The Incorporated Owners of Wah Yuen Chuen v. Leung Ching Kong Norman

LDBM 189 OF 2004

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT Application No. 189 of 2004

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Between

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Before: H. H. Judge Yung, Presiding Officer of the Lands Tribunal

Date of Hearing: 7, 8 & 11 April 2005

Date of Judgment: 15 April 2005

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J U D G M E N T

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Background

1.The Applicant (“IO”) is the owners incorporation of a housing estate.   In early 2001 the management committee of IO conceived a renovation plan to remove “ the pipes”, namely, flush water pipes, sewage pipes, waste pipes and vent pipes from the indoor ducts  and install new pipes to take their place on the external wall. IO had accumulated surplus funds to cover the intended relocation work.  Discussion on related matters, like the scope of work required, the budget cost for the project, the selection of consultant and contractor, were held and resolutions passed at various corporation meetings. Miss Ma, counsel for the Applicant, conveniently summarises it in her written opening the consequences of these resolutions affecting the owners of flat A and C are:

(1)	demolition of the existing walls and concrete material enclosing the duct area at the bathroom;
(2)	reinstatement work to be done thereafter at the duct area;
(3)	cutting of existing floor slab, and removal of existing sanitary facilities in order to accommodate the disconnection and relocation of the pipes;
(4)	reinstatement work to be done thereafter at the bathroom; and
(5)	any existing interior design and structure at the bathroom might have to be varied, demolished and /or replaced.

The Respondent is one of the owners so affected.   The respondent is required to bear the cost of some of these items, in particular the restoration of the floor slab inside the bathroom and, the demolition and restoration of his sanitary facilities.   It is not in dispute that these items are the private property of the Respondent. 

2.Relocation of the pipes in fact involves removing the old pipes and discarding them, and installing new pipes on the external walls of the building. Removing the old pipes required entry into the flats of owners.  It is alleged that the Respondent has failed and /or refused to permit the contractor to enter the premises to effect the necessary renovation work.

3.By these proceedings the Applicant is seeking a declaration that all the resolutions relating to the project of relocation of pipes were validly passed and an injunction order compelling the Respondent to permit the Applicant contractor to enter his flat to effect the renovation work.

Pleadings and Evidence

4.The Respondent does not dispute that the resolutions were passed with due compliance with all procedural requirements.  He only contends that these resolutions are not binding upon him in so far as requiring him to destroy his property.  In the strict sense he is not disputing the validity of these resolutions.  

5.The Respondent is contending that IO has no right to require him to renovate his property at his own costs. The resolutions are therefore null and void to this extent.

6.On the pleadings there is only one cause of action for the injunction order. It is alleged that the Respondent has been in breach of clauses 3(e) and 4(y) of the DMC which provide that:

3.	Each owner shall hold his part ---subject to –the following rights privileges and obligations namely
	(e)	Full right and privilege for the Manager---workmen and others at all reasonable times on notice (except in case of emergency) to enter into and upon each part of the Estate for the purpose of rebuilding, repairing, renewing, maintaining, cleansing, painting and decorating the Estate or any parts thereof or any fire fighting equipment, sewers, drains, watercourse, ---used or installed for the benefit of the --- building or any party thereof as part of the amenities thereof and not by any individual owner for his own purpose or enjoyment.
4.	Each owner shall be bound and shall observe and perform the following covenants provisions and restrictions:-
	(y)	The Manager will on reasonable notice except in emergency be allowed to enter units of the owners for the purpose of effecting necessary structural repairs and repairs to the Common Parts and Common Facilities.

7.Leaving aside for the moment the question of destroying the private property of the Respondent, I do not find IO has proved its case.  Its witness, when pressed to give details of failure of the Respondent to allow IO access to his flat, could only mention two occasions.  On one occasion someone telephoned the Respondent, presumably at his flat and no one answered the call.  The other occasion is a personal call at his flat and no one answered the door.  It is not clear what exactly the purpose of these two calls were.   The evidence as it stands does not prove the alleged breach at all.  I drew Miss Ma’s attention to the unsatisfactory state of evidence during her final submission. After taking instructions from IO, she declined my invitation to her adducing further evidence on the point of the Respondent’s refusal to give IO access to his premises.

8.It is true that the Respondent has not returned a reply slip (p.121 of the Agree Bundle) to indicate his willingness to participate in the pipe-relocation work.   The unwillingness of the Respondent to participate in the work, particularly as represented by the failure to return the reply slip is in fact the real complaint of the witness and must also be the real complaint of IO.    The failure to indicate his willingness to take part in the work, or his objection to the work by overt conduct does not, by itself or together with the above two unsuccessful calls, constitute breaches of clause 3(e) and 4(y).

9.In a similar situation an owners incorporation should have worked out a definite date or dates, and time required to be spent in the flat on these dates, so that reasonable notice can be given to the owner.  If the owner still fails to give access without good cause, he would be in breach of the clauses.     This has not been done by IO, its claim for injunction must fail.

Genuine issue in dispute

10.The genuine dispute between the parties is over the right of IO to demolish the sanitary facilities of the Respondent leaving  him to restore them at his own costs.     Once this issue is decided,  there  will be no need for an  injunction order which IO is not entitled to have in any event.

11.The pipes are common facilities. IO has the statutory authority of undertaking the relocation of the pipes.  The provisions in the DMC confers similar authority.  All these are not in dispute.  The former chairman of IO gave lengthy evidence on his view and the view of the then management committee to justify the need and necessity for the project.   This is quite unnecessary.  I have no doubt about the bona fide of the management committee in this matter. What IO is relying on is the resolutions passed at the corporation meetings.   IO does not base its authority to undertake the project on the decision of the management committees.  The view of its individual members or the collective view of the committee and their bona fide are irrelevant.

12.The evidence given by the former chairman is a meagre attempt to prove that the relocation project is necessary and that there is no other alternative.  This end he fails to achieve.

13.Firstly, the necessity (in the sense that there is other alternative) for the project must be judged objectively.  The former chairman relies on the recommendation of a feasibility report by a consultant.   This report is not produced at the trial for reasons unknown.  The terms of reference of the report is unclear.  Looking at the discussion recorded in the minutes of the meetings, I accept that relocating the pipes outside has the advantage of easier and less costly maintenance. The other advantage is that it is less costly than installing the pipes in the same place where they were.  On the other hand it is not the case or it has not been shown to be the case that there is no other alternative. Common sense dictates that there is.

14.The former chairman and the other witness impliedly suggested that the project would solve the widespread leakage problems in bathroom of the flats concerned once the pipes were relocated to the external wall.  On examining the record of maintenance, the leakage from the pipes was not widespread at all.  The great majority of these leakage complaints have been attributed to the private sanitary systems of individual owners. All these complaints were dealt with satisfactorily by the handy man employed by IO and, incidentally he is not even a registered and qualified plumber.

15.The witnesses for IO were not frank in not admitting that the state of the pipes system in the private sanitary systems was one of their causes for concern.  Be that as it may, I accept the evidence of the Respondent that there was no leakage from his sanitary system, nor was there any into his flat from flats above.   IO cannot compel the Respondent to renovate or replace or change his sanitary system on the ground of leakage problems not caused by him.

16.Assuming that there is no alternative to demolishing the Respondent’s sanitary system in effecting the relocation plan, I cannot see any reason why the costs of restoring it should be borne by the Respondent.  If demolishing  the sanitary system is necessary, then the costs of restoring it would have become part of the relocation work.  IO has to bear the costs. The Respondent is right in maintaining that he should not be required to bear such costs.

17.Miss Ma appeals to my sympathy for IO. I accept that the duty of the management committee is onerous.    If the owners do not co-operate, it would be difficult for it to carry out its duty.   The management committee in this case has shown great organising effort and achieved considerable success in the project.  All its members and others who help them deserve praise from other owners even if IO is to lose the present case.  Despite the effort and conscientiousness of the management committee, the fact remains that IO has no right to override the proprietary right of the Respondent requiring him to restore the demolished sanitary system at his own costs.  I do not accept Miss Ma’s contention that I should balance the interests of the Respondent against that of other owners.  The whole project, she submits, is for the public good.  The concept of public good in building management is elusive.  Even if I should do the balancing exercise, in the instant case I can see nothing but monetary consideration.  The mere fact that a less costly project is for the public good is not sufficient.  Private rights should not be over-ridden by mere savings in costs. The balance should be tipped in favour of the Respondent. It would be better for those who are running the management of a building to guard against the temptation to run it like a commune where private rights must give way to the communal good. 

Conclusion

18.IO has no right, by its resolutions or otherwise, to require the Respondent to demolish and restore the sanitary system at his own costs. The balance of interest has no application in this case. And if it has, it should be decided in favour of the Respondent. The claim for injunction and declaration is dismissed.  I make an order nisi for costs in favour of the Respondent with certificate for counsel on High Court Scale to be taxed if not agreed.  

Ms. Anita Ma instructed by M/S Yeung & Chan, for the applicant.

Mr. Raymond Tsui instructed by M/S Ng, Lie, Lai & Chan, for the respondent.