Park Vale (Management) Ltd v. Tang Wing Kin and Another

LDBM290/2012

THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 290 OF 2012

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BETWEEN

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JUDGMENT

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1.The applicant is the Manager of a residential estate in Quarry Bay known as Park Vale. Park Vale has 4 blocks of flats including Shui Pak Mansion. The respondents are the owner of Flat B on 3/F of Shui Pak Mansion (“the respondents’ premises”).

2.It is the applicant case that:

(a)  There is an applicable deed of mutual covenants (“DMC”).

(b)  The DMC provides that the applicant shall undertake the management and servicing of Park Vale and is empowered to enforce the due performance and observance by the owners of the terms and conditions of the DMC.

(c)  The respondents’ premises is adjacent to 2 terraces (“the terraces”), one situate next to the living room and the other one situate next to the master bedroom.  The terraces have not been assigned to the respondents and form part of the common area of Park Vale according to the DMC.  In addition, the external walls of the residential blocks of Park Vale also fall within the common area of the development.

(d) In breach of the DMC, the respondents have erected,  installed or placed:

(i) a water tap at the terrace outside the living room;

(ii) one drying rack at the external wall of each of the terraces, totaling two racks;

(iii) three retractable canvas awnings at the external wall;

(iv) one storage cabinet placed at each of the terraces;

(v) a wooden flower rack at the partition wall at the terrace outside the living room; and

(vi) sundry items on each of the terraces.

(e) Despite demands and requests of the applicant and its solicitors, the respondents only dismantled the water tap but have otherwise refused or failed to remedy the aforesaid breaches.

3.By this application, the applicant applies for:

(a) A declaration that the installation or placing of the drying racks, retractable canvas awnings, storage cabinets, wooden flower rack and other items in the terraces or at the external wall are in breach of the provisions of the DMC.

(b) A mandatory injunction that the respondents whether by their agents, servants, tenants, licensees or otherwise howsoever do forthwith remove the drying racks, retractable canvas awnings, storage cabinets, wooden flower rack and other items in the terraces or at the external wall, and reinstate the affected parts to their original state; and

(c) An injunction restraining the respondents whether by their agents, employees, servants, tenants, licensees or otherwise howsoever from committing further breach of the DMC by installing or placing drying racks, retractable canvas awnings, storage cabinets, wooden flower rack and other items in the terraces or at the external wall.

4.According to the affirmation of service filed by the applicant, the Notice of Application had been duly served on the respondents.  No notice of opposition had been filed and the application was set down for trial today. 

5.I am also satisfied that the respondents have been duly informed of today’s trial but choose to be absent.  I have therefore proceeded with the trial.

6.In terms of evidence, the applicant called their property asset manager (Ms Chow) to testify.  She is responsible for the management of Park Vale and she testified in terms of her witness statement.  In particular:

(a) She produced the DMC to confirm the duties and powers of the applicant, and that the terraces and the external walls form part of the common area of Park Vale.

(b) She produced the assignment dated 29 July 2005 to confirm that the property conveyed to the respondents (i.e. the respondents’ premises) did not include the terraces.

(c) She produced some photographs taken between September 2012 and January 2013 which showed the breaches alleged by the applicant.  She also produced 2 photographs taken on 6 March 2013 to confirm that the said breaches have persisted.

(d) She produced the letters from the applicant and the applicant’s solicitors demanding the respondents to remedy the breaches.

(e) She confirmed that the respondents have still not remedied the said breaches.

7.As I have said before, the respondents have not filed any opposition and there is nothing to contradict or cast doubt on the applicant’s case. 

8.Based on the evidence before me, I make finding of facts in terms of the applicant’s case as stated above.  I agree with Ms Lee, the solicitor representing the applicant, that the respondents have converted the terraces and the external wall into their own use without the requisite approval in breach of the DMC.

9.In terms of relief, Ms Lee has placed before me a draft order.  The draft order is basically in terms of the 2 injunctions sought in the notice of application. Ms Lee says there is no need for any declaration given my above findings, and she submits that 3 months would be a reasonable period for the respondents to comply with the injunctions (which I agree).

10.In the premises, I make an order that:

(a) The respondents do remove and demolish the drying racks, retractable canvas awnings, storage cabinet, wooden flower rack and other sundry items and reinstate the affected areas to their original state according to the building plan and to provide the applicant with a certificate issued by an authorized person certifying the same on or before 11 June 2013;

(b) An injunction to restrain the respondents whether by their themselves, their servants, agents, tenants or licensees from making any interference or alterations to any common part of Park Vale; and

(c) The respondents do pay the applicant the costs of these proceedings on the District Court scale to be taxed if not agreed.

Ms R LEE, of Messrs Li, Kwok & Law, for the applicant

The 1^st respondent, absent

The 2^nd respondent, absent