FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. FU CHUNG FU

HCA 1623/2005 &
HCA 2864/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NOS. 1623 OF 2005 AND 2864 OF 2006

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(Consolidated pursuant to the Order of Mr Registrar C. Chan dated 13 July 2007)

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J U D G M E N T

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1.  The Plaintiff in these actions is the manager of a well-known property development in Yuen Long called Fairview Park.  There are more than 5,000 houses at Fairview Park.  In October 2004, the Defendant became the owner of one of those houses, House No.55 (“the House”).

2.  In these actions, the Plaintiff claims against the Defendant for injunctive relief (the other reliefs are not pursued) in respect of a number of structures which have been added to the House after it was acquired by the Defendant.  These structures will for convenience be referred to as “Unauthorized Structures” and they are:

3.  In action No.2864/06 (“the Second Action”), the Plaintiff also complained about a removable tent which was erected at the rear garden of the House.  The photographs show that it had a simple structure consisted of four poles (probably made of metal) and a fabric top, the kind which one may see in a garden providing a shade for the users.  However, it is common ground that the tent has been removed.

4.  It is common that for a property development which involves multiple ownership there would be in place a Deed of Mutual Covenant (“DMC”) which governs the rights and obligations of the owners.  Fairview Park is no exception.  There is such a DMC.  In addition, there are Estate Rules made by the Plaintiff pursuant to the power vested in it under the DMC.  In these two documents, there are a number of provisions governing the alterations or additions to the houses at Fairview Park. 

5.  The Plaintiff’s case is that the Unauthorized Structures are impermissible under various provisions of the DMC and the Estate Rules:

Under the DMC

Clause 5

“Each Owner shall at all times hereafter be bound and shall observe and perform the covenants provisions and restrictions set out in the Second Schedule hereto.”

Clause 4(a) of the Second Schedule

“Not to make any alteration or additions to any Unit or to any building on the sub-section of which he is the Owner whereby the roofed over area thereof is increased beyond the roofed over area thereof at the date of the Occupation Permit (including a Temporary Occupation Permit) or a letter from the Building Authority or such competent authority permitting the occupation of such Unit or building.”

Clause 4(b) of the Second Schedule

“Not to make any alterations or additions to the exterior of any Unit or any building or to any walls and fences without the approval in writing of the Company.”

Clause 8(d) of the Second Schedule

“Not to place, install, erect or affix any sunshades, canopies or awnings except with the prior written approval of the Manager.”

Clause 8(j) of the Second Schedule

“……  No hut shed caravan house on wheels or other chattels adapted used or intended for use as a sleeping apartment nor any show booths, hoardings or advertising stations or other temporary erections shall be erected made placed or used or allowed to remain on any Unit or any sub-section or any part thereof.”

Clause 8(l) of the Second Schedule

“Not to use the unpaved part of the unbuilt area for any purpose except as a garden.”

Clause 8(n) of the Second Schedule

“Not to use any part of the unbuilt area of any sub-section for the purpose of storage, or drying goods.”

The Estate Rules

Rule I(1) of Chapter A

“To maintain the low density building environment required by the Land Grant.

No house owner is permitted in any part of his property to :

(1)     construct glass houses or other enclosed structures.”

Rule II(2) of Chapter B

“Usage of Unbuilt Area of House Units

…… No glass houses, combination houses, caravans, show booths, hoardings, advertising stations or other temporary erections, except those permitted in Chapter C, shall be erected, placed or allowed to remain on any unbuilt area or on parking spaces.”

Rule IV(1) of Chapter C

“Fence, Garden Gate and Rolling Shutter

Fences, gates and rolling shutters must comply with the following specifications :

……

1.2    Fences shall not be higher than 2M and shall have 60% open space evenly distributed between 1M and 2M level.”

6.  Two witnesses were called by the Plaintiff.  Their evidence is not really challenged (the second witness was not even cross-examined).  According to the Plaintiff’s evidence, the glass structure was discovered in December 2004 and actions were taken by its staff to persuade the Defendant to rectify the breaches of the DMC and the Estate Rules but to no avail.  It appears from the documentary record that the Plaintiff wrote to the Defendant about the two block fences and the common plot fence on 17 January 2005.  When the Plaintiff’s persuasions went nowhere, on 22 August 2005 action No.1623/05 was instituted in respect of the aforesaid Unauthorized Structures.

7.  In October 2005, the Plaintiff discovered the canopy and the tent.  Again, when persuasions did not work, the Second Action was instituted.

8.  The Defendant has elected not to adduce any evidence.  Despite the fact that he has indicated his dispute as to the existence of the Unauthorized Structures, given the lack of contrary evidence I have no hesitation in accepting the Plaintiff’s evidence that they do exist.

9.  As regards the breaches of the DMC and the Estate Rules, it seems to me that this is an open and shut case.  Plainly, the glass structure is not permitted under Clause 4(a) (I infer that the garden was not a roofed over area at the date of the Occupation Permit); Clause 8(l); Clause 8(n) (the photographs show that various items were stored inside the glass structure); Rule I(1); and Rule II(2).  The fences (including the common plot fence) are not in compliance with Rule IV(1) (the block fences are clearly in excess of 2m in height and none of the fences has any open space).  Finally, the canopy infringes Clauses 4(a) and 8(d).

10.  The Defence filed by the Defendant was subjected to a striking out application by the Plaintiff and the outcome was that much of that pleading was struck out as sustainable in law.  Such parts of the Defence which remain standing do not amount to much.  Looking at that Defence (the Defence of the Second Action contains no proper defence) and the witness statements of the D, one can see that two defences are advanced:

11.  It appears that the Defendant believes that he has the right to do as he pleases with the House so long as his action does not endanger anyone or constitutes any nuisance to his neighbours.  Whilst I understand the sentiment, it must be understood that in buying a house in a collective development like Fairview Park, the Defendant has agreed to give up some of such rights.  There are good reasons for maintaining some degree of uniformity in the development and therefore the owners’ right to make alterations or additions to their houses is curtailed.  It should be said that the Defendant was fully aware of the position when he purchased the House.  The Assignment of his House was subject to the DMC and he has covenanted to observe the terms and conditions thereof.  It was said in Sun Wai Chun v Fairview Park Property Management Ltd, FAMV No.1/00, unrep., that:

“Deeds of mutual covenants are common in Hong Kong.  Each owner subscribes to it and is bound by it.  The benefit and burden of the covenants run with the land.”

12.  I am unable to see any merits in the first defence and it is rejected.  As regards the second defence, it is made clear in the Defendant’s Final Submissions that he is advancing a defence based on the acquiescence on the part of the Plaintiff by reason of the similar breaches which exist in Fairview Park. 

13.  In his evidence under cross-examination, Mr Lam (the Plaintiff’s first witness) agreed that there are many breaches of the DMC in terms of unauthorized structures in Fairview Park.  However, Mr Lam explained the procedure adopted by the Plaintiff in enforcing the DMC and the Estate Rules.  Once an unauthorized structure is discovered, the Plaintiff’s staff will take photographs of it and compile a report.  A letter will then be written to the owner requiring remedial action.  When all persuasions failed, the Plaintiff will have to resort to litigation.  Due to limited resources, the Plaintiff adopts a priority system to assist in deciding on the cases to take to court.

14.  Mr Lam’s evidence is not contradicted.  There is no reason for me to doubt his evidence and I accept the same.  The fact that there are many unauthorized structures in Fairview Park is, in my view, (a) a poor reflection of the owners in terms of their compliance with their legal obligations and (b) a consequence of the limited resources of the Plaintiff.  In the premises, I do not see how it can be said that the Plaintiff has acquiesced on any breach of the DMC or the Estate Rules.  Accordingly, the second defence is also rejected.

15.  In the premises, there is no defence to these actions and I give judgment to the Plaintiff accordingly.  As for the Counterclaims in these actions, they are based upon the allegation that these actions are ill-justified.  By reason of the analysis above, such allegation must be rejected and I dismiss the Counterclaims. 

16.  Looking at the appropriate relief, I am prepared to grant (a) a mandatory injunction for the removal or demolition of the Unauthorized Structures and the restoration or reinstatement of the fences which shall comply with the Estate Rules and (b) a negative injunction to restrain the Defendant from committing similar breaches in the future.  However, as I have made clear to Mr Lee who appears for the Plaintiff, the injunctions must be properly and precisely formulated with adequate information.  Paragraphs (1) and (2) of the Prayers of the Statements of Claim do not meet such requirements.  The Plaintiff should submit a proper draft Order for my approval.

17.  I decline to make any order in respect of the tent for two reasons.  Firstly, I have some reservation as to whether the tent constituted a “temporary erection” which infringed Clause 8(j) and/or Rule II(2).  Applying the ejusdem generis rule of interpretation, a tent is nothing like “glass houses, combination houses, caravans, show booths, hoardings or advertising stations”.  Secondly, I do not believe that it is necessary to grant a negative injunction in respect of the tent.  It has been removed and I do not see a real risk that, given the result of these actions, the Defendant will infringe the DMC or the Estate Rules again.

18.  Finally, I make an order nisi that the costs of these actions as well as the Counterclaims be to the Plaintiff to be taxed if not agreed.  Such order is to become absolute 14 days from today in the absence of any application for variation.