The Incorporated Owners of Yuen Long Tin Shing Court v. Wong Mau and Another

LDBM 217/2013

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 217 OF 2013

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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 Incorporated Owners of Yuen Long Tin Shing Court registered pursuant to the Building Management Ordinance, Cap 344 (“the Ordinance”) for all the owners of Yuen Long Tin Shing Court (“the Building”).  The 1^st and 2^nd respondents are the registered owners of Flat 7 on 33^rd Floor, Block M of the Building (“the suit property”).

2.By a Notice of Application filed on 30 July 2013, the applicant sought an order to restrain the respondents from keeping dogs in the suit property.

3.No Notice of Objection has been filed by any of the respondents and they were absent at all hearings.  After reading the affirmations of service filed by the applicant’s lawyer, I am satisfied that all relevant documents have been duly served on the respondents.  I directed the trial to proceed in their absence.

4.It is the applicant’s case that the Deed of Covenant and Grant of Rights dated 1 May 2000 (“the DMC and Grant of Rights”) and a Deed of Mutual Covenant of the same date (“the DMC”) had been registered at the Land Registry.  Clause 2(b) of Section I of the DMC provides that:-

“The owner of each equal undivided share of and in the said land and the Estate shall at all times hereafter be bound by and shall observe and perform the covenants provisions and restrictions herein contained and in addition the owners shall at all times be bound by the covenants and restrictions contained in the THIRD SCHEDULE hereto.”

5.It is provided under Clause 5(b) of Section II of the DMC that:-

“The Manager shall (subject as herein otherwise specifically provided) have full and unrestricted authority to do all such acts and things as may be necessary or requisite for the maintenance and management of the said land and the Estate and anything reasonably incidental thereto.”

6.Further, Clause 3 of Section I of the DMC provides that:-

“Every owner of an equal undivided share in the said land and the Estate shall (in the case of every owner to whom an undivided share in the said land and the Estate and a flat in one of the buildings in the Estate have been conveyed by deed of assignment which is subject to the terms covenants and conditions mentioned in the Schedule to the Housing Ordinance (Cap. 283) and any amendments thereto, subject to such restriction on alienation as contained in such terms covenants and conditions) have the full right and liberty without reference to the owner of any other equal undivided share in the said land and the Estate of any person otherwise interested in any other equal undivided share in any way whatsoever and without the necessity of making such other owner or any such other person a party to the transaction to sell assign mortgage lease license or otherwise dispose of or deal with his share or interest of and in the said land and the Estate together with the said sole and exclusive right and privilege to hold use occupy and enjoy any part of the Estate held therewith subject expressly to and with the benefit of these presents.”

7.Relevant to the Application, Clause 15(a) under the Fourth Schedule of the DMC provides that:-

“No dog may be brought to or kept upon any part of the Estate or the common parts of any building therein.”

8.Kai Shing Management Services Limited has been appointed by the applicant to be the manager of the Building (“the Manager”).

9.Ms Ho, the assistant property officer of the Manager gave evidence at trial.  She told the court that the Manager had received complaints from owners of the Building since April 2012 about dog-barking noises emitted from the suit property and had caused nuisance to them.

10.Repeated site inspections were carried out thereafter on 20 April 2012, 13June 2012, 16October 2012, 12November 2012, 19 November 2012, 27 November 2012, 10 January 2013, 16January 2013, 25 January 2013, 19March 2013, 21 March 2013, 27April 2013, 13July 2013, 12August 2013 and 22August 2013.  On each of the above inspections, it was noticed and confirmed that there was dog barking inside the suit property.

11.By letters dated 26April and 15June 2012 issued by the applicant to the respondents, the respondents were requested to remove the dog(s) from the suit property.

12.As there was no response, the applicant instructed its solicitors to issue warning letters on 8April 2013 and 22May 2013 to the respondents and demanded that the dog(s) be removed from the suit property.

13.Despite repeated requests by telephone calls and personal visits, the respondents still refused to rectify the breach by removing the dog(s).  The applicant then instructed its lawyer to take out legal proceedings against the respondents and the Notice of Application was filed on 30 July 2013. 

14.In early September 2013, there were some discussions on how the matter should be dealt with over the phone between the Manager and a caller saying that she was Ms Wong.  Unfortunately no follow-up action was taken by the respondents.  On or about 3 October 2013, the applicant carried out another site visit at the suit property and still noticed dog barking inside the suit property.  Ms Ho agreed that no dog-barking noise was noticed on site inspections carried out in November 2013, but since the respondents refused to communicate with them to confirm that the dog(s) had been removed, it was decided that the applicant should pursue with the Application.

15.The Plaintiff’s case is that if there is no court order to restrain the respondents, the breach will continue.

16.It has come to my attention that Schedule 4 of the DMC is in fact the House Rules.  Although the respondents filed no Notice of Objection to say that the House Rules have no binding effect, for completeness I shall also deal with this point.  The effect of House Rules has been discussed in The Incorporated Owners of Hang Tsui Court v. Ho Fu and others CACV 143/2010 and Yuen JA has dealt with this in paragraphs 7-9 in the judgment. 

“7. The essential point in our case is that para. (15)(a) was part of the Third Schedule which was contained in the DMC itself. There is but one document. It is well-established law that:

“to reject one clause in a contract as inconsistent with another involves a rewriting of the contract which can only be justified in circumstances where the two clauses are in truth irreconcilable. ... where the document has been drafted as a coherent whole, repugnancy is extremely unlikely to occur. The contract has, after all, to be read as a whole; and the overwhelming probability is that, on examination, an apparent inconsistency will be resolved by the ordinary processes of construction” (Yien Yieh Commercial Bank Ltd v Kwai Chung Cold Storage Co Ltd [1989] 2 HKLR 639, 645 P.C.)

8.     One should therefore read the document as a whole to see if para. (15)(a) is reconcilable with cl.1(b).  If they are reconcilable, it matters not whether the House Rules are subsidiary, and it would be immaterial to consider metaphysical notions such as whether the Deed “gave life” to the Third Schedule.  The Respondents’ approach - to look at the “status” of the provisions first and only after that to examine if a “lesser” provision conforms with a “higher” provision - is, with respect, approaching the issue from the wrong end of the telescope.

9.     In my view, para. (15)(a) and cl.1(b) are clearly reconcilable.  Whilst cl. 1(b) gives each owner the general right to exclusive occupation of his flat, his enjoyment is qualified by more specific provisions set out in the House Rules of which para. (15)(a) is one.  Given that the residents of the Estate live in flats in close proximity, and even the best-trained dogs occasionally bark, it is clear that the intention of the DMC was to sacrifice what may be regarded as the right of a resident to keep a dog to the need to preserve peace and quiet for other residents.  Once the two provisions are reconcilable, that is the end of the matter.  Para. (15)(a) is an express House Rule and the House Rules are binding on the Respondents.”

17.After hearing the evidence of Ms Ho I accept that she is truthful and reliable.  I find that the respondents have been keeping dog(s) inside the suit property.  I find that the DMC and the House Rules are binding on the respondents.  I accept that the respondents have been in breach of Clause 15(a) under the Fourth Schedule of the DMC by keeping dogs inside the suit property.  I am satisfied that the applicant has proved its case.  I also agree that without a court order the breach will continue. 

18.For the aforesaid reasons, I enter judgment as claimed by the applicant.

19.Costs should follow the event and thus the respondents shall pay costs of the applicant; assessed by me summarily on District Court scale at HK$ 18,309.50.

Order

15. My order is as follows:-  

(i)	The 1st and 2nd respondents do forthwith remove the dog(s) from the suit property;
(ii)	The 1st and 2nd respondents whether by themselves, their servants tenants and licencees be restrained from bringing to or keeping any dog(s) and/or permitting or allowing dogs to be brought to and kept in the suit property;
(iii)	The respondents do pay HK$18,309.50 as costs of the applicant; and
(iv)	Penal Notice be attached.

Mr H.Y. Kwok, of Messrs. Huen & Partners, for the Applicant

The 1^st and 2^nd Respondents, acting in person, absent