XCHRX THE INCORPORATED OWNERS OF NOS 392-394 PRINCE EDWARD ROAD WEST v. SUM YIN LING AND ANOTHER

HCA 17746/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 17746 OF 1999

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J U D G M E N T

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The Background:

1. The plaintiff is the incorporated owners of a building situate at Nos 392 and 394 Prince Edward Road West. There are ten units in this four storey building and ownership of these units are in the hands of six persons.

2. It is an old building with a lot of illegal structures both on the patio of the first storey, the roof and at the ground floor lobby. The open patio of the first storey has been covered up and converted into internal area for the use of the hair salon business on the first storey. The business is operated by the Chairman of the plaintiff incorporation.

3. The staircase leading from the staircase landing of the fourth storey to the roof has been sealed off. That part of the staircase together with the roof of No 394 was used by the occupant of the fourth storey of No 394 for raising pigeons. This storey is owned by the Secretary of the plaintiff incorporation and she rented it to the owners of the third storey, Mr and Mrs Chan. So the Chan's occupied the third and fourth storeys and the roof of No 394.

4. The 1st defendant is the owner of the fourth (top) storey of No 392. Access to the roof of No 392 is by way of an internal staircase from the fourth storey of No 392. There was also an iron cage erected at the rear staircase landing of No 392. She rented the fourth storey at a nominal rent to her daughter, the 2nd defendant, for use by the Lok Hong Social Service Association, which is a charitable organisation founded by the 1st and 2nd defendants. One of its activities is to bring cats to visit patients in hospitals or old age homes. The 2nd defendant moved into the building in March 1999 and erected three container houses on the roof.

5. At the entrance of the ground floor lobby were a number of display cupboards used by another occupant as a shop known as "Kin Kee Store" for more than 30 years. The owner of Kin Kee Store gave possession of the cupboards to the 2nd defendant for her to sell sundry and gift items donated to the association for raising funds for the association.

Merit:

6. After the incorporation of the plaintiff in July 1999, it almost immediately instituted action against the defendants in respect of the illegal structures on the roof of No 392, the iron cage at rear staircase landing and the cupboards at the entrance lobby. The last two items were subsequently removed by the defendants. The defendants were willing to remove the container houses but alleged that the other canopies were not erected by them and for which they should not be responsible. To avoid the risk of turning the summary proceedings into a full trial, the plaintiff conceded about the canopies. There being no valid defence, I enter judgment against the defendants in respect of the illegal structure on the roof of No 392.

Stay of execution:

7. The defendants alleged the management committee of unfair treatment and that the present action was motivated by self interest. They accused the Chairman of removing the display cupboards at the entrance lobby for the purpose of displaying the signboard of her hair salon and that no action was taken against her own illegal structures on her patio. They also alleged that the management committee did not institute action against the occupiers of the roof of No 394 because of their connection with the Secretary. These are, of course, no defence, but may influence the court's decision in granting stay of execution. The ownership of the building is in the hands of six persons. The management of the building by a three member management committee in the circumstances could become very self-interest orientated, especially as the management committee and the Chan's together are in control of the majority vote of the incorporation. The Chan's, i.e. the tenant of the Secretary is responsible for the most serious trespass of the common areas of the building. The staircase to the roof was sealed off with the roof being occupied by the Chan's to the exclusion of all others. It also deprives the other occupiers of a means of escape in case of fire. Yet, the management committee did not institute legal action against that trespasser. This gives me a strong indication of bias and self-interest and gives the defendants a strong sense of grievance. In the circumstances, a stay of execution for 12 months, with liberty to apply, pending the resolution of the other illegal structures, is appropriate.

Costs:

8. Upon issue of the writ, the 2nd defendant ceased operating the store in the lobby in December 1999 and wrote to the plaintiff's solicitors undertaking to remove the illegal structures. She offered $10,000.00 in January 2000 in full and final settlement. That was refused by the plaintiff's solicitors because they insisted the defendants to pay the plaintiff's legal costs and mesne profit. I do not consider the plaintiff has a substantial claim for mesne profit for the occupation of the roof. In any event, any mesne profit recovered would have gone to the common funds of the incorporation to which the 1st defendant also has a 20% share. The offer at that stage would have sufficiently covered their legal costs and some mesne profit. I do not think it reasonable to escalate legal costs by not accepting the offer or not entering into further negotiation. In the circumstances, while the plaintiff should have costs of the event against the defendants, I order that they shall have costs up to today subject to a maximum of $10,000.00, to be taxed if not agreed.

Orders:

9. I enter judgment in favour of the plaintiff and order that

(1) The defendants shall at their own costs and expenses remove the three metallic structures erected on the roof of No 392 Prince Edward Road West and all the merchandises, goods and chattels placed or stored thereat;

(2) The first and second defendant shall deliver possession of the roof of No. 392 Prince Edward Road West of the Building to the plaintiff.

(3) The defendants shall pay the plaintiff damages and/or mesne profits, if any, to be assessed, in connection with the plaintiff's claim in this Action;

(4) There be stay of execution for 12 months from the date hereof, with liberty to apply;

(5) The defendants shall pay the plaintiff costs of this action up to today including this application subject to a maximum of $10,000.00, to be taxed if not agreed.