Bristle Ltd v. Wong Tsui Ching Venisa and Another

HCA 854/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 854 OF 2012

____________

_____________

D E C I S I O N

_____________

INTRODUCTION

1.This is the plaintiff’s inter partes application for an interlocutory injunction. The part of that application with which this decision is mainly concerned (the other part has been dealt with earlier) is for an order to enjoin the defendants from placing a security guard house (or, as the defence calls it, a guard booth) near to the plaintiff’s house.

BACKGROUND

2.“The Baroque” is a residential housing development in Shatin dating back to the 1980’s (“the development”). The development consists of 4 semi-detached houses.  The plaintiff is the registered owner of House 1 whereas the 1^st defendant (“D1”) is the registered owner (together with another) of House 4.

3.The 2^nd defendant (“D2”) is described by D1 as the development’s incorporated owners, but the constitution of D2 is disputed by the plaintiff.  D1 is also the chairman of D2.

4.The 4 houses are lined up next to one another, with a common driveway running across and in front of them.  Each house also has an attached covered garage which opens onto the driveway.

5.Further, House 1 has a private garden to its left, running parallel to the house.  It is also the house nearest to the public road.

6.House 1’s private garden used to be fenced up by a concrete wall, with a common area in front; at the other end of this area is the driveway and the development’s main gate.  Thus, this area is located between House 1’s private garden and the development’s main gate leading to the public road.

7.Because this application arose out of changes earlier made by the plaintiff to this area (and is the place where the defence proposes to place the guard house), a few words should be spent to describe it (“the subject common area”).  For convenience, the subject common area:

(a)   before the said changes will be called (“the original subject common area”);

(b)   after the said changes will be called (“the changed subject common area”).

8.According to the plans of the development, a “footpath”, “flower bed” and “garbage collection yard” were located on the original subject common area.  A photograph shows the original subject common area to also have a raised curb separating it from the driveway.

9.In about 2001, the plaintiff made certain changes to the original subject common area.  For the purpose of this application, the relevant changes are:

(1)   the removal of the fence wall;

(2)   the installation of an iron gate in its place (which in effect becomes a passageway exclusively for the plaintiff’s vehicle between House 1’s private garden and the driveway).

As will be made apparent below, the creation of a passageway at the changed subject common area (“the 2001 passageway”) is of great importance to this application.

LEGAL PROCEEDINGS

10.Probably at the auspices of D1 (and seemingly with the concurrence of the other two house owners), D2 was formed and registered in 2010.  As stated above, the plaintiff challenges the validity of D2’s formation and registration.  In fact, he commenced an action for such purpose (HCA 1094/2011).

11.This action was commenced after HCA 1094/2011. The plaintiff complains that:

(a)   its right of way over the changed subject common area is unlawfully interfered with by the defendants because the defendants wanted to place a guard house over it;

(b)   the purported formation and registration of D2 is null and void.

The statement of claim avers that the right of way was:

(1)   created pursuant to the provision of the development’s deed of mutual covenant (“DMC”);

(2)   acquired by easement and/or proprietary estoppels (para 10 and 17 to 20 thereof).

THIS APPLICATION

(a)     Right to the 2001 passageway

12.For the purpose of this application (and despite the causes of action pleaded in the statement of claim), the plaintiff does not argue that its right of way was acquired by easement or proprietary estoppels.

13.Reliance is rather placed by the plaintiff on its rights conferred by clause 3(a), DMC:

“Each owner shall hold his part of the Development … subject to and with the benefit of the following rights and privileges and obligations namely … Full right and liberty to go pass and repass over and along the driveways and footpaths within the Development for all purposes connected with the proper use and enjoyment thereof” (emphasis supplied).

Further, “common areas”, so the plaintiff further argues, are defined in clause 1(b), DMC:

“… include but not limited to the driveway, the entrance and exit thereto, footpath, garbage collection yard, flower beds and lavatory adjacent to House No. 1 of the Development … ”.

14.Based on the above provisions, the plaintiff submits that:

“The erection of the Guardhouse would amount to an unlawful interference with the Plaintiff’s right to use the Driveway as an access to the garden of its house” (emphasis supplied) (para 12a, plaintiff’s skeleton submissions).

15.The plaintiff’s above submissions are flawed for the following reasons.

16.First, clause 9(c), DMC provides:

“Each party hereto hereby covenants with the others as follows … Not to use or permit or suffer any part of the Development of which he is the owner to be used for any purpose whatsoever other than for the purpose for which it was designed” (emphasis supplied).

Clause 12(j)(iii), DMC then provides (in relation to owners’ meetings to discuss and decide matter concerning the development):

“No resolution [on any matter concerning the development] shall be valid if it is contrary to the provisions of [the DMC]”.

17.As stated above, the part of House 1 behind the subject common area (and presently the 2001 passageway) was House 1’s private garden.  The private garden was not designed to be a passageway.  Rather, it was fenced up by a concrete wall, with the original subject common area on the other side of the wall.

18.In relation to vehicular arrangement, House 1, like the other 3 houses, has an attached covered garage (described as a “car port” in the plans).  Any vehicle can (and should) exit from, and enter, the garage through the driveway (as depicted in the said plans).

19.Such being the case, the 2001 passageway has in effect changed the use of House 1’s private garden (contrary to clause 9(c), DMC).  Further, the use of the original subject common area (see also para 6, 8 and 17 to 18 above) as the 2001 passageway has also changed the designed use of the original subject area.

20.The plaintiff’s submission that it has:

“[the] right to use the Driveway as an access to the garden of its house” (para 12a, plaintiff’s skeleton submissions)

is unmeritorious because:

(a)   the original subject common area was not (and not designed to be) a driveway (see also para 6, 8 and 17 to 18 above);

(b)   in any event, a co-owner’s right to use the common areas is not an absolute (or unqualified) right.  Such right must be exercise in a manner consistent with the use to which the common areas can be properly put (see also clause 3(a), DMC).

21.Shortly before the hearing of this application, and in view of the averments in the statement of claim (see para 11 above), I drew the parties’ attention to the following authorities (chronologically):

(1)   Chiu Shu-choi v Merrilong Dyeing Works Ltd (1990) 1 HKLR 385, 389;

(2)   Kung Ming Tak Tong Co Ltd v Park Solid Enterprises Ltd (2008) 11 HKCFAR 403, para 21, 22, 28, 35 to 39 and 41 to 43;

(3)   Wong Kwan Yee v I O of Diamond Mansion, CACV 59/2011 (21 March 2012), para 70 to 71.

22.The plaintiff is correct in not relying on easement and/or proprietary estoppel (such would have been rejected if it had been raised).

23.According to the plaintiff, these causes of action arose as follows:

(a)   matters concerning the development could be discussed and decided upon by the co-owners at meetings convened pursuant to the DMC (para 15, statement of claim);

(b)   resolutions passed in such meetings were binding on all the co-owners (para 15, statement of claim);

(c)   the plaintiff served a notice of co-owners’ meeting dated 2 April 2001 for convening such a meeting (para 14, statement of claim);

(d)   the plaintiff and the former owners of House 4 attended the said meeting on 29 April 2001 whereby alteration works to change the original subject common area into the changed subject common area was approved (para 17 to 20, statement of claim);

(e)   further, the plaintiff has been using and enjoying the 2001 passageway since around 15 December 2000 (para 20, statement of claim);

(f)    the lack of objection from the other co-owners constituted their representation of approval of the said alteration work, and the plaintiff has relied on the same and acted to his detriment by incurring expenses to improve the subject common area (para 21 and 22, statement of claim).

24.As stated above, insofar as the plaintiff’s above case should involve the contention of a change of the designed use of the development (whether pertaining to any part of House 1, or to the subject common area), para 23(a) to (d) above cannot create a self-standing right, and should be subject to the restriction of clauses 9(c) and 12(j)(iii), DMC.

25.Insofar as the plaintiff should contend that any interest has been transferred, the contention lacks validity because:

(1)   easement is legally not permissible as between co-owners: the Kung Ming Tak Tong decision, para 21; the Wong Kwan Yee decision, para 68;

(2)   a deed of mutual covenant is not usually an instrument intended to be for the purpose of granting exclusive right to possess and occupy, or interest in land: the Kung Ming Tak Tong decision, para 27 to 28;

(3)   in any event, the owners of House 2 and 3 have not joined in any instrument of conveyance;

(4)   there was no circumstance (such as a pre-existing door, or use arising out of necessity) indicating a quasi-easement has been acquired in respect of the 2001 passageway: compare, for example, the Wong Kwan Yee decision, para 9, 11, 33, 56, 62 and 64; the Chiu Shu-choi decision, pp 389 and 391;

(5)   mere silence on the part of the House 2/3 owners was not a representation.  In any event, objections have in fact been raised by the House 2 owner shortly after the alteration work commenced.

26.In the course of the defence submissions, it was also asserted that the plaintiff’s gate at the subject common area in fact occupies part of the original subject common area.  However, there is no proper evidence in support of such assertion.

(b)     D2

27.Because of the conclusion reached in relation to the merits of the plaintiff’s causes of action, it is irrelevant whether D2’s formation and registration is doubtful.

(c)      Balance of convenience

28.In view of the lack of a case with merits such as would justify the grant of an interlocutory injunction, it is unnecessary to consider whether the balance of convenience is in favour of granting the injunction.

29.For completeness, if it had been necessary to do so, I would have decided that the balance of convenience is in favour of granting an injunction:

(a)   the guard house is on wheels and can be moved if necessary;

(b)   the guard house can (at least temporarily) be placed on common areas of the development elsewhere than the subject common area;

(c)   although it is possible for the plaintiff’s vehicles to exit from, and enter, House 1’s garage using the driveway (without the need to use the 2001 passageway), the status quo is that the plaintiff has been using the 2001 passageway.

CONCLUSION

30.By reason of the matters set out above (especially with regard to those under the sub-heading “Right to the 2001 Passageway”), there are insufficient merits in the plaintiff’s case to justify my exercising the discretion to grant the injunction sought.

31.The remaining part of this application is therefore dismissed.

OTHER MATTERS

32.The parties’ closing submissions also mentioned various other points.  These have not been expressly set out or dealt with in the above headings and sub-headings.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

COSTS ORDER NISI

33.There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application be the defendants’ costs in the cause.

34.I consider summary assessment of costs to be appropriate.  The above costs shall thus be so assessed.  For this purpose, unless an application is made in accordance with Ord 42 r 5B(6) to vary the order nisi (in which case the following are to run from the determination of such application):

(1)   the receiving parties be at liberty to lodge with court and serve a statement of costs within 7 days from today;

(2)   the paying party be at liberty to lodge with court and serve a statement of objections within 7 days thereafter.

Mr Nicholas Cooney SC leading Mr Tony Ko, instructed by George Y C Mok & Co, for the plaintiff

Mrs Dora K H Chan, instructed by Fred Kan & Co, for the 1^st and 2^nd defendants