THE INCORPORATED OWNERS OF CLIFFVIEW MANSIONS (NOS.21-25 CONDUIT ROAD) v. SHERAV (H.K.) LTD

HCA2387/2008

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   ACTION NO. 2387 OF 2008

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BETWEEN

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J U D G M E N T

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1.  The plaintiff is the incorporated owners of a residential building known as Cliffview Mansion (“IO”) situated at Nos. 21-25 Conduit Road, Hong Kong and was registered as a corporation under the Building Management Ordinance, Cap. 344 on 7 July 1995.

2.  The defendant is the owner of the flat on the 11^th floor of Cliffview Mansion (“the Premises”).

3.  Like most of the multi-storey buildings in Hong Kong, there is a Deed of Mutual Covenant which governs the rights and obligations of the owners of the various flats in Cliffview Mansion. This document is dated 29 April 1974 and registered with the Land Registry by Memorial No. UB1082794 (“the DMC”).

4.  This action concerns a breach of the DMC by the defendant. The breach is admitted by the defendant. It contends, however, that there is a defence to this action, namely, abatement of nuisance.

5.  To begin, I need to explain the matters concerning the breach of the DMC. At the external wall of the dining room of the Premises, there used to be two windows. They were about 42 in. high and 35 in. from the floor. It appears that the windows were of different widths. I have been referred to a photograph of the external wall in question (Bundle (2), p. 115) and it is common ground that the windows had the same appearance as those of the flat on the 10^th floor. By looking at that photograph, the window at the left (“the Left window”) appears to be about half the width of the one on the right (“the Right window”).

6.  Outside the external wall in question, there is a flat roof and a parapet wall. The effect of those features is such that there appears to be a small balcony outside the external wall. It is not disputed that the existence of the flat roof is the result of the fact that the building decreases in size at the 11^th floor. For convenience, I shall refer to the flat roof as (“the Balcony”). The distance between the external wall and the parapet wall is only 2 ft and the total area of the Balcony is about 22 sq. ft. It is common ground that the Balcony is part of the common area of Cliffview Mansion. There was of course no access to the Balcony (other than climbing out of the windows). I should mention that there is an architectural fin above the Balcony, but it does not fully cover it.

7.  Shortly after the defendant had acquired the Premises in 2004, the Left and Right windows as well as the part of the external wall on which they sat were demolished. The Left window was replaced by a glass door. Instead of the Right window, one can now find a larger door opening with three sliding glass doors. It is common ground that such alteration constitutes a breach of Clause 6 of the Third Schedule of the DMC :

“No external shades, awnings or window guards shall be used in or about the said building until such shall have been approved in writing by the Managers and no owner shall without the previous written consent of the Managers paint the outside of the said building or any part thereof nor alter the exterior walls window glass nor do any other act or thing which would alter or affect the exterior appearance of the said building.” [emphasis added]

8.  Having accepted the breach of the DMC, the defendant also accepts that the burden of proof in this trial rests with it. Two witnesses have been called by the defendant, Mr Daryanani (DW1) who lives in the Premises with his family and a surveyor, Mr Eddie Lee Shue Shing (DW2). With respect, the facts in this case are fairly straightforward and the dispute thereof is not, in truth, extensive. I do not find that the evidence of DW2 adds much to that given by DW1 and the undisputed facts.

9.  According to DW1, he inspected the Premises before they were purchased. At the time of inspection, they were occupied by a tenant, Mr Willie Chan (“Chan”). DW1 looked around the Premises and asked Chan about it. It was pointed out to him that the Balcony was difficult to clean. Due to the fact that the Balcony was facing the hillside, during a typhoon, leaves would get blown onto the Balcony and block the drain there. It had happened two or three times during Chan’s tenancy. DW1 said that he noticed that the Balcony was dirty with a bit of water and some leaves. Chan said to him that he cleaned the Balcony by jumping out of the window, which was not convenient. Chan also told him that no one from the management ever went to clean the Balcony. I shall refer to the management company appointed by the IO to look after Cliffview Mansion as (“the Management”).

10.  DW1 said that it would have been difficult to clean the Balcony. One would require a ladder or a small stool to climb the 35 in. wall. If one slipped, one might get hurt by hitting the parapet wall which was 43 in. high.

11.  DW1 said that he and his wife were particularly concerned about hygiene because of their young children, the SARS experience and the concern over dengue fever. After they took possession of the Premises at the end of July 2004, they engaged a contractor to refurbish the Premises. On DW1’s instructions, the contractor wrote to the Management to ask for permission to carry out the alteration works mentioned above (see paragraph 7). DW1’s case is that the works were required to allow access to the Balcony so that it could be cleaned. The Management declined the request. However, DW1 and his wife decided to go ahead with the works but at the time they tried to convince the IO about their point of view.

12.  It appears that as late as the end of October 2004, DW1 still had doubt as to whether the Balcony was part of the common area or the Premises (see Bundle (2), p. 151).

13.  It is undisputed that the Management has offered to clean the Balcony once every fortnight if required (it is accepted that the duty to clean any common area rests with the Management.). The offer was made during a meeting of the IO on 25 October 2004 which was attended by DW1’s wife (Bundle (2), p. 128). DW1 is not attracted by the offer because it would adversely affect the privacy of his family to have cleaners coming into the Premises. He is also concerned about the security issue and dislikes the idea that dirt would have to be taken from the Balcony into the Premises before disposal. He said that he would be willing to reinstate the windows if the Management agreed to discharge the cleaning responsibility without having to go into the Premises. The use of a gondola for that purpose had been suggested by DW1.

14.  As to the suggestion that by demolishing the windows the Balcony has been put to the private use of his family, DW1 said that the Premises have an area of 3,800 sq. ft and there is a terrace of about 500 sq. ft attached to the Premises. His family has no need for any additional space.

15.  In cross-examination, it was pointed out to DW1 that there was no mention in his witness statement of seeing any dirt and water on the Balcony. In answer, DW1 said that he had told his lawyers about the matter. He agreed that for cleaning purposes, having one door opening created would be sufficient. He accepted that a small table and some plants have been placed on the Balcony. He said that the single glass door (which replaced the Left window) leads to the dining room whereas the triple one connects to a bedroom. The demolition was carried out in October 2004, but he was not sure. Apart from having the doors installed, the Balcony was tiled in the course of the renovation.

16.  DW1 agreed that the Balcony can be cleaned with a broom and a garbage shovel, but it would not be a “100%” job. He also said in re-examination that one could not unblock the drain with a broom and garbage shovel. The Balcony has been cleaned once every 2 to 3 days since he started living in the Premises.

17.  On the whole, I find DW1 to be a credible witness. Indeed, much of his evidence accords with commonsense and is inherently credible, e.g. asking Chan about the Premises. The only blemish is his evidence that he had seen dirt and water on the Balcony during inspection. Such an important matter (in the context of this case) is unlikely to be missed out by the lawyers had they been told.

18.  However, regardless of DW1’s evidence on this aspect, I am quite prepared to accept that from time to time fallen leaves and dirt can be found on the Balcony. During a typhoon or on a rainy day, some water will appear on the Balcony. The amount of accumulated water would probably depend on the state of the drainage. All these are matters of commonsense.

19.  One witness has been called by the IO, Mr O Hin Lung (PW1) who works for the Management. Like the case of DW2, I do not believe that PW1’s evidence adds much to what was said by DW1 and the undisputed facts. I mention, however, two points concerning his evidence. Firstly, I do not believe that PW1’s memory is accurate in respect of when Chan moved out of Cliffview Mansion. I prefer the evidence of DW1 which is supported by exhibit “D1”. Secondly, PW1’s uncontested evidence is that during his nine years working for the Management, it has never cleaned the Balcony and has not received any complaint about the hygienic condition of the same.

20.  There is an agreed List of Issues. There are three issues to be resolved. Firstly, whether there was a private nuisance caused by the accumulation of rubbish and water at the Balcony. Secondly, whether the alteration works in question (“the Alteration”) were carried out to put an end to the nuisance. Thirdly, whether the defendant was legally entitled to carry out the Alteration in breach of the DMC by reason of abatement of nuisance notwithstanding that the Management has offered to clean the Balcony.

21.  In respect of the first issue, Ms Gwilt, who appears for the defendant, agrees that the mere existence of rubbish and water on the Balcony does not necessarily amount to a nuisance. The defendant has to satisfy this court that the hygienic condition was such that it amounted to a nuisance.

22.  I do not believe that the evidence before me meets that threshold. Whilst I accept that rubbish and water might appear on the Balcony (see paragraph 18 above), there is no evidence that such constituted a serious problem or a health hazard. I believe that the lack of complaint over a very long period speaks volume in this regard. Further, it might well be the case that the previous occupiers of the Premises were content to carry out the simple cleaning job themselves, possibly by using a broom and a garbage shovel. In considering whether there was a nuisance, I do not believe that one should ignore the simplicity of the resolution — the cleaning.

23.  Once the defendant has failed to cross this first hurdle, its case must collapse. However, I shall deal briefly with the remaining issues. I accept that cleaning the Balcony was one of the reasons for the Alteration, but it was not the only reason. It is quite clear that the Alteration has improved the Premises by, e.g. allowing more light into the dining room and one of the bedrooms. Further, although the Balcony is fairly small in area, having access to it is undoubtedly an advantage.

24.  Whilst I do understand DW1’s position about privacy, I do not believe that it was reasonable for the defendant not to accept the Management’s offer to clean the Balcony. Mr Tang, who appears for the IO, has rightly pointed out that the Management has the right under the DMC to reasonable access to any flats for purpose of cleaning a common area — Clause B(1) of the First Schedule.

25.  These two matters would defeat any claim under the principles of abatement of nuisance (if there were any). I have been referred by Mr Tang to Clerk & Lindsell on Torts, 19^th ed., paras. 31-24 to 31-25 :

“There exists a right to self-help against a nuisance, called the right of abatement; and a very similar right of self-redress for trespass by encroachment. The victim of a nuisance can lawfully put an end to it by acts done on his own property, where this is possible...

The right to abate a nuisance has fallen into a certain amount of judicial disfavour and various limitations have been put upon it. It is suggested that the right of abatement is nowadays subject to the following conditions :

(a) …

(b) It must be a case in which a court has not refused a mandatory injunction or would not refuse one if the claimant chose to go to court. If it were otherwise, the wrongdoer could be made to suffer loss out of proportion to any damage which has been done: a large and valuable building could be demolished for a trivial encroachment on a right of way which a small sum of money would adequately compensate. Clearly, caution must be exercised when demolishing buildings under the purported exercise of a right of abatement.

(c) The abatement must be done so as to cause as little damage as possible, not only to the wrongdoer, but also to innocent parties and to the public. If there are alternative methods of abatement, one of which will be less injurious to the wrongdoer than the other, the least injurious method must be adopted …”

26.  DW1 has accepted that the Alteration was more extensive than was necessary (see paragraph 15 above). Further, I do not believe that if the defendant goes to court for relief against the IO, there is any real prospect that the court would order a mandatory injunction for the demolition of the windows.

27.  For these reasons, I give judgment in favour of the IO and dismiss the Counterclaim.

28.  Ms Gwilt has tried to dissuade me from exercising my discretion in granting an injunction to have the windows restored. With respect, given DW1’s position that he is quite prepared to have the windows restored if there is a way to clean the Balcony which meets his requirements, I am unable to accede to Ms Gwilt’s submission.

29.  I grant an injunction in terms of prayer (1) of the Amended Statement of Claim (Bundle (1), p.5) save that the defendant is to have 30 days from the date of judgment to complete the restoration. I make an order nisi that the costs of the action and the Counterclaim be to the plaintiff.

30.  Last but not least, I thank both counsel for their assistance and their effort in shortening the hearing time for this trial.