THE INCORPORATED OWNERS OF MIRADOR MANSION v. EUROPE DIRECT TRADING LTD. AND OTHERS

HCA11468/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.11468 OF 1997

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REASONS FOR JUDGMENT

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1. This is an action by the plaintiff, the Incorporated Owners of Mirador Mansion ("the Building"), for mandatory and prohibitory injunctions against the owners and occupiers of Shop 60 on the ground floor and Shop 20 on the first floor of the Building. The 1st and 2nd defendants are the registered owners of these units. The 4th defendant is the tenant and occupier of these units, which have been used as a restaurant. The 3rd defendant had signed an agreement for sale and purchase to purchase these two units from the 1st and 2nd defendants. However, the sale fell through after the writ herein was issued on 28 October 1997. On 7 October 1999, by an order by consent, the plaintiff discontinued the action against the 3rd defendant and the 3rd defendant withdrew its counterclaim against the plaintiff. Thus, this action is pursued by the plaintiff against the 1st, 2nd and 4th defendants only.

2. The 1st, 2nd and 4th defendants have all filed pleadings to defend this action. However, in March 2000, the solicitors who had been acting for the 1st and 2nd defendants have obtained an order that they should cease to act. In November 2000, the solicitors who had been acting for the 4th defendant also obtained a similar order giving them leave to cease to act for the 4th defendant. When the action came on for trial, no representatives for these defendants were present. The plaintiff adduced evidence and called witnesses to support its case. After hearing evidence and having heard submissions from Miss Eliza Yiu, who appeared for the plaintiff, I am satisfied that it would be appropriate in this case to grant mandatory and prohibitory injunctions. These are my reasons.

3. Mirador Mansion is a building of 17-storeys situated in Nos.54-64 Nathan Road, Tsim Sha Tsui, Kowloon. It is about 40 years old and is used for commercial and residential purposes. A deed of mutual covenant was entered into on 28 April 1960 and registered in the Land Registry on 14 May 1960. The plaintiff was incorporated on 18 December 1974.

4. On 4 March 1995, the plaintiff gave written notice to all the owners and residents of the Building of a resolution passed by the Management Committee that with effect from 4 March 1995, all persons including owners and occupants of the Building were prohibited from hanging up signboards or any form of additional structure onto the external wall and in any public areas of the Building except with the prior written consent of the plaintiff. It was explained in the notice that this was done to protect the structural safety and keep up the general appearance of the Building, and was in the interests of the owners and occupants. It was further stated that the management office was authorized to demolish any illegal structure once discovered and appropriate legal action would be taken to sue for damages, costs and other remedies.

5. On 28 March 1995, a second special notice was issued by the plaintiff to all owners and occupants of the Building, reminding them that all persons, including owners and occupants of the Building, were prohibited from altering, damaging or blocking any part of the public facilities of the Building, including structures, water pipes, plumbing, water tanks, electricity supply and machine rooms, etc. Again, it was stated that appropriate action would be taken against any one acting in contravention of the above.

6. Lastly, on 15 July 1996, the solicitors acting for the plaintiff issued a notice to all owners, tenants and occupiers, reminding them that any structures erected in contravention of the deed of mutual covenant or without the authorization from the relevant government authority would be dismantled by the plaintiff in exercise of its rights under the deed of mutual covenant and the powers conferred on the plaintiff under the Building Management Ordinance ("Cap.344").

7. Shop 60 was purchased by the 2nd defendant in late 1996 and sub-sold to the 1st defendant in February 1997. Shop 20 was purchased by the 2nd defendant in February 1997. The previous tenant of these two units was a cosmetics company, and it would appear to have vacated the two units some time in 1997 as two tenancy agreements in respect of each unit was entered into by the 1st and 2nd defendants respectively with the 4th defendant dated 17 June 1997 for a term of four years and six months commencing from the date of the tenancy agreements. Also on 17 June 1997, the 1st and 2nd defendants entered into an agreement for sale and purchase with the 3rd defendant to sell the two units to the 3rd defendant, subject to and with the benefit of the tenancy agreements in favour of the 4th defendant.

8. In May 1997, the 1st and 2nd defendants wrote to the plaintiff seeking permission of three matters :

(1) the supply of potable water to the two units;

(2) the supply of water for the cooling towers of the air-conditioners; and

(3) the leasing of two male and female toilets for the exclusive use of the occupants of the two units.

Each of these applications was turned down by the plaintiff in its reply by letter dated 14 May 1997. In that letter, the plaintiff specifically reminded the 1st defendant that the Building is an old building and before the 1st defendant was to carry out any decoration work, the 1st defendant should have regard to the concerns for safety of the other occupants and that the proposed works should be in accordance with the requirements of the deed of mutual covenant. In particular, the 1st defendant should not install or erect in the external wall or any common area of the Building signboards, water towers or other unauthorized structures, otherwise they would be dismantled by the plaintiff and the plaintiff would reserve its right to take legal action.

9. Notwithstanding this letter, the 4th defendant went ahead with the decoration work and the 1st and 2nd defendants did not take any measure to stop the 4th defendant from carrying out works without the written consent of the plaintiff. Warning letters were sent by the plaintiff and its solicitors to these defendants on 13 June 1997, 20 June 1997, 14 July 1997 and 9 September 1997. As the defendants had failed to dismantle the unauthorized works, the writ was issued on 28 October 1997.

10. The breaches complained of by the plaintiff are as follows.

(1) Additional foul water drainage pipes leading from the toilet in Shop 20 to the main sewage system

11. Foul water drainage pipes were constructed by the contractor of the 4th defendant in June 1997, leading from the toilet in Shop 20 on the first floor and penetrating through the floor slab of the first floor at a location over the carport exit ramp into the basement where the defendants' sewage pipe was connected to a manhole which was part of the main sewage system of the Building.

12. It is the plaintiff's case that the construction of these sewage pipes was in breach of clause 11 of the deed of mutual covenant and section 34I of Cap.344. From the evidence of Mr Yau Ho Fai, a Senior Building Surveyor of the Building Authority and the plaintiff's engineering expert, Dr Sammy Chan Yin Nin, I am satisfied that these drainage works involved structural alterations for which authorization should have been sought from the Building Authority before the works were carried out. These works certainly have involved cutting and injuring the cement concrete flooring of the Building in that holes of about 300 mm had been drilled to break open the floor slab and the wall for the pipe to go through. The works had also affected the structural strength of the Building. Indeed, the Building Authority had sent a letter to the owner of the two units dated 13 August 1997 stating that the sewage pipes were in contravention of the Buildings Ordinance and asking for rectification within three months of the letter to a standard acceptable to the Building Authority and in compliance with the regulations. I understand from the plaintiff's chairman, Mr Pang Kam Kwong, that the sewage pipes for the first floor toilet had been dismantled by the defendants. Nevertheless, the plaintiff felt it was necessary to have the protection of a prohibitory injunction to prevent any similar breach in future because of the proximity of the sewage pipe to the transformer room. In the event the discharges from the first floor toilet should overload the main sewage system of the Building, this could result in flooding of the transformer room and bring about a serious hazard to the equipment and installations in the transformer room. In my view, the concern of the plaintiff is justified. As the sewage pipes connecting the toilet to the main sewage system had been dismantled by the defendants, a mandatory injunction is not necessary. I will only grant a prohibitory injunction in respect of this complaint.

(2) Additional foul drainage pipes from two kitchen sinks to the main sewage system

13. Also in June 1997, the 4th defendant's contractor constructed additional foul drainage pipes and connected works leading from a kitchen sink on the first floor penetrating through the floor slab of the first floor and another kitchen sink on the ground floor, both leading to a location over the carport exit ramp where the pipes were connected to the main sewage system of the Building. To date, these drainage pipes have not been removed.

14. For the same reasons given above, I am satisfied that these works are in contravention of clause 11 of the deed of mutual covenant, and possibly also in breach of section 34I of Cap.344. In this instance, I will grant both a mandatory injunction and a prohibitory injunction.

(3) Steel frames affixed to the external walls of the Building for eight condensers of spilt-type air-conditioners

15. The steel frames and the condensers for the spilt-type air-conditioners were put up in August 1997. I understand from Mr Pang that these structures have remained affixed to the external walls in their original positions to this day.

16. I accept the opinion of the plaintiff's engineering expert that the steel frames had not been designed for their structural integrity to hold the heavy spilt-type air-conditioners. Further, the external wall of the Building could be weakened by the heavy load of the air-conditioners and the steel frames. That would appear to me to be a breach of clause 11 of the deed of mutual covenant and section 34I of Cap.344. As for the allegation in the defence of the 4th defendant that the plaintiff had agreed to give consent for spilt-type air-conditioners and condensers to be installed, I accept the evidence of Mr Pang that Mr Woo, who was alleged to have given such consent on behalf of the plaintiff (he has since passed away), had no authority to give consent.

17. In respect of this breach, I am satisfied it would be appropriate to grant a mandatory injunction as well as a prohibitory injunction.

(4) Two signboards affixed to the external walls

18. Two large signboards displaying the name of the restaurant were affixed to the external walls in August 1997. This was without the prior consent of the plaintiff and would appear to be in contravention of clause 12(c) of the deed of mutual covenant which provided that except as provided in the deed, the parties "shall not display or cause or permit to be displayed any notices, signs or any other things in the corridors staircases landings or any other part of the building in common use." That would appear to be a breach of this provision of the deed of mutual covenant and section 34I of Cap.344.

19. The defence pleaded by the defendants is one of acquiescence. I should mention that acquiescence was also raised in respect of the metal frames erected for the condensers of the air-conditioners. According to the defence of the 4th defendant, similar signboards had been affixed to the external walls by the previous tenant of the two units for years.

20. Mr Pang gave evidence explaining why the two notices were sent by the plaintiff to the owners and occupants of the Building in March 1995. The plaintiff had resolved to adopt a policy to control the type and number of signboards erected on the external walls in March 1995 having regard to the age of the Building. The plaintiff was concerned that if no precautionary measures were taken, and if there was no control over the structures to be affixed to the external walls, the walls could be overloaded with existing and additional structures and would pose a serious hazard to the public. After the notices were sent out in March 1995, the policy of the plaintiff was that no new signboards or structures would be put up without the consent of the plaintiff. If an existing signboard was to be replaced by a signboard with another name, this would be treated as a new signboard. Mr Pang produced a bundle of letters from September 1996 to March 2000 written by the plaintiff to various owners and occupants in the Building, demanding the dismantling of various unauthorized signboards and structures. He said that legal action was taken against the owners and occupants who had refused to comply with the demand and a notable instance was against a cosmetic company which had put up an iron frame for condensers of air-conditioners and unauthorized signboards in September 1996. Mr Pang stated that the two signboards erected by the 4th defendant were big and heavy.

21. I am satisfied on the evidence that there was no acquiescence on the part of the plaintiff regarding the erection of structures and signboards on the external walls. I will also grant mandatory and prohibitory injunctions for this complaint.

(5) Obstruction of the first floor corridor

22. The plaintiff complained that since about August 1997, and notwithstanding the plaintiff's repeated protests, the defendants had placed wooden blocks, articles, food, vegetables and rubbish in the corridor on the first floor outside Shop 20. According to Mr Pang, that is still the position at present. I am satisfied that this constituted a breach of clause 11 of the deed of mutual covenant and section 34I of Cap.344. There will be mandatory and prohibitory injunctions in respect of this breach.

(6) An iron gate in the corridor outside Shop 20

23. I understand from Mr Pang that the iron gate was initially constructed by the defendants in the corridor on the first floor outside Shop 20 blocking off part of the corridor and thereby converting the area to the defendants' exclusive use. The present position is that the iron gate has been moved further in. However, it is still erected in the corridor and it has protruded about six inches into the corridor which is common area. This may be a minor breach, but nevertheless there is no reason why the defendants should not have complied with section 34I of Cap.344 which provided that no person may convert any part of the common parts of a building to its own use unless such conversion is approved by a resolution of the owners' committee. I will also grant mandatory and prohibitory injunctions for this breach.

The orders

24. For the reasons given above, I have ordered that a mandatory injunction should be granted to rectify the breaches complained of in (2) to (6) above and that the rectification works should be carried out within four weeks of the service of this order on the 1st, 2nd and 4th defendants. I have also granted a prohibitory injunction restraining the 1st, 2nd and 4th defendants from repeating or further committing any of the breaches complained of in (1) to (6) above. I have ordered that the 1st, 2nd and 4th defendants should pay the plaintiff the costs of this action, to be taxed if not agreed.