The Corporated Owners of Lung Cheung Building Homantin v. Cheung Steven Hon Hing t/a King's Way Laundry and Another

LDBM 109/2006

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 109 OF 2006

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BETWEEN

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Coram : H.H. Judge YUNG, Presiding Officer, Lands Tribunal

Date of Hearing : 30^th August 2007, 31^st August 2007 & 3^rd September 2007

Date of Handing Down of Judgment : 18 October 2007  

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JUDGMENT

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Background

1.The Applicant incorporated owners is seeking various injunctions against the Respondents car parking spaces owners.  The grounds relied on are breaches of the Deed of Mutual Covenant.   The two subject car parking spaces have been used by the Respondents and his family for commercial purposes for years, for car parking space number 1 alone, from 1965, and for both number 1 and 2, from 1973 till now. Since 1996 both parking spaces have been used for operating a laundry shop.  The two car parking spaces are adjacent and connected to each other.  The length of one of them is on the perimeter of the building and facing the road and therefore has been used a shop front all these times.  Partitions were erected to enclose the car parking spaces to form the shop proper.

Breaches of the Deed of Mutual Covenant

2.The alleged breaches relate respectively to clauses 10 (a), 10(c) and 10(d). Clause 10 provides:

Each of the parties hereby covenants with the other parties as follows:
(a)	Not to make any structure alteration to the said Building or to the ---or the ground floor---of which he is entitled to the exclusive use, occupation and enjoyment and not to make any alteration likely to affect the supply of water, electricity or gas to other parts of the said Building---of which he is not entitled to the exclusive use, occupation and enjoyment and not to cut or damage any of the main walls or beams or floors of the said Building or do anything whereby the structural strength of thereof may be affected,
	---
(c)	Not to use or cause or suffer or permit to be used the basement and /or the ground floor and /or the ----of which he is entitled to the exclusive use, occupation and enjoyment or any part thereof for any illegal, unlawful or immoral purpose and not to do or cause or suffer or permit to be done anything therein or thereupon which may create unnecessary noise or which may be or become a nuisance, annoyance or inconvenience to the occupiers of the other part of the said Building or of the premises in the neighbourhood,
(d)	Not to do anything in any part of the said Building in common use which may be a nuisance or cause annoyance to the occupiers of the said Building or any of them.

Nuisance

3.The complaint of nuisance is central to the breaches of the two of the three clauses. However it is not supported by evidence. Counsel for the Applicant did not concede this point but came very close to it. In any event those matters which might individually or cumulatively be regarded as constituting nuisance have long been rectified, and no injunction need be or should be granted on that ground.

Alteration of Structures---structural integrity of the building

4.The Applicant has alleged in its pleadings that the alteration work affects the safety of the building.  The Applicant’s expert in fact clarified that this is not the conclusion or opinion she could give as an expert. I accept the evidence of the Respondents’ expert, an Authorised Person and Registered Structural engineer, that the structural integrity of the building is not affected.

5.Counsel for the Applicant suggested that I needed not rely solely on expert evidence and urged me to adopt a common sense approach. I doubt that this approach is appropriate in this case when the expert evidence is cogent and uncontradicted. Even if I was driven to resort to this common sense approach, I would have drawn the same conclusion. The partitions enclosing the car parking spaces do not appear to me or other reasonable men to have weakened the structural strength of the building. As to the two openings in the wall, these are of the type or kind like any window openings, and they do not necessarily affect the structural integrity of the building.

Structure Alteration---electricity supply

6.In his closing argument Counsel for the Applicant contended that the alteration, whatever and whenever it was, also affected the electricity supply and therefore a breach of clause 10(a) has been committed.  It is not disputed that certain alteration work has been done in the meter-room, presumably to boost the electricity supply to the laundry itself.  This particular matter was only volunteered by the Respondents’ witness during cross-examination. Those who managed the building at the time for the owners knew about it and raised no objection and in fact cooperated. Further there is no evidence as to what the alteration work in this respect in fact was.  It is not possible to ascertain what the state of things before was, and, therefore what things should be demolished and what should be re-instated cannot even be ascertained, let alone specified in the injunction order. The obvious result is that even if it was a breach of the DMC, no injunction should be granted to rectify the breach in this aspect. 

7.In fact I do not find that simply doing some work exactly for the purpose   of increasing the electricity supply must necessarily constitute “any alteration likely to affect the supply of water, electricity ” within the literal meaning of clause 10(a).  Further it cannot be the intent of the parties to the DMC that the supply of water and electricity should not be increased or changed otherwise. There is no useful purpose to serve by keeping the supply of electricity or water constant. The purpose and the true meaning of this clause is to prohibit generally any alteration which might disrupt the smooth supply the building is enjoying at the time.

8.Last but not least, the words “other parts of the building” were simply ignored by counsel for the Applicant. There is no evidence, not even just a passing reference, to the fact that the electricity supply of other parts of the building was in any way affected.  

Alteration of  structure---structural alteration generally

9.The alteration in the two parking spaces is alleged to be of the nature of structural alteration despite the fact that the safety and structural strength of the building is not adversely affected, if affected at all. This allegation is a substantial departure from the pleaded case of the Applicant.

10.The enclosure and the subsequent use as shops could amount to structural alteration.  Whether it constitutes a breach of the DMC, clause 10 should not looked at alone, reference should be made to clause 6 permitting the owner of the ground floor to apply to the government for permission to covert the premises for business purpose.

11.The tenor of the claim and defence would have been different. I would not be surprised the strategy of defence would be have been entirely different. In this regard I agree with counsel for the Respondents that I should not allow this departure from the pleaded case. In any event I am of view the types of structural alteration intended to be encompassed are clearly spelt out, namely those affecting adversely the various utility supplies to other parts of the building and the structural strength of the building and nothing else.

Illegal and Unlawful Purpose

12.There is no evidence adduced by the Applicant that the building work in question was illegal or unlawful. The Applicant simply relies on the fact that there has never been any approval of the Building Department.  I cannot accept the bare assertion that any building work requires approval. Obviously there are works which are excepted. In this regard I accept the evidence of the expert that the building works in question did not require approval of the Building Department or Authority.

13.Furthermore the Respondents have not been and are not carrying on the laundry business for an illegal or unlawful purpose. The laundry business is a legitimate business. That during the course of its operation some government regulation are contravened or that some breaches of the land grant are committed do not make the purpose of the business illegal or unlawful in this particular case. The Respondents do not at any time carry on the laundry business for the purpose of breaking the relevant clause in the land grant, or for any other similar purpose. There is no breach of the clause 10 (c)

14.Furthermore regard must be made to the right reserved under clause 6 to the Respondents owner to apply to the government for change of user.  There is no dispute that the Respondents are making such application to the Government.

15.For the above reasons I find that the Applicant has failed to prove its case. I refuse to grant the reliefs applied for. I also make an order nisi for costs in favour of the Respondents with certificate for counsel on High Court Scale to be taxed if not agreed.  The costs order nisi be made absolute in 6 weeks.

Mr. Y.F. Chum instructed by M/S B. Mak & Co. for the Applicant.

Mr. Ng Tat Fai instructed by M/S Wong & Poon for the 1^st and 2^nd Respondents