Goodwell Property Management Ltd v. Ng Shung Kwok Dickson and Another

DCCJ 3409/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3409 OF 2007

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BETWEEN

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Coram  :  His Honour Judge Chow

Dates of hearing  :  19^th and 23^rd March, 2010

Date of handing down Judgment  :  19^th May, 2010

JUDGMENT

1.The Plaintiff is the property manager of the property development known as One Beacon Hill, No. 1 Beacon Hill Road, Kowloon (“the Estate”), whereas the Defendants are the registered owners of Flat B on the ground floor and the flat roof adjacent to Tower 3 of the Estate (“the Property”).  In this action it claims for injunctive reliefs against the Defendants in respect of structures erected on the Property, in breach of the Deed of Mutual Covenant (“DMC”) of the Estate.  On the other hand the Defendants counterclaim against the Plaintiff for $200,000 for loss of abalones and fish maws, damages for discomfort and inconvenience and an injunction to restrain the Plaintiff from breaching the DMC.

2.In or about August 2004, the Defendants became the registered owners of the Property.  The Property includes 2 flat roofs, namely, a bigger flat roof, and a smaller flat roof.  Between October 2004 to September 2006, the Property underwent the following renovations:-

(1) the Defendants added a canopy (“the Glass Canopy”) and a structure (“the House Structure”) on the larger flat roof;

(2) the Defendants altered the entrance to the smaller flat roof by removing the iron gate and erecting a door-like structure.  The Defendant Ng Shun Kwok Dickson (“Ng”) confirmed that when the Defendants purchased the Property, the entrance to the smaller flat roof is as shown in photo 2 on P.441 of the Trial Bundle.  After the renovations, the entrance is as shown in photo 1 on P.441.

No written approval for undergoing the said renovations was given by the Plaintiff at any time.

3.On 4.9.2006, the solicitors for the Plaintiff wrote to the Defendants, and stated as follows: -

“We are instructed that you have unlawfully erected a house structure and a canopy (collectively “the Unauthorized Structures”) and carried out gate and fencing alterations (“the Alteration Works”) in the adjoining Flat Roof of the captioned premises.

The erection of the Unauthorized Structures and the Alteration Works constitute breaches of, inter alia, the following clauses in Section V of the Deed of Mutual Covenant of the Estate:-

…………………………………….

… you are requested to remove the Unauthorized Structures and to reinstate the affected areas to their original state within 14 days from the date hereof, failing which, legal proceedings will be instituted against you for, inter alia, a mandatory injunction compelling you to do so, without further notice to you…..”

4.By an order dated 27.9.2006, the Building Authority demanded the Defendants to demolish the structures erected on the flat roofs of the premises.

5.On 8.5.2007 the Plaintiffs instituted the present proceedings in the Lands Tribunal.  On 25.7.2007, the present proceedings were transferred to the District Court.

6.According to Ng, the Defendants removed the structures in or about January/February, 2008.  By a letter dated 14.3.2008, the Building Authority informed the Defendant that it would withhold enforcement.  But the Defendants replaced the Glass Canopy with a canopy made of plastic fibers; the house structure remains, and the door-like structure in the smaller flat roof has not been removed.  The canopy made of plastic fibers, the house structure and the door-like structure in the smaller flat roof are collectively referred to as the “Unauthorized Structures”.

7.Clause 17 of the DMC provides:-

“No owner shall do or permit to be done any act or thing which may or will alter the external appearance of the Estate or any part thereof and in particular no external shades, awnings, fences, metal grilles, partitions or any other structure or thing shall be placed, installed, exhibited, affixed, erected or attached or caused or permitted to remain in or about or on or at any part of the external wall or flat roofs or roofs of the Estate, or any part thereof.”

(Underlines provided)

8.Clause 25 reads:-

“…… Without prejudice to any other provision in this Deed the Owner(s) for the time being of the flat roof(s) or the roof(s) of the Estate shall not erect affix or install or cause or allow to be erected affixed or installed any structure on such flat roof(s) or the roof(s) save and except with the prior written approval of the Manager ……”

(Underlines added)

9.The photographs exhibited at PP.247, 440 and 441 of the Trial Bundle clearly show that the additions and alterations made by the Defendants alter the external appearance of the Estate.    They look different from other units.  These additions and alterations are visible from the outside of the building.  The construction of these unauthorized structures are in breach of Clauses 17 and 25 of the DMC.

10.In respect of Clause 25, the Defence Counsel argues that in order to succeed on this clause, the Plaintiff will need to show that-

(a)  there was structure being erected, affixed or installed or cause or allow to be erected affixed or installed “on” the flat roof;

(b) there was no prior written approval by the Plaintiff.

The Defence Counsel submits that in the course of the application procedure before the Defendants proceeded with the renovation works, the Plaintiff must have come to know that the Defendants were carrying out works at the flat roof.  Therefore the Plaintiff was being notified and had permitted the Defendants to proceed with the works to which the Plaintiff is now complaining.  But “knowing” does not necessarily mean “permitting”.  In any event the point is that no prior written approval was given by the Plaintiff.  The Plaintiff has  succeeded in proving (a) and (b).

The defences

The canopies are required for protection from falling objects from above

11.In his second witness statement Ng said that the canopies are necessary to be constructed for the protection of people from being hit by falling objects from above.  In Metro City Management Limited v. Tsui Fee Hung Vincent and Another (HCA 4327/2003), the Court considered a similar defence.  The Court referred to the case of Hong Kong Land Company Ltd. v. Cheung Chiu Moon (OJMD No. 523 of 1975) where the Court held that an injunction ought to be granted.  It stated:-

“As a final hope the Defendant seeks to justify his canopy as a proper answer to the plaintiff’s failure to prevent upstairs owners from throwing rubbish down in contravention of section 19 of the Deed of Mutual Covenant.  There is no evidence as to the extent of his nuisance but even assuming it to be substantial I do not think the defendant can be justified in abating it in a way that is itself in breach of his own obligations.  Furthermore I am satisfied that on the affidavit of Mr. Edwards that the Plaintiff has done all that can reasonably expected of him in this respect.”

The Defendants are bound by the provisions of the DMC.  There is no defence for them to abate the incidents of falling objects from height by breaching their own obligations under the DMC.

12.Mr. Law Hon Kim (“Law”), the Plaintiff’s manager, testified that the Plaintiff has done all that could be done.  On any reports of falling objects from height, the Plaintiff would make investigations, approach the wrongful party, report the matter to the police (when necessary), and issue notices to occupiers, reminding them not to throw objects from height.  I accept his evidence.

There are other owners in the Estate who are committing the same or similar breaches, and it would be unfair or unjust for the Plaintiff to target the Defendants

13.The Defence Counsel argues that the Defendants have submitted evidence that other owners have done similar constructions at the flat roofs.  Therefore the Plaintiff must have allowed other owners to build on their flat roofs.  Law testified that the Plaintiff:-

(1) patrol the Estate on a regular basis;

(2) request those responsible to remove the offending structure when its staff discover any structure in breach of the DMC or Building Ordinance;

(3) instruct solicitors to write warning letters to those responsible for unauthorized structures;

(4) take legal action, if necessary.

I accept his evidence.

14.The Plaintiff’s resources are limited and there is a system of priority in dealing with these matters.  Because of limited resources it would simply be unwise, as far as building management is concerned, to take legal actions against all the offending owners at about the same time.  The Defendants have not shown, by way of evidence, how the Plaintiff only targeted them.  I do not find that the Plaintiff have allowed other owners to build structures on their flat roofs.

15.There is no evidence that the Plaintiff has acquiesced on any breach of the DMC.  The Plaintiff, being an agent of the owners incorporation of the Estate (“owners incorporation”) by virtue of section 18(2)(c) of the Building Management Ordinance (“BMO”), is under a legal obligation to discharge the duties of the owners incorporation.  The owners incorporation is under a legal duty to enforce the covenants of the DMC pursuant to section 18(1)(c) of the BMO.  It has no power to acquiesce on any breach of the DMC.  Likewise the Plaintiff, being its agent, has no power to acquiesce on any breach of the BMC.  So it cannot acquiesce on any such breach.

The Plaintiff failed to manage the Estate properly and breached the DMC

16.The Defendants allege that the Plaintiff failed to carry out any and/or adequate repair works in relation to the problem of water ingression in the car park, and erected various structures or making various alterations in breach of the DMC.

17.Law said that regarding water ingression in the car park, the Plaintiff had constructed temporary metal trays to divert dripping water into the drains, so as to prevent water from dripping onto the vehicles.  The Plaintiff and the developer of the Estate would determine who was responsible for the repairs.  If the Plaintiff is responsible, it will have to do the repair.  If the developer is responsible for the water ingression, it has to do the repair works.  Regarding the Defendant’s car park space A88, it has been determined that the developer is responsible, and arrangements are being made for its repair.  There is nothing else the Plaintiff can do in this respect.  I accept his evidence.

18.The Defendants have not shown by way of evidence as to how the alterations were done in breach of the DMC.  According to Law, these alterations were made in the course of the management of the Estate.

19.Even if the Plaintiff did fail to manage the Estate properly, what the owners can do is to dismiss its employment of services with them.  I cannot see how the Defendants can rely on such a failure to justify their breach of the DMC.

20.The Defendants submit that they have the right to do in the Property so long as their actions do not constitute dangers or nuisance to their neighbours.  In my judgment, so long as they comply with the covenants of the DMC and the rules of relevant law, they can do whatever they like with their property.  But in this case, they have acted in contravention of the DMC.

21.For the above reasons, all the defences fail.

Counter-claim

22.The Defendants claim against the Plaintiff in the sum of $200,000 for the loss of 4 abalones and 1 piece of fish maw.  On 2.5.2007, the Plaintiff carried out water test to the external wall of Unit 3C of Tower 3.  During the water tests, some of the water fell on the Defendants’ property, namely, 4 abalones and 1 piece of fish maw.  The Plaintiff accepts that it is responsible for this incident.  The remaining issue is for the Defendants to prove the amount of damage.

23.The Defendants threw away and did throw away the abalones and fish maw after the incident, because they were not fit for assumption.  According to Ng, they became bad after having been tainted by water.

24.Ng admitted that he did not know what type of abalones they were. He said that his father had bought the abalones about 2 years before the incident.  He had told Ng that they cost $200,000, and he had made the payment in cash.  His father is a retired man. He did not come to court to testify.  No explanation was offered in his regard.

25.There is no evidence to support the payment of $200,000, save and except the hearsay evidence from Ng in this regard.  Evidence should be adduced to show that Ng’s father did withdraw $200,000 from the bank to make the purchase.  It is incredible that his father would pocket a huge sum of $200,000 in cash to buy the abalones.  I simply would not attach any weight to such hearsay evidence.  I would only allow a nominal sum of $1,000 to the Defendants for their loss of the abalones and the fish maw.  Save and except for this item, the Defendants fail in their counterclaim.

26.The Defence Counsel argues that paragraph 4 of the statement of claim defines “illegal structure” as “a house structure and a canopy”.  Under item (1) of the prayer the Plaintiff asks this Court to impose an injunction to order the Defendants to remove the illegal structure forthwith.  This order, if imposed by this Court, would merely apply to cover the house structure and the canopy.  Clearly, the Plaintiff intends to ask this court to impose an injunction order for the removal of all the Unauthorized Structures.  Under item (3) of the Prayer the Plaintiff asked for “such further or other relief as may be just”.  So this would remedy the omission to include other items not caught by item (1) of the Prayer.

27.I adjudge that the Plaintiff succeeds in its claim against the Defendants.  I order that:-

(1) The Defendants whether by themselves, their servants, agents, tenants or otherwise forthwith remove all the Unauthorized Structures on the area in question and reinstate the area within 180 days from the date hereof.

(2) The Defendants whether by themselves, their servants, agents, tenants or otherwise be restrained from erecting unauthorized structures on the said area.

(3) The Plaintiff do pay $1,000 to the Defendants for the damage done to the abalones and the fish maw.  Subject to that I dismiss all the counter-claim.

Costs

28.I make an order nisi, to be made absolute within 14 days’ time, that the Defendants do pay 90% of the costs of this action to the Plaintiff, to be taxed, if not agreed, with certificate for Counsel, and the Plaintiff do pay 10% of the costs of this action to the Defendant, to be taxed, if not agreed, with certificate for Counsel.

The Plaintiff :  represented by Mr. Albert K.H. Cheung, instructed by M/S. Huen & Partners

The Defendants :   represented by Mr. Wong Chao Wai, instructed by M/S. Hon & Co., Solicitors