Madam Cheung Kit Mui v. Bayview Mansion Management Committee of Incorporated Owners of Bayview Mansion

LDBM 1/1996

IN THE LANDS TRIBUNAL OF HONG KONG

B.M. Application No. 1 of 1996

---------------------

BETWEEN

TRIBUNAL: His Honour Judge Wong, Presiding Officer.

DATE OF HEARING: 19th Apri1 1996.

DATE OF DELIVERY OF JUDGMENT: 27th May 1996.

JUDGMENT

1. Mr. Chan Wing Wai, the husband of Cheung Kit Mui, (owner of Flat B5 on 16/F of Bay View Mansion) applied for the following orders :-

1)  That the common area along the corridor of the 16/F blocked by the owner of  Flat B3 be restored to its original condition.

2)  That the Management Committee be ordered to take action to remove the iron gate which blocked the corridor and

3)  That the Management Committee be personally liable for charges involved.

Facts

2. There is no dispute that the owner of Flat B3 erected an iron gate blocking off part of the corridor on the 16/F and had placed tables, pots and plants, buckets, broom and mops in the area enclosed. He produced 2 photographs taken an 10/1/96 depicting the enclosed area.

Grounds of Opposition

3. The Respondents raised 2 grounds namely :-

1)  The Applicant has no locus standi as he is not the owner

2)  The iron gate was erected with the approval of the Incorporated Owners of Bayview Mansion Blocks A & B.

Locus Standi

4. I agree with counsel for the Respondents that the applicant being the husband of the owner has no right to take action as he is not the owner of Flat B5. However he has been authorised by his wife (the owner) to conduct the proceedings on her behalf. This defect can be rectified by amending the name of the applicant to Cheung Kit Mui. Mr. Chan acting in person did not know the law. To avoid having to start another application I give leave to amend the name of the applicant to Cheung Kit Mui. There is no prejudice to the Respondents by the amendment. There is no necessity to amend the opposition nor could the Respondents be taken by surprise. I order reservice of the amended application be dispensed with.

Power of the Incorporated Owners to approve such enclosure

5. The respective owners were assigned their flats subject to the Dead of Mutual Covenant ("DMC").

6. Clause 2 of the DMC states "Subject to Clause 11 hereof each of the parties hereto shall have the right in common with other lessees owners and all other persons authorised by them to use for the purpose of access to and agress from the premises in the said building so allotted to them the entrance hall staircases and landings and corridors in the said Building and such of the passages therein and in the open yard space (if any) as are not included in anyone of the other premises in the said Building."

7. Clause 14 (b) of the DMC states, "Not to install make or maintain or cause to be installed made or maintained any gates doors grills or similar barriers to the entrances of his premises in the Building on the upper floors thereof without the prior approval in writing of the Owner of the Building Provided That such approval shall not be unreasonably withheld if such barriers are in the opinion of the Owner of the Building reasonably well designed and installed AND that if such prior approval of the Owner of the Building shall not have been obtained it shall have the right to remove or cause to be removed any such gates doors grills or similar barriers installed made or maintained at the costs and expenses of the Owner of the Flat or of the premises so concerned which shall be payable on demand PROVIDED FURTHER THAT the provisions of this sub-clause shall not apply to the premises in the said Building on the Ground Floor and the Basement thereof. "

8. The minutes of the 13th Committee meeting in 1988 was produced. It was resolved, inter alia, that the owner of Flat B3 on 16/F could not place any object in the area enclosed and that action for the removal of the iron gate would be suspended. The Respondents also produced a copy letter addressed to the owner of Flat B3 on 16/F stating that she attended that meeting and asked for the demolition of the iron gate to be postponed and agreed to remove all the objects placed in the encroached area.

9. Counsel for the Respondents submitted that by clause 14(h) the owners can instal gates to the entrance of their premises with the approval of the Committee. He read from the New Shorter Oxford English Dictionary the meaning of "entrance" and said that the iron gate which encroached that part of the corridor was erected at the entrance to Flat B3. With utmost respect to him an iron gate has been duly erected immediately in front of his premises immediately next to the wooden door which is the entrance to her premises. The extra iron gate which fenced off part of the corridor is not an iron gate installed at the entrance of her premises. That argument must fail.

10. In any event from the evidence produced there was no approval by the Committee. They had resolved that the execution for the removal be suspended on . her undertaking not to place any object in the encroached area.

11. Counsel further submitted that 80% of the owners had not objected to such encroachment. Respondents has submitted 154 signatures of owners/occupiers allegedly agreeing to the installation of the iron gate by the owner of Flat B3 on 16/F.

12. Clause 2 of the DMC clearly states that all owners have a right to use the entrance hall, staircases, landings and corridors. To block off a part of the corridor to the exclusion of the other owners is a clear breach of the DMC. In my judgment the Incorporated Owners have no power to give approval to anyone to have exclusive use of any common part. It is trite law that DMC can not be varied or amended except with the consent of all parties who take subject to the DMC.

13.  It is the duty of the Committee of the Incorporated Owners to see to it that no one is in breach of the DMC. If anyone is in breach it is the Committee's duty to take action to put right that breach.

COSTS

14.  I am surprised that despite of having been advised by lawyer, the Committee has seen fit to contest and continue with this action which in my view is devoid of merits.

15.  Anyone who has been properly advised should know that the encroachment is in clear breach of the DMC and the committee has a duty to put that right. Not only the Committee did not take action to have the iron grate removed the Committee has engaged solicitors and counsel to defend this action. In my view the costs for engaging lawyers to defend this action should be borne by the members of the Committee personally. The other owners should not be called upon to contribute to defend a hopeless case.

16.  I am not in a position to know what sort of advice the Committee got from lawyer, if the Committee had been advised that there is merit in the defence that the Committee had power to approve the installation of that iron gate then clearly the Committee had been ill advised and the Committee members should get indemnity from those who gave the advice.

CONCLUSION

17.  For reasons above I order that the iron gate in question and all items stored or placed in the corridor be removed and that the common area be restored to its original state. An order nisi that save and except for the costs of obtaining advice as to merits the members of the Committee of the Incorporated Owners do bear their own costs and the costs of this action personally without contribution from the individual owners.