canopies extended to the exterior of any of the Towers.  The Defendants’ contention is that they do not because they only extend to a volume of space the exclusive right for the use and occupation of which had been assigned to the Defendants.  The contention is that since it is a canopy within the property of the Defendants it cannot have extended outside the exterior of the Tower.

24.The Plaintiff does not challenge that in additional to having the right to the exclusive use and occupation of the volume of space between the floor slab and the ceiling slab of flat G on the first floor of Tower 4, the Defendants also have the exclusive right to use and occupy the volume of air space above the flat roofs coloured pink on the plan annexed to the Defendants’ assignment of 3 June 2000 up to a reasonable height level.  It is also common ground that the reasonable height level is up to the floor level of the 2^nd floor of the same Tower.   Thus there is no challenge by the Plaintiff that the canopies even when extended in fact only occupy spaces within the volume to which the Defendants have the exclusive right to use and occupy by reason of assignment.   However the Plaintiff contends that area or space so owned by the Defendants could still be an exterior part of Tower 4. 

25.In Hong Yip Service Company Ltd. v Ng Wai Man  (CACV 159 of 1988), the management company sought an injunction against the owner of the top floor and the roof of a building, requiring the owner to remove three external radio aerials which were affixed to poles which extended about 6 feet above the parapet walls of the roof, on the ground that the erection of the aerial was in breach of the terms of the deed of mutual covenants of the building.  One of the clauses relied upon by the management company was to the effect that no post or other projections or structures whatsoever extending outside the exterior of the building shall be erected, installed or otherwise affixed to or projected from the building or any part thereof except with the written consent of the Manager.  The Court of Appeal held that the aerial in question was in breach of this clause.  Power JA said:

“[Counsel for the owner submitted that] when a building such as this is constructed with a flat usable roof by developers who intend to transfer that roof as usable space, the transfer must be taken to include not only the roof but also a limited portion of air space above it.  He argues that, when Clause 16 speaks of “the exterior of the building”, the exterior must be taken to mean and include that limited portion of air space.  He submits that these aerials were within that limited portion of air space and do not, therefore, extend beyond the exterior of the building and are not caught by the covenant.

We accept that the defendant has a right to the use of limited air space above the roof.  However the exterior of the building referred to in Covenant 16 is, in our view, defined by the boundaries delineated by the external walls and not by any right to use of air space.  The aerials do, we are satisfied, extend beyond those boundaries and do, therefore, extend outside the exterior of the building and are caught by the covenant.”

26.I am bound by the decision of the Court of Appeal.  Although the canopies were erected within a space where the Defendants had the exclusive right to use and possess, they had nevertheless extended to the exterior of the Tower.  As a matter of logic, there is nothing to prevent a co-owner of a building to be given the exclusive right to use and occupy an exterior part of a building.  Thus the mere fact that the canopies are within a space where the Defendants have the exclusive right to use and occupy does not mean that the canopies could not be extending outside the building.  I would therefore hold that the canopies are “projections or structures extending outside the exterior of” Tower 4” and they are “erected, installed or otherwise affixed to or projected from” Tower 4.  In the circumstances, I am of the view that there was a breach of clause B1 of the DMC.

27.Since there is a clear breach of one of the negative covenants, it is strictly speaking not necessary for me to consider whether there were also breaches of other covenants.  However as the points had been exhaustively argued before me and the parties have requested me to deal with them, I will also indicate my views on the issues raised in relation to other covenants.

The claim under clause B2

28.The Plaintiff’s case is that by erecting the canopies, the Defendants had done an act which “may or will alter the external appearance of the Towers”.  It is a question of fact as to whether the canopies were so prominent that a reasonable man would conclude that the external appearance of Tower 4 may or will be altered by the presence of the canopies.

29.The Defendants’ contention is that clause B2 should be construed in such a way that the second part of the clause namely “no Residential Owner shall do or permit to be done any act or thing which may or will alter the external appearance of the Towers” would only prohibit the residential owners from doing things which are within the “genus” of putting up “air conditioning units”.   Furthermore it is contended that factually the presence of the canopies should not be considered as altering the external appearance of the Towers.

30.In support of his first contention, the Defendants again relied on the decision of Deputy Judge ZE. Li in the Taikoo Shing case.  There the court would have to consider the effect of a covenant providing that “no owner shall paint the outside of any building or do or permit to be done anything which would in any way alter the façade or exterior appearance of any of the said buildings”.  The Judge’s approach appeared to be that the words “do or permit to be done anything” must be interpreted as doing things which were within the genus of “painting”. He had certain difficulty in applying the ejusdem generis rule because there was hardly any action which was not painting but which could nevertheless be regarded as within the genus of painting.   In the end the Judge held that the structure erected on the roof could be regarded as the result of paint even though no actual painting has been done on the roof on which the structure stood. (see page 308D-F).  

31.I do not think that the Taikoo Shing case would throw any light in the interpretation of clause B2.  If a clause provides that some one is “not to do “X” or anything which would alter the exterior appearance of a building”, I do not think there is any scope for the application of the ejusdem generis rule because no genus could be derived from just the one act “X”.  In the Taikoo Shing case, the difficulty which the Deputy Judge found himself in was due to an attempt to apply the ejusdem generis rule when plainly it was not appropriate to apply that rule.

32.In any event, the sentence structure of clause B2 is different from that in the clause considered by Deputy Judge ZE Li.  I would construe the clause B2 as being capable of splitting into 2 separate parts.  The first part enjoins owners to place air conditioners only at the spaces provided.  The second part starts after the conjunction “and” and it seeks to prohibit owners from doing any act or permitting any act to be done which may or will alter the external appearance of the Towers.  The acts prohibited by the second part of the clause need not be related to air conditioners at all. 

33.The next issue is whether the erection of the canopies in this case was an act which may alter the external appearance of “the Towers” (emphasis added).

34.If the second part of the clause is to be construed widely, it could have the effect of preventing the most reasonable use of the flat roof.  For instance, if the Defendants were to walk or stand on the flat roof, it is arguably that the Defendants have done an act which may alter the external appearance of Tower 4 because the appearance of the Tower would be altered by the presence of 2 human beings who are visible from outside the Tower.  Likewise, if the Defendants were to place some deck chairs and a beach umbrella on the flat roof to enjoy their outdoor afternoon tea, it might be argued that they are in breach of this covenant because the umbrella and the deck chairs are clearly visible from the deck level below and from flats above in the same Tower or in some other Towers.  Worse still the prohibition is unconditional and there is no power on the part of the Manager to give approval for the acts to be done. 

35.To avoid any absurdity, counsel for the Plaintiff submitted that (a) the prohibited acts must be something done to the Towers, and (b) the clause should be interpreted reasonably so that things which are not reasonably regarded as affecting the external appearance of the Towers should not be regarded as being caught by the clause.   I have no doubt that the clause ought to be interpreted strictly and reasonably so as to avoid any absurdity.  However I doubt whether it is right to narrow down the width of the clause by restricting the prohibited acts to those acts done to the Towers.  At any rate, what are to be regarded as acts done to the Towers as opposed to acts done at the Towers or at any part of the Towers?

36.Unlike clause B1, in clause B2 the prohibited acts are not restricted to the affixing or erection of projections, articles or structures to the building.  All that is mentioned is that the owners shall not do any act which has a certain effect on the external appearance of the Towers.  I see no justification for interpreting clause B2 as only prohibiting those acts which involve the affixing or erecting things which are somehow attached to the structure of a Tower.  Further, there is nothing in clause B2 to restrict the prohibited acts to acts done at the units owned by the owner.  In my view, particularly in view of the use of the plural form “Towers” in the clause, clause B2 obviously is intended to address the problem of some residential owners doing things which may be outside their own units and which may affect the external appearance of the Towers.

37.Also unlike clause B1 which speaks of “the exterior of any of the Towers” and “any part of the Towers”, clause B2 speaks of the alteration of the external appearance of the Towers.   The definition of “Towers” in the DMC makes it clear that “Towers” in the plural form would refer to the 11 residential towers.  There is little room for the argument that the plural would include the singular in the context of clause B2 in this DMC because the definition also makes it clear that “the singular means one of the Towers”.   Thus I am of the view that when clause B2 speaks of any act which may alter the external of the Towers, what is contemplated is any act or acts which may alter the external appearance of all the 11 towers when viewed as a whole and not just acts which may alter the appearance of a single tower when viewed in isolation.   Had it been the intention of the draftsman that the position of any single tower should be looked at, the draftsman would have used the phrase “any of the Towers” as in the case of clause B1.  I see no particular reason why the word “Towers” in clause B2 should not be given its defined meaning.  In section B of the DMC where this clause is found, there are a number of clauses providing for restriction and prohibitions directed at different kinds of activities for the protection of the external appearance and façade of the Estate.  

38.Thus I am of the view that the second part of clause B2 should be construed as referring to any acts done or permitted by any residential owner, which may have the effect of altering the external appearance of the 11 residential towers viewed as a whole.   Of course this would not mean that the appearance of each of the 11 towers would have to be altered before the acts would fall within the prohibition of this clause. 

39.Logically an act which alters the external appearance of a unit in a tower will also affect the external appearance of the tower even though the effect on the external appearance of the tower as a whole would be much reduced.  Likewise if one were to consider 11 towers as a whole, the effect of the act on the external appearance of the 11 towers as a whole would be further reduced.  There can be no dispute that a reasonable latitude should be allowed when considering whether the external appearance may be altered.  A structure which would not fall within the de minimus rule if the issue is whether the external appearance of a flat is affect by it, may fall within the rule if one is to consider the external appearance of the Tower as a whole or all 11 Towers as a whole.  

40.It is question of fact whether the canopies should be considered as having altered the external appearance of the 11 towers as a whole.  In this regard, each case must be considered in the light of its own facts and the wordings of the relevant covenant, and I do not find the decision reached in other cases like the Taikoo Shing case or the Hong Yip Service Company Ltd case to be useful.  

41.From the photographs I note that the canopies are clearly visible in the context of a photo of external appearance of flat G of Tower 4 and it is also visible from the flats immediately above flat G of Tower 4.  If the question is whether the acts of erection of the canopies may alter the external appearance of the Defendant’s unit, my answer is definitely yes.  Bearing in mind that the first floor of Tower 4 here is somewhat set back from the podium and even recognizing that there would be someone passing through the deck level of the podium who may be able to see the canopy, I do not consider that when viewed from the deck level of the podium the canopies, especially canopy 2 and the fixed canopy, are very prominent.  I am not inclined to the view that the erection of the canopies should be considered as having an effect of altering the external appearance of Tower 4 consisting of 38 floors with 8 flats on each floor, as a whole.  For the same reason, since I consider that clause B2 is directed as the alteration of the appearance of all 11 towers as a whole, I am of the view that the canopies at the Defendants’ unit were plainly de minimus, and I do not find that there is any breach of clause B2.

42.I would mention that the Plaintiff’s counsel has contended that when considering the effect of the Defendants’ act of the erection of the canopies, I should not take the Defendants’ act and their canopies in isolation, I should take into account the possibility that if I rule that the Defendants’ canopies do not alter the external appearance other owners of the first floor flats from all the towers would follow suit and there will be many more canopies and they collectively would alter the external appearance of Tower 4 and all the towers as a whole.  I reject such contention.  I am not persuaded that the fact that other owners may follow suit should be considered as an effect of the act of the Defendants in erecting their canopies.  The question of the effect of other owners’ erecting similar canopies may be relevant to the consideration of whether an injunction ought to be granted as a matter of the exercise of my discretion, but it is not relevant to the question of whether there is any breach of the covenant by the Defendants.

The Claim under Clause B9

43.The main issue here is whether the wall to which the canopies were anchored is part of the Residential Common Areas.  If it is, then the question would be whether the anchoring or affixing of the frames of the canopies to the wall would amount to

(a)     obstructing or incumbering any part of the wall;

(b)    converting the part of the wall where the frames of the canopies were affixed to the Defendants’ own use; or

(c)     an a act which may be or become a nuisance or cause annoyance to any other residential owner.

“Residential Common Areas” is defined in the DMC as follows:

“Those parts of the Residential Development (as hereinafter defined) not otherwise specifically assigned to or for the exclusive use of any one or more Residential owners, including but not limited to the 11 lorry parking spaces and ….entrances and staircases serving exclusively the Towers and flat roofs (unless specifically assigned), roofs (unless specifically assigned), the architectural features and associated lighting attached or affixed to the parapet walls of the roof of each Tower, residential shuttle lift lobby, open space, external walls of the Towers and lobbies in the Towers….”

44.It is plain that if the wall in question is within the part which is specifically assigned for the exclusive use of the Defendants, then even though the wall may be part of the external wall of Tower 4, it is not part of the “Residential Common Areas”.  Hence the main issue here would boil down to whether the wall is within the area or the space where the Defendants had the exclusive use by reason of the assignment.

45.The description of the property assigned in the assignment does not make any express reference to this wall.  Reference to the agreement for sale and purchase would reveal that the salable area of the property agreed to be sold to the Defendants would include the whole wall in question.  This is because the saleable area of a flat is so calculated that measurement is to be taken from the exterior side of its enclosing wall, unless the wall is one which separated 2 units in which case measurement is to be taken from the middle of the wall, and any internal partitions and columns within a unit is included as the saleable area of the unit.  In the case of flat roof, the area of the flat roof is to be measured from the interior boundary line so that if the boundary is a wall, it is to be measured form the interior of the wall.   Whether the wall is to be considered as an internal partition wall or as the enclosing wall of flat G, plainly the whole wall is included as part of the saleable area of the unit sold to the Defendants.

46.In the description of the property to be sold in the agreement, there is the following exception and reservation:

“EXCEPTING AND RESERVING unto the Vendor and its successors and assigns other than the Purchaser the right to the exclusive use, occupation and enjoyment of the whole of the Development including the external walls (if any) of the Property SAVE AND EXCEPT

(a)   the Property

(b)   such areas and facilities (if any) as may be designated as common areas or common parts and facilities in the Deed of Mutual Covenant or are intended for common use.” (emphasis by italics added)

47.Counsel for the Plaintiff argued that if one refers to schedule 5 of the agreement, one can see that provision for fitting and finishes stating that the external walls of the residential towers would be finished with glazed ceramic tiles; that of the podium would be finished with curtain walling matched with granite and “stone-like” sprayed on coatings.  Counsel argued that since the wall in question was finished with ceramic tiles, therefore it would tend to show that the wall is an external wall of Tower 4 and is Residential Common Areas.  

48.I would consider that even if the “external wall of Tower 4” could be equated with the “external wall of the Defendants’ property”, counsel’s argument is flaw because the fact that the external wall of a tower is to be finished with ceramic tiles, does not mean that all walls finished with ceramic tiles are the external walls of a tower.

49.At any rate, the description of the Defendant’s property in the agreement would show that if the wall in question is an external wall of the Defendants’ property, then it would not be part of the property agreed to be sold to the Defendants.   The property agreed to be sold to the Defendants would include both the flat and the flat roof.  The first schedule to the DMC makes it clear that “flat G and the flat roof appertaining thereto” is intended to be regarded as one unit. 

50.In the circumstances of this case, while it may well be argued forcefully that the wall in question may be regarded as an external of Tower 4, I do not think it right to regard it as an external wall of the Defendants’ property.   The idea of having a common area within one’s property is an unattractive one.  Given that either side of the wall is occupied exclusively by the Defendants it is difficult to see how any other owners of  Metro City may properly enjoy and make use of the wall.   Hence I am of the view that the wall in question is not part of the Residential Common Areas. 

51.If however, the wall in question is part of the Residential Common Areas, then I am of the view that by affixing the frames of the canopies to it the Defendants had converted that part of the wall where the frames were affixed to their use.   Since the words “obstructing” would connote a kind of use of the wall, in view of the fact that no other co-owners would have any conceivable use or access to the wall, I am not convinced that there was an obstruction to the wall.   Nor do I think that the affixing of the canopies would constitute incumbering of the wall.  There is no evidence that the canopies may constitute any nuisance or annoyance to any other residential owners.

52.In conclusion, my view is that there was no breach of clause B9.

Discretion

53.The Defendants argued that it is necessary for him to construct the canopies for protection from falling objects from the flats above.  I accept that there were many instances of the owners of the flats above throwing objects out from their flats or otherwise allowing objects to fall from their flats.  On the other hand, I am satisfied that the Plaintiff had done all that can reasonably be expected from it as the manager of the Estate.  The situation is really caused by the selfish and inconsiderate behaviour of some of the owners of the flats above.

54.The general approach of the court in the case of a breach of a negative covenant is that prima facie the court would enforce the covenant by granting an appropriate injunction unless there is a good reason for not doing so.  In the present case, I have considerable sympathy for the Defendants who may have to suffer from the acts of some inconsiderate co-owners.  However I do not think that the circumstances here could justify me to withhold the grant of an injunction in the light of the authority.   An identical situation as the present one occurred in Hong Kong Land Company Ltd. v Cheung Chiu Moon (OJMP NO. 523 of 1975 unreported), where Cons J decided that an injunction ought to be granted.  Cons J said:

“As a final hope the defendant seeks to justify his canopy as a proper answer to the plaintiff’s failure to prevent upstairs owners from throwing rubbish down in contravention of section 19 of the Deed of Mutual Covenant.  There is no evidence as to the extent of this nuisance but even assuming it to be substantial I do not think the defendant can be justified in abating it in a way that is itself in breach of his own obligations.  Furthermore I am satisfied on the affidavit of Mr. Edwards that the plaintiff has done all that can reasonably expected of him in this respect”.

55.Although strictly speaking I am not bound by the decision in the Hong Kong Land case, the decision has stood for over 25 years and I have no reason to consider that it was per incuriam. I should follow the decision.   I would therefore give judgment for the Plaintiff and would grant an injunction in terms of paragraphs (1) & (2) of the Statement of Claim.

The Counterclaim

56.I refer to the counterclaim made in paragraph 47 of the Defendants’ Defence and Counterclaim.  I do not think that there is a proper cause of action pleaded to warrant the relief set out in paragraph 47(1), (2) & (3).   In relation to paragraph 47(3), I am not satisfied that the Plaintiff has failed to do everything which is reasonably expected of it as manager to the Estate and accordingly I am not minded to grant any declaratory or injunctive relieve against the Plaintiff.  At any rate, an injunction in terms that the Plaintiff as manager shall take all effective measures to protect the building safety is hardly enforceable as the same is too vague. 

Cost

57.Paragraphs 47(5) & (6) relate to cost.  On this issue, since the Plaintiff is substantially successful, I will order that the Defendants shall pay the Plaintiff’s cost of this action on party and party basis.  For the avoidance of doubt, I will dismiss the Plaintiff’s claim for cost on a solicitor and own client scale.  The clause relied upon by the Plaintiff is simply not applicable to the factual situation in the present case.  In all fairness to the Plaintiff, its counsel had not pursued any such claim.  I will also dismiss the counterclaim.

Mr William Wong, instructed by Messrs Pang & Associates, for the Plaintiff

Tsui Fee Hung Vincent in person, present

Lam Wai Fan in person, absent