李延康及另其他人 v. 韻濤居業主立案法團及另一人
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DCCJ 4861/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4861 OF 2008 ------------------------ BETWEEN
------------------------ Coram: Deputy District Judge Roy Yu in Court Dates of Hearing: 17th，18th，21st and 22nd June 2010 Date of Handing down of Judgment: 5th August 2010 ----------------- JUDGMENT ----------------- 1.This action has been taken out by the Plaintiffs while acting in person. All the pleadings are prepared in Chinese. Before the trial, all the Plaintiffs, except the 5th named Plaintiff, instructed Messrs. Hau，Lau，Li and Yeung as their solicitors and they were represented by counsel, Ms. Chit at the trial. The Defendants were represented by Mr. Chan of Messrs. Chung & Kwan. 2.As the case involves points of law and the facts are not much in dispute, I invited the parties to conduct the trial in English. All parties agreed. 3.As for the 5th named Plaintiff, she agreed with the Defendants to withdraw her case on conditions that she would have to bear the costs of the Defendants (agreed at $5,000) if the other Plaintiffs fail in all of their applications herein. The other Plaintiffs had no objection. I gave her leave to withdraw on the agreed term. Background and Issues 4.The background facts are not in dispute which I extract from the oral evidence and the documents in the Agreed Bundle. 5.The Plaintiffs except the 2nd , 9th and 11th named Plaintiffs are and were at all material times registered owners and occupiers of various residential units of Blocks A, B and C of Serenade Cove, 623 Castle Peak Road, Tsuen Wan, New Territories (“the Estate”). The 9th and 11th named Plaintiffs were owners of units in the Estate but have before this trial sold their units and moved out of the Estate. The 2nd Plaintiff is an occupier of a unit of the Estate owned by his wife. 6.All the Plaintiffs sought various declaratory reliefs on the interpretation and enforcement of the Deed of Mutual Covenant of the Estate (registered in the Land Registry by Memorial No. 8294956) (“the DMC”), and some resolutions passed at the meetings of the Management Committee of the 1st Defendant. 7.The 1st Defendant is the Incorporated Owners of the Estate registered under The Building Management Ordinance Cap. 344. It is in dispute if the 2nd Defendant is the Manager of the Estate appointed under the DMC or it is a Manager/employee engaged by the 1st Defendant to manage the Estate, with the 1st Defendant seized of the power of the Manager. The DMC and the Clauses in Issue 8.The first issue in dispute is whether Clause 19 of the DMC is binding on all the owners of the Estate. Clause 19 of Schedule 3 of the DMC (“Clause 19”) reads–
9.It is the first contention of the Plaintiffs that Clause 19 is not a restrictive covenant that relates to land and accordingly, s.41 of the Conveyancing and Property Ordinance Cap.219 does not apply. Clause 19 would not bind the Plaintiffs as they are not the contracting parties to the DMC and there is no privacy of the Estate if s.41 does not apply. 10.The Plaintiffs seek the following declaration-
11.Further, Clause 4.1 of the DMC (“Clause 4.1”) provides that –
12.The Plaintiffs also argue that Clause 19 conflicts with Clause 4.1 of the DMC which provides that each owner is entitled to exclusive possession of his unit. Clause 19 should be read subject to Clause 4.1. 13.The Plaintiffs seek the following declaration-
I would first deal with the argument relating to these 2 declarations before I consider the rest of the contention and application. Does Clause 19 relate to the land? 14.It is not disputed that Clause 19 is a restrictive covenant in the DMC. The question is whether s. 41 of Cap. 219 applies, and if so, the Plaintiffs would be bound by Clause 19. 15.Section 41(2) & (3) of Cap. 219 reads –
16.It is not disputed that Clause 19 satisfies the requirement of s.41 (2)(b) & (c). It is the submission of Ms. Chit that Clause 19 does not relate to land and does not satisfy the requirement of s.41 (2)(a), and it cannot be enforced against the Plaintiffs under s. 41(2) & (3) of Cap. 219. She refers me to the judgment of Mr. Justice Cons in Lamaya Ltd. V. Supreme Development Ltd (Li & Fung (Properties) Limited, Third Party) [1991] 1 HKC 198, when His Lordship explained what is the meaning of the word ‘relates’–
17.Ms. Chit submits that the word ‘relates’ is a modern form of ‘touch and concern’ and the test as formulated by Bayley J. aforesaid remains good to determine if a restrictive covenant touches and concerns the land. I only need to note that Mr. Justice Cons was not expressing a concluded opinion on the point in Lamaya’s case. 18.Ms. Chit also refers to a judgment by Lord Oliver of Aylmerton given in P & A Swift Investments v. Combined English Stores Group PLC [1989] 1 AC 632 at 642 –
19.Ms. Chit submits that keeping of pets in units in the Estate does not change the mode of use and nature of those units. The units in the Estate with pets in them are still strictly for residential use and purpose. And the value of the Estate would not be affected by keeping of pets. Accordingly, Clause 19 does not relate to the land and the burden does not run with the land. 20.Mr. Chan refers me to the case of Incorporated Owners of Mirador Mansion v. Tecowin Dev. Ltd. HCA4069/1996. The Honourable Recorder Tang S.C. (as he then was) also refers to the said test of Barley J. to determine whether a covenant relates to land. I have no disagreement with the able judgment of The Honourable Recorder. The Defendant is not arguing against this principle. And for the purpose of this judgment, I would assume Barley J.’s test is the proper test to be adopted. 21.Mr. Chan submits that Clause 19 affects the nature, quality, mode of user or value of the Estate, because no dogs shall be kept or harboured. 22.I believe the flaw in the argument of Ms. Chit is that, for a covenant to be related to land, it must ‘affect’ the mode of occupation of the land or the value of the land, but need not go as far as to ‘change’ the mode of usage as suggested by Ms. Chit. It is noted that in both cases cited by Ms. Chit, Bayley J. and Lord Oliver said the covenant shall affect the land. Right and limitation on keeping of pets must affect the mode of occupation of the land. For example, there has to be implied rights for the pets to come out of and into the units of their owners. They have to go through common areas. The right of way enjoyed by other owners would be affected and the clause must affect the land. 23.In the alternative, I also accept the submission of Mr. Chan that Clause 36 (ll) of the DMC provides that the Manager of the DMC may remove any dogs from the Estate when no written consent has been given. This clause would go hand in hand with Clause 19. Both clauses concern the power to remove dogs from the Estate which power surely affects the occupation of the land. Both clauses must relate to land. 24.I find that Clause 19 relates to land, and by s. 41 of Cap. 219, Clause 19 is binding on the Plaintiffs who are owners. Accordingly, the application for a declaration that clause 19 does not bind the Plaintiffs must fail. Whether Clause 19 conflicts with the covenant to have exclusive enjoyment of the units? 25.Ms. Chit submits that it does. She has no authority in support. At one stage, there is reference to a judgment by Deputy Judge Charles Wong in DCCJ1704 of 2007 when the Deputy Judge holds that a House Rules established under the DMC against keeping of pets conflicts with the provision in the DMC for exclusive possession by individual owners of their units. Ms. Chit concedes that the case is distinguishable from ours, as Clause 19 is a covenant in the DMC and not a House Rules. 26.Ms. Chit’s argument cannot be sustained as the right to exclusive possession as provided in the DMC is not an absolute right. Clause 4.1 provides that the right to possession is subject to the express covenants and provision in the DMC. And Clause 4.2 of the DMC provides that each owner for the time being of any unit is bound by the covenants, provisions and restrictions contained in Third Schedule of the DMC, which includes Clause 19. Accordingly, the Plaintiffs’ right to “exclusive” possession of their units is not an absolute right but is subject to the restriction of Clause 19. Accordingly, there is no conflict between these 2 clauses, but in any event the right to possession is subject to Clause 19 and the application for a declaration that Clause 19 overrides Clause 4.1 must fail. Have the Defendants Acknowledged/Allowed/Accepted the Keeping of Dogs, Whether the Defendants have waived their rights to remove the Dogs? 27.It is not disputed that in a Meeting of the Management Committee of the 1st Defendant on 2nd January 2007, owners present discussed about the problem of dogs keeping and related nuisance complaint. A resolution was passed to take action against defiant dog keepers (“the 2007 Resolution”). The resolution reads –
28.It is the contention of the Plaintiffs that by this resolution, and by the subsequent act of the 1st and/or 2nd Defendant in carrying out this resolution, the Defendants have acknowledged/allowed/accepted occupiers in the Estate to keep dogs and the Defendants would only take action against defiant dog keepers in accordance with the procedure set out in the 2007 Resolution. Alternatively, the Defendants have waived their rights to enforce the power to remove the dogs save in accordance with the terms of the 2007 Resolution. 29.The Plaintiffs seek a declaration against both Defendants that –
30.Ms. Chit also relies on the fact that owners of the Estates have been keeping dogs for many years, some since 2001 when the Estate was first occupied. The 1st and 2nd Defendants always took a harmonic attitude in dealing with the matter. 31.I am confirmed by Ms. Chit that the Plaintiffs are not relying on the past conduct/act of the Defendants as their basis for their contention of waiver and/or acknowledgement. They relies on the 2007 Resolution. The position of individual Plaintiffs has been keeping dogs for years would be some background information to assist their cases. 32.Thisargumentinvolvesboth fact and law. I would come to some of the evidence of the parties on dogs keeping in the Estate and various discussions in meetings at the Management Committee of the 1st Defendant on dogs keeping matters. The Plaintiffs’ Evidence 33.Since the Plaintiffs rely on the 2007 Resolution as the key factor for their argument, I do not consider it is necessary to go through all the evidence of the Plaintiffs one by one. There are 8 witnesses for the Plaintiffs, the 1st, 2nd, 6th, 7th, 10th, 12th, 13th and 14th named Plaintiffs. The following extracts from their evidence is not disputed, and is background information helpful to my finding –
Defendants’ Reply 34.Mr. Chansubmits that according to the pleaded case, the Plaintiffs only rely on the 2007 Resolution to say that the Defendants acknowledged/allowed/accepted owners to keep dogs on conditions, and the Court needs not take other matters into account. 35.I believe Mr. Chan is referring to paragraph 14 of the Amended Statement of Claim. I agree with his submission. And in fact, Ms. Chit adopted a similar approach (as I mentioned above.) 36.Mr. Chan submits that thePlaintiffs pick words from the 2007 Resolution to suit their cases. Looking at the Resolution as a whole, it only provides that the Defendants would be taking legal action against defiant dog owners first. Action against owners who are in breach of the DMC would be taken step by step in order to keep a harmonious relationship amongst the owners. There is no representation that action would not be taken against some of the owners. 37.He also submits that, after another Resolution passed by the Management Committee in June 2008 (which I would come to later), all the Plaintiffs applied for written consent from the Defendants to keep dogs. They did not allege that they had been permitted to keep dogs with conditions in their applications. Further, in the subsequent correspondence by their lawyers, Messrs. Liu, Chan and Lam with Messrs. Ho & Tam, the Plaintiffs did not allege keeping dogs had been approved by the Defendants on conditions. This contradicts their allegation that the 2007 Resolution permitted them to keep dogs. The Defendants’ Evidence 38.The Defendants have called 4 witnesses. As the argument turns on the effect of the 2007 Resolution, I do not consider necessary to go through all their evidence. I refer at this stage to the evidence of何庭耀. He had been a member of the Management Committee of the 1st Defendant since 2002. He gave evidence that all along, the residents in the Estate suffered from nuisance and disturbance from dogs. 39.From the documents produced in the Agreed Bundle by the parties, in particular the Minutes of the Management Committee and Owners Meeting, I notice that as early as in 2002, there had been complaints against keeping of dogs. In 2005, at the annual Owners’ Meeting, there was record of complaints against keeping of dogs. There were then a number of Notices posted up in 2006 reminding the owners that according to the Clause 19, no pets should be kept. Discussion on the Submission of the Parties 40.To understand the argument of the Plaintiffs, I have to consider what Ms. Chit means by “acknowledged”, “accepted”, or “allowed” by the Plaintiffs (and possibly the other owners) to keep dogs on conditions. Ms. Chit submits that the Plaintiffs are not relying on acquiescence. The Plaintiffs are claiming that by passing the 2007 Resolution and the 1st and 2nd Defendants in adopting and enforcing the Resolution, they have “accepted” that owners in the Estate may keep dogs on conditions as set out in the Resolution. But she has not referred me to any case or authority on any special meaning of “acknowledgement, acceptance and allowance”. I presume the usual English meaning is adopted. 41.In her written submission, Ms. Chit says if I found the Defendants had acknowledged/allowed/accepted the keeping of dogs in the Estate, they have waived their rights, subject to the conditions in the 2007 Resolution to enforce Clause 19. 42.What Ms. Chit seeks to argue is that by passing and enforcing the 2007 Resolution, the Defendants have taken a positive action or representation that the owners may keep dogs as long as the dogs do not create a nuisance and have to be removed according to the procedure set out in the 2007 Resolution. It follows that the Defendants have waived their rights to remove the dogs that do behave. So at end of the day, Ms. Chit is relying on waiver. 43.And by allowance, it could be a claim of oral or implied consent/permission from the Defendants. I would take these arguments one by one. Waiver 44.I refer to Alan & Co Ltd v El Nasr Export and Import Co [1972] 2 QB 189, at 213 where Lord Denning MR explained the principle of waiver:
45.Have the Defendants led the Plaintiffs to believe that they have given up their rights to remove the dogs by the 2007 Resolution? 46.By resolving to take action against defiant dog keepers first, it is not inconsistent with the power and right of the Defendants to take action to remove all the dogs. It cannot be read to mean that if the dogs kept by defiant dog keepers do not create nuisance after the warning, they would be allowed to keep their dogs. Further still, it cannot be read as a representation to other non-defiant dog keepers that they could keep the dogs as long as they do not create nuisance. 47.I repeat the first sentence of the Resolution – “重點處理個別毫不自律的狗主，以警效尤….” [my emphasis] 48.So the Resolution is a warning to all the owners. I agree with Mr. Chan that the Resolution is an action plan approved in the meeting and further action has been reserved. I do not see how it could be argued that the 2007 Resolution leads the Plaintiffs to believe that they would be allowed to keep dogs on conditions. I disagree with Ms. Chit’s submission. 49.Further, the Plaintiffs have all been keeping dogs for years. There is no evidence that they have acted on the alleged representation as contended in the 2007 Resolution to change their position. I found that there is no waiver by the Defendants of the right and duty to remove the dogs from the Estate by passing the 2007 Resolution and acting accordingly. The Defendants had not acknowledged/allowed/accepted the Plaintiffs to keep dogs as claimed. Is the 2007 Resolution a Permission to keep dogs? 50.Looking at the 2007 Resolution, it clearly states the action to be taken against defiant dog keeping owners. It cannot be corrected to read into the resolution that non-defiant dog keeper would be ‘permitted/allowed’ to keep dogs. In fact, it cannot be disputed that in the same minutes, it has been recorded that the 2nd Defendant recommended to the meeting that solicitors’ letter be issued to all owners to reinstate that keeping of dogs is in breach of the DMC. I cannot see how it could be argued that 2007 Resolution is an acknowledgement or acceptance of the Plaintiffs’ rights to keep dogs. 51.As submitted by Mr. Chan, the 2007 Resolution is a scheme of action against defiant dog keepers. There is no consent given, either expressly or impliedly for the owners to keep dogs on conditions. I agree. Could IO acquiesce? 52.For completeness, it is further submitted by Mr. Chan that the Defendants as incorporated owners and Manager under the DMC could not give acquiescence or waiver to breach of the DMC. They are duty bound to enforce the DMC. He refers me to the judgment of Mr. Justice Godfrey in IO of Hoi Luen Industrial Centre & another v. Ohashi Chemical Industries (Hong Kong) Limited CACV3 of 1995. Paragraph 6 of the judgment reads –
53.Ms. Chit says she is not relying on acquiescence in this case. But in her reply on point of law, she seeks to distinguish the case on the ground that Clause 19 is not an absolute clause as keeping of dogs is permissible with the written consent of the Manager. I do not share the distinction as suggested by Ms. Chit. 54.I agree with Mr. Chan that the 1st Defendant as Incorporated Owners and/or as Manager under the DMC cannot acquiesce the breach under the DMC. Likewise, the 2nd Defendant if they are the Manager under the DMC cannot acquiesce the breach. 55.In summing up, the application for the declaration of acknowledgement and waiver as recorded in paragraph 29 herein is dismissed. Facts leading to 2008 Resolutions 56.As mentioned, on or about 2 February 2007, Messrs. Ho & Tam on instruction of the Defendants gave a final written warning to all owners and occupiers of the Estate to comply with the DMC and threatened to take legal actions. 57.There is no evidence on what action has been taken by the Defendants beside this letter. It is noted from the minutes of the Owners Meeting in October 2007, there were again complaints against keeping of dogs. At a further Management Committee Meeting held on 10 June 2008, the 2nd Defendant reported that an occupier was frightened by a dog coming out of the lift. There were also complaints about barking. As the 1st Defendant might be subject to legal action, a special meeting was summoned on 20 June 2008. It was resolved at this meeting to engage Messrs. Ho & Tam to advise on the application for injunction against owners from keeping dogs. 58.The Defendants had record of all the owners who kept dogs, compiled from reports of caretakers. On or about 18 July 2008, Messrs. Ho & Tam issued final notice to all owners to remove their dogs from the Estate within 14 days. 59.On or around 26 July 2008, a number of owners including all the Plaintiffs (and the 2nd Plaintiff by his wife) wrote separately to the 2nd Defendant seeking for a written consent to keep their own dogs. All applications have been refused by the 2nd Defendant with no reason stated. There were follow up letters by some of the Plaintiffs and the 2nd Defendant then explained that keeping of dogs would generally create hygiene problem and noise nuisance. 60.Another meeting of the Management Committee of the 1st Defendant was held on 9 September 2008 when it was resolved to appoint Messes. Chung & Kwan to represent the 1st Defendant to remove all the dogs from the Estate by applying for injunction against owners who keep dogs. 61.The Resolutions passed on 20 June and 9 September 2008 respectively are referred to as the 2008 Resolutions hereinafter. Objection to The 2008 Resolutions 62.The Plaintiffs seek an order that the 2008 Resolutions should be declared void. 63.Ms. Chit submits that if I found that the Defendants have acknowledged or accepted the keeping of dogs, or the Defendants have waived their rights to remove the dogs, the 2008 Resolutions should be declared void. Since I rule against the Plaintiffs on this point, I dismiss Ms. Chit’s argument. 64.As an alternative, Ms. Chit seeks to argue that, firstly, Clause 19 gives discretion to the Manager appointed under the DMC to give consent; secondly, he shall exercise such discretion reasonably and there should be implied terms to that effect. Either the 1st and/or 2nd Defendants have acted unreasonable in refusing the applications by the Plaintiffs for consent under Clause 19 and equity should not allow the Defendants to enforce Clause 19 (and Clause 36(ll)) to remove the dogs by executing the 2008 Resolutions. I would take these arguments one by one to consider if the 2008 Resolutions should be declared void. Has Clause 19 provided a Discretion for the Manager to give Consent? 65.As stated above, Clause 19 provides that no owners shall keep pets “save and except with the prior written consent of the Manager”. And the Manager is empowered by the DMC to remove pets in the Estate being kept or harboured by owners without his consent. It must follow that he has the discretion and power to give written consent. Any Implied Terms on How Should the Manager Exercises the Discretion? 66.The Plaintiffs argue that such power or discretion must be qualified with implied terms that it shall not be unreasonably withheld and shall consider each application in the viewpoint of a reasonable estate Manager. Ms. Chit refers to the judgment of Leggatt LJ in Abu Dhabi National Tanker Co. v. Product Star Shipping Ltd., The Product Star (No. 2) [1993] 1 Lloyd’s Rep 397–
67.Ms. Chit also refers me to the judgment of Deputy Judge Lam (as he then was) in Stratton Property Management Limited v. Pofield Investments Limited HCA11432/1999. I shall come back to this case later. 68.Mr. Chan argues that there should be no implied terms. He refers to clause 36 (pp) of the DMC that “…the giving or withholding by the Manager of such consent or approval shall be final and conclusive and binding on the Owners …” 69.Mr. Chan also submits that for a term to be implied in a written contract, the Court of Final Appeal in Kensland Realty Ltd. V. Whale View Investment Limited [2002] 1 HKLRD 87 has adopted the ruling of Lord Simon given in BP Refinery (Westernpoint) Pty Ltd v. Shire of Hastings (1978) 52 ALJR 20 –
70.Mr. Chan also refers to the judgment of Mr. Justice Godfrey in The I. O. of Mai On Industrial Building v. Hedit Limited HCA6529 of 1987 when His Lordship refused to rule in implied terms that consent shall not be unreasonably withheld. But it must be noted that His Lordship said, when he ruled out the implied terms, that it is not necessary to give efficacy to the covenant in the case. That is exactly the consideration before this Court. What would be necessary to give business efficacy to the contract has to be determined on the particular facts of the case in issue. 71.In fact, the Mai On Industrial Building’s case was considered by Deputy Judge Lam (as he then was) in Stratton Property’s case. Deputy Judge Lam concluded in his judgment that
72.The Honourable Deputy Judge has also considered what contributes unreasonableness in light of the dicta of Ribeiro PJ in Regal Success v. Jonlin Limited [2000] 3 HKLRD 597, when Mr. Justice Ribeiro said –
73.I respectfully adopt the reasoning of the Honourable Deputy Judge. I found the power of the Manager to give written consent under Clause 19 should be read with the implied conditions on the Manager, or the Incorporated Owners exercising the power of the Manager when considering application for written approval, that they would not act arbitrarily, capriciously or unreasonably in the meaning of as described by Ribeiro PJ as aforesaid. 74.But would the situation be different in light of the provision of Clause 36 (pp)? I do not believe it makes any difference. While the decision is to be final, the Manager is expected to act in good faith. With the interpretation of reasonableness as described by Ribeiro PJ, the Court would only interfere with the exercise of the discretion in cases when it is so patent and absurd. That does not really affect the finality of the discretionary decision of the Manager. Had the Manager acted unreasonably in handling the Plaintiffs’ Applications? 75.It is the case of the Plaintiffs that the 2nd Defendant is the Manager of the Estate under the DMC, and Ms. Chit submits that the 2nd Defendant had been unreasonable in refusing the applications by the Plaintiffs. The main complaint is that the 2nd Defendant had not considered each application individually, and they only acted according to instruction from the 1st Defendant. 76.This may be an appropriate juncture to consider the issue whether the 2nd Defendant is the Manager of the Estate as appointed under the DMC. The Plaintiff’s case is the 2nd Defendant is the Manager under the DMC and hence all applications had been made to him. The Defendants’ case is that the 2nd Defendant is only a servant or agent of the 1st Defendant to manage the Estate. As there is no Manager appointed under the DMC, the 1st Defendant undertakes the duty and power of the Manager, including the power under Clause 19 to grant written consent. 77.It is not disputed that if the 2nd Defendant is only a servant of the 1st Defendant, the 1st Defendant has endorsed the act of the 2nd Defendant in refusing all the applications for written consent. According, if the 2nd Defendant has been unreasonable, the 1st Defendant would be equally unreasonable. The consideration of the Plaintiffs’ argument would be the same regardless if the 1st Defendant exercised all the power of the Manager or the 2nd Defendant is the Manager appointed under the DMC. I do not have to rule on this point. 78.Had the Defendants been acting unreasonably in refusing written consent be given to the Plaintiffs? 79.I refer to the evidence of蔡志榮, a Manager of the 2nd Defendant who was appointed by the 2nd Defendant to manage and supervise the management of the Estate. He gave evidence that the 2nd Defendant had refused a number of applications for consent to keep dogs, on behalf of the 1st Defendant. He did refer to a number of criteria for refusing the applications and said the 1st Defendant had considered those criteria. These criteria included barking creating nuisance, hygiene reason, and previous discussion at meetings of the Management Committee of the 1st Defendant against dog keeping. I have no reason to doubt his evidence that these are the matters considered by the 1st Defendant before refusing the application. 80.Mr. Choi maintained that the person seized of the power of the Manager under the DMC is the 1st Defendant. If I had to rule on the point, I would adopt the evidence of Mr. Choi that the 2nd Defendant is only an agent of the 1st Defendant. A contractual relationship is a matter between the contracting parties, and I believe Mr. Choi is in the best position to explain the relationship of the 2nd Defendant with the 1st Defendant. 81.Defence witness譚瑞波from 1st Defendant said they have considered the applications. Ms. Chit submits that the evidence of譚瑞波that the 1st Defendant had considered all applications is bare assertion. While no minutes or written record has been produced, I found Mr. Tam a truthful witness and I accept his evidence. 82.Ms. Chit further refers to the various letters issued by the 2nd Defendant when it was mentioned that no dogs could be kept in the Estate, leaving out the following proviso in Clause 19 – “except with the prior written consent of the Manager.” She submits that the 1st and/or 2nd Defendants are under the misconception that Clause 19 is an absolute prohibition and hence they could not have exercised their discretion reasonably. But there is no evidence to support this submission of Ms. Chit. 83.Mr. Chan submits that the Defendants have not unreasonably refused the consent. He submits that dog nuisance had been a problem to the Estate since 2001. There are complaint letters produced in the Agreed Bundle which I do not repeat. There were warning notices to owners. As I quoted above, there were records of dog nuisance in minutes of the Management Committee since 2002. And some of the Plaintiffs who gave evidence admitted that there were dog nuisance and some of which were caused by their own dogs. Has Manager acted unreasonably when refusing the Plaintiffs’ Applications for Consent? 84.As I ruled above, the question is whether a reasonable man would consider the refusal by the Defendants to be absurd or ridiculous. 85.I first refer to the applications for written consent issued by the Plaintiffs, which are all in identical terms. It reads –
86.None of the Plaintiffs set out the reason for keeping the dogs. They seem to be under the impression that it is for the Manager to give the reason for disallowing keeping of pets. I am afraid that is not the case. Clause 19 is a clear restriction on the right of the owners in the Estate to keep pets. The Manager has the power to give written consent as I rule above. But he can only consider any applications in as much of the facts relied upon by individual owners and against facts and matters applicable generally to the Estate. When he is faced with an application with no factual basis and no reason given for the application, I do not think that he could be criticized for rejecting without reasons. 87.And in fact, after the applications were rejected, some of the Plaintiffs queried the decision of the 2nd Defendant. Again, no additional facts or information were put up. At this juncture, the 2nd Defendant explained in the reply letters that keeping of dogs created hygiene problem and noise nuisance. I agree with Mr. Chan that there is evidence before me about dog nuisance in the Estate. There had been discussion in the Management Committee on these issues. Taking all these matters into account, I found that the 1st and/or 2nd Defendants rejected the application for written consent having considered matters on hygiene issue and noise nuisance created by dogs, which is a proper approach. The refusal by the 1st and/or 2nd Defendants could not be said to be absurd or ridiculous. They have not acted unreasonably. Application to nullify the 2008 Resolutions 88.I only need to add this, it cannot be denied that the Plaintiffs and other dog keepers have been in breach of the DMC when they kept dogs without written consent of the Manager. And save for the 1st Plaintiff, all other Plaintiffs keep dogs, not on any express or implied representation of the Defendants, but on the facts that there are other owners keeping dogs in the Estate. The 2008 Resolutions are within the power of the Defendants. They cannot be faulted for enforcing the DMC. Since I cannot say that the Defendants had acted unreasonably in refusing the applications by the Plaintiffs to keep dog, there is no reason to suggest that the 1st Defendant was unreasonable to pass the 2008 Resolutions to take action to remove the dogs. I therefore refuse the application to declare the 2008 Resolutions void. 89.For individual owners who might have other reasons for resisting the injunction application to be taken out by the Defendants, it would be for him to justify his defence in such injunction application. Specific Performance of 2007 Resolution 90.Ms. Chit has a final argument. She submits that “if the Court finds that the 1st and 2nd Defendants have not waived their rights to enforce [Clause 19] and the [2008 Resolutions] were not void, [she] submitted that the existence of these resolutions would not affect the continue enforcement of the dogs keeping procedure decided in the [2007 Resolution].” 91.The simple answer to this submission that the 2007 Resolution is only a scheme of action against defiant dog owners. As I ruled above, the Defendants have not given up their rights to take action under the DMC to remove the dogs. It does not follow with the 2007 Resolution, the Defendants could not proceed to remove the dogs. 92.With the 2008 Resolutions, action would be taken against all dog keepers. That must include the defiant dog keepers as mentioned in the 2007 Resolution. The 2007 Resolution must be overturned by the meeting when the 2008 Resolutions are resolved. 93.As Mr. Chan rightly points out, a resolution by the Management Committee could be varied by the resolution of another Management Committee. I fail to see any justifications for ordering specific performance of the 2007 Resolution. Conclusion 94.All the Plaintiffs’ application failed and I dismiss their case. There should be judgment in favour of the Defendants with an order nisi that the Plaintiffs do pay the costs of the action to the Defendants to be taxed if not agreed, such order nisi to become absolute within 14 days. Ancillary matters 95.When the writ was first issued, the 9th and 11th named Plaintiffs were registered owners who had since sold out their units and ceased to reside in the Estate at the trial. The 2nd Plaintiff is the husband of the registered owner of unit 1603, Block A of the Estate and is only a licensee in occupation. It is questionable if the 2nd, 9th and 11th Plaintiffs may bring this action. But it is not disputed that the other Plaintiffs have the locus to bring the action and the ruling if the 2nd, 9th and 11th named Plaintiffs are entitled to bring this action would only affect the issue of costs. Since they failed in the application, they have to bear the costs of the Defendants with the other Plaintiffs. Subject to any applications to vary my cost order, I do not have to rule on this point. 96.Finally,I wish to thank both Ms. Chit and Mr. Chanfor their valuable assistance.
Representation: Miss. Noelle Chit, instructed by Messrs. Hau, Lau, Li & Yeung, for the Plaintiffs Mr. C. W. Chan of Messrs. Chung & Kwan, for the 1st and 2nd Defendants
Appeal by 1st, 2nd, 7th and 10th Plaintiffs to Court of Appeal dismissed. Please refer to CACV21/2011 dated 28 September 2011 |
Cases cited in this judgment
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Further hearings and rulings under DCCJ 4861/2008