HONG YIP SERVICE CO LTD v. NG WAI MAN

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J U D G M E N T

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Power, J.A.:

1. The defendant Mr. NG Wai-man on 10th October 1986 purchased Flat A on the 30th floor and the roof thereof of Block 14 of Wonderland Villas at Kwai Chung. The Assignment gave him the full and exclusive right to hold use occupy and enjoy Flat A on the 30th floor and the roof hereof of block 14 of Wonderland Villas. The plaintiff the Hung Yip Service Co. is the duly appointed manager of the estate. The purchase was subject to a Deed of Mutual Covenant dated 22nd January 1985 and to a Sub-Deed of Mutual Covenant dated 7th October 1986. Clause 3 of Section I of the Deed provides that the owners occupy subject to the provisions of the Deed and of the Sub Deed and the Sub-Deed provides that owners must observe the Estate Rules and the Building Rules.

2. Clause 15 of Section IV of the Sub-Deed provides, inter alia, that no Owner shall affix or install his own private aerial outside any part of the building except with the written consent of the Manager.

3. Clause 16 provides that no, and I paraphrase the clause, post or other projections or structures whatsoever extending outside the exterior of the building shall be erected, installed or otherwise affixed to or projected from the building or any part thereof except with the written consent of the Manager.

4. Clause 17 of Section IV provides that no Owners shall do anything which may or will alter the external appearance of the Building.

5. Clause 4 of Chapter 3 of the Handbook which sets out the Estate Rules provides, inter alia, that "to preserve the external appearance of the building and for the benefit of all residents, no individual external aerials will be permitted". Clause 4 of Chapter 4, which was pleaded by way of a very late amendment allowed by this court, provides that owners/residents are not permitted to erect any external signs, shades, metal cages, awnings or aerials or any other fixtures or fittings on the exterior of the building.

6. It is alleged and not contested that the defendant has installed three external radio aerials which are affixed to poles which extend about 6' above one of the walls of the roof of Block 14, i.e. extend about 6' above the highest point of the building. The plaintiffs sought an order that they be removed and that the defendant be restrained from assigning his interest until that order was complied with.

7. On 2nd December 1988 Barnett, J. on a Summons, under O.14 r.1 made an order in terms and the defendant now appeals against that decision.

8. The defendant in an affidavit opposing the Summons, filed on 23rd November 1988, admits installing the three radio aerials on an internal concrete wall on the roof of Block 14. It is now clear that what this means is that the aerials are fixed to the inside of one of the external walls that surround the roof. The defendant goes on to say that he owns Flat B and roof B of Block 14 as well as Flat A and roof A and that the two roofs are about 25 ft. apart being separated by pumping rooms. However, Mr. McCoy concedes that nothing really turns upon this dual ownership.

9. It is the argument of Mr. McCoy that Covenants 15, 16 and 17 must be read together and that they have, and only have, a tripartite effect. He submits that Covenant 15 which forbids the installation of any private aerial outside any part of the building does not have any reference to the aerials in this case as they are installed inside the building. This may well be so. He goes onto submit that Covenants 16 and 17, although in wide terms, have no application to private aerials as they have already been exclusively dealt with by Covenant 15 which refers to them in specific terms. It is his contention that as Covenant 15 only deals with private aerials installed outside any part of a building and as the aerials in question are not subject to either Covenant 16 or 17, there is a lacuna as regards internally affixed aerials, such as we have here, which extend outside beyond the exterior of the building. Even if he were right in these contentions, he would, in our view, have no defence against the effect of Covenant 16 as regards the posts upon which the aerials rest. We are, however, satisfied that there is no tripartite effect which would exclude Covenants 16 and 17 from application to private aerials.

10. Mr. McCoy has, however, a further argument as regards Covenant 16 submitting that, when a building such as this is constructed with a flat usable roof by developers who intend to transfer that roof as usable space, the transfer must be taken to include not only the roof but also a limited portion of air space above it. He argues that, when Clause 16 speaks of "the exterior of the building", the "exterior" must be taken to mean and include that limited portion of air space. He submits that these aerials are within that limited portion of air space and do not, therefore, extend beyond the exterior of the building and are not caught by the covenant.

11. We accept that the defendant has a right to the use of limited air space above the roof. However the exterior of the building referred to in Covenant 16 is, in our view, defined by the boundaries delineated by the external walls and not by any right to use of air space. The aerials do, we are satisfied, extend beyond those boundaries and do, therefore, extend outside the exterior of the building and are caught by the covenant.

12. Although it is not necessary for us to do so we look finally at Mr. McCoy's further argument relation to Covenant 17. He submits that the visual effect of the aerials on tire external appearance of the building is de minimus and that, at worst for him, this is, at least, an arguable matter which should go for trial. We are not persuaded that this is so. The aerials are clearly visible both from adjoining buildings and from the ground and in the context of this estate we are satisfied that no reasonable judge would find that their impact was de minimus.

13. It is the further submission of Mr. McCoy that, even if we are against him on all the points that he has raised, as indeed we are, this is a matter which could be adequately dealt with by an award of damages. Given the clear intention of the covenants to keep buildings in the estate free from unsightly projections we are quite satisfied that this is not an appropriate case for damages. No complaint having been raised against the second part of the order we are satisfied for the above reasons that the appeal should he dismissed with costs.