Lee Din Chun v. Incorporated Owners of Beverly Heights and Another

LDBM 235/2009

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 235 OF 2009

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BETWEEN

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J U D G M E N T

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1.The Applicant is the owner of a property situated at the Beverly Heights, Beacon Hill (“the Compound”); whereas the 1^st Respondent is the Owners Incorporation of the Compound (“the IO”) and the 2^nd Respondent is the management company appointed by the IO.  This hearing concerns the canopies at a parking space demarcated as No. 9 owned by the Applicant (“the Parking Space”) since 2002.

2.The Applicant asks for an award of $7,800 being compensation for his having to spend such amount on re-building a canopy to cover the Parking Space (“the New Canopy”).  The 1^st Respondent is of the view that the New Canopy if it were to be re-built had to be an unauthorized structure and therefore would contravene the provisions of Building Ordinance; and its being positioned in the common area of the Compound would also contravene the Deed of Mutual covenant (“the DMC’).  The IO therefore took the view that they could not pay for the erection of unauthorized structure.  The 2^nd Respondent says that it was the agent of the IO and should not be sued in its own name in the first place.

Background

3.The following facts are not disputed.  There had been canopies erected by owners to cover their parking spaces in the Compound beyond time material to this application.  In 2005 an overhaul renovation was to be carried out in the Compound as decided by owners.  During the project, the Applicant was informed that the canopy of the Parking Space would have to be demolished (“the Old Canopy”) and it was demolished eventually.  The Applicant then erected the New Canopy after works were complete.  On 18 December 2009, the Building Authority issued a Notice under section 24C(1) of  the Buildings Ordinance (“the Ordinance”) as it was the view of the Authority that the New Canopy had contravened section 14 (1) of the Ordinance.  The Applicant was given 2 months’ time to demolish the New Canopy.  The Applicant took no issue with the Authority in relation to the Notice nor did he comply with it.

Case of the Applicant

4.The Applicant is of the view that the Old Canopy was removed without his consent and therefore the IO should pay for the New Canopy built by him.  He said in court that the Old Canopy was not removed for it being illegal or unauthorized structure, so the IO could not take this as a reason not to pay for building the New Canopy.  He confirmed he had received a Notice from the Building Authority asking him to demolish the New Canopy in 2009.  He admitted under cross examination that it might not be entirely correct to have said in his witness statement that no one took issue on the New Canopy.

Case of the 1^st Respondent

5.As mentioned in the above, the IO took the view that they should not pay an owner to build unauthorized structure within the Compound.  Mr Cheng representing the IO admitted that they had been forbearing some unauthorized structures in the Compound including canopies in the car park as long as those structures were not considered having caused hazards to the main structure.  This was the reason why there were and still are unauthorized canopies erected at the car park at present.  He confirmed that the Old Canopy did not cause any structural hazards.  It had to be and was removed because part of the works had to be carried out underneath the Parking Space (“the Works”).  The Works were to resolve a sewage and drainage problem for the whole Compound.  It was therefore necessary for the Works to be carried out.  He confirmed that clause 4(k)(v) of the DMC and section 18 (fa) of Cap 344 have conferred power on the IO to do what is reasonably necessary to renew, service, maintain and repair any common parts and the common facilities.  Under clause 10(a) of the DMC, owners have covenanted not to make any structural alterations in his part of the Compound which may damage the other parts thereof or cause any inconvenience to the other occupiers. He said that the Old Canopy had caused obstruction to the Works and is therefore in contravention of clause 10(a).  

6.Mr Cheng said that they could not get the consent from the Applicant after many attempts and therefore works had come to a halt at one stage.  The IO then resolved at serving a notice on the Applicant and requested that the Old Canopy be demolished by him or the IO would give instructions to the contractor to remove the same to facilitate works to be carried out.  Despite such communication with the Applicant, no consent was given.  Being left with no choice, the IO gave instruction to the contractor to proceed with the Works which inevitably had to cause the Old Canopy to be removed.  For the benefit of the Applicant, the contractor had been asked and agreed to waive the cost for demolishing the Old Canopy.

7.Mr Cheng explained further that the IO had been tolerating some unauthorized structures to maintain good relationship amongst owners.  He insisted however that there was no favouritism engaged by members of the IO.  He cited some examples on how the IO had enforced the DMC by requesting some owners to remove unauthorized structures as they had posed risk to the main structure of the Compound. With their best intention to maintain good relationship amongst owners and to forbear and not to take stringent enforcement on unauthorized structures as far as situation so permits; the IO however cannot pay an owner to build any unauthorized structure especially when it was be built in the common area.

8.He said that the Notice issued was good proof for the fact that the New Canopy was unauthorized structure and had to be demolished.  Further it would contravene clause 4 (m)(ii) of the DMC which says “No owner shall without the consent in writing of the Manager do or cause or permit to be done: Effect of affix any… fitting or thing to the exterior of the said building or to the common areas with the said building or any part thereof.”  In support, he explained that the 4 poles supporting the New Canopy planted into the ground outside the boundaries of the parking space which is the common area of the Compound.

9.When shown a letter issued by the 2^nd Respondent to the Applicant on 4^th October 2005 saying that after the works were complete, the Applicant could erect a new canopy by himself [p221], Mr Cheng said that it was not the resolution of the 1^st Respondent. He said that there might be some miscommunication between the two Respondents.  Mr Cheng commented further that the purpose of the letter was to inform the Applicant that the Old Canopy would be demolished to facilitate works to be carried out and that the IO would not bear any cost for building the New Canopy.

10.In those circumstances as set out above, he said, the IO should not and would not pay for the cost of building the New Canopy.

The case of the 2^nd Respondent

11.The 2^nd Respondent adopts the same line of the 1^st Respondent and further says that being agent of the 1^st Respondent it should not be sued in its own name in the first place.

Discussion

12.Having heard evidence of all parties and viewed the relevant documents, I accept the evidence of Mr Cheng that the IO had been forbearing some unauthorized structures at the Compound to maintain good relationship amongst owners.  I accept that the IO has been conferred the power to carry out works for maintenance and renovation in the common part of the Compound by the DMC and the Building Ordinance.  I understand that Mr Man submitted on behalf of the Applicant that there was no proof that the Old Canopy was unauthorized structure.  I am of the view that if the Applicant says that the Old Canopy was an authorized structure, burden is on him to prove the same.  Further there was evidence from Mr Cheng Hoi Fat, witness of the Applicant, that the poles of all canopies were outside the boundaries of the parking spaces otherwise the cars cannot be parked thereat.  I accept that the poles of the Old Canopy were planted to the ground outside the boundaries and was therefore unauthorized structure.  I accept that for the Works to be carried out, the Old Canopy had to be removed in October 2005.  I also accept that the letter dated 4 October 2005 was a plea for cooperation of the Applicant and not an undertaking to pay for the building cost of the New Canopy.  I am of the view that it could not be taken as consent as the focus of the discussion was at that time how the Old Canopy was to be removed soonest and whether the IO would pay for the New Canopy.  Even if consent was given thereby, it could not rectify the problem of it being an unauthorized structure as no application had ever been made to the Authority for it to be built.  I find that the New Canopy was in contravention of s 14 (1) of the Building Ordinance and the clause 4 (m) (ii) of the DMC.  I accept that the Applicant was asked to demolish the same by the Authority.  Further, it is stipulated in s.40 of the Ordinance that any person who knowingly contravenes section 14(1) in respect of building works…shall be guilty of an offence and shall be liable on conviction to being fined. In the circumstances, I find it unreasonable to demand the IO to bear the cost of building an unauthorized structure and cause it to be party to a possible offence and subject itself to possible legal action.  I find that the IO had no liability to pay for the building cost as prayed.

13.For these reasons, I dismiss the claim of the Applicant.

Costs

14.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 that the costs of this application be paid by the Applicant to the Respondents with certificate for counsel. 

Mr Jonathan Man, of Messrs. Ho Tse Wai, Philip Li & Partners, for the Applicant

Mr Lam Chin Ching Gary, instructed by Messrs. Edmund Cheung & Co., for the 1^st Respondent

Mr CL Wong, of Messrs. Hobson & Ma, for the 2^nd Respondent