THE INCORPORATED OWNERS OF BONHAM CREST v. LAI FELIX YIRID AND ANOTHER

LDBM 78/2015

[2019] HKLdT 29

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 78 OF 2015

___________________

___________________

_________________

J U D G M E N T

_________________

Background

1.  The applicant is the Incorporated Owners of Bonham Crest (“IO”) and the respondent are the joint owners of Unit B on Ground Floor (“Unit B”) of Bonham Crest together with a space outside Unit B (“the Space”). 

2.  The IO issued these proceedings against the respondent seeking for injunctions relating to unauthorised building works (“UBW”) at the Space as well as water escaped from the Space to the common walkway.  The respondent counter-claimed against the IO for unreasonably delaying them the free access to telecommunication service as well as challenging the validity of certain resolutions passed at either management committee (“MC”) meeting and/or owners’ meetings.  Initially, there is also the IO’s claim for the cable wire installed by the respondent in the common area to be removed.  Since the respondent had already removed the same shortly before this hearing, what remains to be determined for this issue turns on costs only.

3.  At trial, parties have agreed on the list of issues to be tried and I shall deal with each issue in seriatim.

The L-shaped Fence Wall

4.  On the lay-out plan of the Unit and the Space attached to the Notice of Application (“NOA”) filed by the IO, the L-shaped Fence Wall is being marked in green (A/14). The Space is just an open space adjacent to Unit B.  The L-shaped Fence Wall, together with the external wall of the building and the external wall of Unit B, formed the boundary of the Space and enclosed the same.  The IO alleged that this L-shaped Fence Wall is an UBW that should be demolished.

5.  The agreed issues to be tried for the L-shaped Fence Wall are:

(a)   Whether the L-shaped Fence Wall is an UBW?

(b)   If the answer to (a) above is in the affirmative:

(i)   whether the IO or the respondent or both should be responsible for demolishing the L-shaped Fence Wall;

(ii)   whether there is unreasonable delay or unreasonable refusal or lack of cooperation on the IO with regard to the respondent’s offer, if any, to demolish the L-shaped Fence Wall; and

(iii)   if the answer to (ii) above is in the affirmative, whether the unreasonable delay or unreasonable refusal or lack of cooperation has prevented the respondent from demolishing the L-shaped Fence Wall.

(c)   If the answer to (a) above is in the negative:

(i)   whether the IO had acquiesced in the construction and/or retention of the L-shaped Fence Wall;

(ii)   whether the IO can acquiesce in the construction and/or retention of the L-shaped Fence Wall; and

(iii)   whether the L-shaped Fence Wall contravened s.34I(1)(a) of the Building Management Ordinance (“BMO”)?

Whether the L-shaped Fence Wall is an UBW

6.  The IO relied on a letter from the Buildings Department (“BD”) dated 18 December 2014 (“18/12/2014 BD Letter”) to the respondent in support of the contention that the L-shaped Fence Wall is an UBW, hence in breach of Clause 15(a) of the Deed of Mutual Covenant (“DMC”) (B/26). 

7.  The 18/12/2014 BD Letter (B/182) stated that:

“It has been brought to my attention that some building works have been carried out at the above premises and they comprise:

Fence wall erected on the space outside the captioned premises.

These building works contravene the provisions of the Buildings Ordinance and are therefore unauthorised. It may therefore be to your advantage as responsible owners/occupiers, to organize the removal work yourselves as soon as possible…

I suggest that you now take steps to immediately remove the UBW and reinstate the premises to accord with the approved plans…”

8.  The respondent argued that they do not know if the L-shaped Fence Wall is an UBW and it is uncertain if the “Fence wall” mentioned in the 18/12/2014 BD Letter is referring to the L-shaped Fence Wall.  In any event, the 18/12/2014 BD Letter is of preliminary advisory and warning nature only.  Given the fact that no building order for the demolition of the L-shaped Fence Wall had been issued by BD so far and it is stated in the 18/12/2014 BD Letter that “the Household Minor Works Validation Scheme is established to facilitate members of the public to retain minor household installations erected without prior approval of the BD”, it would be pre-mature to draw the conclusion that the L-shaped Fence Wall is an UBW.  The respondent contended that the L-shaped Fence Wall should have been in existence and built by the developer before the existence of the DMC as it would be difficult to imagine that the first buyer was willing to buy Unit B with the Space without a wall for security reason as well as to separate and delineate the private garden space, hence the L-shaped Fence Wall, being boundary walls, should be treated as common parts under the BMO. 

9.  I find it is beyond argument that the BD had confirmed in the 18/12/2014 BD Letter that the L-shaped Fence Wall is an UBW.  The L-shaped Fence Wall is the only fence wall erected on the space outside Unit B, how can the respondent argue that what referred to in the 18/12/2014 BD Letter may not be the L-shaped Fence Wall concerned.  And the BD found the L-shaped Fence Wall being an UBW and asked the respondent to “remove the UBW and reinstate the premises to accord with the approved plans”, this must mean that the UBW is not in line with the approved plans in the first place.  If it was the developer who had built the same before the existence of the DMC, why would the developer not arrange for the same to be reflected in the plans to be submitted before approval sought.  In any event, even if it was built by the developer, it cannot change the fact that the L-shaped Fence Wall is an UBW not in line with the approved plans. The same can be said for the fact that no building order has yet been made and validation scheme may be available to remedy the same.

Who should be responsible for the demolition

10.  It is not in dispute that a large part of the L-shaped Fence Wall sits on the common part of the Building and the IO had once mistakenly treated the L-shaped Fence Wall as a common part and had used the wall all the time.  The respondent argued that the IO should be jointly responsible for the rectification of the illegality.  The IO disagreed.

11.  Even though there is no evidence as to who constructed the L-shaped Fence Wall and when was it constructed, it cannot be disputed that the existence of the L-shaped Fence Wall is for the benefit of the owner/occupier of Unit B, to enclose the Space into a private garden space (as described by the respondent in their submissions).  It would be absurd for the IO to build such a fence wall allowing the common area to be occupied and for the benefit of a particular owner only.  The only reasonable inference to be drawn must be that it was the owner/occupier of Unit B who constructed the L-shaped Fence Wall, with part of it sitting on common areas of the Building, so as to enjoy some privacy in their use of the Space.  Under such circumstances, why should the IO be responsible for the demolition?

12.  As to when this was constructed, I find this to be irrelevant since s.41 of the Conveyancing of Property Ordinance, Cap. 219 provides that negative covenant runs with the land and it is held in The IO of Marina Cove v Chu Kam Tai & Another [2012] 2 HKLRD107 that enforcement of a negative covenant which runs with the land binds the new owners even if they did not build the structures themselves.  The respondent, being the current owners, are bound by the negative covenant against construction/retention of UBW within Unit B and the Space and straddling onto the common area of the Building. 

13.  I find the respondent should be solely responsible for the demolition of the L-shaped Fence Wall.

Unreasonable delay or lack of co-operation of the IO

14.  The respondent contended that the IO had unreasonably refused their offer to demolish that part of the L-shaped Fence Wall within the boundary of the Space and various requests to the IO to coordinate with the consultants engaged by the respondent went unanswered, including the request to jointly liaise with the BD.

15.  Given my findings above that the respondent should be solely responsible for the demolition of the L-shaped Fence Wall, the IO’s refusal in accepting the offer of just demolishing the part of the wall within the Space is more than reasonable.  And since the IO had all along maintained the stance that the respondent should be responsible for the demolition work, the requests to coordinate with the consultants engaged by the respondent for the demolition of only part of the UBW would never be accepted by the IO, so even if these requests went unanswered, does not establish any valid defence to the injunction application.

Delay/refusal to co-operate by IO had prevented the respondent from demolishing the L-shaped Fence Wall

16.  The respondent said that due to the lack of response from the IO, Mr Li (“Mr Li”), the contractor engaged by the respondent, is not willing to undertake the demolition work of the L-shaped Fence Wall since there is a gas pipe which passes through the L-shaped Fence Wall.

17.  There is nothing to show that without the IO’s assistance, the respondent would encounter difficulty in the demolition of the L-shaped Fence Wall.  As can be seen from the pictures (C/411-412), the gas pipe just goes through the L-shaped Fence Wall at one end of it and there are space between the two and it is never the evidence of Mr Li that the L-shaped Fence Wall cannot be demolished due to the IO’s attitude or the gas pipe.  I agree with Ms Wong, counsel for the IO, that any delay is solely attributed to the respondent’s stance and attitude in maintaining that the L-shaped Fence Wall is not an UBW.

Acquiescence and s.34I BMO

18.  Given my findings that the L-shaped Fence Wall is an UBW, these issues are no longer relevant.  But in case I am wrong in my findings on UBW, I will find that the IO had not acquiesced in the same.  The inaction by the IO was due to the mistaken belief that the L-shaped Fence Wall was a common parts of the Estate. But once having been alerted by the BD that the L-shaped Fence Wall was an UBW, the IO had immediately requested the respondent to demolish the same.  The defence of acquiescence must fail.

19.  And since it is not in dispute that part of the L-shaped Fence Wall is on the common area of the Building and there is no approval from any owners’ meeting or management committee meeting, the existence of the L-shaped Fence Wall must be in contravention of s.34I(1)(a) of the BMO.

Conclusion

20.  I find the L-shaped Fence Wall is an UBW and in contravention of Clause 15(a) of the DMC which prohibits the “structural alteration to the said Building or … to the flat and to which he is the owner…and not to erect or build any structure of whatsoever nature which is not comprised in the building plans and specifications approved by the Building Authority in respect of the said Building” and in breach of s.34I(1)(a) of BMO.  Such an UBW should be demolished and I find nothing inequitable in granting the injunction for the demolition of the same given the fact that the respondent had failed to do so on demand by the BD as well as by the IO, and an injunction is necessary to make sure that the respondent will act as required.

The Concrete Structure

21.  On the lay-out plan of the Unit and the Space attached to the NOA, the Concrete Structure is being marked as “X” and “Y” (A/14).  It is not in dispute that the Concrete Structure (photos at B/169) is within the Space owned by the respondent. It is also not in dispute that there is a gas pipe, a common facility of Block B, running across the top of the Concrete Structure and this section of the gas pipe was embedded by concrete (photos at C/410-412).

22.  The agreed issues to be tried for the Concrete Structure are:

(a)   Whether the Concrete Structure is an UBW?

(b)   If the answer to (a) above is in the affirmative:

(i)   whether there is unreasonable delay or unreasonable refusal or lack of cooperation on the IO with regard to the respondent’s offer, if any, to demolish the Concrete Structure; and

(ii)   if the answer to (i) above is in the affirmative, whether the unreasonable delay or unreasonable refusal or lack of cooperation has prevented the respondent from demolishing the Concrete Structure.

(c)   If the answer to (a) above is in the negative:

(i)   whether the IO had acquiesced in the construction and/or retention of the Concrete Structure; and

(ii)   whether the IO can acquiesce in the construction and/or retention of the Concrete Structure?

Whether the Concrete Structure is an UBW?

23.  Like the L-shaped Fence Wall, the IO relied on letters issued by the BD to the respondent dated 28 July 2014 (“28/07/2014 BD Letter”) (B/78) and to the IO dated 27 November 2014 (“27/11/2014 BD Letter”) (B/180) respectively to support the contention that the Concrete Structure is an UBW and hence in breach of Clause 15(a) of the DMC (B/26).

24.  In the 28/07/2014 BD Letter (B/78) sent to the respondent, it stated that:

“It has been brought to my attention that some building works have been carried out at the above premises and they comprise:

A structure erected on the space outside the captioned premises.

The government has announced “Revised Enforcement Policy against Unauthorized Building Works” on 1 April 2011, taking proactive actions against those unauthorized building works (UBW) on main roof/flat roof/lightwell/yard/lane. Under the new policy, I will serve an order under the Buildings Ordinance requiring the owner to remove the UBWs. It may therefore be to your advantage as responsible owners, to organize the removal work yourselves as soon as possible…

I suggest that you now take steps to immediately remove the UBWs and reinstate the premises to accord with the approved building plans record…”

25.  In the 27/11/2014 BD Letter (B/180) in answer to the IO’s enquiry, the BD confirmed that:

 

“本署委聘的顧問公司職員及本署人員分別於2014年6月26日及2014年7月22日到有關地方視察，發現上述單位對出的空地上加建一個搭建物，由於有關的建築工程違反

«建築物條例»的規定，故屬違例建築工程。”

26.  The respondent’s case is that they did not know whether the Concrete Structure is an UBW and the Concrete Structure was already there when they purchased Unit B in 2014. There is nothing in the 28/07/2014 BD Letter to identify the alleged UBW or whether the structure referred therein is the Concrete Structure marked as “X” and “Y” in this case.  Even though the IO had engaged 2 experts to conduct investigation, the IO had failed to adduce such expert report.  The only inference must be that the experts had doubt as to whether the Concrete Structure is an UBW and that is why the BD had failed to take any action since the 28/07/2014 BD Letter.

27.  I find there is no doubt that the Concrete Structure at the Space is an UBW.  This is confirmed by the 28/07/2014 BD Letter which had already pointed out the location of the UBW, ie “a structure erected on the space outside the captioned premises” with the “captioned premises” referring to Unit B and the “space outside the captioned premises” must be the Space in this case.  Furthermore, as revealed from the 27/11/2014 BD Letter, the BD had in fact conducted site visit at Unit B and saw the UBW at the Space.  There can be no doubt that the UBW named in the 28/07/2014 BD Letter must be the Concrete Structure at the Space given the fact that that is the only structure erected on the Space. 

28.  The fact that the BD had taken no further action for the past 4 years cannot negate the findings by the BD in the first place.  If the BD had doubt after issuing the 28/07/2014 BD Letter, it is duty bound to rectify the same and informed the owner of the same instead of leaving the matter as it is.  The suggestion by the respondent that the BD must have doubt as to the nature of the Concrete Structure is unfounded.  Judging from the condition of the Concrete Structure (C/410), it is more likely than not that that section of the gas pipe was being covered up when someone built the Concrete Structure making the gas pipe invisible from outside and forming part of the Concrete Structure and this must be done by the one having the benefit of the use of the Concrete Structure.  I find it more likely than not that the gas pipe was embedded at the time the Concrete Structure was being built by the owner of Unit B.

29.  I find the Concrete Structure is an UBW in breach of Clause 15(a) of the DMC which prohibits the “structural alteration to the said Building or … to the flat and to which he is the owner…and not to erect or build any structure of whatsoever nature which is not comprised in the building plans and specifications approved by the Building Authority in respect of the said Building”.   Such an UBW should be demolished and I find nothing inequitable in granting the injunction for the demolition of the same given the fact that the respondent had failed to do so on demand by the BD as well as by the IO, and an injunction is necessary to make sure that the respondent will act as required.

Whether there is unreasonable delay or unreasonable refusal or lack of cooperation on the IO and prevented the respondent from demolishing the Concrete Structure

30.  The respondent contended that they were willing to remove the Concrete Structure and had requested the IO, as early as on 8 September 2015 (“08/09/2015 Letter”) (C/454-455), to move the gas pipe away from the Space so that the Concrete Structure could be removed.  However, there was no constructive feedback from the IO who had refused to re-route the gas pipe.  The respondent had engaged a contractor, Mr Li to work out the feasible plan in the demolition of the Concrete Structure.  Mr Li opined that the Concrete Structure cannot be demolished without first having the gas pipe being removed since it wold be too dangerous to perform the demolition work close to a gas pipe still in use.

31.  The IO maintained that it does not have any duty to render co-operation in the manner demanded by the respondent.  Mr Wong, chairman of the IO, who had been living at the Estate since 1997, confirmed that the gas pipe was not covered by concrete at the time he moved in and didn’t notice when such concrete was being put but the IO had never authorised such to be done.  Mr Wong also confirmed that should it be required for the gas pipe to be removed in order to facilitate the demolition of the Concrete Structure, the IO is more than prepared to adopt the advice from the gas company but this does not mean removing the gas pipe away from the Space as requested by the respondent in the 08/09/2015 Letter.

32.  As can be seen from a letter from the solicitors acting for the IO to the respondent dated 6 August 2015 (C/449), the IO made the initial move in clarifying with the respondent, as to whether the respondent agreed “to remove the concrete which covers the gas pipe or remove the concrete which covers the gas pipe and to remove the gas pipe, and re-install the gas pipe at the same location”.  The respondent then sent the 08/09/2015 Letter raising their “objection and notify you that your client has no right to cause such flow of gas to be channelled through our garden.  And we hereby demand that your client re-route the flow of gas completely away from our garden as soon as possible after applying to the relevant authorities, so as to cease trespassing our land”.  It is apparent from the contents of these letters that the respondent had not offered to remove the Concrete Structure in their 08/09/2015 Letter but rather, refusing to allow the IO to re-install the gas pipe at the same location after the Concrete Structure had been removed.  The IO replied by letter dated 18 September 2015 (C/480-481) denying any trespass and that the IO will “liaise with the gas company whether the concrete or cement be removed or it is necessary to relocate the gas pipe to other part of the external wall, or there is other alternative”.  In fact, the gas company had, in their letter dated 4 June 2015 (C/421) and 15 September 2015 (C/477), confirmed that the gas pipe covered by the concrete should be removed to suitable location (“建議改移該段煤氣喉管至合適位置”).

33.  The next offer made by the respondent to demolish the Concrete Structure only came by their letter dated 28 August 2017 (D/716) in which they still insisted on a re-routing of the gas pipe away from their garden.  Even though the respondent said that such offer had been made at the Owners Meeting held on 18 December 2014, no such record was found in the minutes of the said meeting (B/185-188).

34.  As can be seen from the offers made by the respondent, they are asking for the gas pipe to be removed from the external wall of Block B and away from the garden owned by the respondent.  This is an unreasonable request and I agree with the IO that the gas pipe is on the external wall of the building, a common part of the Building which the respondent does not have a right over the same, hence no right to demand for the gas pipe not to be re-installed at the same external wall.   I find the alleged refusal by the IO reasonable.

35.  At trial, the respondent had indicated that they are prepared to demolish the Concrete Structure but require the IO to cooperate to reinstall the pipe as advised by the gas company.  I accept the evidence of Mr Li that the gas pipe needs to be re-routed before the demolition work can proceed.  The potential risk of demolishing the Concrete Structure with a live gas pipe embedded in it is apparent and it must be in the interests of all residents of the Building for the gas pipe to be re-routed, making sure the residents’ supply of gas is not affected and it is safe to demolish the whole Concrete Structure.  Since the gas pipe is a common facility, the re-routing of the same should be done by the IO.

Conclusion

36.  The Concrete Structure is beyond doubt an UBW required to be demolished.  Given the fact that the stretch of live gas pipe along the external wall of the Building had been covered and embedded to form part of the Concrete Structure and the gas company also advised that such gas pipe should be re-routed, the proper order should be for the respondent to demolish the Concrete Structure within 3 months from completion of the re-routing of the gas pipe performed by the IO.

Nuisance Claim

37.  The IO alleged that the respondent had allowed water/sewage to escape from the Space onto the common walkway next to the L-shaped Fence Wall facing the storm drain and facing Park Road causing nuisance to other occupiers and in breach of Clause 15(f) of the DMC.

38.  The agreed issues to be tried are:

(a)   Whether the respondent has caused water, liquid and/or sewage to escape from the Space of Unit B to the walkway?

(b)   If the answer to (a) is in the affirmative, whether the respondent is in breach of Clause 15(f) of the DMC and/or causes nuisance? and

(c)   Whether the discharge of water, liquid and/or sewage from the Space of Unit B to the walkway is an easement?  If the answer is in the affirmative, whether this constitutes a defence to breach of Clause 15(f), if proved.

Whether the escape of water/sewage caused by the respondent

39.  The IO had produced photographs to show wet patches found, on divers days from early February 2015 to 5 December 2017, on the walkways outside the L-shaped Fence Wall facing the storm drain and facing Park Road (E/769-927).  The IO maintained that the wet patches found on the walkway facing Park Road is likely to be water or sewage discharged from the fish pond built next to the L-shaped Fence Wall inside the Space of Unit B.  As for the wet patches on the walkway outside the L-shaped Fence Wall facing the storm drain, the IO alleged that they were caused by water/sewage escaped through the drainage holes under a basin inside the Space (photograph of the drainage holes at E/890).  Photograph at E/778 showed the inside of the Space with the fish pond on the right hand side next to the L-shaped Fence Wall facing Park Road and the basin next to the door on the L-shaped Fence Wall facing the storm drain.

40.  It is not in dispute that there was 1 single incident occurred on 12 September 2015 where water in dark colour was being seen discharged from the 2 drainage holes under the L-shaped Fence Wall onto the common walkway facing the storm drain and Mr Lai and his domestic helper was seen cleaning the dirt on the common walkway and the storm drain (photos at E/792-796).  Just based on this single incident, I do not agree that it is sufficient to prove nuisance.

41.  The respondent maintained that inspections had been conducted by a number of government departments and found no foul water being discharged from the Space onto the common walkway.  However, it cannot be disputed that on the inspection by the Food & Environmental Hygiene Department on 17 November 2014, even though the findings is consistent with the respondent’s contention, it was discovered that the drainage pipe of the basin inside the Space was connected to the drainage holes on the floor (D/511).  With such a design, and with the admission by the respondent that there was no other drainage inside the Space and with the L-shaped Fence Wall being built, the only irresistible inference to be drawn must be that any water, liquid and/or sewage to escape through the drainage holes under the basin installed inside the Space onto the common walkway facing the storm drain must be originated from the Space.  And given the frequency of escape of water, liquid and/or sewage found to have been discharged from the drainage holes as depicted in the photographs produced by the IO, coupled with the evidence of Mr Wong of the IO that frequent complaints had been received from other occupants of the Building, this must have caused inconvenience and annoyance to other occupiers of the Building and amounts to nuisance.  Such acts of the respondent must be in breach of Clause 15(f) of the DMC.

42.  But the same cannot be said for the water leakage found on the other side of the L-shaped Fence Wall, ie the common walkway facing Park Road, since there is no evidence as to where the water came from.  The IO is alleging that there should be leakage or overflow from the fish pond inside the Space but this is just a bare assertion.  All the IO had showed is that water patches were found from time to time outside the L-shaped Fence Wall right next to the fish pond.  No sufficient evidence is being adduced for any inference to be drawn in support of the IO’s contention.

43.  The respondent raised the defence that the water on the common areas came from dripping water from air-conditioners installed at flats above the Space.  However, I accept the evidence of Mr Wong, which is corroborated by the photograph (C/342) that there is no air-conditioner above the Space but instead, air-conditioners are being installed on the other side of the Building round the corner.  I also agree with the submissions by Ms Wong for the IO that there were photographs (E/800, 802, 805, 809-817 and 877-896) taken in winter season but water was still seen immediately outside the L-shaped Fence Wall.  The explanation that the water outside the L-shaped Fence Wall came from air-conditioners above cannot stand.

Easement

44.  The respondent also contended that water that flow into the storm drain from the Space is mainly rain water and periodically water for the cleaning of the Space.  Given the drainage design, water in the Space is meant to be drained by flowing into the storm drain across the walkway and this amounts to an easement granted to the owner of Unit B.

45.  Ms Wong for the IO relied on the case of Hollywood Shopping Centre Owners’ Committee Limited v The Incorporated Owners of Wing Wah Building Mongkok Kowloon [2011] 4 HKLRD 623 to argue that the respondent, as a co-owner of the Building, could not have a real easement over the common parts, as one could not have a real easement over one’s own property (at §60).  I agree.

46.  Furthermore, easement by necessity is one without which the property retained cannot be used at all, and not one merely necessary for its reasonable enjoyment: Tang Tim Fat & Anor v Chan Fok Kei & Ors [1993] 2 HKLR 373 at 383. 

47.  There is no evidence to show that the Space cannot be used if it is not allowed to splash water onto the floor of the Space and must let the water drained by running into the storm drain.  If it is just rain water which is meant to run from the Space into the storm drain, the IO had no argument of the same.  As for the cleaning of the Space, it is not a must to splash water in the course of cleaning.  As revealed from Mr Wong’s evidence, the IO had been mopping the floor of the common walkway outside the Space instead of splashing water in the cleaning of the same after discovered that no foul water should be drained into the storm drain outside the Space.  Under cross-examination, Mr Lai (the 1^st named respondent) also agreed that they can do the same in the cleaning of the Space.

48.  The defence of easement raised must fail.

Conclusion

49.  Having considered the above, the discharge of water, liquid and/or sewage from the drainage holes under the L-shaped Fence Wall facing the storm drain must be originated from the Space and is in breach of Clause 15(f) of the DMC.  But given the fact that the last allegation of the same occurred back in December 2017, I do not agree that an injunction is justified at the time of this judgment since the breach had apparently ceased and an injunction is not necessary and inequitable under such circumstances.

The Cable Wire

50.  It is not in dispute that the respondent had caused a cable wire to be connected from Unit B to the communal phone box on the 1^st floor staircase via the external wall and the staircase which are common parts of the Building.  The respondent had been seeking the consent of the IO to install the same since June 2014 and the cable wire was being installed on 14 October 2014.  After the institution of this proceedings, the respondent had dismantled the same in May 2018 so the only remaining issue is costs.

51.  It is agreed that the issues to be determined in this head of claim are:

(a)   Whether the installation of the cable wire per the route stated on the plan annexed to the NOA amounts to a breach of section 34I(1)(a) of the BMO;

(b)   Whether the IO had unreasonably refused the installation of the cable wire per the route stated on the plan annexed to the NOA;

(c)   If the answer to (b) is in the affirmative, whether section 34I(1)(a) of BMO imposes the requirement of reasonableness on the IO’s grant or refusal of consent by resolution in relation to the use of a common part of the Building; and

(d)   Whether the IO has caused any delay to the respondent’s removal of the cable wire.

s.34I(1)(a) of BMO

52.  It is not in dispute that the cable wire was installed and gone pass common parts of the Building and IO’s consent was required before the installation.  The respondent contended that they had obtained a green light from Kong Shum Union Property Management Company Limited (“Kong Shum”), the management company by way of written authorisation in their letter dated 22 September 2014 (“Kong Shum Letter”) (B/115) and on the date of installation, had called the office of Kong Shum and it was agreed, on a provisional basis, that the installation work can proceed since it only involved fastening to existing pipe without any permanent changes to the external wall such as using nails.

53.  The IO denied that Kong Shum was in a position to give the consent and on the contrary, Kong Shum had reiterated in its letter or emails to the respondent that the IO’s consent was required (B/63) and the IO would not allow any alteration or additional works in the common area of the Building (B/73 & 80).  The secretary of the IO had also sent emails to the respondent on 28 September 2014 (B/123) and 14 October 2014 (B/125) objecting to the installation of the cable wire on common parts of the Building.

54.  It is not in dispute that the original route of the telecommunication cable is not visible in the common areas and are all inside the false ceiling.  As can be seen from the correspondence between the IO and the respondent, the respondent had asked for visible cable wire to be installed and to go pass the lift lobby of the Building which was adamantly refused by the IO (B/89).  After some exchange of emails, Kong Shum then issued the Kong Shum Letter, allowing the cable wire to be installed from the phone box at the rear stairwell, attached to the main telephone lines to the exit door and attached to the CCTV cable duct in the common parts of the Building and into Unit B through the window. On 26 September 2014, the secretary of the IO sent the email reminding the respondent of the approved route of the cable wire, ie “the phone line goes out of the back staircase’s exit, the phone line needs to go into your bedroom wall” (B/117).  Eventually, the cable wire was being installed but not in line with the stipulation of the IO (photographs showing the route of the cable wire at B/127-128), instead of going through the window of one of the bedroom, the cable wire run on the external wall of the Building and into Unit B via the Space (B/128).

55.  S.34I(1)(a) of the BMO reads:

“(1) No person may—

(a) convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners’ committee (if any)”.

56.  There is nothing to show that the suggested route stated in the Kong Shum Letter or the proposal over the phone on the date of installation was approved by the management committee by way of a resolution.  The Kong Shum Letter, taken it to the highest, can only be considered a counter proposal from the IO in answer to the proposals made by PCCW, the service provider responsible for the installation.  Without a resolution passed by the management committee, s.34I(1)(a) cannot be invoked and the installation of the cable wire by the respondent without the blessing of such resolution must be in breach of s.34I(1)(a) of BMO.

57.  Even if the Kong Shum Letter can be taken as an acceptable approval under s.34I(1)(a) BMO, since the installation of the cable wire by the respondent was not in line with the route stated in the Kong Shum Letter, ie not via the window of Unit B, the installation cannot be considered in line with the consent given and must be considered a breach under s.34I(1)(a) as well.  The allegation by the respondent that they had not received the email from the secretary of the IO is neither here nor there.

Unreasonable refusal on the part of the IO & whether s.34I(1)(a) imposed the requirement of reasonableness

58.  The IO contended that since the respondent does not have any right to install a cable wire in the common area under the DMC, the IO is not obliged to give approval and the IO had acted reasonably in the consideration of the respondent’s application and suggesting feasible installation methods which were declined by the respondent.  In any event, relying on the case of 383 HK Limited v The Incorporated Owners of Tak Bo Building (CACV 99/2017, unreported, 21 March 2018), the IO submitted that there is no requirement of reasonableness on the management committee’s grant or refusal of consent by resolution in relation to the use of a common part of a building under s.34I(1)(a) BMO.

59.  The case of 383 HK Limited involved an owner of the building seeking consent from the defendant IO to carry out the installation work for the provision of fresh water and drainage facilities which must by necessity go over the common area. The defendant IO turned down the request but the plaintiff nevertheless went ahead with the installation.  On the issue as to whether the owner is entitled as of right to install the same and whether the defendant IO had unreasonably withheld their consent, the Court of Appeal found that:

(a)   “when there is a system of pipework in place for the supply of gas (the issue in that case), an individual co‑owner of course has the right to free and uninterrupted supply of gas through the existing pipes.  However, where there is no system in place, “it still requires the incorporated owners to decide on a system to be installed in accordance with the decision making process as provided under the DMC” (para 70), as opposed to leaving the individual owners to their own devices and carry out installation works over the common parts of the building as they respectively see fit” (at §30);

(b)   “Section 34I(1)(a) simply codifies that common law position but makes a concession at the same time.  At common law, if all other co‑owners consent, there can be no ouster.  Section 34I(1)(a) makes life easier in that so long as the action is approved by the management committee by resolution passed by a majority present at a meeting of the committee, what cannot otherwise be done under common law can be done” (at §32);

(c)   “I am not aware of any authorities that impose, by way of statutory construction, a requirement of reasonableness on the management committee’s grant or refusal of consent by resolution in relation to the use of a common part of a building under section 34I(1)(a).  In my view, such a construction would only serve to introduce a substantial element of uncertainty to building management, and give rise to wholly unnecessary disputes amongst co‑owners and management committee” (at §36); and

(d)   “To impose on that elaborate design an additional requirement of reasonableness relating to a management committee’s resolution is, in my view, a recipe for uncertainties and disputes.  It would also add an unnecessary, burdensome role to the courts and the Lands Tribunal regarding the use of common parts of buildings.  I can see no justification for adopting such an interpretation under a purposive construction” (at §36).

60.  Adopting the reasoning quoted above, I agree with Ms Wong for the IO that s.34I(1)(a) BMO does not impose any consideration of reasonableness in the refusal of consent and this should not be an issue for this trial.  If I am wrong on this point, it is my finding that the IO had acted reasonably in the processing of the respondent’s request.  The IO had never denied the respondent’s right to install the cable wire but just disallowed visible cable wires to be installed on the common parts of the Building.  Eventually, the IO did make concession and allowed the installation of the cable wire at specified route but it was the respondent who had insisted on his own position.  The PCCW technician may have suggested other feasible route but he may not have taken into consideration the interests of all owners over the common parts of the Building which is something the IO has to pay heed to.  The insistence of the IO not to accept the proposed route of PCCW cannot be faulted.

Unreasonable delay caused by the IO in the removal of the cable wire

61.  The respondent contended that the IO had taken numerous steps to obstruct the respondent from removing the cable wire, including:

(a)   Stopping the PCCW technician from dismantling the cable wire;

(b)   Declining the respondent’s request to temporarily remove the Promat materials covering the provisional phone cable;

(c)   Threatening PCCW and the PCCW technician with legal consequences and the PCCW indicated their unwillingness to remove the cable wire in the common area unless with clear permission from the IO;

(d)   Instructing the caretakers to stop all works and all alterations in the common area; and

(e)   Putting up notices to all owners to prevent the removal of the provisional cable and frustrate the respondent’s attempt to dismantle the cable wire.

62.  As revealed from the evidence, the IO had never stopped the technician to dismantle the cable wire.  In the letter from the respondent to the IO complaining about the allegations of (a), (c), (d) and (e) above, the respondent only mentioned about the IO stopping the installation of new cable wire and not the removal of the already installed one (D/661-662).  And the IO had never declined the request of temporary removal of the Promat material, but instead told the respondent to remove the same on their own (D/657-659).

63.  Furthermore. these allegations of the respondent can be rebutted by the mere fact that the respondent had eventually removed the cable wire without any difficulty and without any further assistance from the IO.  Had the alleged obstructions of the IO been in place, how can the respondent manage to remove the cable wire without the IO doing anything.  I find such allegations of the respondent unsubstantiated.

Conclusion

64.  Since the respondent had failed to obtain the consent of the IO before the installation of the cable wire or failed to carry out the installation work in accordance with the approved route stipulated by the IO, the respondent is in breach of s.34I(1)(a) BMO.  The IO had acted reasonably in the process and had not obstructed the respondent in the removal of the cable wire, yet the respondent had refused to dismantle the same on repeated request of the IO resulting in this litigation.  I fail to see why the IO should be deprived of its costs in this head of claim.

Counter-claim by the respondent

65.  The respondent counter-claimed against the IO for:

(a)   Damages and compensation for the unreasonable delaying of the respondent’s free access to telecommunication services, in breach of Clause 4(b)(i) of the DMC; and

(b)   Declaration that the resolutions passed at the management committee’s meeting held on 29 October 2014 and at the owners’ meeting held on 18 December 2014 and 7 January 2015 were null and void.

Free Access to Telecom Services

66.  This is a claim related to the cable wire installed by the respondent.  The agreed issues for this head of counter-claim are:

(a)   Whether the IO has an obligation under the DMC and/or under the BMO to render assistance in resolving the alleged difficulties encountered by the respondent in the installation of cable wire to Unit B;

(b)   If the answer to (a) is in the affirmative, whether the IO had acted unreasonably in processing the respondent’s cable route application in that the IO had failed or refused to render assistance in resolving the alleged difficulties encountered by the respondent in the installation of the cable wire to Unit B;

(c)   If the answer to (a) and (b) are in the affirmative, whether the respondent suffered any damage; and

(d)   If the answer to (a) and (b) are in the affirmative, the amount of damages to be awarded.

67.  It is the contention of the respondent that since the cable wire is to go through the common area of the Building, any problem encountered in the common areas has to be resolved by the IO to whom the respondent paid a management fee every month for management services.  Even though the respondent had submitted 6 rounds of proposals to the IO, no cable wire could be installed so the IO must have acted unreasonably.

68.  The IO contended that there is no provision in the DMC and the BMO stating that the IO is under a duty to assist the respondent to resolve the difficulties.  In any event, the respondent had encountered no difficulties since the IO had already provided feasible methods of installation and the IO had replied to respondent’s 6 proposals.  However, the respondent installed the cable wire without the IO’s consent after the 3^rd proposal so it was resolved at the owners’ meeting held on 18 December 2014 that the respondent should demolish the cable wire by 5 January 2015.  Yet, the respondent had not done so but submitted the 4^th to 6^th proposal instead.  The IO maintained the stance that the respondent should remove the cable wire installed before any new cable wire can be considered.

69.  I agree with the IO that the respondent failed to prove that either the DMC or the BMO imposed the duty on the IO to assist the respondent in resolving any difficulties encountered in the course of the installation of the cable wire for telecommunication service.  Clause 4(b)(i) of the DMC named by the respondent does not cater for telecom services but restricted to “water sewage gas and electricity … through the sewers drains water-courses cables pipes and wires” (B/7).  And it would be unreasonable and onerous to impose the duty on the IO to assist the owners to resolve whatever difficulties faced by owners in the enjoyment of common facilities.

70.  Even if the IO did have such a duty, judging from the findings at §64 above, the IO had acted reasonably in suggesting other alternative and it is only the respondent’s unreasonable insistence on their own route that resulted in this litigation and the respondent not been able to enjoy the facility of telecom service.

71.  Given my findings that the respondent failed to prove the duty on the IO, the claim for damages and its quantum became academic.  This head of counter-claim must be dismissed.

Validity of resolutions

72.  The respondent contended that since no annual general meeting (“AGM”) had been held within 12 to 15 months from the AGM held on 18 August 2011 (“18/08/2011 AGM”) and the MC members elected at the 18/08/2011 AGM had not retired on the alternate AGM, the validity of the incumbency of the MC members became doubtful, hence the following resolutions passed are null and void:

(a)   the resolution at the MC meeting held on 29 October 2014 (“29/10/2014 MC Meeting”) appointing the solicitors acting for the IO to deal with this litigation;

(b)   the resolution passed at the extraordinary general meeting (“EGM”) held on 18 December 2014 (“18/12/2014 EGM”) to commence these proceedings against the respondent; and

(c)   the resolution passed at the AGM held on 7 January 2015 (“07/01/2015 AGM”) for new MC members to be elected and for the solicitors to be appointed to commence these proceedings.

73.  The agreed issues to be determined are:

(a)   Whether the incumbency of the MC as at 29 October 2014 was doubtful as an election was not held within 12 to 15 months of the 18/08/2011 AGM in compliance with paragraph 1(1)(b) Schedule 3 of BMO;

(b)   If the answer to (a) is in the affirmative, whether the resolution passed at the 29/10/2014 MC Meeting was void;

(c)   Whether the incumbency of the MC as at 18 December 2014 was doubtful as an election was not held within 12 to 15 months of the 18/08/2011 AGM in compliance with paragraph 1(1)(b) Schedule 3 of BMO;

(d)   If the answer to (c) is in the affirmative, whether the resolutions passed at the 18/12/2014 EGM was void;

(e)   Whether the incumbency of the MC as at 7 January 2015 was doubtful as an election was not held within 12 to 15 months of the 18/08/2011 AGM in compliance with paragraph 1(1)(b) Schedule 3 of BMO;

(f)   If the answer to (e) is in the affirmative, whether the resolutions passed at the 07/01/2015 AGM was void; and

(g)   Whether the court should make a declaration that the resolution passed at the 18/12/2014 EGM and the 07/01/2015 AGM are not in compliance with the BMO.

Validity of the MC

74.  Paragraph 1(1)(b) Schedule 3 of BMO stipulated that an AGM should be held not earlier than 12 months and not later than 15 months after the date of the previous AGM. Paragraph 5(1) Schedule 2 of BMO required all the MC members shall retire from office at every alternate AGM.

75.  It is not in dispute that there is no re-election of the MC members since the 18/08/2011 AGM and re-election of the MC members had only been held at the 07/01/2015 AGM. But it is trite law that where the MC members failed to retire with new MC members elected at every alternate AGM, the old MC should therefore continue in office until a new MC is elected, for the members of a MC to retire without new members being appointed would be to leave a lacuna in the management of the building and that could not possibly be the intention of the legislature.  Until a new MC is voted in, there is nothing in the BMO that has the effect of compulsorily retiring the incumbent MC, thereby leaving a void: The Incorporated Owners of Finance Building v Bright Hill Management Consultants Company Limited  (CACV 386/2000, unreported, 29 November 2001) and Leung Ho Sing & Others v Shum Yiu Tung & Others (CACV 108/2006, unreported, 21 July 2006).

76.  Applying the principles quoted above to the present case, the MC elected at the 18/08/2011 AGM should remain in office until new MC are being elected at the 07/01/2015 AGM and there cannot be any query on the validity of the MC in the interim period.  The challenge by the respondent on the validity of the MC at different time span must fail.

77.  This is sufficient to dispose of the issue on the validity of the resolutions raised by the respondent.  Even if I am wrong on the findings on the validity of the MC, applying the principles enunciated in the case of 曾婉玲訴兆隆苑業主立案法團 (LDBM 199/2001, unreported, 18 September 2001), I agree with Ms Wong for the IO that the resolution sought by the respondent served no practical purpose and should not be granted.

78.  In the case of 曾婉玲, the applicant asked for a declaration that the meeting convened was null and void since the notice of the meeting was being sent or posted 1 day less than that required by the law.  The respondent IO in that case then convened another owners’ meeting and put the agenda of the challenged meeting to vote again and it was duly passed.  At trial, the respondent IO did not seek to contest the allegation that the notice was insufficient but invite the court to exercise its discretion to decline to grant the declaratory relief.  HHJ Lam (as he then was) found that:

“21. Hence, it is possible for the Tribunal to grant a declaration without any consequential relief if the Tribunal is satisfied that it should exercise its discretion to do so.

22. A well established reason for a court to refuse to grant declaratory relief is a situation where the exercise does not serve any useful purpose. The principle is summarized in Zamir & Woolf, The Declaratory Judgment, 2nd Edn., at Para.4.087,

"If it can be shown that a declaration would not serve any practical purpose, this will weigh heavily in the scales against the grant of declaratory relief. If, on the other hand the grant of declaratory relief will be likely to achieve a useful objective, the court will be favourably disposed to granting relief. The question of whether or not any useful purpose would be served by granting declaratory relief is therefore of prime importance in determining how discretion should be exercised".”

79.  In the present case, the MC elected at the 18/08/2011 AGM had been in office all these years dealing with the affairs of the IO without any challenge.  This will involve hundreds of decisions made by the MC on behalf of all the owners and may involve third parties as well.  The declaration sought by the respondent is in effect a challenge to the validity of the remaining in office of the MC.  If the declaration was being granted, this could have serious ramifications for the IO since the validity of the actions taken by the MC for all these years will also be doubtful.  This is certainly not in the best interests of the owners and served no useful purpose except to put the IO in a mess.

80.  So, even if the respondent is successful in their argument on the validity of the MC vis-à-vis the resolutions, I will exercise my discretion in refusing to grant any declaration sought by the respondent in their counter-claim on the ground that no useful purpose would be served by doing so.

Costs

81.  Costs should follow the event.  To reflect the success by each party in the different issues pursued at trial, the proper costs order should be 90% of the costs of the claim and of the counter claim including all costs reserved be to the applicant, without certificate for counsel, to be taxed if not agreed at District Court scale.  This is a costs order nisi and unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.

The Order

82.  It is ordered that:

(a)   The respondent shall demolish the L-shaped Fence Wall and reinstate the Space and the common part of the Building to its original state within 3 months from this order;

(b)   The respondent shall demolish the Concrete Structure and reinstate the Space and the external wall of the Building to its original state within 3 months from completion of the re-routing of the gas pipe performed by the IO;

(c)   Application for injunction against the respondent on the nuisance claim be dismissed;

(d)   The counter-claim of the respondent be dismissed;

(e)   Costs order nisi that 90% of the costs of the claim and of the counter claim including all costs reserved be to the applicant, without certificate for counsel, to be taxed if not agreed at District Court scale.  Unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days;

(f)   Penal notice be endorsed; and

(g)   Personal service of this order on the respondent be dispensed with.