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

HCMP 1231/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1231 OF 2010

(ON AN INTENDED APPEAL FROM DCCJ NO. 3409 OF 2007)

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Before: Hon Tang VP and Le Pichon JA in Court

Date of Hearing: 26 August 2010

Date of Judgment: 26 August 2010

Date of Reasons for Judgment: 10 September 2010

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REASONS FOR JUDGMENT

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Hon Tang VP:

1.The Plaintiff is the property manager of One Beacon Hill, No. 1 Beacon Hill Road, Kowloon (“the Estate”), and the Defendants, the registered owners of Flat B on the ground floor and the flat roof adjacent to Tower 3 of the Estate (“the Property”). The flat roof is in two parts, one larger and one smaller. The plaintiff’s claim is based on clause 17 of the Deed of Mutual Covenant (“DMC”) of the Estate which 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 of the Estate, or any part thereof.”

2.It is the plaintiff’s case that between October 2004 and September 2006, without any approval written or otherwise:

“ (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.”

3.By an order dated 27 September 2006, the Building Authority ordered the defendants to demolish the structures erected on the flat roofs.  The present claim was brought on 8 May 2007.  What happened next was described by the learned judge in para. 6 of his judgment as follows:

“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’.”

4.At the end of a two-day trial, District Judge Chow found in favour of the plaintiff and made the following relevant orders:

“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.”

5.The defendant’s application for leave to appeal was dismissed by the learned judge as well as by Rogers VP.

6.This is the defendant’s renewed application.  The application is put on the following bases.

7.The defendant relies on clause 21 of the DMC. It is said that clause 17 should be read with and qualified by clause 21.  Clause 21 reads:

“Each Owner may at his own expenses install in the part of the Estate owned by him additions improvements fixtures fittings and decoration and may remove the same Provided however that no such installation or removal shall cause any structural damage or interfere with the proper enjoyment and use of any other part of the Estate.”

8.Mr Brian Wong, who appeared for the defendants, also relies on clause 25 which where relevant, provides:

“… 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 and (if necessary) the relevant Government Authorities.”

9.Mr Wong submitted since the plaintiff accepted that clause 17 is qualified by clause 25 such that an owner might install a structure on a flat roof if it has the prior written approval of the manager even if such structure “may or will alter the external appearance of the Estate or any part thereof”, it follows that clause 17 is similarly qualified by clause 21 so that even without any written approval, alteration by means of “additions improvements fixtures fittings and decoration” may be installed on a flat roof owned by an owner provided that it does not cause “any structural damage or interfere with proper enjoyment and use of any part of the Estate.”.

10.With respect, I do not agree.  We are concerned with properties in multiple ownership.  Naturally, owners of such properties would wish to preserve their external appearance.  Clause 17 controls any use which may impact the external appearance of the Estate.  Clause 21 further limits the right of an owner to do what he wishes in his unit by way of “additions improvements fixtures fittings and decoration”.  It is true that clause 25 enables clause 17 to be relaxed.  But Mr Wong’s submission, if accepted, makes clause 17 redundant.

11.Mr Wong also complains that in making the order which he did, the learned judge had relied on the fact that the plaintiff had also asked for “further or other relief”.  That is an exercise of discretion by the learned judge.  I do not believe any Court of Appeal would find it possible to interfere with it.  Mr Wong relies on a decision of the English Court in Cropper v Smith (1884) 26 ChD 700 where the Court of Appeal by a majority refused leave to amend where the plaintiff had not asked at trial for leave to amend.  Here, we are concerned with the wording of the relief and I do not see how it could be said that it was outside the discretion of the learned judge to grant an injunction in the terms which he did.

12.The last complaint is that the order is too vague.  The vagueness, as I understand it, relates to the requirement to re-instate. Mr Wong submitted that it is unclear whether the defendants are required to reinstate to the position as shown on the upper photograph at page 250 of the appeal bundle, or as shown on the second photograph at page 441.  This point was taken before the learned judge on the application for leave to appeal, and was dealt with him by his reasons refusing leave to appeal given on 17 June 2010. Basically he said that there is no material difference between the two photographs.  After looking closely at the two photographs, I am in full agreement with the learned judge.  It is clear that the defendant is required to reinstate the door on the smaller flat roof to the condition as shown in the second photograph at page 441 which is not materially different from the upper photograph at page 250.

13.For the above reasons, the application for leave to appeal was dismissed with costs.

Hon Le Pichon JA:

14.I agree with the Reasons for Judgment of the Vice President.

Mr Wong Chao-wai, Brian, instructed by Messrs Hon & Co., for the Defendants.

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