THE INCORPORATED OWNERS OF THE DAHFULDY v CHEUNG YUK YING ENGRACIA (formerly known as LEUNG CHEUNG YUK YING)

CACV 166/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 166 OF 2013

(ON APPEAL FROM DCCJ NO. 487 OF 2012)

________________________

BETWEEN

________________________

________________________

REASONS FOR JUDGMENT

________________________

Hon Cheung JA :

1.  Pursuant to leave granted by this Court, the defendant appealed against the judgment of H H Judge Chow who granted summary judgment against the defendant for a permanent injunction to restrain her from driving her vehicles ‘which may constitute nuisance or annoyance or hazard and breach of the Deed of Mutual Covenant [‘the DMC’] registered in the Land Registry by Memorial No. UB1152661 and/or Building Management Ordinance [‘the Ordinance’] Cap. 344.’

2.  The plaintiff conceded that the appeal should be allowed and the parties asked this Court to decide only on the issue of the costs below.  At the conclusion of the hearing this Court allowed the appeal, set aside the judgment below and ordered the plaintiff to pay the defendant costs of the appeal and below.  I now give the reasons for our judgment.

Background of the case

3.  The case is a simple one.  The defendant is the owner occupier of a flat and car park no. 21 in a multi-storey building in Ho Man Tin Hill Road, Kowloon, known as The Dahfuldy (‘the building’).  The plaintiff is the Incorporated Owners of the building.  When the defendant first became the owner, she was able to drive her car to her car park from the entrance of the building in a direct route. However, a structure, which the defendant contended to be illegal, was later built in the area in front of her car park, which required her to access her car park by a longer route from the entrance.  Nonetheless, she used this route for about 30 years until February 2011 when renovation work began at the building.  The defendant was then required by the plaintiff to use another route from the entrance to her car park.  The defendant claimed that this route was hazardous in that she was required to make a sharp turn in an area where she could not easily see the on-coming vehicles or pedestrians. Instead she chose to access her car park by a route which was also designated by the plaintiff in February 2011 for visitors using the visitors’ car parks in the building.  The defendant’s car park is at a short distance from the visitors’ car parks. 

4.  The summons for summary judgment was only issued six months after the issuance of the writ of summons.

Injunction not properly obtained

5.  Many issues were raised including whether the action was commenced without authority and whether the plaintiff had come with clean hands in erecting an illegal structure in the common area of the building.  These matters which involve factual disputes cannot be resolved in a summary judgment application. 

6.  But more importantly for the purpose of the appeal, the issue is not simply whether the defendant had disobeyed instructions issued by the plaintiff, but rather whether her use of the common area of the building of which she has the right to do so as a co-owner constituted nuisance, annoyance or a hazard to the other co-owners. In this connection, the stark fact is that the defendant was using a route authorized by the plaintiff for visitors.  The visitors were allowed to drive on the same route which first led to the defendant’s car park before reaching the visitors’ car park.  Yet the defendant’s use of the same route was said to constitute nuisance, annoyance or a hazard.  The plaintiff’s position is not improved by relying on the DMC or the Ordinance.  Clearly this called for a proper determination not simply on affidavit, but in a trial by way of factual evidence.  In my view, the permanent injunction should not have been granted by way of a summary judgment application.

7.  The plaintiff’s concession was said to be on the basis that the original route of access to the defendant’s car park could be resumed because the building work had now been completed.  But the plaintiff maintained the injunction was properly obtained in the first place.  I disagree. 

Conclusion

8.  As the defendant had to come to this Court to set aside the judgment which was not properly obtained in the first place, she was entitled to the costs of the appeal and below.

Hon Lunn JA :

9.  I agree with the reasons for judgment of Cheung JA.

Hon McWalters J :

10.  I agree with the reasons for judgment of Cheung JA.

Mr Julian S.F. Chan, instructed by Ma Tang & Co, for the plaintiff

Mr Harry Liu, instructed by Ho & Ip, for the defendant