Goodwell Property Management Ltd v. Ng Shung Kwok and Another

DCCJ3409/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3409 OF 2007

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Before:    H H Judge Chow in Chambers (Open to the public)

Date of Hearing:   17 June 2010

Date of Decision:   17 June 2010

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D E C I S I O N

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1.Having considered carefully the submissions made by the defence counsel, I am not convinced that paragraph 9 of my judgment is wrong; in particular, the defendant made the renovations referred to in paragraph 2 of the judgment without any prior written approval of the plaintiff.  It is unarguable that in doing so, the defendant was in breach of Clause 25 of the deed of mutual covenant at the material time.

2.In paragraph 29 of the submissions of the defendant, defence counsel referred to the external appearance of the estate.  The defendants added a canopy and a structure on the larger flat roof.  The defendants also altered the entrance to the smaller flat roof by removing the iron gates and erecting a door-like structure.  They can be seen from the outside of the defendants’ premises.

3.The defence counsel argued otherwise.  I do not accept the arguments.  The defendants are in breach of Clauses 17 and 25 of the DMC.  It is no defence simply to rely on Clause 21 of the DMC.

4.The defence counsel also submitted that the order imposed relating to the reinforcement is just a general order without specification, so that there would be hardship on the part of the defendant to comply with the order.  In this respect, the plaintiff referred to page 250 of the bundle of trial.  Defence counsel submits that the second photo on page 441 is different from the first photo on page 250 because the shadings are different.  The shades appearing on page 250 and the picture on 441 are different.  The shades on 250 are not the shades of the entrance.  They form the background.  There are no shades on the photo on page 250.  In any event, the defendant confirmed that the second photo on page 441 reflected the entrance to the smaller flat roof when he purchased the property and then after the renovations the entrance is shown in the first photo on 441.

5.In my view, there is no material difference between the photo on 250 and the second photo on page 441.  There is some difference but that difference is not material.  The difference is relating to the shade on page 441.  It has shades in white colour. 

6.According to my recollection, the defendants, namely, Mr Ng, did not tell me that he has no knowledge about the original state of the structure which he changed.  Obviously, he knows about the original specification of the matters and structures which he changed, although he may not have such knowledge in great detail.  When he was asked to reinstate to the original, he has the evidence in this case and the photos in the trial bundle to refer to for the reinstatement.  I do not think that there would be hardship on his part.

7.Regarding the submissions on the pleading point, there is simply no merit in that.

8.By reason of the matters aforesaid, I dismiss the application.

(Discussions re costs)

9.Costs of this application be to the plaintiff, to be taxed if not agreed, with certificate for counsel.

Mr Albert K H Cheung, instructed by Messrs Huen & Partners, for the Plaintiff

Mr Brian C W Wong, instructed by Hon & Co., for both Defendants