The Incorporated Owners of Baycrest v. Choi Chi Wing and Another

DCCJ4468/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4468 OF 2013

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REASONS OF DECISION

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1.This is an application for summary judgment under Order 14, the Rules of District Court against the defendants.

2.After hearing submissions from both parties, I dismissed the application.  This is my reason.

Background

3.The plaintiff is the incorporated owners of Baycrest (the “Development”) and the defendants are the owners of a unit in the Development.

4.Clause 20 of the third schedule of the deed of mutual covenant of the estate (the “DMC”) states:-

“No live poultry, dogs (except guide dogs for the blind) or other animals, birds or pets shall be kept or harboured in any part of the Development unless with the prior approval of the Manager or (where there is no Manager) the Owners’ Committee and such approval shall at the reasonable discretion of the Manager or the Owners’ Committee (as appropriate) be withdrawn if such keeping or harbouring of animals has been the cause of reasonable complaint by any owners or occupiers of the Development.”

5.The plaintiff passed a resolution in 2003 stating no further application for approval to keep pets will be accepted.

6.Prior to the defendants purchasing their unit in the Development, they were informed of clause 20 of the third schedule of the DMC and prior to completion, the manager of the Development also informed the defendants of the 2003 resolution.

7.Irrespective of the foresaid, the defendants kept 2 dogs and refused to remove them after numerous warnings by the plaintiff. The plaintiff filed this claim for the removal of the dogs and an injunction against the defendants.

The law

8.The laws in an Order 14 application are well known and I will not repeat all of them here.  Suffice to say Lord Lindley’s statement:-

“Unless it is obvious that the defence put forward by the defendant is frivolous and practically moonshine, O.14 ought not to be applied”

is still applicable today (Codd v Delap (1905) 92 LT 510).

9.Also in Crownhouse Engineering v Amec Project Ltd (1990) 6 Const LJ 141Bingham LJ said:-

“…… Order 14 is for clear cases; that is, cases in which there is no serious material factual dispute and, if a legal issue, then no more than a crisp legal question as well decided summarily as otherwise …… But it does mean that where there are substantial issues of genuine complexity the parties should prepare for trial …… rather than dissipate their energy and resources on deceptively attractive short-cuts.”

The defence

10.The defendants are self-represented litigants and although this does not mean the defendants can ignore the rules of pleadings completely, the court must however, read their defence with a certain amount of latitude.

11.In paragraph (4) of their statement of defence, the defendants alleged clause 20 of the third schedule of the DMC gives the plaintiff a discretionary power, which the plaintiff is required to exercise.

12.In paragraph 12 of their statement of defence, the defendants alleged clause 20 of the third schedule of the DMC requires the plaintiff to exercise that discretionary power in good faith and reasonably.

13.In paragraph 14 of their statement of defence, the defendants alleged by resolving not to accept any further application to keep pets in their 2003 resolution, the defendants were in breach of their duties under clause 20 of the third schedule of the DMC.

14.Although not specifically pleaded by the defendants, it is a natural and reasonable reading of their pleading that the defendants also alleged the 2003 resolution was void and of no legal effect and therefore they must be allowed to apply to keep their pets and their application should be considered by the plaintiff.

The issues

15.As I see it, there are three issues in this matter:-

(1)   Did clause 20 of the third schedule of the DMC impose a duty on the plaintiff to exercise a discretionary power to consider owners’ application to keep pets in the Development?

(2)   If yes, was the plaintiff in breach of that duty when it passed the 2003 resolution not to accept any further application to keep pets?

(3)   If not, did the plaintiff base the 2003 resolution on reasonable grounds?

16.These issues are clearly not “crisp legal question” but rather “issues of genuine complexity” that should be decided in a trial.

Orders

17.The application is therefore dismissed.

18.The defendants stated, except for their time spend in preparation, they really have no costs to speak of.  Accordingly, there is no order as to costs.

Mr William Kan, of ST Cheng & Co, for the plaintiff

The defendants appeared in person.