THE INCORPORATED OWNERS OF JING HUI GARDEN v NG KEI SANG

CACV 421/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 421 OF 2007

(ON APPEAL FROM LDBM 155 OF 2005)

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BETWEEN

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Before: Hon Tang VP, Cheung and Yuen JJA in Court

Date of Hearing: 20 January 2009

Date of Judgment: 5 February 2009

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J U D G M E N T

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Hon Cheung JA (giving judgment of the Court) :

The orders

1.  The applicant is the incorporated owners of Jing Hui Garden, No. 8 Aberdeen Road, Hong Kong (‘the building’).  The respondent is the owner of Flat A, 16^th floor of the building (‘the unit’). 

2.  The applicant obtained judgment from the Lands Tribunal requiring the respondent to demolish and/or to dismantle the air-conditioner together with its condenser constructed at the external wall of the unit and to reinstate the damaged part of the external wall caused by the installation.  Further, the respondent was restrained from erecting or installing any air-conditioning pipes or other fittings at the external wall of the building which are not provided for under the terms of the Deed of Mutual Covenant (‘DMC’) of the building.  The respondent was further ordered to pay the applicant costs of the application.  The respondent now appeals against the judgment.

The counterclaim

3.  The respondent had also lodged a counterclaim against the applicant, seeking, among other things, declarations that the applicant should treat all owners of the building alike when it seeks to enforce the terms of the DMC instead of targeting the respondent and that he was entitled to retain the air-conditioning unit and the condenser that had been installed at the outer wall and that he was also entitled to retain the water pipe installed at the unit. 

4.  The respondent also asked for the return of a decoration deposit of $5,040.  The counterclaim was dismissed by the judge. 

Basis of the application

5.  The complaint of the applicant was that the respondent had in breach of the terms of the DMC and without obtaining the consent of the applicant,

(1)  installed an air-conditioning unit and its condenser at the external wall of the building and

(2)  altered the original water pipe outside the toilet, drilled a hole through the external wall at the light well outside the unit and installed a new freshwater pipe through the hole and beneath the floor of the living room to the kitchen of the unit.

DMC

6.  The relevant clauses of the DMC are clauses 5.5, 5.18, 5.19 and 5.36.

(1)    Clause 5.5:

‘No Owner or the Manager shall make any structural alterations to any part of the Development owned by him which may damage or affect or interfere with the rights of other Owners ... nor shall any Owner make any alteration to any installation or fixture so as to affect or be likely to affect the supply of water, electricity or gas...’

(2)    Clause 5.18:

‘No external signs, signboards, notices, ... or other projections or structures whatsoever extending outside the exterior of any Flat ... shall be erected on, installed at, or otherwise affixed to or projected from any part of the Development.’

(3)    Clause 5.19:

‘No Owner shall do or permit to be done any act or thing which may or will alter the external appearance including the colour of any part of the Development without the prior consent in writing of the Manager.’

(4)    Clause 5.36:

‘No Owner shall install through the windows or external walls of the Development air-conditioning units or plants or any other fixture without the prior written consent of the Manager.’

The decision

7.  H H Judge Michael Wong, the Presiding Officer of the Lands Tribunal, after hearing the evidence decided in favour of the applicant. 

8.  The respondent who was legally represented at the hearing below admitted that he did not obtain any prior written consent of the manager of the building in installing the air-conditioner and the new water pipe. 

9.  The judge found that the installation of the air-conditioner and the new water pipe had breached the terms of the DMC because they damaged the external wall.  The air-conditioner and condenser projected outside the exterior of the unit, altered the external appearance of the building and were done without any prior written consent of the manager or the applicant. 

10.  The judge, however, refused to grant injunctions in respect of the matter concerning the water pipe because it was clear from the evidence that if the respondent had submitted an application to the applicant and signed an undertaking, the alteration of the water pipe would be approved as a matter of certainty.  In other words, the respondent only failed to comply with a formal requirement.  The judge held that the court has a wide discretion in granting or refusing a mandatory injunction and he was not prepared to grant a mandatory injunction for a technical breach.

The defence

11.  The judge considered the defence raised by the respondent which in essence was two in nature.

12.  The first was that the applicant had on occasions promised the respondent that it would allow him to retain the air-conditioner and would not sue him if he would sign an undertaking and that the decoration deposit would be refunded to him immediately.  The respondent further claimed that there was a further promise by the applicant to allow him to keep the new water pipe and not to take any legal action if the respondent could sign an undertaking that he would be responsible for any compensation claims arising out of the new water pipe.  The respondent relied on these promises (which were described by the judge to be in the nature of representations) to form an estoppel against the applicant’s claim.  After hearing the evidence the judge rejected the respondent’s contention that the applicant had made such promises.

13.  The second was that there were other units in the building which had carried out unauthorised installation work in breach of the terms of the DMC but the applicant had not taken action against those units and had instead only targeted the respondent. 

14.  The respondent relied on the air conditioners installed by three other units in the building.  The judge considered the evidence relating to the various units.  In respect of Unit 8H the judge accepted the evidence of the applicant that the air-conditioner was not affixed to the external wall but to the frame of the window of that unit.  Hence there was no breach of the DMC.  In respect of Unit 14A, the applicant had already issued warning letters to the owner of that unit and there were discussions between the manager and that unit to reinstate the position.  In any event the applicant had decided that it would take action against Unit 14A after the present proceedings.  As to the third unit, namely, Unit 19B the applicant admitted that the manager did not know of the breach of that unit but would take action against it. 

15.  The judge also dealt with other installation of air-conditioners on the ground floor shops and the applicant’s own use of the air-conditioners at the podium of the building.  In respect of one case the air-conditioner had been removed.  In another case the air-conditioner was installed a long time ago and the manager found it difficult to enforce the DMC against the owner due to the long history of breach.  The air-conditioners installed for the applicant’s use were installed at the area not open to the public and two of them are for the use of the lift lobbies. 

16.  The judge found that the applicant had not singled the respondent out for enforcement.  He held that the applicant had a duty to enforce the DMC.  Even if it had tolerated the few examples cited by the respondent, the acts of the applicant could not reasonably have created an expectation on the part of the respondent that the applicant would continue to ignore its duties or relinquish its rights forever in the future.

Lands Tribunal appeal

17.  The parties to Lands Tribunal proceedings have the right to appeal to the Court of Appeal against the judgment of the Lands Tribunal.  However, the appeal must be based on an error of law by the Lands Tribunal (Section 11(2) of the Lands Tribunal Ordinance [‘the Ordinance’] Cap. 17).  In this appeal the respondent had not identified any point of law that the judge may have erred upon.  

The new evidence

18.  The respondent had produced a 39-page written submission in support of his appeal in which he gave detailed background information concerning his involvement with the management of the building, his comments on the evidence of the witnesses and a contention that the claim lodged by the applicant against him was not properly authorized. 

19.  The respondent’s involvement with the management of the building is an irrelevant issue concerning the applicant’s claim against him.  In any event this aspect was not relied upon when he defended the case. 

20.  The respondent made extensive comments on the alleged falsity of the evidence of the applicant’s witnesses.  The judge had specifically dealt with this issue in his judgment :

‘In his closing submission, Mr. Cheung (i.e. counsel for the respondent) raises a lot of issues concerning the credibility of the Applicant’s witnesses, but I do not agree with the observations raised by him.  I have the opportunity to observe their demeanour.  I do find them to be truthful and honest witnesses.  There could be discrepancies in their evidence but I do not find them to be material.  Thus, it is not necessary to reject their evidence altogether.’

21.  The finding of fact is within the exclusive province of the judge who had the opportunity of observing and hearing the witnesses giving evidence at first hand.  In view of the restriction imposed on this Court by the Ordinance it is not our duty to go into the factual disputes. 

22.  The lack of authorization had not been raised in the court below and it is simply too late to raise this new point now which obviously requires the consideration of additional evidence. 

Application to admit new evidence

23.  In support of this appeal the respondent sought to rely upon seven items of new evidence.  This Court only allowed two of them to be admitted, namely, the transcript of evidence of the respondent at the hearing and the witness statement of one of the applicant’s witnesses.  The other items are new evidence.  Two of them called for comment.

24.  The fourth affirmation of the respondent was affirmed after the judgment.  In it he sought to comment on the evidence of the witnesses given at the hearing on behalf of the applicant.  He claimed that at hearing he was not present in court when the evidence was given by these witnesses.  His absence was not due to an exclusion by the judge but rather his own lawyers had told him that until such time as he had given his own evidence he might not be in court and listen to the evidence of the other witnesses.  Such advice is commonly given when credibility is in issue.

25.  Whether that advice was given or not is not something that this Court can adjudicate at this stage of the proceedings.  Even if such an advice was given we do not see how this would assist the respondent.  The evidence of the applicant lasted for two days, two witnesses were called on its behalf.  Even if the respondent was not present in court his lawyers could still have taken instructions from him before the examination of the witnesses.  This cannot be a ground for allowing the respondent to adduce an affirmation commenting on the evidence of the applicant’s witnesses at this stage of the proceedings.  What is more is that the respondent sought to rely on new evidence to deal with the witnesses’ evidence.  The respondent stated that after the applicant’s witnesses had given evidence he took further photographs of the building.  It is simply too late for the respondent to refer to this new evidence.  This matter could have been dealt at the hearing below.  The respondent’s lawyers could have asked for these new photographs to be produced to rebut the evidence of the applicant’s witnesses.  This was not done. 

26.  The other matter concerns an expert report obtained by the respondent on the method of installation of air-conditioner at the external wall.  This issue has nothing to do with the issue of whether the terms of the DMC had been breached.  In any event, the judge had in a pre-trial direction hearing refused to admit the report.  There was no appeal against that decision prior to the hearing below.  In any event, according to the transcript of the hearing, when the report was mentioned by the respondent, it was objected to by the applicant, and the respondent’s response was merely that he only mentioned it and would not use it.  It is simply too late to adduce the report in the appeal.

Conclusion

27.  As the respondent had not identified any error of law committed by the judge, this Court has to dismiss the appeal and order him to pay the applicant the costs of the appeal.

Mr. Lee Shu Wun, instructed by Messrs Angus Tse, Yuen & Ting, for the Applicant

Respondent appearing in person, present