The Incorporated Owners of Nos. 3-3e Wang Fung Terrace v. Law Chi Wing and Another
Read the full judgment text of DCCJ 230/2006 on BabelCite. This District Court judgment.
1. The Plaintiff is the incorporated owners of Nos.3-3E Wang Fung Terrace (the “ Estate ”). It was incorporated in 1978. The 1 st Defendant has been the registered owner of 2 nd Floor, No.3A Wang Fung Terrace (the “ Premises ”) since 1972 and is currently still the registered owner. The 2 nd Defendant was/is the tenant/occupier of the Premises.
Cited by 5 cases · Cites 2 cases
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DCCJ230/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 230 OF 2006 ____________ BETWEEN
____________ Before: Her Honour District Judge Marlene Ng in Chambers (Open to Public) Date of Hearing: 22nd March, 2006 Date of Handing Down Judgment: 28th March, 2006 _______________ JUDGMENT _______________ Introduction 1.The Plaintiff is the incorporated owners of Nos.3-3E Wang Fung Terrace (the “Estate”). It was incorporated in 1978. The 1st Defendant has been the registered owner of 2nd Floor, No.3A Wang Fung Terrace (the “Premises”) since 1972 and is currently still the registered owner. The 2nd Defendant was/is the tenant/occupier of the Premises. 2.The Plaintiff claims that in breach of (a) the Deed of Mutual Covenant in respect of the Estate dated 19th April 1962 (the “DMC”), (b) the House Rules in respect of the control, management and administration of the common parts of the Estate passed pursuant to a resolution of the Plaintiff (the “House Rules”) and/or (c) the Noise Control Ordinance Cap.400 (the “Ordinance”), the 1st and 2nd Defendants at a time unknown to the Plaintiff and without its consent or the consent of the management company, namely, Best Link Property Consultant Ltd (the “Manager”), kept and/or caused or suffered to be kept a dog (the “Dog”) in the Premises. 3.The 1st Defendant has not filed any notice of intention to defend. On 22nd February 2006 the Plaintiff’s solicitors issued a Notice of Intention to Enter Judgment pursuant to Order 19 rule 8A of the Rules of the District Court (the “RDC”). 4.The 2nd Defendant who acts in person admits the following :
5.The 2nd Defendant’s defence arguments are as follows :
Summonses 6.On 17th February 2006, the Plaintiff issued a summons for summary judgment against the 1st and 2nd Defendants (the “Order 14 Summons”) for an order that (a) the Defendants do remove the Dog from the Premises forthwith or within such time as this court shall deem fit, (b) the Defendants and each of them whether by himself his servant agent or otherwise in all future times be restrained from keeping a dog or dogs in the Premises and (c) costs (the “Reliefs”). 7.On 24th February 2006, the Plaintiff issued a summons for default judgment against the 1st Defendant for the Reliefs insofar as they relate to the 1st Defendant pursuant to Order 19 rule 7 of the RDC (the “Default Judgment Summons”) on the ground that no Defence has been served by the 1st Defendant. 8.The Plaintiff filed 2 affirmations of Juergen Horst Wolter (“Mr Wolter”) in support of Summonses. 9.The 1st Defendant was absent at the hearing. On 2nd March 2006, H H Deputy District Judge S Chan adjourned the Order 14 and Default Judgment Summonses (collectively, the “Summonses”) to 22nd March 2006 for argument before me. According to the affirmation of service dated 13th March 2006, the Plaintiff served the above Order of H H Deputy District Judge S Chan on the 1st Defendant by ordinary post to his usual and/or last known address on 9th March 2006. In the circumstances, I allowed the Plaintiff to proceed with the Summonses against the 1st Defendant. The 1st Defendant did not file any Defence or affirmation in opposition. 10.The 2nd Defendant appeared in person at the hearing before me. He has not filed any affirmation in opposition but made oral submissions to the court. Upon taking instructions, Mr Wong, counsel for the Plaintiff, confirmed at the hearing that (a) the Plaintiff would not take issue on the 2nd Defendant’s lack of verification by oath/affirmation in respect of the factual matters raised in his submissions and (b) I could take into consideration the 2nd Defendant’s submissions for the purpose of the Order 14 Summons against the 2nd Defendant. 11.In the course of the 2nd Defendant’s submissions, he revealed that the Dog would be permanently removed from the Premises on 25th March 2006 (ie 3 days after the hearing) prior to being exported to Ireland (see below). Upon taking instructions, Mr Wong informed the court at the hearing that the Plaintiff was prepared agree to such proposal. I therefore granted an order by consent that :
The Plaintiff and the 2nd Defendant were unable to come to terms on costs, so this was left for my determination. Since the above consent order was made out of practicality and without admission of liability, it behoves the court to have some consideration of the merits of the Plaintiff’s claim in order to determine the matter of costs. At the hearing, the Plaintiff and the 2nd Defendant stood on their submissions vis-à-vis the Summonses and asked the court to determine costs on such basis. Mode for determining the Plaintiff’s costs entitlement vis-à-vis the 2nd Defendant 12.Mr Wong has not referred to any legal authority on the relevant approach to be adopted in dealing with the outstanding issue of costs where the issues on liability have become academic following the compromise between the Plaintiff and the 2nd Defendant. 13.In Ta Tung China & Arts v Fontana Restaurant & ors CACV74/1998 (unreported, 24th November 1998), Mortimer VP said as follows :
14.Here, vis-à-vis the Plaintiff and the 2nd Defendant, there are 2 sets of costs, namely, costs of the Order 14 Summons and costs of the action. In my view (and I believe Mr Wong accepts), it is not appropriate to deal with the costs of the litigation between the parties without some consideration of the Order 14 Summons. As held by Nazareth VP in Ch’ong Poh v Messrs Cheng, Yeung & Company (a firm) CACV87/1998 (unreported, 24th July 1998), “[it] is axiomatic that no party will be given costs unless he has a good claim” (para.22). In that case the originating summons became academic, but there were unresolved questions of costs. Nazareth VP said at para.25 that “it was nevertheless incumbent on the plaintiff to demonstrate that he had merits in bringing the defendant to book. In my view, the judge must proceed to hear the originating summons with the view to resolving the question of costs.” 15.A similar approach was adopted by Kwan J in Re Super Deluxe International Limited HCCW186/2001, Kwan J (unreported, 3rd June 2003) (upheld by the Court of Appeal in HCMP3140/2003 (unreported, 17th October 2003)) and Lee Tak (or Tuck) Yan & ors v The Prudential Enterprise, Limited & ors HCA4225/2001, Chu J (unreported, 25th May 2005). Background facts 16.The 2nd Defendant admits (a) he was/is the occupier of the Premises with the permission consent licence or authority of the 1st Defendant and (b) has “a small pet dog”. There is no dispute that as at the hearing the 2nd Defendant was still keeping the Dog at the Premises. 17.According to the 2nd Defendant, he has lived in Hong Kong for 31 years. He is retired and about to return to Ireland. He needs about 6 months to clear up his family matters in Hong Kong. The 2nd Defendant approached an estate agent (the “Agent”) for a short-term residential lease of the Premises and specifically asked the Agent about bringing the Dog to reside at the Premises. The Agent advised it was permissible. So in November 2005 the 2nd Defendant signed a 6-months’ lease for the Premises, which will expire on 9th May 2006. On such understanding, the 2nd Defendant paid 2 months’ rent deposit, 1 month’s rent in advance and his removal fees, and moved to the Premises with the Dog in mid-November 2005. Parties' respective case 18.Plaintiff’s case Mr Wolter claims that the Dog has caused nuisance or annoyance to other occupiers of the Estate :
19.In December 2005 the Manager received written complaints from owners/ occupiers as follows :
20.The Plaintiff received another written complaint from a Mr Wong Chan-kee (over 70 years old) of 3/F, 3 Wang Fung Terrace (the “Neighbour”) on/about 7th March 2006 about an incident that happened during one afternoon at about the end of 2005 (the “Incident”). The Neighbour said on that occasion a domestic helper was about to leave the Premises to walk the dog when he was going past the open entrance of the Premises. Suddenly the dog barked at the Neighbour and moved close to his feet. The Neighbour shouted to the domestic helper to stop the Dog so he could get to the street. The Neighbour said he did not wish such Incident to happen again. 21.The 1st Defendant’s solicitors (who do not act for him in the present proceedings) by their letter of 5th January 2006 to the Plaintiff’s solicitors advised that the 1st Defendant did not know the occupier had a pet. The 1st Defendant urged the Plaintiff to allow the occupier to keep the pet until the occupier moved out of the Premises, saying that he had asked the occupier to avoid causing annoyance/nuisance to other owners/occupiers of the Estate. 22.On the aforesaid basis, Mr Wolter believes the Dog caused and continues to cause nuisance/annoyance to other owners/occupiers of the Estate. 23.2nd Defendant’s case The 2nd Defendant said when he moved into the Premises, he did not see any “No Dogs Allowed” signs. The Estate was covered with scaffolding and green curtain netting and the building renovations were about to finish. I note that such assertions about building renovations appear to correspond with the notation of the “Major Exterior Renovation – Painting” project in 2005 as recorded in the section titled “Major Renovation Programs & Projects” in the House Rules. 24.Shortly after the 2nd Defendant moved in, a “No Dogs Allowed” sign appeared on the notice board in the stairwell. The 2nd Defendant then received the demand letters from the Manager and the Plaintiff’s solicitors referred to above. The 2nd Defendant said it was the first indication he had of any purported no dog policy at the Estate. 25.The 2nd Defendant spoke to the Agent about this and understood that both the Agent and the 1st Defendant liaised with Mr Wolter about the 2nd Defendant’s situation, namely, that he was at the Premises on a short-term lease and the Dog would shortly be exported to Ireland. The 2nd Defendant personally spoke with Mr Wolter and explained the above matters to him. Mr Wolter refused to compromise. The 2nd Defendant suggested to Mr Wolter to call a meeting of the residents’ committee for the 2nd Defendant to address the committee. Mr Wolter refused that as well. Since then the 2nd Defendant had no further spoken communications with Mr Wolter. 26.The 2nd Defendant was concerned about the situation. The Agent informed the 2nd Defendant she had checked the DMC, which did not mention any restrictions about dogs. She also informed the 2nd Defendant that the DMC was “above” the House Rules. The 2nd Defendant said he moved into the Premises in good faith; had he known about the Plaintiff’s objections, he would not have moved in at all. 27.The 2nd Defendant had already started procedures for exporting the Dog to Ireland. In fact he exhibited to his Defence an invoice by “Export-a-Pet” dated 17th January 2006 for services in arranging the export of the Dog overseas. The invoice noted that the 2nd Defendant has paid 50% advance payment by cheque with the balance to be paid 7 days prior to departure. 28.Further, the 2nd Defendant was back to Ireland between 15th February and 13th March 2006 and during that time the Dog was not at the Premises. The Dog stayed with a family with 2 young children in Kowloon Tong. Such family had no problem with the Dog. The 2nd Defendant said the Dog is a quiet family dog. It has been with the 2nd Defendant’s family for 11 years. They have lived in 2 flats previously and there was never any problem with neighbours. 29.The 2nd Defendant has spoken with the maid about the Incident. He explained that the staircase in question is quite narrow and the metal grille at the entrance of the Premises opens out. The maid told the 2nd Defendant that at the time of the Incident, the Neighbour was going out at the same time as she went out with the Dog. They stood quite close together. The maid thought one of them might have stepped on the Dog’s paw, which might have caused the Dog to bark. However, on several occasions recently, the 2nd Defendant and the Dog passed the Neighbour on the staircase without any problem. The maid told the 2nd Defendant that the Neighbour also talked to the Dog in the carpark. 30.The 2nd Defendant submits that the present litigation could have been avoided with a little neighbourly compromise and common sense. Order 14 Summons (a) DMC 31.The DMC in respect of the Estate was registered at the Land Registry. The following are the relevant provisions :
32.Mr Wong submits and I agree that both the 1st and 2nd Defendants are bound by the DMC. The prohibition in Clause 9(c) of the DMC (“Clause 9(c)”) enjoins against “nuisance annoyance damage or inconvenience” to the occupiers of neighbouring premises. Mr Wong submits that Clause 9(c) is a wider covenant than a prohibition against nuisance. “Where the covenant is against any act which may lead to ‘annoyance, nuisance or damage’, it is wider, and is broken by anything which disturbs the reasonable peace of mind of an adjoining occupier. The disturbance need not amount to physical detriment to comfort, nor need the adjoining occupier be a tenant of the same landlord” (Halsbury’s Laws of Hong Kong Vol.17 para.[255.570] at pp.348-350 and Tod-Heayly v Benham (1888) 40 Ch 80). 33.Here, the question of whether the Dog has all along been well-behaved or whether it has caused “nuisance annoyance damage or inconvenience” turns on disputed questions of fact, which cannot be resolved at the Order 14 stage. 34.The Plaintiff relies on (a) oral complaints of barking and urination by the Dog in the common areas and (b) the Incident. There are 2 other written complaints, but a plain and fair reading of such complaints shows them to be complaints about keeping the Dog at the Premises/Estate rather than complaints directed at objectionable behaviour by the Dog and/or unreasonable handling of the Dog by the 2nd Defendant (see highlights in italics in paragraph 19 above). 35.The 2nd Defendant has denied the complaints. He explains that the Dog was a quiet mature dog that got on well with neighbours and young children without any problem for the past 11 years. I note with interest that the demand letters of the Manager and the Plaintiff’s solicitors dated 19th November and 13th December 2005 respectively do not complain about any urination by the Dog in the common areas. I further note that the Neighbour’s written complaint about the Incident in late 2005 was made more than 2 months later in early March 2006 and it makes no mention of any repeat occurrence of the Incident since late 2005. Given the fact that the flats of the Neighbour and the 2nd Defendant are on the same floor and they use the same staircase, the Neighbour’s silence on any repeat occurrence of the Incident sits well the 2nd Defendant’s assertion that there has been no further problem despite continued contact between the Neighbour and the Dog. 36.The 2nd Defendant has also given an explanation about the Incident and why the Dog barked. He explains that the Dog came up close to the Neighbour because of congestion at the staircase. Further, the Dog barked for cause, namely, someone probably stepped on its paw, and there has been no problem since. 37.I am not satisfied on the evidence before me (including the 2nd Defendant’s submissions for which Mr Wong took no issue on the lack of verification by oath/affirmation) that there is a clear case for summary judgment on the cause of action in respect of Clause 9(c). Whilst the court will consider all the evidence adduced, it will not and, indeed, should not embark on a mini-trial on affidavit (Mass International Ltd v Hillis Industries Ltd & anor [1996] 1 HKC 434, 439 and Ng Shou Chun v Hung Chun San [1994] 1 HKC 155). 38.The test is simply whether the 2nd Defendant’s assertions are credible or believable; if so, he must have leave to defend; if not, the plaintiff is entitled to summary judgment. Whether the 2nd Defendant’s assertions are believable is a question to be answered not by taking those assertions alone but by taking them in the context of so much of the background as either undisputed or beyond reasonable dispute (Re Safe Rich Industries Ltd CACV81/1994 (unreported, 3rd November 1994)). But here there are factual disputes. 39.In my view, given the aforesaid factual disputes and bearing in mind the background of the matter as described above, I cannot say that there is no arguable or triable issue as to whether the 2nd Defendant has breached Clause 9(c), namely, whether the 2nd Defendant has caused any nuisance, annoyance, damage or inconvenience, even on the basis of the test proposed by Mr Wong as set out in paragraph 32 above. Had the Plaintiff and the 2nd Defendant not reached a compromise, this cause of action would have to be resolved at the trial. (b) House Rules 40.Mr Wolter claims that at a meeting of the Plaintiff in June 1995 a resolution was passed to adopt the House Rules with respect to the control, management and administration of the common parts of the Estate with power to the management committee to revise it from time to time. The House Rules exhibited to the 1st affirmation of Mr Wolter has been updated 6 times with the last update made on 1st May 2005. 41.Mr Wong accepts that the House Rules are subservient to the DMC. This is also reflected in the Introduction to the House Rules inter alia as follows :
42.Rule 6 under the section titled “Restrictions and Regulations” provides inter alia that : “6. Domestic Pets
43.Mr Wolter says that the reason for the strict prohibition in the House Rules about the keeping of dogs was due to a bitter experience in 1995 of disturbance, annoyance and complaints caused by dogs barking in welcome of their master who often came home after midnight and dogs in other units barking in answer. This caused nuisance or annoyance to the distress of other owners/occupiers of the Estate. 44.Mr Wolter further explains that the Estate also had a bitter experience of dogs urinating/excreting in the common parts of the Estate and in particular on the main roof. A resident who had stepped on the faeces was so annoyed that he smeared it on the walls of the staircase. Therefore, with a view to keep the common parts clean and to avoid complaints and disputes, the Plaintiff resolved and adopted the House Rules so that all owners or residents of the Estate were not permitted to keep any dogs in the flats. 45.Mr Wolter claims that “No Dogs Allowed” signs were/are posted on the walls next to the main gate, opposite the Information sign and staircases. There is factual dispute as to when the “No Dogs Allowed” signs were put up. The photographs of the “No Dogs Allowed” signs exhibited to the 1st affirmation of Mr Wolter are marked “13th February 2006” (ie 3 months after the Plaintiff moved to the Premises). The 2nd Defendant says he did not see such signs until some time after he moved in, which assertion suggests either that such signs did not exist at the time when he moved to the Premises or they were shrouded from observation by the scaffolding/netting. In the end, Mr Wong confirmed at the hearing that the Plaintiff would not take issue over the timing of the posting of the “No Dogs Allowed” signs for the purpose of the Order 14 Summons. 46.The Plaintiff claims that the House Rules came into existence pursuant to a resolution passed at a meeting of the Plaintiff in June 1995 (the “Resolution”). However, since (a) Mr Wong concedes that the DMC does not provide for house rules, (b) the House Rules have not been registered against the Premises at the Land Registry, (c) the 2nd Defendant only moved to the Premises in November 2005, and (d) there is no evidence that the Plaintiff notified the 2nd Defendant of the House Rules and in particular Rule 6 at the time he moved to the Premises, it is plain that the 2nd Defendant by his Defence, namely, his plea that the House Rules are invalid and not binding on him, puts the Plaintiff to proof in respect of the validity of the House Rules as well as the Resolution. It therefore behoves the Plaintiff to establish a threshold case on the validity of the Resolution to sustain its summary judgment application. 47.Mr Wong relies on section 14(1) of the Building Management Ordinance Cap.344 (the “BMO”) which provides inter alia that “subject to this Ordinance, at a meeting of a corporation any resolution may be passed with respect to the control, management and administration of the common parts …… and any such resolution shall be binding on the management committee and all the owners” (my emphasis). Section 8(5) of the BMO provides that the Third Schedule shall have effect with respect to the meetings and procedure of an owners’ corporation. Paragraph 6 of the Third Schedule of the BMO provides that the secretary of the management committee shall keep minutes of the proceedings at every general meeting of the owners’ corporation and such minutes shall be certified by the person presiding over the meeting as containing a true record of the proceedings of the general meeting to which they relate. The Plaintiff therefore has a statutory obligation to keep minutes of its meetings, including the minutes that recorded the Resolution purportedly passed at a meeting of the Plaintiff in 1995 for the adoption of the House Rules. Yet despite the filing/service of the 2nd Defendant’s Defence, such minutes have not been disclosed. Mr Wong suggests from the Bar table that the relevant minutes could not be found, but such explanation is not in either the 1st or 2nd affirmation of Mr Wolter. 48.More importantly, section 14(1) of the BMO provides that a resolution of the incorporated owners must be “with respect to the control, management and administration of the common parts” (my emphasis). Here, although the purpose of Rule 6 is to keep the common parts clean, the operative provision of Rule 6 is to prevent Estate owners/residents from keeping dogs in their flats. This arguably means that Rule 6 purports to govern the use of the portions of the Estate which the owners/ occupiers have exclusive possession. 49.Clause 1 of the DMC provides that each owner is entitled to hold and enjoy to the exclusion of other owners his flat “to the intent that each of the parties hereto shall be entitled to the exclusive use occupation and enjoyment of the Floor or Floors of the said building ……” There is no restriction in the DMC of such “exclusive use occupation and enjoyment” of the flats by any prohibition against the keeping of dogs/pets. So Rule 6 by prohibiting the owners/residents from keeping dogs in their flats arguably interferes with the owners’/occupiers’ right to exclusive use occupation and enjoyment of their flats provided under Clause 1 of the DMC. Mr Wong does not dispute that (a) section 14(1) of BMO does not confer power to change the terms of the DMC and/or (b) the House Rules are subservient to the DMC. 50.Mr Wong submits that the House Rules are “not inconsistent with” the DMC, but there is no explanation how compatibility between the House Rules and the DMC gives fundamental validity to the House Rules or, at the very least, overcomes the aforesaid arguable or triable concern over the incursion of Rule 6 into areas which the owners/occupier have exclusion possession. 51.Mr Wong next argues there is a “link” between Clause 9(c) and the House Rules. It is not easy to understand how Clause 9(c), which is founded on the “use” of the flats that causes nuisance, annoyance, damage or inconvenience to neighbours, leads to a blanket prohibition against keeping dogs in the flats irrespective of whether they cause any nuisance, annoyance, damage or inconvenience, but allows owners/occupiers to keep “small pets of a tame nature such as cats, birds, etc” so long as they do not cause any annoyance or nuisance to neighbours. 52.When faced with such argument, Mr Wong attempts to make 2 points in answer : (a) keeping of dogs in the flats is not permissible because it affects the domestic user of the flats, and (b) the Plaintiff in its collective wisdom has decided that the keeping of dogs in the flats amounts to nuisance, annoyance, damage or inconvenience. 53.It is not easy to understand (a) above. Mr Wong has not explained how a family or individual using a flat as their/his residence will overset the domestic user of the flat if they/he keeps a pet dog. Nor has Mr Wong explained what is the user (if not domestic) of the flat if a pet dog is kept by a family/individual residing in a flat. Mr Wong is constrained to submit that domestic user requires the flats to be used for human habitation. But Rule 6 still remains perplexing under such argument since it allows animals such as cats, birds, etc to be kept in the flats if they are well-behaved. Presumably, on the basis of Mr Wong’s arguments, this proviso means the Plaintiff does not consider that keeping these pets (ie non-humans) will breach the domestic user of the flats. 54.As regards (b), it first of all depends on the validity of the Resolution, ie whether Rule 6 is not binding on the owners/occupiers for being outside the Plaintiff’s statutory powers. Further, as explained above, it is at the very least arguable or triable that it is not permissible under the DMC and/or the BMO for the collective wisdom of the Plaintiff to dictate beyond the confines of the DMC and the BMO on what can or cannot be done within non-common areas even if the Plaintiff’s motive is to preserve the cleanliness of the common areas. 55.In the circumstances, had the Plaintiff and the 2nd Defendant not reached a compromise, the Plaintiff’s cause of action under the House Rules should have gone for trial for I am persuaded there is credible or arguable defence. (c) Ordinance 56.Mr Wong informs me that for the purpose of the Order 14 Summons, the Plaintiff does not intend to rely on the cause of action based on the Ordinance. (d) 1st Defendant 57.I am not satisfied that the Plaintiff is entitled to take out the Order 14 Summons against the 1st Defendant. Order 14 rule 1 of the RDC provides that a plaintiff may apply for summary judgment only where the defendant has given notice of intention to defend the action. The 1st Defendant has not done so. 58.Mr Wong argues that Order 13 rule 6 of the RDC provides that “if any defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time and, if that defendant has not acknowledged service, upon filing an affidavit proving due service of the writ on him …… proceed with the action as if that defendant had given notice of intention to defend”. However, this only allows the action to proceed so that if the defendant does not file his defence, the plaintiff can apply for default judgment under Order 19 of RDC. 59.This is reflected in Hong Kong Civil Procedure 2006 Vol.1 para.13/6/1 at p.149 as follows :
In para.19/7/2 at p.343, the learned editors further stated as follows in relation to Order 19 rule 7 :
60.This must be right because without actual indication by a defendant of any contest against the plaintiff’s claim, there is no need to apply the relevant test of assessing whether there is a believable or credible defence under Order 14 of the RDC. The appropriate course is to proceed with the Default Judgment Summons against the 1st Defendant. In the circumstances, I dismiss the Plaintiff’s application for summary judgment against the 1st Defendant. 61.But even if I am wrong, since the Plaintiff’s case against the 1st Defendant under the Order 14 Summons is the same as its case against the 2nd Defendant, on the above analysis, the Plaintiff is still not entitled to summary judgment against the 1st Defendant. An arguable defence or triable issue raised by the 2nd Defendant will be a sufficient answer to the Plaintiff’s application for summary judgment against either defendant. Default Judgment Summons 62.Mr Wong submits that the Plaintiff is entitled to judgment against the 1st Defendant pursuant to the Default Judgment Summons. Although the 1st Defendant has legal representation (as seen from the disclosed correspondence), his solicitors wrote to the Plaintiff’s solicitors on 23rd January 2006 to advise that they had no instructions to accept service or deal with the present matter for the 1stDefendant. The affirmations of service reveal that the writ of summons, the Order 19 rule 8A notice and the Default Judgment Summons have been served on the 1st Defendant. 63.Mr Wong points out that the court cannot receive any evidence but must give judgment according to the pleadings alone. He refers to Hong Kong Civil Procedure 2006 Vol.1 para.19/7/11 at p.344 as follows :
64.Mr Wong argues that since no evidence ought to be received, this court should grant judgment in favour of the Plaintiff against the 1st Defendant for the pleaded causes of action against the 1st Defendant. 65.First of all, I am not satisfied that the Plaintiff is entitled to judgment against the 1st Defendant on the cause of action in relation to the House Rules. In an application under Order 19 rule 7 of the RDC, the statement of claim must show a case for the order the plaintiff seeks. I refer to the above analysis in relation of the purported Resolution and the provisions of the DMC and the House Rules, which have been expressly pleaded in the Statement of Claim in these proceedings, and which on their face are sufficient to give pause as to whether default judgment on such cause of action ought to be granted. 66.Secondly, the court’s power to grant judgment under Order 19 rule 7 of RDC is discretionary and not mandatory. The court is not bound to give judgment. Hong Kong Civil Procedure 2006 Vol.1 para.19/7/13 at p.345 states as follows :
67.There is no doubt that the Plaintiff’s case against the 1st Defendant is premised on the same facts/matters or even on the same legal arguments as against the 2nd Defendant. I have found that had the Plaintiff and the 2nd Defendant not reached a compromise, the Plaintiff’s claim against the 2nd Defendant ought to have proceeded and be determined at trial and the Plaintiff would not have been entitled to summary judgment against the 2nd Defendant. Any entry of judgment in favour of the Plaintiff against the 1st Defendant on the same claim/case would have affected the 2nd Defendant’s defence had the matter proceeded to trial. Therefore, had the Plaintiff and the 2nd Defendant not reached a compromise, I would not have exercised my discretion to allow entry of default judgment against the 1st Defendant, but would have ordered the Default Judgment Summons against the 1st Defendant to stand over to trial. 68.But since the 2nd Defendant agreed to the an order to remove the Dog from the Premises by Saturday, 25th March 2006, and the 1st Defendant has not filed any Defence, I am therefore prepared to allow default judgment in favour of the Plaintiff against the 1st Defendant to the extent that the 1st Defendant shall cause the Dog to be removed from the Premises forthwith. However, I do not consider it appropriate or necessary to grant an injunction to restrain the 1st Defendant from keeping dogs at the premises in all future times. Even on the Plaintiff’s case, the House Rules are subject to revisions from time to time. A perpetual injunction is plainly too wide and inappropriate. Although the 2nd Defendant agreed to a perpetual injunction as a matter of practicality since he was about to permanently leave the Premises and Hong Kong, I cannot ignore the fact that the 1st Defendant remains as registered owner of the Premises. His rights and obligations must be considered in such context. The 1st Defendant through his solicitors said he was not aware of the Dog. There is also no evidence of any further or continuing threat that the 1st Defendant will keep other dog or dogs at the Premises other than the Dog. Reliefs 69.Mr Wong submits that the Plaintiff is entitled to take legal action against the 1st and 2nd Defendants because section 18(1) of the BMO imposes a statutory duty on the Plaintiff to take reasonable steps to enforce the DMC. Mr Wong refers me to a number of authorities (see The Incorporated Owners of Hoi Luen Industrial Centre v Ohashi Chemical Industries (Hong Kong) Limited [1995] 2 HKC 11, Taikoo Shing (Management) Limited v Trillon (HK) Limited [1997] 4 HKC 304 and The Incorporated Owners of Yee Fung Garden v Basic Tech Limited & anor HCA6622/1998, Deputy High Court Judge Fung (unreported, 23rd January 2003)) for the principle that an owners’ incorporation cannot acquiesce a breach of a deed of mutual covenant because of its statutory duty of enforcement; and the equitable defence of acquiescence could not be held against such corporation. 70.I agree the Plaintiff has statutory duty to enforce the DMC. But if the Plaintiff and the 2nd Defendant had not reached a compromise, on the above analysis there would have been triable issues or arguable/believable defences that could not have been resolved by way of summary judgment and such issues ought to have gone for trial. Furthermore, the Default Judgment Summons against the 1st Defendant would also have been stood over to trial. 71.In any event, since there is no express plea of acquiescence in the 2nd Defendant’s Defence and the focus of his pleaded/asserted defences is on other issues, there is no need for me to deal with this point. Costs 72.In light of the above matters, if no compromise had been reached between the Plaintiff and the 2nd Defendant, the costs order for the Order 14 Summons would have been costs in the cause since I would have granted the 2nd Defendant unconditional leave to defend. However, the reality is that the Plaintiff and the 2nd Defendant did reach a compromise that finally disposed of the matter. It therefore calls for a final resolution on the costs of the Order 14 Summons as well as costs of the action against the 2nd Defendant. 73.In seeking costs, the Plaintiff stood on its submissions on the Order 14 Summons. It has not elected to proceed to trial to resolve the issue of costs. Here, the final merits are not yet determined, namely, the Plaintiff has not been able to show that ultimately it would have been able to bring the 2nd Defendant to book. 74.On the other hand, the 2nd Defendant has not filed any affirmation in opposition to alert the Plaintiff of the factual assertions in support of his defence. He only disclosed such factual assertions and his willingness to remove the Dog from the Premises by 25th March 2006 when he made submissions at the hearing. The Plaintiff has promptly agreed to the latter proposal and it is quite probable that had such proposal been intimated to the Plaintiff’s solicitors earlier, the Plaintiff’s substantive claim against the 2nd Defendant might have been practically resolved (with savings in hearing time), leaving just costs to be argued. 75.Looking at the matter in the round and bearing in mind the above matters, I consider that a fair and just costs order between the Plaintiff and the 2nd Defendant would be no order as to costs between the Plaintiff and the 2nd Defendant in respect of the costs of the Order 14 Summons and of the action and I so order. 76.As regards the question of costs between the Plaintiff and the 1st Defendant, I am of the view there should be no order as to costs of the Order 14 Summons. As regards the costs of the Default Judgment Summons and costs of the action vis-à-vis the Plaintiff and the 1st Defendant, I also consider that a fair and just order is no order as to costs. 77.I bear in mind that the 1st Defendant has not filed any notice of intention to defend or any Defence. By such conduct, the 1st Defendant tempted the Plaintiff’s application by way the Default Judgment Summons. The 1st Defendant is not entitled to costs. But should he bear costs of the Default Judgment Summons and of the action? In my view, he should not. The Plaintiff’s claim against the 1st Defendant is the same and no better than its claim against the 2nd Defendant. Since the final merits are not yet determined and the Plaintiff has not been able to establish satisfactorily that had there been no compromise it would have been able to bring the 2nd Defendant to book, I would have exercised my discretion to stand the Default Judgment Summons over to trial. If eventually the Plaintiff’s claim against the 2nd Defendant succeeds or falls, so will its claim against the 1st Defendant. In the circumstances, a fair and just order for costs is (and I so grant an order nisi) there be no order as to costs between the Plaintiff and the 1st Defendant for the Default Judgment Summons and for the action.
Mr Ivan Wong instructed by Messrs Hau, Lau Li & Yeung for the Plaintiff. The 1st Defendant in person and absent. The 2nd Defendant in person and present. |
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