THE INCORPORATED OWNERS OF CHAMPION COURT v. PANG PING FAN PETER AND ANOTHER

DCCJ 55/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 55 OF 2005

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JUDGMENT

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1.  The Plaintiff is the Incorporated owners of Champion Court situate at Nos. 67 & 69 Wong Nai Chung Road in Happy Valley.  The Defendants are the registered owners of unit 23A together with the roof as shown in the coloured pink portion of the roof plan annexed to an assignment registered in the Land Office by memorial No. 925732.  They were assigned their unit subject to and with the benefit of the Deed of Mutual Covenant (DMC).

The Plaintiff’s Claim

2.  The Plaintiff claims that the Defendants have been in breach of the DMC in that without the consent of the Plaintiff they have constructed an internal staircase in their premises leading to the roof and that they have constructed various walls thatched roof and other permanent partitions to enclose a portion of the main roof for their exclusive use.

Defence

3.  The Defendants queried -

(1) Whether the Plaintiff had grossed a resolution to start the present proceedings.

(2) Why the Plaintiff had not taken action against other landlords who are in breach of the DMC.

(3) There was no encroachment on the public area in the roof.

(4) There is no structural alteration and that the staircase is built within their own premises.

(5) The noise from the water pumps in the roof created nuisance.

(6) Because of the constant disturbance by the Plaintiff D2 had suffered mentally and she had suffered loss.  She counterclaimed $30 million as damages.

(7) Acquiescence or laches.

(8) The Plaintiff had erected antenna to her exterior wall to block her enjoyment of the view.

DMC

4.  The following are the relevant clauses in the DMC in this actions:-

Clause 4(g) the Agent shall have power and authority to do all or any of the following acts and things namely:-

(iii)  to remove any structure or installations in the said Building which is illegal or contravene the terms of this Deed and to demand and receive from the owner by whom such structure or installation was erected or installed the costs and expenses of such removal.

Cl. 4(h) No owner shall without the consent in writing of the Agent do or cause or permit to be done any of the following:-

(ii)   erect or affix paint or exhibit any signboards bracket advertisement placard or illumination fitting or thing to the exterior of the said Building or to the common arrears within the said Building or any part thereof.

Cl. 10 Each party hereby covenants with the other owners as follows:

(a) - Not to make any structural alterations in his part of the said building which may damage the other parts there of …… and not to cut or injure the cement concrete flooring columns beams or girders of the said building or doing anything whereby the structural strength thereof may be affected.

5.  With the incorporation of the Owners Incorporated the function of the Agent in the DMC vested in the Incorporated Owners.

Jurisdiction

6.  S.34 E sub-section (1) of the Building Management Ord. Cap. 344 (BMO) states,

“Subject to subsection (4) the provisions in the 7^th Schedule shall be implied by incorporated:-

(a) into every deed of mutual covenant made on or after the material date; and

(b) as from the material date, into every deed of mutual covenant made before that date.”

7.  Part VIII of BMO deals with jurisdiction vested in Lands Tribunal.

8.  S.45 provides,

“(1) The tribunal shall have jurisdiction to hear and determine any proceedings specified in the 10^th Schedule.

(2) No person other than a person to whom this section applies shall be competent to commence any proceedings referred to in subsection (1).

……..”

9.  The 10^th Schedule provides,

(2) proceedings relating to the interpretation and enforcement of the terms and provisions of a deed of mutual covenant, including such terms or provisions impliedly incorporated into a deed of mutual covenant under Part VIA.

10.  On the strict interpretation of this Ordinance it seems that the Lands Tribunal have exclusive jurisdiction.  Mayo J as he then was in Limbase Industrial Ltd. v. Mightyton Property Management Ltd. A10232 of 1994, 1994 HKC Lexis 142 said,

“I agree with Mr. Tang and if the 10^th Schedule is considered in the context of Part VIII generally it is quite clear that proceedings referred to in the 10^th Schedule are limited to matters coming within the ambit of the BMO.  This is the only sensible way of interpreting the legislation.”

11.  However his ruling has been overturned in Wong Hing Cheong, Lam Mei Chung v Wah E Investment Ltd & Tan Ying Chung, Rogers VP at para 26 said

“…….it appears to me to be simply untenable that the provisions of S.45(1) of the 10^th Schedule when taken together can be interpreted as giving exclusive jurisdiction to the Lands Tribunal in respect of matters falling within the 10^th Schedule.  I see no basis for construing, as it would appear on one reading at least that Mayo J considered was possible the 10^th Schedule in a restricted way.  The only thing that can be said, as has been said by Findlay J, is that if there is a right or remedy which arises out of the Ordinance alone, the only tribunal which would have jurisdiction in respect of that right or remedy would be the Lands Tribunal.  Save in that restricted sense, I can see no basis for holding that the Lands Tribunal has exclusive jurisdiction in respect of matters falling within the 10^th Schedule of the Ordinance.”

12.  In view of that decision the District Court has jurisdiction. 

Power of the Plaintiff to sue

13.  As to whether the Plaintiff had passed a resolution to starting the present proceedings there were minutes to that effect.  In any event according to the DMC Cl.4 (g) the Plaintiff has power to start the present proceedings.

14.  As to why the Plaintiff had not taken action against others who are in breach Mr. Nilsson for the Plaintiff has told this Court that this is a test case.  So pending on the success of this case, other proceedings may follow.

The roof

15.  According to the sketch plan produced by the 2^nd Defendant the Defendants were assigned their portion of the premises including its main roof as shown on the roof plan annexed to the assignment and coloured pink registered in the Land Office by memorial No. 925732.  The Defendants have exclusive use of that part of the roof.  There was no encroachment to the public area in the roof.

16.  I have visited the roof area.  Part of it had been fenced off by wire mesh.  This is just to fence off the Defendants part of the roof.  This cannot be construed as illegal structures.  However there are roofs and partitions or walls built on other parts of the roof including the drying area.  With the exception of the drying area which consists of 4 pillars and a concrete roof top which had been erected when the building was constructed, these are illegal structures which contravene Cl.4 (g)(iii) of the DMC and have to be demolished.

Internal staircase and laches

17.  As to the internal staircase, a hole has been cut into the floor of the roof.  The Defendants contended that it had been there even before they were assigned that premises.  By Cl. 10 (a) of the DMC each party covenants with other owners, inter alia, not to cut or injure the cement concrete flooring etc.  So the next point I have to consider is whether delay hinders the enforcement of the terms of the DMC.

18.  In Snell’s Equity Chapter 3 at para 3 – 19

“Laches essentially consists of a substantial lapse of time coupled with the existence of circumstances which make it inequitable to enforce the claim.  Delay will accordingly be fatal to a claim for equitable relief if it is evidence of an agreement by the claimant to abandon or release his right, or if it has resulted in the destruction or loss of evidence by which the claim might have been rebutted ……  But apart from such circumstances delay will be immaterial…..”

19.  There is no evidence of any agreement between the Plaintiff and the predecessor in title nor could there have been loss of evidence by which the Defendants claim might have been rebutted.  Hence the Defendants cannot rely on the doctrine of laches.  In any event the Plaintiff has a right and a duty to ask the Defendants to comply with the terms of the DMC.

Antennae

20.  The other complaint of the Defendants is the erection of 2 antennae on the external wall which blocked the view and prevented the occupants from enjoying the view of Happy Valley and the mountain.  I observed that the 2 antennae are erected on the external wall which is a part of the common area.  They are erected on the external wall between the roof and the 23^rd floor.  It could not have affected the occupants from enjoying the view of Happy Valley and the mountain either from the 23^rd floor or from the roof.

Noise from water pump

21.  As to the noise from the water pumps, it has been installed since the building was erected.  The Defendants must have been aware of it.  It is not something which has been newly installed.  It is there for the benefit of the whole building.  There is no substance in the 2^nd Defendant’s complaint.

The 2nd Defendant’s loss

22.  As to the 2^nd Defendant’s allegation that the Plaintiff had constantly disturbed her thereby she suffered economically and mentally; she has not produced any evidence concerning her loss as a result of the Plaintiff’s wrong doing, if any.  In any event the claim for $30 million is a figure which she has failed to prove.

23.  In the premises there be judgment for the Plaintiff in the terms of para 1 of the prayer for relief.  Counterclaim dismissed.  Order nisi:  Costs to the Plaintiff in respect of both the Plaintiff’s claim and the Defendants’ counterclaim.