The Incorporated Owners of Tak Wing Industrial Building v. Poon Chi Hung, William

LDBM 63/2011

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION No. LDBM 63OF 2011

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BETWEEN

Coram: Deputy Judge J. Wong, Presiding Officer of the Lands Tribunal

Dates of Hearing: 8 September 2011

Date of Judgment: 8 September 2011

Date of Handing Down of reasons for Judgment: 30 September 2011

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REASONS FOR JUDGMENT

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Introduction

1.The Owners’ Incorporation took out the present proceedings against an Owner for, inter alia, an injunction so that the former could enter and go through the premises of the latter to carry out certain repair works which had been under a fire hazard abatement notice.

Background

2.The Applicant was and is the Incorporated Owners (‘the IO”) of the Tak Wing Industrial Building (“the Building”) No. 3 Tsun Wen Road, Tuen Mun, New Territories, whereas, the Respondent was and is the owner of Unit C, 4^th Floor (“the Premises”) & Flat Roof (“the Flat Roof”), of the Building.

3.On 7 March 2011, the Applicant commenced the present proceedings against the Respondent. Briefly, the Applicant said the followings.

(a)  On 4 September 2009, the Fire Services Department (“the FSD”) issued a fire hazard abatement notice to the Applicant requiring it to repair the fire services system, fire hydrant/fire hose reel and water tanks in the Building.

(b) On or about 27 October 2009, the Water Supplies Department also issued a letter to the Applicant asking it to repair certain water facilities in the Building, including water pump, water pipe, fire services water tank and drinking water tank.

(c)  To comply with the notice and the letter, the Applicant had to replace the fire services water pump at the Flat Roof.

(d)However, despite repeated requests and demands, the Respondent did not allow the workers to enter into the Premises and the Flat Roof.

4.The Applicant therefore sought various reliefs to put right the matter, including (a) a declaration that it had the power under the Deed of Mutual Covenant (“the DMC”) of the Building to enter the Premises for the purpose of maintaining the common parts situated at the Flat Roof, (b) an injunction allowing the Applicant to enter the Premises during business hours from 9 a.m. to 6 p.m. within 21 days for the purpose of carrying out the repairs at the common parts of the Building, and (c) an order that the Respondent do indemnify the Applicant for all costs and penalties caused by failure to comply with the fire hazard abatement notice.

5.The Respondent defended for the proceedings and further counterclaimed against the Applicant. He said, among others, the followings.

(a)  The fire water services system at the Building was damaged by the Applicant’s wrongful conduct.

(b) He did not deny any right of the Applicant under the DMC to enter the Premises and the Flat Roof.

(c)  However, the Applicant did not follow and observe the requirements in the DMC as well as other safety requirements.

(d) In fact, the Respondent was supportive and co-operative to the Applicant by advising it to comply with regulations relating to health, safety and third party liability.

(e)  The Respondent was willing to follow the order made by the Tribunal.

(f)   The matter could have been resolved without going through the litigation process at the Lands Tribunal.

(g)  He counterclaimed for punitive damages against the Applicant.  

6.On 27 April 2011, I dealt with the matter at the call-over hearing. Upon discussing the proceedings generally with the parties, I ordered, inter alia, that the same was to be stayed pending mediation attempt by the parties. Regrettably, it was not fruitful. To facilitate the trial to be conducted more smoothly, I gave a number of directions at a further call-over hearing in August 2011, including the preparation of Issues of Dispute, filing and serving of Opening Submission and so forth. 

Judgment and Reasons

7.Parties appeared before me again on 8 September 2011 for the trial. Mr. W. F. Ching of Counsel represented the Applicant when the Respondent acted in person himself. The Applicant did comply with my aforesaid directions, but not the Respondent. To save time and costs, the trial nonetheless went ahead. Having considered all the evidence authorities and submissions from the parties, I decided in favor of the Applicant and agreed to give my reasons later. Here are them.

(a)  The Respondent did not oppose that the Applicant could enter and pass through the Premises and the Flat Roof to carry out the works. I therefore would confirm such position including that the access had to be reasonable.

(b) Despite the fact that parties did not dispute on “reasonable access”, they had not been able to agree on the arrangement themselves. Whose suggestion was to be preferred to?

(c) In my view, it was the one suggested by the Applicant.

(d) There were some factual disputes between the parties, including the time required to carry out the works and the precautions to be taken. The Applicant requested for 3 consecutive working days from 9:00 a.m. to 6:00 p.m. when the Respondent only agreed to some lesser hours at intermittent days. The latter also asked for insurance policies and scope of the jobs. After the concession made by the Applicant, including the provision of a quotation, a risk assessment report as well as two insurance policies (both employee and third party) and, the Respondent was still not satisfied. Upon being requested to identify the precise insufficiencies, the Respondent did not give any helpful reply. It was not necessary to recap what the Respondent had replied. It sufficed for the present purpose to see what was stated in his letter of 23 November 2010.

(e) As I pointed out at the hearing, all that the Respondent was asked to do is to give way for the works to be done. He was not asked to supervise the job. He was not asked to be an expert to monitor the works. He was simply demanding for too much in the circumstances.

(f) Further, when the Respondent was asked to comment on the urgency of the works as compared with the inconvenience he might suffer, he clearly was not as objective as he could have been. He told this Court that the works were not urgent and hazardous. It was clearly contrary to the fire abatement notice of the FSD. It also neglected the summons having been issued against the Applicant as early as on 2 November 2010. The hearing was only adjourned pending the Applicant to pursue the matter with the Respondent to complete the works at the Flat Roof.

(g) Hence, on balance, I found that the works had to be carried out for 3 consecutive working days from 9:00 a.m. to 6:00 p.m., save that one hour of lunch time should be inserted. The scope of works was identified clearly for the information of the Respondent. Moreover, the insurance policies and the risk assessment report were reasonable in the circumstances to protect the safety of the Respondent, his property servants and so forth.

(h) To answer the 3 issues as identified by the Applicant, namely:

“1. Whether the Respondent is acting reasonably by failing to allow the Applicant, its agents or servants to enter the Respondent’s premises at a reasonable time with reasonable notice to conduct the Maintenance Works at the Flat Roof?

2. What should be the ‘reasonable time” to conduct the Maintenance works at the Respondent’s premises?

3. Whether the Respondent’s insistence on the criterions regarding safety and risk is appropriate and reasonable in this application? ”

(List of Issues prepared by the Applicant filed on 8 August 2011)

I would say:

1. No.

2. Three consecutive working days, from 9:00 a.m. to 6:00 p.m., save that one hour of lunch time should be inserted.

3. No.

(i) In the circumstances, a mandatory injunction was to be issued against the Respondent.

(j) As to the indemnity sought by the Applicant, Mr. Ching kindly confirmed that his client did not press seriously for the same as not only the figures had not made known, but also it might drag on the litigation further between the parties. I therefore did not propose to make any order thereof.

Orders

8.In the end, I therefore made the following orders.

(a) A declaration that the Applicant do have the power under the DMC to have reasonable access regarding the Respondent’s premises for the purpose of maintaining the common parts situated at the Flat Roof of the Respondent’s premises.

(b) A mandatory injunction ordering the Respondent to allow the Applicant or its agents or servants to enter the Respondent’s premises during business hours from 9 a.m. to 6 p.m.  (1 p.m. to 2 p.m. being lunch hour) for the purpose of carrying out Maintenance Works, as identified in the Form 29 herein, to the common parts of Tak Wing Industrial Building.

(c) Without prejudice to any of the right of the Applicant, no order is made to the claim for indemnity of costs and penalties.

Counterclaim

9.Due to the lack of time, parties did not expressly mention about the counterclaim of the Respondent. Nonetheless, having accepted the case of the Applicant as more credible, I certainly did not find that the Respondent had come up with the necessary proof of his case, including that the fire services system was damaged by the Applicant and it should be liable to pay any punitive damages.

Costs

10.At the end of the hearing, I also discussed the question of costs with Mr. Ching and the Respondent. Upon hearing from them, I saw no reason to depart from the general rule that costs should follow the event, especially in light of the fact that the Respondent had invited the Applicant “…盡早尋求其它決定方法，例如:法庭的介入…” as per the former’s letter of 8 April 2011. I also decided to have the costs summarily assessed in order to wrap up the whole matter at one go.

11.Having heard further from the parties, I awarded the sum of $92,710 to the Applicant against the Respondent.

12.On 9 September 2011, the solicitors for the Applicant wrote to the Tribunal, informing that they could not cross their minds to the retainer with their client at the time of the above assessment. They sought to clarify their claim of costs in the sum of $76,770 only. The Respondent replied by suggesting that PD 14.3 was to be applied and he also prayed for supplemental order regulating the works to be carried out.  I do not agree to the suggestions made by the Respondent when the costs must be corrected due to the indemnity principle. Accordingly, the assessed costs are to be adjusted according to the corrected information available to the Court, i.e. the sum of $76,770.

The Applicant was represented by Mr. Ching Wan Fung of Counsel, instructed by Messrs. Cheung & Yip.

The Respondent appeared in person.

Please refer to HCMP2505/2011 for the relevant appeal(s) to the Court of Appeal.