PONG, SEONG TERESA AND OTHERS v. CHAN NORMAN

HCA 627/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL ACTION NO. 627 OF 2010

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AND

HCA 726/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL ACTION NO. 726 OF 2011

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(HCA 627/2010 & HCA 726/2011 be heard & tried together
pursuant to the Order of Master Levy dated 4 November 2011)

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REASONS FOR DECISION

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THE APPLICATONS

1. By an order dated 4 November 2011, HCA 627/2010 and HCA 726/2011 were ordered to be tried together.  The plaintiffs in HCA 627/2010 and the plaintiff in HCA 726/2011 have respectively taken out an application to strike out certain paragraphs of the Counterclaims in the respective Actions.  This Decision will deal with the applications of both Actions.

2. Mr. Chain, counsel for the plaintiffs, having further considered the matter agrees that paragraph 16 of the Counterclaim in HCA 627/2010 and paragraph 36 of the Counterclaim in HCA 726/2011 should not be struck out.

THE FACTS

3. The two Actions arose out of disputes between two neighboring families of a property comprised of 3 levels, viz. the Ground Floor, the First Floor and the Second Floor at No.34 Braga Circuit Kowloon (“the property”). The plaintiffs in HCA 627/2010 are members of one family whereas the 1^st and 2^nd plaintiffs (“the parents”) are residing at the G/F and the 3^rd plaintiff (“the daughter”) at the 2/F.  HCA 726/2011 was taken out by the daughter only.  The defendants in these two Actions are residents at the 1^st Floor.  Dr. Chan Norman is the son of Madam Wai So Lin Shirley.

4. From the pleadings of the two Actions, it can be seen that Dr. Chan has alleged that the plaintiffs in the Actions had caused conversion of the covered playground on the basement into illegal flats, removing portions of the property designed to resist fire, blocking the fire escape route on the roof floor, adding illegal flat on the roof floor [627 – Defence 7(ii)][1], illegal structures in the common parts of the property such as the common staircase in breach of the Building Management Ordinance and the Deed of Mutual Covenant [627 - Defence 8(ii)], illegally re-demarcating the car park spaces and adding an illegal car space for the plaintiffs in the right-of-way near his own car space [627 – Counterclaim 18], the employment of the foreign domestic helpers in more than one residence, in breach of the conditions of stay of the Immigration Department [627 - Counterclaim 19].  Apart from those allegation mentioned, Dr. Chan has also made allegations against the daughter on the 2^nd floor for making noises of footsteps, moving furniture and music, allowing sounds of dog [726 - Counterclaim 30-31], and installing air-conditioners on the exterior walls (common parts) of the property between her premises and his premises, in breach of the Deed of Mutual Covent. [726 - Counterclaim 35-36].

5. Dr. Chan has also made allegation that the 1^st plaintiff in HCA 627/2010 had failed to discharge her duty as an office bearer of the Owner’s Corporation. [627 - Defence 8(ii)].

6. The plaintiffs in HCA 627/2010 have accused Dr. Chan of hostile conduct of shouting obscenities and vile language loudly at the plaintiffs in aggressive manner on a number of occasions [627 - Statement of Claim 7-8].  They have also said that Dr. Chan had twice spray-painted words outside their premises.  They applied for injunctions against Dr. Chan.

7. As to HCA 726/2011, the daughter has claimed against Dr. Chan and his mother for making loud thumping noises during nighttime, and allowing excessive noises by television and/or radio, causing nuisance to her.  She has also sought injunction against Dr. Chan and his mother.

8. The above have generally set out the backdrop of the disputes between the parties.

9. I can also see that the parties have no dispute that the property has been managed under the Owner’s Corporation in accordance with the Deed of Mutual Covenants.

LEGAL PRINCIPLES

10. Counsel for the plaintiffs has set out the legal basis of the applications. He refers to the case of Bradshaw v. University College of Wales Aberystwyth [1988] 1 WLR 190 at 192C, 194E where Hoffmann J. said: “This is an application by the first defendant…that the plaintiffs have no locus standi to bring the proceedings.” At 194E “…I do not consider that a person who could not in any circumstances be a beneficiary of the charity or take any interest under the trusts applicable to the property of the charity can be within that expression (to be classified as an interested party, added by me).  Accordingly, in my judgment, the summons must be struck out.”

11. Mr. Chain has also called in aid of section 16 of the Building Management Ordinance Cap. 344:

“When the owners of a building have been incorporated under section 8, the rights, powers, privileges and duties of the owners in relation to the common parts of the building shall be exercised and performed by, and the liabilities of the owners in relation to the common parts of the building shall, subject to the provisions of this Ordinance, be enforceable against, the corporation to the exclusion of the owners, and accordingly-

(a) any notice, order or other document which relates to any of the common parts of the building may be served upon the corporation at its registered office; and

(b)   any proceedings in the tribunal in respect of any of the common parts of the building may be brought and pursued by or against the corporation.”

12. Mr. Chain refers to the authority of Hang Yick Properties Management Ltd. v. Incorporated Owners of Tuen Mun Kar Wah Building [2005] HKLRD 499 at 506G to 508A, which concerns the representative authority of the Incorporated Owners under section 16 of the Building Management Ordinance after its incorporation.  The Court of Appeal decided that at paragraph 18 of the judgment: “…Section 16 is specifically designed for such purpose, so that after incorporation under the Ordinance, the rights, powers and privileges of the owners in relation to the common parts of the building shall be exercised and the duties of the owners in relation thereto shall be performed by the corporation to the exclusion of the owners, and that the liabilities of the owners in relation thereto shall be enforceable against the corporation to the exclusion of the owners.  The corporation is intended to be the sole representative of all the owners regarding matters within the ambit of s.16.”

13. The guiding legal principles for striking out are set out in Ha Francesca v. Tsai Kut Kan (No.1) (1982) 1 HKC 382 CA that it is only in plain and obvious cases the court should exercise its summary power to strike out, disputed facts being taken in favour of the defendants and the counterclaim must be unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the counterclaim to succeed. See 18/19/4 of HKCP 2012[2].

HCA 627/2010

14. For HCA 627/2010, the plaintiffs apply to this court to strike out paragraphs 17 to 19 and prayers (1), (2) and (3) of the defendant’s Counterclaim for disclosing no reasonable of action.

15. Paragraphs 17 and 18 are counterclaiming against the plaintiffs in respect of the illegal structures in the common areas and the re-demarcation of the car park for the plaintiffs in the right-of-way, again the common area.

16. I agree with Mr. Chain that Dr. Chan has no authority to sue the plaintiffs on the common areas under section 16 of the Building Management Ordinance Cap.344.  Dr. Chan has not pleaded that he has obtained the consent from the Incorporated Owners to continue with the action.  From the pleadings and as confirmed by Dr. Chan today, it seems fanciful that Dr. Chan will be able to obtain consent from the Incorporated Owners to institute or pursue the Counterclaim.  However, Dr. Chan argues that paragraph 17 alleges that the illegal structures in the common parts have caused inconvenience and nuisance and potential fire hazard and other potential dangers to other owners and residents.  These are for the personal safety of himself and therefore this paragraph should not be struck out.  Mr. Chain argues that this is only a general allegation, without any particular incident or fact to support.  I agree with Mr. Chain that there is no particular in the Counterclaim to support the allegation.  From the tenor of the Counterclaim, Dr. Chan is making his accusation of illegal demarcation of the common part of the property for self-use, rather than any incident, which has cause fire hazard or danger to him.  I agree that for the time being, the Counterclaim has only raised a hypothetical situation, which may happen but without particular to support it, which should not be allowed because the defendant must state the fact to support his cause of action in the pleadings.  I cannot see any possible way to remedy these situations.  As such, paragraph 17 to 18 of the Counterclaim should be struck out.

17. As to paragraph 19 of the Counterclaim, I agree with Mr. Chain that the employment of the foreign workers, even though the working of them may have been in breach of the conditions of stay imposed by the Immigration Department, which may constitute a criminal offence, which should be within the power of the relevant authority to pursue under the Immigration Ordinance. Dr. Chan has no power to take over the power from the government.  Dr. Chan has not pleaded any damage that he has suffered because of the foreigner workers.  As such, he has no claim against the plaintiffs.  This paragraph is also struck out.  Also prayers 1 to 3 should be struck out as well.

HCA 726/2011

18. For HCA 726/2011, the plaintiff applies to strike out paragraphs 35, 37 & 38 and prayers (B) and (C) of the defendants’ Counterclaim for disclosing no reasonable cause of action.

19. Paragraphs 35 & 37 refer to the installation of the air-conditioner by the plaintiff on the exterior wall (common parts of the building) and the nuisance to the defendants. For the same reasons that Dr. Chan and his mother have no power to take out the action against the plaintiff for the common areas, which is within the power of the Incorporated Owners under section 16 of the Building Management Ordinance, they are struck out.

20. Paragraph 38 refers to the illegally re-demarcated car parking space in the right-of-way, a common area.  For the same reasons as set out in paragraph 16, this paragraph is struck out.

21. As a result, prayers B and C of the Counterclaim are accordingly struck out.

22. As to costs of this application, the plaintiffs of HCA 627/2010 and the plaintiff in HCA 726/2011 shall have 90% of the costs with a certificate for counsel, to be summarily assessed on a date to be fixed for 30 minutes before the Registrar, with the direction that the plaintiffs in the respective Actions shall within 7 days from the date hereof file and serve the schedule of costs on the defendants, who have the liberty to file and serve the list of oppositions within 7 days thereafter.

23. I shall now make an order in terms as follows:

a.  In respect of HCA 627/2010, paragraphs 17 to 19 and prayers (1), (2) and (3) of the defendant’s Counterclaim be struck out;

b.  In respect of HCA 726/2011, paragraphs 35, 37 and 38 and prayers B and C of the defendants’ Counterclaim be struck out;

c.  Costs of this application, including the costs reserved for the summonses, be to the plaintiffs in HCA 627/2010 and the plaintiff in HCA 726/2011 respectively be summarily assessed as provided for in paragraph 22 herein.