Steak Expert Holdings Ltd v. The Incorporated Owners of Jade Plaza (Tsuen Wan)

LDBM 171/2013

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 171 OF 2013

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BETWEEN

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J U D G M E N T
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1.Jade Plaza, situated at No. 298 Sha Tsui Road, Tsuen Wan, is a building comprised of commercial and domestic floors (“the Building”). The Applicant is the registered owner of the 2^nd Floor since 2005 and has been carrying on food and beverage business thereat under the name of Steak Expert (“the Restaurant”). The Respondent is the incorporated owners of the Building.

2.The Applicant issued a Notice of Application on 18 June 2013 and complained that the implementation of security devices, including a door code system at the main entrance and a smart card system at the commercial floors (“the Security Devices”) had interfered with the Applicant’s right to have free and uninterrupted access to the common lifts (see paragraph 3 for reference of building layout and nomenclature to be used in this judgment).  The Applicant asks that the Security Devices be removed.

Background

Summary of Layout and Setting of Jade Plaza

3.The layout and setting of Jade Plaza is as follows:-

(1)	The Building consists of commercial floors from Ground to 2nd Floor (“the Commercial Floors”).  Whilst a bank occupies a shop on the Ground Floor and the whole of the 1st Floor, the 2nd Floor is wholly occupied by the Restaurant.  There are car parking spaces situated on the 3rd Floor, and 88 domestic units from 5th to 29th Floor (“The Domestic Floors”).
(2)	Inside the main lobby (“the Main Lobby”) at the main entrance of the Building (“the Main Entrance”) there are two lifts serving all floors of the Building including commercial and domestic (“the Common Lifts”).  There is a ramp outside the Main Entrance capable of facilitating movement of wheel chairs.
(3)	A door code system had been installed at the Main Entrance since completion of the Building and all occupants had been provided with a password to operate the door at the Main Entrance (“the Door Code System”).  Visitors without a password who intend to take the Common Lifts at the Main Lobby would have to wait to be attended by the care-taker stationed thereat and their identities are to be registered.
(4)	A smart card system (“the Smart Card System”) has recently been installed and all visitors in the Commercial Floors intending to use the Common Lifts to proceed to the Main Lobby would need the help of a smart card to call the Common Lift to the Commercial Floors.
(5)	At the street level, by the side of the Main Entrance about 1 meter away, there is another lobby (“the Commercial Lobby”) inside of which there is one lift to serve the Commercial Floors (“the Commercial Lift”).  The Commercial Lobby and the Commercial Lift are open to public with no gate or security system installed.  Further, the Commercial Lobby is at a raised level with no ramp put in place for wheel chairs.  In other words, the Common Lifts in the Main Lobby is the only viable passage for customers on wheel-chair to gain access to the Commercial Floors.
(6)	In respect of the car park on 3rd Floor, there are 18 car parking spaces and 5 motorcycle parking spaces.  The car park is managed by another management company.  The entrance for vehicles is on the Ground Floor with a patrol station.  A car lift will take the vehicles to the 3rd Floor for parking.  On the 3rd Floor, there are doors situated at different locations through which one could gain access to the waiting corridor for the Common Lifts.  To deter non-residents from gaining access to the waiting corridor at the 3rd Floor, some of the doors are permanently locked whilst others are operated by another door code system secured by passwords.  In the circumstances, there are two ways to leave the car park: (a) to take the same car lift to go back down to the Ground Floor; or (b) to go through one of those doors with passwords, gain access to the Common Lifts at the 3rd Floor and leave.
(7)	Right adjacent to the Commercial Lift on the Ground Floor is a staircase that passes through all Commercial Floors and leads to the 3rd Floor car park.  There are 58 steps in the staircase to go up from the Ground Floor to the 2nd Floor.
(8)	On the 2nd Floor, there is a fire exit door separating the 2nd Floor from the staircase.  When one pushes open the fire exit door from inside the 2nd Floor to enter into the staircase, the fire alarm will be triggered.  On the other hand, the fire exit door prevents access from the staircase into the 2nd Floor.  So the staircase is not supposed to be for use under normal circumstances but for emergency only.

Case of the Parties

4.There is no dispute that the Main Entrance and the Common Lifts are common parts and facilities of the Building as set out in Clauses 1(b)(xi) and (c) of the deed of mutual covenant of the Building (“the DMC”) and that the Applicant should have the right to use them.  It is said by the Respondent, i.e. the I.O., that the Security Devices are necessary measures.  The security issue in the Building is apparent as an intending burglar who does not want to reveal himself to the caretaker at the Main Lobby could take the Commercial Lift (being open to public) to go to the 1^st or 2^nd Floors.  Then he can change to the Common Lifts thereat to go to any Domestic Floor without restraint.  The Security Devices are therefore necessary to make good this flaw.

5.The defence of the I.O. is three-fold.  First, the “full right and liberty” of the Applicant to access the Common Lifts is not absolute and without restrictions.  Further relying on clause 7(dd) of the DMC it says that the manager of the Building is empowered to make house rules to regulate the use/operation of the services/facilities/amenities of the Building subject to the approval of management of the Building (“the Estate Rules”); this included the installation of the Securities Devices.  Finally it is said that the Estate Rules are binding on all owners.

6.The Applicant does not challenge the validity of the Estate Rules but says that they are not binding on it because the installation of the Security Devices was:-

(i)	unreasonable; and
(ii)	inconsistent with the DMC and in breach of the BMO as it had interfered with the Applicant’s and its customers’ right to use the Main Lobby and Common Lifts.

Issues in Dispute

7.The Applicant has pleaded that the Security Devices had constituted nuisance, annoyance and inconvenience in its Notice of Application but it was not included this in the Agreed List of Issues filed on 19 September 2014.  I shall however deal with this point very briefly later.

8.After hearing the case, I do not think the Applicant is saying that its right to use the Main Lobby and the Common Lifts is absolute or indefeasible.  I believe the real contention is whether the relevant Estate Rule are binding on it as it was contended that under Clause 8 of the DMC, only reasonable acts and decisions of the manager shall be binding on the owners.  In my view the issues for trial are as follow:-

(1)	whether the Applicant has absolute right to have access to the Main Lobby and the Common Lifts under Clause 4(b) and Second Schedule Clause (2)(a) of the DMC;
(2)	whether the acts and decisions in relation to the installation of the Security Devices were reasonable to be binding on the Applicant pursuant to Clause 8 of the DMC;
(3)	whether the Security Devices, or any of them, implemented by the Respondent have wrongfully interfered with rights of the Applicant and are therefore inconsistent with the provisions of the DMC and/or the BMO and hence should be abolished; and
(4)	whether the Applicant is entitled to damages, and if so, the quantum.

Issue (1)

Whether Right to Access Absolute without Restrictions

9.It is not disputed that the Applicant is entitled to “full right and liberty” of access to the common parts of the Building including the Main Lobby and the Common Lifts as conferred appointed it by the DMC.  The Respondent says that by Clauses 2(a) of Part A of the Second Schedule and 4(b) of the DMC, it is obvious that the Applicant’s (and its Licensees’) right to use the Common Lifts is qualified by the DMC and the Estate Rules.

10.It is suggested by the Respondent that on a proper interpretation of Clause 4(b) of the DMC, the Applicant’s right to use and enjoy the common part is not absolute but subject always to the provisions of the Government Grant and other provisions of the DMC and the Estate Rules:-

“It is hereby agreed and declared that the Building Common Areas and the Building Common Facilities shall be used and enjoyed in common by all the owners subject always to the provisions of the Government Grant and this Deed and the estate rules more particularly referred to in Clause 7(dd) hereof (“the Estate Rules”) and Provided that in exercising such right, no owner shall interfere with or permit or suffer to be interfered with the general amenities equipment or services provided that each owner shall comply with the Estate Rules and other regulations (if any) from time to time in force in respect of the Building Common Areas and the Building Common Facilities.” (underlining added)

11.Further, Clause (2)(a) of Part A of the Second Schedule carries similar effect to qualify the right of shop owners:-

“Owners of the Shops (a) full right and liberty at all times (subject to interruption for necessary maintenance by day or night to go, pass and repass along, over and upon the Building Common Areas and the Commercial Common Areas for all purposes connected with the proper use and enjoyment of the Shops; … All of the above easements, rights and privileges shall be held and enjoyed subject to the provisions of this Deed and to the Estate Rules and any other regulations made hereunder.” (underlining added)

12.It is further submitted by the Respondent that the Applicant’s right is subject to Clauses 7(q) and 7(dd) under which the manager is empowered with full authority to provide and maintain any security equipment and to make Estate Rules in this regard:-

Clause 7:- “Except as otherwise herein expressly provided, the manager shall be responsible for and shall have full authority to do for and on behalf of all owners all such acts and things as may be necessary or requisite for the management of the Estate and the Land. Without in any way limiting the generality of the foregoing, the manager shall have the following powers and authorities, namely:- … (q) to provide as the manager deems reasonably necessary security guards, watchmen and care-takers and to provide and maintain any security equipment as the manager deems reasonably necessary and generally so far as may be possible to maintain the security of the Estate and the Land at all times. … (dd) to make, revoke or amend Estate Rules regulating the use, operation and maintenance of the Estate and the Land and the services, facilities or amenities thereof and the conduct of persons occupying, using or visiting the same subject however to the approval of the Owners’ Committee. Such Estate Rules once approved by the Owners’ Committee shall be exhibited in a prominent place in the Estate, and shall remain in force until revoked or amended as aforesaid. Such Estate Rules shall not be inconsistent with the provisions of this Deed and shall be binding upon all the owners, their servants, agents and licensees and all persons claiming through or under any owner.”

13.The Respondent also says that the Respondent is empowered to control the conduct of the persons occupying, using or visiting the Building and the services, facilities or amenities thereof.  In other words, the visitors of the Building (including the customers of the Applicant) and their use of the Main Entrance and the Common Lifts are therefore subject to control as imposed by the Respondent.  In the premises, even if there is any inconvenience caused by the Security Devices to the customers of the Applicant, it is well within the management power of the Respondent conferred under the DMC.

14.As I have mentioned, I do not think that the Applicant is putting up an argument that their rights are not subject to other provisions in the DMC.  Even if it is so, Clause 4(b) is clear enough to qualify such right.  Clause (2)(a) of Part A of the Second Schedule reiterates the same qualifications.

15.For these reasons, I accept the contention of the Respondent that the right of an owner to use and enjoy the common facilities under the DMC is subject to other provisions in the same instrument and also the Estate Rules.

Issue (2)

Whether the acts and decisions to install the Security Devices were Reasonable to be Binding on the Applicant

16.It is contended by the Applicant that under Clause 8 of the DMC, only reasonable acts and decisions of the managers shall be binding on owners but not otherwise.

Clause 8:- “All reasonable acts and decisions of the manager arrived at in accordance with the provisions of this Deed in respect of any of the matters aforesaid shall be binding in all respects on all the owners for the time being.”

17.Mr Wu, counsel for the Applicant, suggested that first the interpretation of “reasonableness” must involve a balancing exercise between (a) usefulness/effectiveness of the smart card system; and (b) the degree of interference with the Applicant’s right to use the common use lifts.

18.In light of the above, the Applicant contends that the acts or decisions to install the Door Code system were unreasonable as there is insufficient number of care-takers to provide sufficient assistance to the Applicant’s customers who require access through the Main Entrance.

19.Pausing here, I shall deal with this contention before I set out other arguments of the Applicant.  I do not agree with the contention that the installation of Door Code System was unreasonable.  It is a most commonly used kind of security system in multi-storey buildings in Hong Kong.  When the Applicant acquired the 2^nd Floor, it was already installed.  Further, the Applicant’s complaint should be more appropriately understood to be not having sufficient care-takers to attend the Main Lobby to assist the visitors who do not have a password. This is not a matter to be dealt with at this hearing.  The Applicant did not ask to increase the number of care-takers but to remove the Door Code System.  The suggestion is self-contradictory.  The Door Code System is a security measure to safeguard the life and properties of the residents of the Building.  This might not be necessary if sufficient number of care-takers is employed to keep a closer watch over the Main Entrance to screen out dubious persons.  If there is insufficient number of care-takers as suggested by the Applicant, it is more the reason to install a Door Code System to prohibit unwanted persons to enter into the Building at a time the care-takers are otherwise occupied.

20.The Applicant says that the installation of the Smart Card System at the Commercial Floors is not reasonable for the following reasons:-

(1)	The Smart Card System fails to enhance the security of the Building;
(2)	The implementation of the Smart Card System was a disproportionate response to 2 incidents of burglaries in 2005 and 2014;
(3)	The implementation of the Smart Card System by the Respondent is a measure which discriminates against the Applicant; and
(4)	There are alternatives which interfere less with the Applicant’s (and its Licensee’s) right to use the Common Lifts.

Reason (1)

The Smart Card System fails to enhance the security of the Building

21.The Applicant says that the Smart Card System could not prevent an intending burglar from taking the Common Lifts to reach the Domestic Floors since there is no need to use a smart card once having entered into the Common Lifts.  So an intending burglar could request the Applicant’s staff for assistance to call the Common Lifts with the smart card to enter into the Common Lifts, after that he could go to any floor he likes.

22.In fact, this is exactly the flaw in the security system before the installation of the Smart Cards System.  There was no restriction for entrance into the Commons Lifts at the 2^nd Floor.  Having entered into the Common Lifts one could go to any floor he wants.  Obviously, the Smart Card System was installed on the assumption that an intending burglar would not want to reveal himself to the staff of the Applicant for assistance to call the Common Lifts with a smart card.  While I accept that the Smart Card System is not perfect, they do, in my view, impose some hurdles to impede an intending burglar from entering the Common Lifts at the Commercial Floors where no care-takers are stationed and then sneaks into the Domestic Floors.

23.I agree with the Applicant that intending burglar could wait amongst a crowd on the 2^nd Floor waiting for the Common Lifts and go first to the Main Lobby with the crowd and after the crowd has left, he then returns to the Domestic Floors by staying inside the Common Lifts.  But in such circumstances he would have to wait for a crowd to gather and to enter into the Common Lifts with many people, by doing so he would have to reveal himself to some of them.  If the Smart Card System was removed, an intending burglar could enter the Common Lifts and gain access to the Domestic Floor anytime he wants without being noticed.  The off peak hours of the Restaurant might be the best time of a day.

24.Further, I am of the view that although there is a CCTV system in each of the Common Lifts which allows the care-takers to see people inside from a CCTV monitor installed in the Main Lobby, it is unrealistic to ask them to watch the monitor all the time.  This is more the case if the Applicant says that care-takers would not always be readily available at the Main Lobby.

Reason (2)

The implementation of the Smart Card System was a disproportionate response to 2 incidents of burglaries in 2005 and 2014 (ie. 2 burglaries in the span of 9 years) smart card system fails to enhance the security of the Building.

25.The Applicant says that the implementation of the Smart Card System is unreasonable as there is no evidence to suggest that in the two previous incidents, the burglar did take the Commercial Lifts to the 2^nd Floor, and subsequently transferred to the Common Lifts from the 2^nd Floor to access to the Domestic Floors.

26.I am of the view that security measures should be viewed in its entirety to avoid apparent flaw. This argument could not assist the Applicant as security measures should be proactive and preventive.  If the Respondent sees the need to review the security measures, which is its duty to do so, they could put up new security equipment as provided in Clause 7(q) as set out in paragraph 12 above.

Reason (3)

The implementation of the Security Devices by the Respondent is a measure which discriminates against the Applicant

27.As mentioned, a bank is now occupying a shop on Ground Floor and the whole of the 1^st Floor.  The Applicant is of the view that since the 2 floors are connected by an internal staircase so its customer does not have to use the Main Lobby nor the Common Lifts on 1^st Floor, the implementation of the Security Devices was, therefore, in effect, a discriminatory measure which only affects the Applicant’s use of the Main Lobby and Common Lifts.  Further, the Smart Card System would discriminate against any users of the 2^nd Floor.

28.In my view, this complaint cannot hold water as the issue of discrimination is not whether the Common Lifts are frequently used by the 1^st Floor owner and its customers.  The question should be whether the Smart Card System has also been installed on the 1^st Floor.  Further, even owners of the Domestic Floors would need to use a smart card to go home if they take the Common Lifts at the Commercial Floors.  If they are not provided with a smart card or fail to bring it along with them, they would still need the help of the staff of the Restaurant to call the Common Lifts or wait for others with a card.  Such owners would still have to put up with some inconvenience.  Further the Common Lifts are not the only means to leave the 2^nd Floor, there is the Commercial Lift which could be used by the customers of the Applicant without a smart card.  The fact that its customers may have to wait for the Commercial Lift or for assistance to use the Common Lifts to bring them to the street level during peak hours of the Restaurant is not uncommon in Hong Kong.  After all, the Applicant has been provided with 6 smart cards to cater for the needs of its customers.

Reason (4)

There are alternatives which interfere less with the Applicant’s (and its Licensee’s) right to use the Common Lifts

29.It is suggested by the Applicant that there is an alternative to the Smart Card System now being installed.  It seems the Applicant’s complaint is that the Security Devices now being installed are not reasonably necessary equipment set out in Clause 7(q).  The alternative as proposed is that the Manager could prevent a person from travelling up to the Domestic Floors from the 2^nd Floor via the Common Lifts by adjusting the settings to enable a Common Lifts called to the 2^nd Floor to only go down to the Main Lobby, instead of going both up and down.  Using this alternative, the security of the Building is enhanced as an intending burglar can only go down from the 2^nd Floor to the Main Lobby before he could go up to the Domestic Floors.  It is suggested that care-takers would be put on alert when a person does not leave the Common Lifts at the Main Lobby but remains therein to go up to the Domestic Floors.  The CCTV in the Common Lifts would show the identity of the passenger so that the care-takers would know whether he is a stranger or a resident.  It is said that the alternative would not interfere with the Applicant’s use of the Common Lifts.

30.Again, as I have mentioned above, I am of the view that the suggestion would be putting too much work on the care-takers whose duties are not restricted to watching over the CCTV monitor.  Further to tell from the CCTV monitor whether the passenger inside is a resident or a stranger may not be easy.  Further, it seems that the suggested mode of operation carries the same flaw as criticized by the Applicant (see paragraphs 21-24). 

31.To conclude, I do not accept the arguments put forth by the Applicant on the alleged unreasonableness of the Security Devices.

Issue (3)

Whether the Security Devices inconsistent with the provisions of the DMC and the BMO

32.The Applicant’s case is that although the Manager is empowered by Clause 7(dd) to make, revoke or amend Estate Rules regulating the use, operation and maintenance of the Estate, one could not ignore the requirement stated there under that Such Estate Rules shall not be inconsistent with the provisions of the DMC.

33.The Applicant relies further on Section 34I(b)(i) of the BMO to say that interference with an owner’s use of the common parts is prohibited.  Section 34I(1)(b)(i) provides as follows:-

“(1) No person may-
	(b)	use or permit to be used the common parts of a building in such a manner as-
		(i)	unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building.”

34.It is the case of the Applicant that the Security Devices amounted to interference and therefore they are inconsistent with the provisions of the DMC and the IO is in breach of section 34I(1)(b)(i) of the BMO.

Door Code System

35.The Applicant says that the Door Code System has interfered with the Applicant’s and its licensees’ right to use the Main Entrance in the following way:-

(1)	as the Door Code System requires the input of a secret code to unlock the door to the Main Entrance, it prevents the Applicant’s licensees from being able to freely enter the Main Lobby and gaining access to the Common Lifts as they are not provided with the password to it;
(2)	while a licensee could ring the door bell to call for the assistance of a care-taker to open the door to the Main Entrance, the care-taker is not always available to assist; and
(3)	the Main Entrance is the only entrance used by the handicapped or wheelchair users due to the provision of a ramp.

Smart Card System

36.The Applicant says that the implementation of the Smart Card System by the Respondent has also interfered with the Applicant and its licensees’ right to use the Common Lifts in the following way:-

(1)	the operation of the Smart Card System prevents the Applicant’s customers from being able to freely use the Common Lifts when they are on the 2nd Floor for leaving the Building as they do not have a smart card; and
(2)	the Applicant had to deploy staff to cope with the traffic congestion caused by the Smart Card System.

37.To conclude, it is said on behalf of the Applicant that the implementation of the Security Devices interfered with the right of the Applicant and its licensees to access to the Common Lifts.  Further the Manager should not exercise its powers under Clause 7 of the DMC to enact the relevant Estate Rule as they are inconsistent with the right as provided under Clauses 2(a) of Part A of the Second Schedule and 4(b) of the DMC.

38.Mr Yuen, counsel for the Respondent, relies on Hang Tsui Court (IO) v Ho Fu [2011] 5 HKLRD 364 to make a reply.  It is said that the Court of Appeal was faced with a similar question as to whether a house rule restraining the owners from bringing or keeping dogs in any part of the estate or the common areas of any building therein was consistent with the owners’ sole and exclusive right and privilege to the exclusive use occupy and enjoy their flats.  It was held that there were no inconsistencies.

39.Mr Yuen noticed one point in Hang Tsui Court which is different from the present case.  He has dealt with that in his final submissions.  He said that the only difference is that in Hang Tsui Court the house rule in question is an express one and was included in the schedule to the DMC, while in the present case the rule regarding the use of the Smart Card System was a product of a resolution passed by the management committee of the Respondent.  However, such difference, in his submissions, does not avoid the ratio from being applicable in the present case in that:-

(1)	it is indeed an express rule under Clause 7(q) that the Respondent has full authority to provide and maintain security equipment; and
(2)	the owners in the present case have under Clause 7(q) of the DMC delegated power to the manager to provide and maintain security equipment and also under Clause 7(dd) to make, amend or revoke Estate Rules regulating the use, operation and maintenance of the Building.

40.Mr Yuen said that in the premises, by borrowing the words of the Court of Appeal at paragraph 9, it is clear that the intention of the DMC was to sacrifice the right to freely use enjoy and access to the Building Common Area to the need to preserve overall security of other owners.

41.Mr Wu submitted that the Tribunal should be slow to find that the right of commercial shop owners (present and future) and their visitors be sacrificed/restricted to preserve the overall security of other residents.  

42.Having considered the submissions, I do not find that the implementation of the Security Devices being inconsistent with DMC and the BMO.  The principle set out in Hang Tsui Court is applicable in the present case.  The owners in Hang Tsui Court is prohibited from keeping or bringing dogs even within their own flat, the relevant Estate Rule in the present case imposes restriction to a much lesser extent that users of the Common Lifts at the Commercial Floor needs a smart card to call the Common Lifts.  The Applicant had been provided with the necessary smart cards.  I find that the Applicant’s right to free access to the Common Lifts and Main Lobby is qualified by specific provisions set out in the DMC and the Estate Rules.  Most import of all, it is my finding that the Security Devices did not constitute interference to a degree rendering the relevant Estate Rule inconsistent with the Clause 4(b) and Clause 2 of Part A under the Second Schedule or at all.  The provision of smart cards has not been made subject to any conditions except for a charge.  On this, the Applicant has no disagreement.  The complaint that there is insufficient number of smart cards ever provided is unfounded.  The Applicant has not suggested any appropriate number of smart cards to be issued to it.  There was no evidence that its request for more smart cards had been refused.

43.The complaint that the Applicant and its customers and suppliers had been inconvenienced by the Security Devices has no merit at all.  It has been alleged by the Applicant that with the Smart Card System in place, a user of the Common Lifts at the 2^nd Floor has to call the Common Lifts with a smart card, after entering into the Common Lifts, give command to the Common Lifts with a smart card and then after leaving the Common Lifts at the Main Lobby, they would have to go back to the 2^nd Floor to return the smart card to the Applicant.  This is simply wrong.  At trial, the Applicant emphasized inconvenience caused to the staff who had to call the Common Lifts with a smart card for customers.  The evidence in this regard was of poor quality.  There was no evidence on how often its staff is required to give assistance to customers intending to leave by the Common Lifts and why this could not be handled by existing number of staff.  One must not forget there is a Commercial Lift that would not need to be operated by a smart card to cater for the need of its customers.

Issue (4)

Whether the Applicant is entitled to damages, and if so, the quantum

44.Since I do not find in favour of the Applicant for the above issues, I do not have to consider damages.  In any event in my view the situation could be made good by better deployment of staff, be they waiters or cleaning workers, as it takes no skill to call the Common Lifts with a smart card.  To take the situation to the extreme, to hire an extra worker to be stationed by the side of the Common Lifts to assist the customers at peak hour would cost little as compared to the Applicant’s claim.  Minimum pay today is $30 per hour.  To ask for damages for loss of rental in the sum of $90,000 per month is beyond any reasons.

Conclusion

45.Having considered evidence and submissions I find that the right conferred upon the Applicant by the DMC is subject to other provisions therein, in particular, Clause 7(dd) and the Estate Rules as specifically spelled out.  Further, owners had specifically agreed to comply with the provisions of the DMC and Estate Rules and I do not find the installation of the Security Devices being unreasonable acts or decisions of the Manager to make it an exception.  Moreover it is not my finding that the Security Devices had constituted interference which made them inconsistent with the DMC.

46.Finally I do not find the access of visitors or customers of the Applicant are denied or interfered by the Security Devices.  They could use the Common Lifts at the Main Lobby and on the 2^nd Floor.

47.For avoidance of doubt, I make it clear that the above findings are made on the factual basis that there is the Commercial Lift which serves the Commercial Floors and that the Applicant had been provided with 6 smart cards to call the Common Lifts to the 2^nd Floor for the benefit of its customers.  I have also considered that the staircase behind the fire exit door cannot be used in normal situation.  I place no weight to the fact the fire exit door has been kept open for use of the Applicant during lunch hour.  It plays no part in my findings and decision.

48.For these reasons, the Application is dismissed.

Costs

49.Costs should follow the event.  The Applicant should pay costs of the Respondent with certificate for counsel, to be taxed at District Court scale if not agreed.  This is a costs order nisi to become absolute if no application is taken out to vary the same within 14 days.

Mr Paul KN Wu, instructed by Messrs. Chung & Kwan, for the Applicant

Mr Ross MY Yuen, instructed by Messrs. Ford, Kwan & Co., for the Respondent