Wilmes Lai Shim v. Ng Jess
Read the full judgment text of LDBM 266/2013 on BabelCite. This Lands Tribunal judgment was delivered on 3 December 2014.
1. This is a dispute between owners of a village house situated at Section B of Lot No. 243, Section B of Lot No. 244 and Section B of Lot No, 245 all in demarcation District No. 209, described as the “Premises” in the Deed of Mutual Covenant (“DMC”). There is constructed on the Premises a 3-storeyed building known as No. 196 Sai Keng Village, Tai Po, New Territories (“the Building”).
Cited by 5 cases · Cites 4 cases
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LDBM 266/2013 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 266 OF 2013 _________________
_________________ LDBM 280/2013 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 280 OF 2013 _________________
_________________ (Heard together pursuant to the order dated 11th day of February 2014)
_________________ J U D G M E N T _________________ Background 1.This is a dispute between owners of a village house situated at Section B of Lot No. 243, Section B of Lot No. 244 and Section B of Lot No, 245 all in demarcation District No. 209, described as the “Premises” in the Deed of Mutual Covenant (“DMC”). There is constructed on the Premises a 3-storeyed building known as No. 196 Sai Keng Village, Tai Po, New Territories (“the Building”). 2.Mrs Wilmes, the applicant in LDBM 266/2013 and respondent in LDBM 280/2013 is the owner of the 1/F, 2/F and the Roof of the Building. Mr Wilmes, husband of the applicant, is being authorised to appear for and on behalf of Mrs Wilmes in these proceedings, including giving evidence at trial. 3.Ms Ng, the respondent in LDBM 266/2013 and the applicant in LDBM 280/2013 is the owner of the G/F (together with the Garden appertaining thereto) of the Building (“G/F Property”). Mr Sum, husband of Ms Ng, is being authorised to appear for and on behalf of Ms Ng in these proceedings, including giving evidence at trial. 4.Apart from Mr Wilmes and Mr Sum, Mr Tsang Ka Yau (“Mr Tsang”) Estate Surveyor and Mr Fok Lap Shun (“Mr Fok”) Land Surveyor are called to testify. Mr Tsang had prepared 2 expert reports both dated 10 May 2014 (“Tsang’s 1st and 2nd Report respectively”). Mr Fok had prepared another report dated 28 July 2014 (“Fok’s Report”). There are a total of 27 photographs produced by both parties and marked as Exhibit A1 to A27. 5.The purpose of calling the surveyor is to ascertain the boundary of the G/F Property and in particular to answer the question posed to the surveyor, namely whether the parapet wall and the iron rod fencing at the Premises are within the area assigned to the owner of the G/F Property. Unfortunately, Mr Tsang had in his testimony revealed that being an Estate Surveyor, he was not in a position to answer the question posed and there are inaccuracies in the appendix attached to the reports he prepared. So, Mr Tsang’s evidence is of no assistance in this case. 6.In LDBM 266/2013, Mr Wilmes alleged that there are some structural alterations made to the G/F Property by the Sum family (“Sum”) in breach of Clause 14(a) and 26(a) of the Deed of Mutual Covenant (“DMC”). These alterations include :
7.Mr Wilmes is asking for all these alterations to be demolished and to reinstate the altered parts to its original state. 8.In LDBM 280/2013, Mr Sum alleged that the Wilmes family (“Wilmes”) had built 2 glass structures on the Roof (“Glass Structures”) which blocked the way of access to the antenna installed on the Roof (“the Antenna”) and this is in breach of Clause 7 and 18(d) of the DMC (“Allegation F”). 9.Mr Sum is asking for the Glass Structures to be demolished with the Roof reinstated to its original state. Terms of the DMC 10.The relevant terms of the DMC are copied herein for easy reference. 11.Clause 7 of DMC
12.Clause 14(a) of DMC
13.Clause 18(d) of DMC
14.Clause 26(a) of DMC
15.Clause 27 of DMC
Allegation A & B 16.Mr Wilmes testified that the original state of the iron rod fence can be seen in Exhibit A5 whilst the altered condition can be seen in Exhibit A11 and 12. Exhibit A5 showed the iron rod fence next to the entrance to No. 197. By contrasting this photograph with Exhibit A11 and A12, one can tell the alteration made at the G/F Property, ie iron bars of double height with wooden material were being erected on top of the parapet wall. 17.And Exhibit A8 also showed the alteration at the G/F Property by partially cut away the iron rod fence and replaced by wooden material. The G/F Property is being shown on the left of Exhibit A8 whilst to its right, is the original state of the iron rod fence for No. 197 which clearly demonstrated the difference. 18.Mr Wilmes contended that the alterations are specifically restricted under Clause 14(a) of the DMC and since the iron rod fences and the parapet wall are common parts of the building, the alteration made by Sum amounts to a conversion of the common parts to their own use without the written approval of all owners in breach of Clause 26(a) of the DMC. 19.Mr Sum had no dispute that the alterations shown on Exhibit A8, A11 and A12 are all done by him but maintained that the alterations are all done on his own property and not on common parts of the Building since the fences and the parapet wall are within the area of the Garden which belonged to the G/F Property according to the Assignment. Allegation C 20.Mr Wilmes said that Exhibit A6 showed the original state of the iron fence between No. 196 and its neighbour No. 195. However, Sum had replaced it with a wall as shown in Exhibit A9 where work was in progress and Exhibit A10 showing the altered state. 21.Mr Sum admitted the alteration alleged but maintained that the fences are within the area of the Garden which belonged to the G/F Property according to the Assignment. Allegation D 22.Mr Wilmes testified that Exhibit A16 showed work in progress on the outer wall under the window of the G/F Property and the markings under the window is to show the extent of the wall to be broken down. Exhibit A17 showed the work in progress by “piercing and disrupting the outer wall” and eventually the wall was being removed. 23.Mr Sum admitted that the wall under the windows shown on Exhibit A16 had been broken down to make a full length window. Yet, it is his contention that the windows and the wall are within the area he had exclusive use and possession and the alteration does not affect the structure of third party property or involved any risk. Neither had there been any restriction on the size or location of the window. Allegation E 24.Mr Wilmes produced Exhibit A13-A15 to show the re-patched holes on the external wall of the Building. It is alleged by Mr Wilmes that the holes were being drilled by Sum during renovation work at the G/F Property and were being painted in odd colour. 25.Mr Sum denied the holes were being drilled by him and said that the holes were there when he purchased the G/F Property. All he had done was to arrange for the holes to be mended and repaired, trying his best to match the tone of the original colour. Allegation F 26.Mr Sum produced Exhibit A1 to A4 to show the Glass Structures on the Roof and the Antenna erected on the roof of the stairwell which is in between the 2 Glass Structures. From Exhibit A4, one can see that the Glass Structures had taken up 4/5 of the Roof and Exhibit A3 showed the front of the Glass Structures. Yet, the Antenna is at a level above the Glass Structures which had a glass ceiling as well. 27.During the renovation of the G/F Property, workmen engaged by Sum were instructed to repair the Antenna which was found to be damaged. Even though arrangement had been made with Wilmes verbally and in writing to gain access to the Roof for the repair of the Antenna on 30 April 2011, no one answered the door. Since entry to the Roof was denied, the workmen had to erect scaffolding all the way up from the G/F to the Roof for the repair work and in the course of so doing, discovered that Mrs Wilmes was in fact on the Roof. Mr Sum alleged that Wilmes’ refusal of access to the Roof is in breach of Clause 18(d) of the DMC. 28.And due to the existence of the Glass Structures, workmen engaged by Mr Sum told him that they cannot reach the Antenna and the window on one of the Glass Structures suggested by Mr Wilmes as the route to get to the Antenna was not big enough for any normal built technician to go through. So the use of scaffolding is the only possible means which increased the maintenance and repair costs incurred. It is the contention of Mr Sum that the Glass Structures, being an structural alteration on the Roof, had affected his right to have access and to repair the Antenna and this is in breach of Clause 7 of the DMC. 29.Mr Sum explained that he had only taken this matter to court on 18 October 2013 (ie after Wilmes had started the legal proceedings in this case on 4 October 2013) since he had difficulties in the television reception after 3 new channels had been announced by the Radio Hong Kong then. 30.Mr Wilmes maintained that the Glass Structures caused no obstruction to Sum’s repair work on the Antenna since there are 3 ways to reach the Antenna for repair apart from the erection of scaffolding. Firstly, to put a ladder on the G/F against the external wall to reach the top of the stairwell. Secondly, as shown on Exhibit A20, use a ladder to climb up one of the Glass Structures to the top of it, walk to where the Antenna located. Mr Wilmes emphasised that the rooftop of the Glass Structures are made of special glass pane which is safe to walk on. Thirdly, by getting through the window inside one of the Glass Structures (as shown on Exhibit A19) which leads to the concrete rooftop of the stairwell (as demonstrated by Mr Wilmes in Exhibit A18). It is agreed that the size of this window is 60cm by 40cm. 31.When asked about the 3 possible ways suggested by Mr Wilmes, Mr Sum opined that the first 2 ways are not feasible due to the safety consideration since the height from G/F to the Roof is about 30 feet and the workmen had to walk on the glass rooftop, both involved life threatening risk and he should not be required to take such risk. And the workmen who fixed the Antenna for Mr Sum told him that given the size of the window, a normal built workman would not be able to get through. Breach of Clause 14(a) for Allegation A to D 32.There is no dispute that there were structural alterations as alleged in Allegation A to D. Such acts of structural alteration are acts canvassed and restricted by Clause 14(a). And Clause 14(a) also covered any alteration to the unit an owner “is entitled to the exclusive use, occupation and enjoyment” so the defence raised by Mr Sum that these iron rod fences and wall are within the area he had exclusive possession is neither here nor there. 33.Having said so, the wordings of Clause 14(a) condoned only those acts of alteration that “may damage the other part(s) of the said Building and/or will interfere with or affect the rights of other owners” (emphasis added). 34.There is no evidence whatsoever from Mr Wilmes as to how his or Mrs Wilmes’ right as an owner had been affected or interfered with by the alterations made by Sum. Neither had Mr Wilmes adduced any evidence to show that the alterations made by Sum under Allegation A to D involved any damage to other parts of the Building. 35.I found Wilmes failed to establish that there is a breach of Clause 14(a) of DMC in Allegation A to D. Breach of Clause 14(a) for Allegation E 36.There is a dispute as to whether the holes alleged in Allegation E were drilled by Sum. This involved the words of Mr Wilmes against that of Mr Sum. 37.Having heard the evidence and on a balance of probabilities, I accept the evidence of Mr Sum. It is inherently improbable for Sum to drill all those holes shown on the photographs without any purpose to serve. Yet, even if the holes are not drilled by Sum but by the previous owner of the G/F Property, such liability passed to Sum upon their purchase of the G/F Property since liability runs with the land and is imposed upon the owner for the time being (Chi Kit Co Ltd and anor v Lucky Health International Enterprises Ltd [2000] 3 HKCFAR 268) and enforcement of a negative covenant runs with the land and binds the current owner even if they did not build the structures themselves (The IO of Marina Cove v Chu Kam Tai and others HCMP 2141/2011). 38.In any event, the holes had all been mended and in fact the main complaint of Mr Wilmes is about the bad workmanship in the repainting in the sense that there were different shades of colour. In this regard, I accept the explanation by Mr Sum that the different shades may be as a result of the exposure under the sun. And given the fact that the painting of the holes and the wall were being done in different times, a slight difference in shade or colour is expected and acceptable. I do not accept that there is any structural alteration as far as the holes are concerned. 39.In any event, even if the drilling and mending of holes can be considered a structural alteration, I found Wilmes had failed to prove that such alteration did “damage the other part(s) of the said Building and/or will interfere with or affect the rights of other owners” (emphasis added) as required in the second limb of Clause 14(a). 40.I found a breach of Clause 14(a) for Allegation E is also unsubstantiated. Breach of Clause 26(a) for Allegation A to E 41.It is the contention of Mr Wilmes that the iron rod fences, the external wall as well as the parapet wall where the iron rod fences were built are common parts of the Building and the alteration made by Sum to them amounts to a conversion of the common parts to his own use or benefit in breach of Clause 26(a). 42.In support of such a contention, Mr Wilmes relied on :
43.Mr Sum denied that these parts are common parts and maintained that they are part of the G/F Property which he had exclusive use and possession. As for the judgments relied upon by Mr Wimes, Mr Sum submitted that they are not relevant since both cases involved a multi-storey building and not for village houses which is the type of building in this case. Mr Sum also relied on the expert opinion of Mr Fok that according to the Assignment Plan and his boundary survey, the iron rod fences and the parapet wall are within the boundary being assigned to the G/F Property owner. 44.Mr Fok had conducted a boundary survey by comparing the coordinates of the parapet walls of the G/F Property with the coordinates of the boundary of the G/F Property on the Assignment. Such coordinates are obtained with the assistance of devices called total station and target. His findings is presented in Appendix L attached to his report which shows :
45.Although Mr Wilmes had in his lengthy cross-examination attacked the findings of Mr Fok in the measurement as not being reliable and accurate, I accept the explanation of Mr Fok that in making measurements, a variance of 2-3cm is acceptable and given the scale of the map being 1:100, 0.1m variance is not surprising. In any event, I accept Mr Fok’s evidence that he had cross-checked the measurement during a field trip on site and found no discrepancy between the findings in Appendix L and the actual measurement. 46.The issue under this allegation is whether the iron rod fences, the parapet walls and the external wall are common parts of the Building. Section 2 of the Building Management Ordinance defined common parts as :
47.The definition of common parts quoted above means that the whole of a building are common parts, and those parts specified in Schedule 1 are common parts as well. However if certain parts have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner, those parts are not common parts. 48.So, to determine whether the iron rod fences, the parapet walls and the external wall in this case are common parts of the building, one should look at the Assignment and the DMC, being instruments registered in the Land Registry, to ascertain if these are being designated for the exclusive use and possession of the owner of the G/F Property. Provided that they are not specified or designated in these instruments as being for the exclusive use, occupation or enjoyment of an owner, it is within the common parts described in paragraph (a). 49.Since the terms of the Deed of Mutual Covenant and the Assignment of different buildings may be different, the ruling in the 2 judgments relied upon by Mr Wilmes is not relevant. Each case must be decided on its own facts. And the provisions in Schedule 1 of the BMO cannot override any provisions in the DMC or the Assignment. 50.The description of the property as stated in the First Assignment of the G/F Property (an appendix attached to Fok’s Report) reads :
51.One can see from the Assignment Plan that the Green marked on it coincides with the lot boundary. So, anything within the lot boundary is being assigned to the owner of the G/F Property for his sole use and possession and cannot be common parts of the Building. According to the evidence of Mr Fok, the iron rod fences and the parapet walls are built partly within the lot boundary and partly outside and straddling onto adjacent private land. Those parts within the lot boundary coloured green are apparently assigned to Sum for their exclusive use and possession and are not common parts of the Building. For those outside the lot boundary, since they are on adjacent private land owned by some other owners, it can never be common parts of the Premises. Under such circumstances, even though part of the parapet wall and the fences are outside the lot boundary assigned to Sum, Wilmes had no locus to enforce any right over these parts of the land owned by others. 52.As for the breaking up of the external wall of the Building in Allegation D, I accept the submission of Mr Wilmes that Clause 1(b) of the DMC did provided that “the external parts of the Building” are common parts of the Building. 53.Clause 1(b) of the DMC reads :
54.The effect of Clause 1(b) is that all owners are responsible for the costs of repair for all external parts of the Building. The external wall of the Building must be the external part of the Building. If the external wall is not a common parts of the building, why would all the owners, and not just the owner of the property where the external wall situated are required to bear the costs of repair and maintenance of the same. From the requirement that all owners are required to shoulder the responsibility, the only reasonable conclusion is that the external wall of the Building is being treated as common parts where all the owners have liability. 55.Given the fact that the external wall under the window is a common part of the Building and not for the exclusive use and possession of the owner of the G/F Property, Sum’s conduct of breaking up the wall under the window is converting the common part to his own use and is clearly in breach of Clause 26(a) of the DMC. Allegation F 56.There is no dispute that Sum is entitled to enter the Roof for the repair and maintenance of the Antenna and also not in dispute that the Glass Structures are structural alteration on the Roof. The issue is whether the rights of Sum had been interfered with or affected by the existence of the Glass Structures. 57.Mr Wilmes suggested that, even with the Glass Structures, access to the Antenna is not obstructed since Sum can gain access to the Antenna by any of the 3 ways suggested at §30 above. Having considered the evidence, I agree with Mr Sum that the first 2 methods are not feasible and did create additional risk to the workman in the process. The Building is a 3-storey building. To climb up a 3-storey building by way of a ladder against the external wall is definitely a life threatening attempt. And apart from the words of Mr Wilmes, there is no evidence to show that the glass roof of the Glass Structures is safe to walk on or can support the bodyweight of anyone walking on it. If anyone required to access the Antenna can just climb up to the glass roof and safely walk on it, why would Wilmes build the Glass Structures with a window open to the roof of the stairwell? In any event, I agree with Mr Sum that he should not be required to take such life threatening risk to accommodate Wilmes’ breach of the DMC. 58.As for the third method suggested by Mr Wilmes, there is a dispute as to whether the window is big enough for the workman to get through. From the photograph marked Exhibit A18, one can see that Mr Wilmes can manage to get through the window. Having met Mr Wilmes in court, I found that he is not of small built or average built but rather strong built. If Mr Wilmes can get through the window, I do not accept Mr Sum’s evidence that the window is not big enough even for a normal built workman. 59.Having said so, I do not agree that the existence of the Glass Structures did not affect the rights of Sum who is entitled to have access to the Roof and to conduct repair or maintenance work on the Antenna. The parties have no argument that, if the Glass Structures were not built, access to the Antenna can be by way of climbing up with a ladder from the Roof to the concrete top of the stairwell. Even though Sum may still exercise the right of gaining access to the Antenna by climbing through the window of one of the Glass Structures or by the other 2 methods suggested by Mr Wilmes, this is not the original way designed in the construction of the Building. I found the rights of Sum had been interfered with and affected in the sense that it created inconvenience for them to have access to the Antenna. 60.I found the Glass Structures built on the Roof by Wilmes are in breach of Clause 7 of the DMC. Mandatory Injunction 61.The respective applicant in each cases is asking for a mandatory injunction for the structural alterations to be removed and the original state of that part of the Building to be reinstated. 62.Even though I have found that both Wilmes and Sum had been in breach of the DMC, I am however not prepared to grant the mandatory injunction sought. The court always has a wide discretion in granting or refusing a mandatory injunction. In Morris v Redland Bricks Ltd. [1970] AC 652, Lord Upjohn of the House of Lords gave the following judgment:-
63.From the above judgment, it is clear that in granting or refusing a mandatory injunction the court has to consider the particular circumstances of the case and the jurisdiction should be exercised cautiously. It is necessary to consider that damages will not be a sufficient or adequate remedy, and the cost to the defendant to do works should also be taken into account. 64.Further, in Sharpv Harrison [1922] 1 Ch 502 and Wong Sui Fung & anor v Yip Siu Keung LDBM 248 of 2000, it has been held that where no damage has been occasioned and the granting of a mandatory injunction would inflict damage on the defendant out of all proportion to the relief given to the plaintiff, the court ought to refuse it. 65.In the present case, there is no evidence to show that any grave damage is likely to be occasioned in future if the mandatory injunction is being refused. Nor is there any evidence to show that damages would not be sufficient remedy if such damages did arise. Not many people would be able to notice the breaking down of the external wall of the Building by Sum and the inconvenience caused to Sum in their access to the Antenna is minimal. 66.On the other hand, if an injunction is being granted, both Wilmes and Sum have to incur expenses in the reinstatement of the external wall or the Roof. Even though there is no evidence to show as to how much this will be, the costs would not be cheap. The costs in the reinstatement work, when compared to the inconvenience and/or damages likely to be caused to the injured party may not be proportional. 67.I found it unjust and inequitable to grant any mandatory injunction in both cases. The Order 68.It is ordered that :
The applicant in LDBM 266/2013 and the respondent in LDBM 280/2013 appeared in person The respondent in LDBM 266/2013 and the applicant in LDBM 280/2013 appeared in person | |||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
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Further hearings and rulings under LDBM 266/2013