XCHRX THE INCORPORATED OWNERS OF TAI KUT HOUSE v. PANG CHUN CHEONG

HCA10076/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.10076 OF 1999

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J U D G M E N T

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1. I have heard Mr Cheung for the Plaintiff and Mr Brian Wong who was allowed by me to speak on behalf of the Defendant, Mr Pang. Mr Wong has very persuasively put the Defendant's case and he has asked me not to order costs of today's hearing against Mr Pang.

2. Mr Cheung reminds me that the management had written to the Defendant on 31st March 1998. That was followed up by his firm's demand letter of 24th April 1998, and the writ was issued in June of this year; none of which prompted the Defendant's response until the taking out of the inter partes summons of 19th July 1999 at which point the Defendant did what was required and demolished the air-conditioner and removed the clothes hanging frame from outside his premises.

3. Mr Wong tells me, and I accept, that the reason that the Defendant had not responded earlier was simply because he did not realize the importance and gravity of these structures in breach of the relevant terms of the Deed of Mutual Covenant. Mr Cheung's retort was that even on the photographs provided this morning, it is clear that the demolition did not take place until yesterday, and he was fully entitled and obliged to come today before me before he can obtain all the orders he seeks ― including an injunction for the future with the necessary penal notices to be endorsed on the orders to be granted.

4. I have given this matter some thought and I have been troubled by it. In the end I believe that Mr Cheung is justified in coming before me today and the order that I shall make is as follows :

(1) There will be an order that the Defendant shall, at his own cost and expense, reinstate the part of the exterior walls immediately outside Flat A on the 3/F of Tai Kut House, No.7 Greig Road, Hong Kong ("the Premises") on which the clothes hanging frame and the air-conditioner unit were respectively erected and installed to their original appearance within 14 days from the date of this Order;

(2) The Defendant to pay to the Plaintiff damages caused or arising out of the erection and removal of the said clothes hanging frame and air-conditioner unit, if any;

(3) The usual penal notices to be endorsed;

(4) The Defendant to pay the Plaintiff's costs of these proceedings, including the costs of this application, to be taxed if not agreed; and

(5) There be liberty to restore.

5. I accept the undertaking offered by the Defendant and in view of that undertaking, I would not order an injunction against the Defendant. The undertaking is in these terms :

"The Defendant undertakes that he will not in future erect or install or place any structure or chattel on or at the exterior walls of Tai Kut House in contravention of the relevant Deed of Mutual Covenant."