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HCA 524/2018
[2022] HKCFI 3840
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 524 OF 2018
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BETWEEN
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FINE RIGHT ENTERPRISE LIMITED |
Plaintiff |
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and |
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WEALTH FINE LIMITED |
Defendant |
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Before: Hon K Yeung J in Court
Date of Hearing: 6-10, 13-15 December 2021, 13 May 2022
Date of Judgment: 29 December 2022
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J U D G M E N T
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A....... Introduction. 5
B....... D’s objection to the admissibility of certain materials and documents in the hearing bundles 5
C........ The parties 7
D........ The DMC, and its relevant terms 8
E......... The pleadings, and parties’ cases 10
F......... The agreed facts (and those which are not in serious dispute) 12
G........ The correspondence between the parties 25
H........ Evolution of the disputes between the parties 44
I......... The issues 47
J......... The witnesses 48
K........ The proper interpretation of Clause A(4) 49
K.1. Legal principles on the interpretation of a deed of mutual covenants 49
K.2. Whether the 4 Limbs conditions precedent for the exercise (or continuous exercise) of the Clause A(4) Right 52
K.3. Implied duty of co-operation. 59
K.4. The Means and Arrangement 62
K.4.a. Parties’ submissions 62
K.4.b. Neither right of entry simpliciter, nor an orthodox right of way 66
K.4.c. Means and Arrangement governed by the DMC. 68
K.4.d. So who chooses, and how? 70
L......... Whether the Notice Limb fulfilled. 78
M........ Whether the Purpose Limb fulfilled. 79
M.1. The ownership of the Yellow Wall79
M.2. Whether “work necessary for the maintenance and repair of” J15. . 82
N........ Whether denial of P’s Clause A(4) Right 85
N.1. Alleged breach of the Minimum Disturbance Limb and the Damage Limb 85
N.2. The denial of entry in October 2017. 87
N.3. Refusal since November 2017. 88
N.4. The conditions imposed by D. 89
N.5. Parties’ subsequent conduct and exchange 89
N.6. Conclusion on this issue 96
O........ The relief sought by P. 96
O.1. Alternative accommodation costs 97
O.2. Additional construction costs 102
O.3. Conclusion on P’s monetary claim. 106
P......... D’s Counterclaim. 107
P.1. The Alleged Substantial Disturbances 108
P.1.a. “Numerous safety matters”109
P.1.a.i. “No regular safety inspection of the scaffolding” 109
P.1.a.ii. “Collapse of scaffolding on two occasions” 110
P.1.a.iii. “Renovation wastes”111
P.1.a.iv. “Safety of P’s workers”112
P.1.b. “Various other security and privacy matters” 112
P.1.b.i. “Blocking the door of the Red Structure” 112
P.1.b.ii. “Damaging D’s security sensors” 112
P.1.b.iii. “Scaffolding erected on the canopy outside Senior Mrs Kwong’s room” 114
P.1.b.iv. “Long ladder and moveable metal platform placed in the Lane overnight and the importance of scaffolding lamps” 114
P.1.c. Serious hygiene issues 115
P.1.c.i. “Misbehaviour of P’s workers” 115
P.1.c.ii. “Accumulation of renovation waste” 116
P.1.c.iii. “P’s Pond-like Structure” 117
P.1.c.iv. “P’s Unauthorised Lightwell Structure” 117
P.1.d. “Destruction of and/or damage to D’s properties” 118
P.1.d.i. “Demolishment of the Lightwell Wall and mosaic tiles” 118
P.1.d.ii. “Damage to the Red Structure causing water leakage” 118
P.1.d.iii. “Damage to D’s glass bricks on its garden wall” 119
P.1.d.iv. “Damage to the glass table in D’s garden” 120
P.1.d.v. “Damage to the D’s spotlight in the garden” 120
P.1.d.vi. “Blockages of D’s drainages on two occasions” 120
P.1.d.vii. “Porsche vehicle parts placed in the Lane”121
P.1.d.viii. “The waterproofing layer on the [Front] Wall”122
P.1.d.ix. “Damage of the floor of the Lane”122
P.1.e. “The unlawful intrusion of P’s Unauthorized Drainage Pipes into D’s property”123
P.2. Conclusion on the monetary parts of D’s Counterclaim. 123
P.3. The injunctive relief sought 123
P.3.a. The Pond-like Structure 123
P.3.b. The J15 Lightwell Structure 124
P.3.c. The Alleged Unauthorized Drainage Pipes 125
P.4. Conclusion on D’s Counterclaim. 130
Q........ Overall disposition. 130
A. Introduction
1. The parties are neighbours. Each owns a house within Marina Cove (“Marina Cove”). Separating their houses is a strip of ground (the “Lane” for convenience). The Lane belonged to the defendant (“D”). The plaintiff (“P”) has been carrying out repair and maintenance works (the “Works”) to its house. Those Works include renovation to the exterior of the enclosing wall of its house facing and adjacent to the Lane[1]. P says that under the Deed of Mutual Covenants of Marina Cove (the “DMC”), it is entitled to gain access to the Lane in order to do that. For different reasons which I will come to, access had not until after the commencement of the trial[2] been obtained, or at least not in a manner that was agreeable to both parties. The dispute has been going on for several years. Parties are unable to resolve the matter amicably. Loss and damage are said to have been suffered. They need this Court to decide on a solution to break the impasse – hence this action and trial.
2. P is represented by Mr Paul Lam SC leading Ms Sabrina Leung. D is represented by Mr Hectar Pun SC leading Ms Carol Lee.
B. D’s objection to the admissibility of certain materials and documents in the hearing bundles
3. I record that at Section F of his written opening submissions, Mr Pun disputes the admissibility of certain materials in Hearing Bundles D, F1, F2, and F3. They are:
(a) In respect of Bundles F1, F2 and F3, plans and aerial photographs, P’s photographs, D’s photographs, a video taken back in 2017, 2 3-D videos and PowerPoints on certain features and structures of the locus in quo, and descriptions given to some of them;
(b) Items 15, 60, 61, and 66 in Bundle D, which are typed-up transcripts of certain handwritten materials;
(c) Item 20.1 of Bundle D, which are public documents in relation to Typhoon Hato which struck Hong Kong in August 2017;
(d) Item 57.1 of Bundle D, which is the renewal of an existing tenancy agreement that only came into existence on 1 November 2021; and
(e) Correspondence between the parties in Bundle D.
4. Mr Lam has filed his supplemental opening submissions in reply to the objections.
5. Having heard parties on the first morning of the trial, and with parties’ agreement, I allowed those documents and materials to be placed before this Court on a de bene esse basis. I indicated that I would if necessary come back to them after the trial and consider their admissibility in my Judgment.
6. In the course of cross-examination, no challenge has been made to any of those materials. In fact, Mr Pun has referred extensively to a lot of those documents and materials. During his closing, Mr Pun confirmed that D is no longer maintaining the challenge.
7. I allow all those documents and materials to be admitted.
C. The parties
8. P is the owner of House J15 (“J15”) of Stage IV of Marina Cove.
9. P’s directors and shareholders have been Yick Yin Ha (“Yick” or “Mrs Chan”) and Chan Chor Keung (“Mr Chan”, collectively “Mr and Mrs Chan”).
10. D is the owner of House J14 (“J14”, and together J15, the “Houses”), also of Stage IV. J14 is next to J15.
11. D’s two shareholders and directors are Kwong Yik Hung William (“Mr Kwong”) and his wife Hiu Ping Sum (“Mrs Kwong” or “Senior Mrs Kwong”).
12. The Lane is between J14 and J15. There is no dispute that the Lane forms part of J14.
13. I will later describe the Lane and certain relevant structures and features of the Houses in some detail. To enhance understanding of those descriptions, I attach to this Judgment a copy of the agreed Ground Floor Plan (“Annexure A”)[3]. While not all the descriptions of the structures and features shown therein are agreed (which are subject to a number of explanatory notes), the general location and relative position of those structures and features are.
14. The manager of Marina Cove is Creative Property Services Consultants Limited (the “Management Office”).
D. The DMC, and its relevant terms
15. The DMC is dated 8 July 1985. It is registered at the Land Registry by Memorial No. SK 110898. The rights and obligations of the co-owners of Marina Cove are regulated thereby.
16. The following terms of the DMC are of particular relevance:
(a) Clause 3[4], that:
“Each undivided share and the full and exclusive right and privilege to hold use occupy and enjoy any premises shall be held by the person or persons from time to time entitled thereto subject to and with the benefit of the easements, reservations, rights, privileges and obligations set out in the First Schedule.”
(b) Clause 4[5], that:
“The owner for the time being of each undivided share shall at all times hereafter be bound by and shall observe and perform the covenants provisions and restrictions contained herein and in particular those contained in the Second Schedule hereto.”
(c) Clause 22[6], that:
“Each owner may make, place or install in his own premises and at his own expenses alterations, additions, improvements, fixtures, fittings and decorations but only without causing structural damage to or interference with the enjoyment of any of the other premises on the said Land or any parts thereof …”
(d) Clauses A(1) and A(4) of the First Schedule[7] (the “First Schedule”), that:
“A. Each owner shall hold the premises to the use of which he is entitled hereunder with the benefit of the following easements rights privileges and obligations PROVIDED that all such easements rights and privileges shall be held and enjoyed subject to the provisions of this Deed and the House Rules made thereunder: (“Clause A”)
1. Full right and liberty for the owner for the time being his servants, agents and licensees … to go pass and repass only over and along the Common areas … (“Clause A(1)”)
…
4. The right for the owner or occupier for the time being of any premises with or without servants, workmen and others at all reasonable times on written notice (except in case of emergency) to enter into and upon the other premises and the Common areas for the purposes of carrying out any work necessary for the maintenance and repair of his own premises or its services (such work not being the responsibility of the Management Company hereunder) causing as little disturbance as possible and making good any damage caused thereby. (“Clause A(4)”)”
Parties are in dispute as to the nature of the right and obligation under Clause A(4) (and in particular whether it is a right of way, or a right of entry). For ease of reference, I will refer to it as the “Clause A(4) Right”.
(e) Clause 3 of the Second Schedule[8], that:
“Covenants, provisions and restrictions referred to in Clause 4 of this Deed.
…
3. Not to make any structural alteration to any premises of which he is the owner which may damage, or affect or interfere with the use and enjoyment of any other premises on the said Land whether in separate or common occupation or use, and not to cover or deck over any void areas in the premises or to cover any terraces with any structures or alter the position of the external walls of the premises or cut, injure, damage, alter or interfere with any part or parts of any building in common use or any of the sewers, plumbing equipment, drains, water-courses, conduits, pipes, cables, wiring, fixtures, equipment apparatus or services of any building on the said Land.”
E. The pleadings, and parties’ cases
17. The Writ was first issued on 7 March 2018. It was indorsed with a Statement of Claim. It has since been amended twice, resulting in the current Re-Amended version of 9 September 2021 (“RASOC”).
18. P claims that it is entitled under the DMC to gain access to the Lane in order to carry out the Works, but that it has been unable to do so due to D’s continuous breach of the DMC. P therefore sought[9] an injunction compelling D to discharge its legal obligation in the regard. It also claims loss and damage said to have been caused by the resulting delay in the Works.
19. The Defence and Counterclaim was first filed on 8 June 2018. It has been amended a number of times. The current version is the Re-Re-Re-Amended Defence and Counterclaim of 27 October 2021 (“RRRAD&C”).
20. D denies P’s claim. As summarized by Mr Pun[10], D’s case is as follows:
(a) D is entitled to exercise a right to refuse entry of P into its property if any of the following 4 Limbs (collectively the “4 Limbs”) is not satisfied by P (or P’s right to enter into D’s property is subject to all 4 Limbs being fulfilled):
(i) the Notice Limb – P is obliged to give D a reasonable notice in writing except in the case of emergency;
(ii) the Purpose Limb – Any entry of P into D’s property must be for the purpose of carrying out work(s) necessary only for the “maintenance and repair” of the P’s property or its services but no other purpose;
(iii) the Minimum Disturbance Limb – P is obliged to cause as little disturbance as possible to D in carrying such maintenance and repairing work(s); and
(iv) the Damage Limb – P is obliged to make good any damage caused by P because of the carrying out of such maintenance and repairing work(s).
(b) If P has already breached any of the 4 Limbs, D is entitled to refuse further entry unless and until any such breach is remedied;
(c) The Notice Limb was only fulfilled on 30 October 2017. The other Limbs had never been fulfilled, or had otherwise been breached;
(d) Clause A(4) only stipulates the parties’ respective rights and obligations to have or to give entry, and how they could be triggered. Its compliance requires reasonable co-operation between the parties. It does not provide for or define the parties’ duty regarding the means/route of access (inclusive of which party shall arrange such means) (collectively, the “Means and Arrangement”), which should therefore be governed by parties’ mutual understanding and/or agreement voluntarily entered into thereafter in the light of the actual circumstances;
(e) In any event, at least since 25 March 2019, D has informed P that it does not refuse P assess to the Lane[11]; and
(f) D also counterclaims for loss and damage said to have been caused by the Works, and divers injunctive relief against P to compel removal of the J15 Lightwell Structure (as defined below), a “Pond-like Structure” within J15, and certain drainage pipes said to have been constructed over the airspace of J14 (the “Alleged Unauthorized Drainage Pipes”).
21. The current version of the Reply and Defence to Counterclaim is the Re-Re-Amended version of 27 October 2021 (“RRAR&DC”).
F. The agreed facts (and those which are not in serious dispute)
22. Parties have lodged a Statement of Facts and Chronology of Events. A lot of the contents therein are however not agreed. For some facts, 2 different versions have been set out. I set out below those which are agreed. In respect of those which are not, I will qualify them (by adding words like “P says” or “D says”, or qualifications to similar effects). A lot of the disagreements are in fact not material for the resolution of their disputes. Others turn out not to be in serious dispute. In respect of those facts, and when convenient, I will also state my findings in this section.
23. It is useful to set out such facts at this stage. They will help define the terms used in the latter parts of this Judgment.
24. P has been the owner of J15 since 5 June 2004. It is agreed that Mr and Mrs Chan, Ms Chan Heung Fa (Mr Chan’s elder sister, “Madam Chan”), Ms Ting Hoi Ting (the niece), and a domestic helper reside there. P says that Mr Chan Man Hon and Ms Chan Sin Yee (respectively of Mr and Mrs Chan’s son and daughter) also reside there. D disagrees.
25. I find that Chan Man Hon went to work in Beijing some years ago. He only came back to live in J15 when he was on holidays.
26. I find that Chan Sin Yee got married in November 2016. Upon marriage, she moved out of J15 and lived with her husband at Ma Wan.
27. D has been the owner of J14 since 22 June 2001. Eight people have been residing there, namely Mr and Mrs Kwong, their son Mr Kwong Man Hong, his wife Miss Susanna Kong Sze Man (“Susanna” or “Kong”) and their son, and 3 domestic helpers.
28. A layout plan is attached at P’s RASOC. For all practical purposes, it is the same as Annexure A. P says that it shows the boundaries of J14 and J15. D is not prepared to agree to that. The following features are however agreed for the purpose of this trial (or not in serious dispute):
(a) There is a lane (i.e. the Lane mentioned above) between J14 and J15. The Lane is part of J14 and belongs to D. The location of the Lane is hatched in black;
(b) The width of the Lane was about 1.45m[12];
(c) One end of the Lane is towards the sea (the “Sea End”);
(d) The other end of the Lane is towards a public pedestrian road (the “Pedestrian Road”, and “Road End”). It was closed on the Road End by a wall across the width of the Lane (the “Front Wall”). The location of the Front Wall is coloured green on Annexure A. Outside the Front Wall but still next to it is the public meter room (the “Public Meter Room”);
(e) The Front Wall, measured inside the Lane, is 3.683m in height[13];
(f) Originally, there was neither any opening nor door to the Front Wall. At some stage shortly before 18 April 2019[14], D caused it to be opened up, and had a door built (the “Front Wall Door”). A flight of metal stairs (with 5 steps) (the “Front Wall Metal Stairs”) was also installed on the Lane side of the opening. That was necessary because the ground of the Pedestrian Road outside is at a level higher than the ground of the Lane. The total height of the Front Wall Metal Stairs is accepted to be about 1.4m;
(g) The external wall between J15 and the Lane is coloured yellow (the “Yellow Wall”)[15]. The Yellow Wall runs from the Pedestrian Road on the Road End to where the Violet Basement Lane Door is (defined later) on the Sea End;
(h) Prior to August 2018, D had kept a structure at the Lane (which I will refer to as the “Red Structure” as its location has been so coloured). It had 2 floors (“G/F Red Structure” and “1/F Red Structure”). As can be seen from Annexure A, the Red Structure was built on a section of the Lane which was 6.154m long[16] (the “Built-on Section of the Lane”), leaving exposed only a smaller section of the Lane towards the Road End (the “Unbuilt-on Section of the Lane”);
(i) The Unbuilt-on Section of the Lane is next to the lightwell of J15 (the “J15 Lightwell”), was of about 3m long[17], and can be accessed via a door that opened from within the G/F Red Structure;
(j) The stretch of the Yellow Wall alongside the Unbuilt-on Section of the Lane (the “Lightwell Section of the Yellow Wall”)[18] was not covered by the Red Structure, and has never been covered;
(k) The J15 Lightwell is labelled on the assignment plan[19] as “Court”. Originally, there was no structure on it. Subsequently, a structure has been erected there (the “J15 Lightwell Structure”). Its height is about 4m. One can climb onto its top through a window at the kitchen on the first floor of J15 (the “J15 Kitchen Window”). From there one can then climb down to the Unbuilt-on Section of the Lane;
(l) The Red Structure covered part of the Yellow Wall (the “Covered Part of the Yellow Wall”)[20];
(m) The Red Structure did not exist in the building plans of J14. Nor had it been approved by the Government authorities; and
(n) D haskept another structure towards the Sea End of the Lane (which I will refer to as the “Violet Structure” as its location has been so coloured[21]). D says that it has all along kept that, which is and was at all material times the basement of J14 that had previously been partially covered by the Red Structure. It is agreed that the Violet Structure does not exist in the building plans of J14. Nor has it been approved by the Government authorities.
29. Towards the end of 2016, P engaged four contractors to carry out extensive repair, maintenance, renovation and refurbishment works for J15 (i.e. the Works). Those works included waterproofing and plastering of the Yellow Wall. D prefers to call them “Early Renovation Works” which preference I note, though how they are to be referred to will have no effect whatsoever on my adjudication of the facts. The four contractors are: (a) K&F Engineering Ltd (“K&F”), (b) Elite House Design Limited and Ficus Home Design Limited of Centro Group (“Centro”), (c) 中英設計裝飾有限公司 (“中英”) and (d) 榮光空調有限公司 (“榮光”).
30. On 2 December 2016, the Building Authority issued a building order (No. C/TC/003703/16/NT) ordering D to remove 6 unauthorized structures at J14.
31. P says that prior to the start of the Works, D had been invited to visit J15 to discuss logistical issues in relation to the Works. Parties agree that at the end of December 2016, Susanna visited J15 for 10 minutes.
32. According to the Incident Report prepared by the Management Office[22] (the “Incident Report”), P applied to renovate J15 on 5 December 2016. I accept Mrs Chan’s evidence[23] that the Works were formally commenced in January 2017.
33. Starting from December 2016, Mrs Chan and other resident members of her family started to move out of J15.
34. In or around July (P says July and August, D says July to September) 2017, D started making various complaints about the Works and/or P’s contractors. They were made to Madam Chan and the Management Office. They were mostly recorded in the Incident Report.
35. Whilst this is not part of the agreed fact, there is no dispute between the parties, and I so find, that:
(a) From the time when the Works were begun till about July and August 2017, a full scaffolding had been erected around J14. Part of the scaffolding rested on the ground of the Lane;
(b) Sometime in about August 2017, a suspended scaffolding (not touching the ground) was then built and used instead;
(c) Soon afterwards, D did not allow the use even of the suspended scaffolding, and a metal platform was used for several days;
(d) In about September 2017, D did not allow the use even of the metal platform at the Lane.
36. By letter of 29 September 2017, K&F wrote to D for access to the Lane[24].
37. On 25 and 30 October 2017, P and K&F, through the Management Office, respectively made formal requests to D for access onto the Lane so to carry out the Works[25]. P, through its solicitors, wrote to D on 8 November 2017[26] and reiterated its request. It further requested D to remove the Red Structure so that it could carry out the Works on the Yellow Wall.
38. On 21 November 2017, D wrote to P. D showed no intention of removing the Red Structure. It further imposed a set of terms and conditions on P and/or its workers (“Conditions”) if they were to continue carrying out the Works. D says that it did so because of the various disturbances caused by P and P’s workers. P says it sent D a written apology dated 11 December 2017 apologizing for the inconvenience caused while the Works were being carried out. D says that it was only a purported apology, and was disingenuous. D says that it also considered that the Conditions were reasonably required in light of the numerous disturbances and damages caused by P during the period when the Works were carried out. Parties agreed nonetheless that D therefore denied P access to the Lane so as to continue carrying out the Works.
39. The Works were halted in December 2017. The full scaffolding was dismantled on 7 December 2017[27].
40. On 20 February 2018, P engaged its current solicitors to write to D, reiterating their request for the Red Structure to be demolished and to access the Lane so to complete the Works.
41. On 21 February 2018, D through its solicitors rejected P’s requests. D says that it re-iterated the Conditions and invited P to take a constructive approach instead of simply imposing the Works and the work schedule on D, and that no damage had ever been made good by P in respect of the numerous disturbances caused.
42. On 7 March 2018, P commenced the present action.
43. After commencement of the Action, in about August 2018, D removed the 1/F Red Structure. By November 2018, D had entirely demolished the Red Structure. Also removed was a small part of the Violet Structure which used to adjoin the 1/F Red Structure towards the sea side and protruded over the entrance from the Sea End of the Lane (the “Dismantled Violet Corner”)[28]. Apart from the Dismantled Violet Corner, D has left intact the Violet Structure, which precise location and orientation has become visible only after the demolition of the Red Structure.
44. I add the following description about the Violet Structure. While they are not part of the agreed facts, they are borne out by the evidence adduced before me, and are not seriously contested:
(a) The Violet Structure comprises two parts. One is on top (the “Violet Extension”) of the other (the “Violet Basement”). Viewed from the side, their configuration resembles the shape of an “L”;
(b) The Violet Extension forms an extension to the first floor of J14, and protrudes towards the sea side. The Dismantled Violet Corner used to form the part of the Violet Extension that was over the entrance to Lane. There are doors to the Violet Extension facing the sea (the Violet Extension Doors”);
(c) The Violet Basement forms a basement to J14. There are also doors to the Violet Basement facing the sea (the “Violet Basement Doors”);
(d) The rooftop of the Violet Basement is a podium (the “Podium”). So when one walks out from the first floor of J14 via the Violet Extension Doors, one reaches the Podium;
(e) The outside of the Violet Basement is a lawn or garden (the “Lawn” or “Garden”). Hence, when one walks out from the Violet Basement Doors, one reaches the Lawn;
(f) J15 also has a lawn;
(g) Separating the respective Gardens of J14 and J15 are the Glass Brick Walls;
(h) On the sea side front, running alongside, at the same level of and adjoining the respective lawns of J14 and J15 is a concrete path (the “Sea Side Path”). That path as part of the areas by the sea side is managed by Club Marina Cove;
(i) While the Sea Side Path itself runs continuously alongside J14 and J15, it has been fenced off crosswise at some stage at the boundary of the two houses[29] (the “Sea Side Path Cross Fence”or“Sea Side Path Cross Gate”). The evidence suggests that the Sea Side Path Cross Fence on the J15 side was not always there, but was erected by Club Marina Cove sometime in early 2021[30];
(j) In respect of the portion of the Sea Side Path which runs alongside J15, there are fences on both sides of the path (i.e. on the side between the lawn and the Sea Side Path, and on the side facing the sea[31]). In respect of the portion that runs alongside J14, only the side facing the sea is fenced (the “J14 Lawn Fence”[32]), as if that portion of the Sea Side Path has been incorporated into and as part of the J14 Lawn;
(k) According to Annexure A, there is a gate at one end of the J14 Lawn Fence facing the sea (the “J14 Lawn Gate”). One can walk through the J14 Lawn Gate and descend via a metal skew bridge of 7.5m long and 0.61m wide (the “J14 Skew Bridge”) to a floating bridge at sea level (the “Floating Bridge”). J14 and J15 each has a skew bridge which serves them;
(l) After the demolition of the Red Structure and the Dismantled Violet Corner:
(i) the width of the Violet Extension is the entire width of J14[33], and does not protrudes over the Lane;
(ii) the Violet Basement becomes wider that the Violet Extension. Part of it, together with a staircase (the “Podium Staircase”) are located on and straddle over the Sea End entrance of the Lane or part of the Lawn (the “Lane/Lawn Portion of the Violet Basement”). The Lane/Lawn Portion of the Violet Basement was originally not there. According to Annexure A, the total width of the Violet Basement is about 6.8m (which is approximately the aggregate width of J14 (5.4m) and the Lane (1.45m);
(m) Originally, before the existence of the Lane/Lawn Portion of the Violet Basement, one can access the Lane from the Lawn directly. But with it, if one wants to go to the Lane from the Lawn, one needs first to walk up the Podium Staircase to the Podium. On the Podium and at the place where the Violet Extension ends and where the Dismantled Violet Corner used to locate, there is a gap (the “Podium Gap”). The Podium Gap is fenced off by a low glass fence (the “Glass Fence”). One can climb down the Podium Gap to the Lane. The height of the climb (from the ground of the Podium to the floor of the Lane) is the height of the Violet Basement (estimated to be about 2m). There is also a door which opens from within the Violet Basement to the Lane[34] (the “Violet Basement Lane Door”); and
(n) Hence, and to recapitulate, to get to the Lane from the sea side, one now needs to first of all get to the Lawn, then either go up to the Podium via the Podium Staircase and then climbs down to the Lane via the Podium Gap, or enter the Violet Basement, walk through it underneath the Podium and go out to the Lane via the Violet Basement Lane Door.
45. On 16 January 2019, P and D attempted mediation but to no avail.
46. Multiple correspondence was exchanged between P and D (through their respective solicitors) from 12 February 2019 to 27 August 2021. The matters discussed were, in gist and amongst other matters, as follows[35]:
(a) Whether P could access the Lane so to complete the Works;
(b) If P were to be allowed access onto the Lane, how would P’s contractors get to the Lane from J15 and whether the following options could be feasible and safe routes of access to the Lane, namely:
(i) By erecting hoardings at the Podium and climb down from it (“Option 1”);
(ii) By entering from Front Wall Door and walking down the Front Wall Metal Stairs (“Option 2”);
(iii) By going through the J14 Lawn Gate / Lawn Fence so to reach the Lawn and passing through the Violet Basement (“Option 3”); and
(iv) By reaching the Lawn via the Floating Bridge and passing through the Violet Basement (“Option 4”);
(c) Storage of materials and tools of P’s workers, length of the works, request for multiple reasonable entries/visits by P’s workers, and provision of contacts of persons taking care of the multiple visits;
(d) Whether D would be providing P with a map or plan (with the assistance of photos) to better evaluate Options 1 to 4 prior to arranging for a site visit; and
(e) If P were to elect to go with either Option 2 or Option 3, whether D was prepared to indemnify P for any extra costs and any extra risks associated with either option.
47. D says that it has at least since 15 October 2020 (P says purportedly) expressed its agreement to open whatever gates/doors of D’s property to allow P’s workers to access to the Lane and has even (P says again purportedly) agreed to accept whatever route suggested by P’s workers for such access.
48. On 26 August 2021, P and D met at J14 for a without prejudice site visit.
G. The correspondence between the parties
49. I have set out the gist of some of the correspondence between the parties. Those are part of the agreed facts[36]. There were however more than what parties are prepared to agree. As will be clear from the latter parts of this Judgment, a lot of those other correspondence is highly relevant when it comes to considering whether it was D who had denied P’s Clause A(4) Right, or whether it was P who had failed to enter upon the Lane despite proposals from D. I hence summarize them as follows.
50. The first written notice for access to the Lane was given by P’s contractor K&F on 29 September 2017[37].
51. The second written notice dated on 25 October 2017 was given by K&F to the Management Office[38] and passed on by the Manager to D on 30 October 2017[39]. Three weeks of access were sought. At that stage, there was intention on P’s part to carry out the Works on the Covered Part of the Yellow Wall without demolition of the Red Structure[40].
52. According to Mrs Chan, by the end of October 2017, she finally realized that unless the Red Structure was demolished, the Works could not be completed[41].
53. The third notice was served on 8 November 2017 by Messrs Katherine YW Or & Co, (P’s then solicitors, “Or & Co”) to D[42]. The demolition of the Red Structure was also demanded, that:
“You are hereby demanded to remove the Structure and to notify our client of the dates on which our client and its contractor could enter into your Property for the purpose of carrying out repair/maintenance work at the Wall.”
54. D’s solicitors were Messrs ST Cheng & Co (“Cheng & Co”). On 21 November 2017, Cheng & Co replied on D’s behalf[43]. Therein the Yellow Wall was said to be “mutual”. Various complaints against P were in turn made. It was sought to be argued that if Clause A(4) granted a licence to P to enter upon the Lane, the licence would expressly incorporate a condition that there be “as little disturbance should be caused thereby as possible”, and as the condition had been breached, the licence “is therefore revoked by your client’s breach of the Condition”.
55. On that same date, another letter was issued by Cheng & Co to Or & Co[44]. It was said that D was, in order to maintain neighbourly relationship, amenable to making arrangements for P to complete its renovation. D however demanded 4 conditions to be fulfilled (i.e. the Conditions):
“(1) An apology be made by your client to ours for the disturbance and damage caused by your client;
(2) An undertaking from your client (in terms agreeable to our client) to be responsible for damages caused by your client/contractors to our client’s property;
(3) Your client providing ours with a work plan with sufficient details to enable our client’s coordination of its activities; and
(4) Your client shall procure the co-operation of your client’s contractors to observe our client’s instructions in maintaining our client’s property.”
56. Mrs Chan was during cross-examination asked as to whether those Conditions were reasonable. She did not agree.
57. On 11 December 2017, Or & Co replied[45]. Arguments were raised in respect of the first letter of Cheng & Co of 21 November 2017. In respect of the Conditions demanded in the 2nd letter, it was said that:
“4.1 Whilst having the right to enter your client’s Property for the purpose of carrying out renovation of work of our client’s Property and despite all reasonable steps having been taken, our client appreciates that inconvenience and disturbance should have caused to your client. Our client hereby apologizes for the unavoidable inconvenience and disturbance caused.
4.2 We are instructed that our client has already provided a detailed plan of the work which requires entry in your client’s Property via the management office. A copy of the management office’s letter dated 30 October 2017 addressed to your client is enclosed for your attention.”
P’s previous demand made in its letter of 8 November 2017 for demolition of the Red Structure was re-iterated. It was said that unless D did so, P would have no alternative but to take such appropriate action(s) including making an application for injunctive reliefs. Mr Lam referred that[46] as P’s 4th written notice for access.
58. D was not happy with P’s response. Cheng & Co replied in its letter of 20 December 2017[47]. The apology was said to be “insincere, phony and preposterous”. It was further said that reasonable steps had not been taken by P. The demand for an undertaking for damages was repeated.
59. When asked about that demand for an undertaking during cross-examination, Mrs Chan said that she would do things according to the law.
60. In the meantime, P changed its legal advisers and engaged Messrs Tang & So (“Tang & So”). A letter of 20 February 2018 was issued[48]. Mr Lam referred to that[49] as P’s 5th written notice for access. The letter of 8 November 2017 from Or & Co was referred to. It was said inter alia that the Red Structure had made it impossible for P to carry out the necessary repair and maintenance works, and that it was inevitable that D would need to demolish the Red Structure. P formally gave D notice under Clause A(4), and that it was estimated that the works would take approximately 30 working days.
61. In reply, Cheng & Co sent its letter of 21 February 2018[50]. Amongst other things, the Conditions demanded previously were repeated.
62. In the meantime, the Writ herein was issued on 7 March 2018.
63. After the commencement of the present action, D started to demolish the Red Structure. By their letter of 29 August 2018[51], Tang & So pointed out that the 1/FRed Structure had been demolished. They asked whether D would demolish the Red Structure completely.
64. Mrs Chan was asked whether D had extended an olive branch (釋出善意). She said that she did not know why D did that.
65. In about November 2018, D demolished the entire Red Structure and the Dismantled Violet Corner.
66. Another issue then emerged. After demolition of the Red Structure and the Dismantled Violet Corner, the exact layout of the Violet Structure became clear, and the Lane/Lawn Portion of the Violet Basement was exposed.
67. By their letter of 12 December 2018[52], Tang & So pointed out the new problem (with 2 photographs as illustration) and asked whether D intended to remove the Lane/Lawn Portion of the Violet Basement. It is noted that in that letter, P estimated the number of days required to complete the Works was adjusted from 30 to 45 days.
68. On 25 March 2019[53], Cheng & Co set out 2 proposals, as follows:
“Our client has made 2 proposals for your client’s workers to access the ‘Lane’ … Firstly, access could be allowed through our client’s podium. Our client, however, suggested that hoardings be erected to separate the ‘work area’ and our client’s living quarters for security purpose.
Second proposal was the opening of an access door on the ‘front wall’ standing between our respective clients’ properties (which is parallel to the entrance to the houses) so that workers can access to the Lane from ground level. We have suggested that the parties should sit together to work out the details if the initial ideas are workable.”
69. Tang & So replied on 26 March 2019[54]. They reiterated that the access to the Lane was blocked. They stated that D did not respond to P’s request for indication as to whether the Lane/Lawn Portion of the Violet Basement would be removed. In respect of the proposed access through the Podium, they commented that the Violet Basement was one floor high, and that climbing up and down involved serious risks and practical difficulties to P’s workers. In respect of the proposed access via the Front Wall, they criticized it as lacking particulars. Seven questions were raised (as to e.g. where the door was to be built, its ownership, approvals from authorities, costs, whether the door was to be temporal or permanent, timing and risk). Tang & So counter-proposed that either the Lane/Lawn Portion of the Violet Basement be removed, or that P’s workers should be allowed to pass through the Violet Basement via an existing door of J14.
70. Cheng & Co replied on 27 March 2019[55]. P’s counter-proposal of allowing access through the Violet Basement was accepted. Cheng & Co said on D’s behalf as follows:
“Instead of arguing the viability of our client’s suggestions of allowing access to your client’s workers to the ‘Lane’, and to show maximum goodwill, our client agrees to your client’s suggestion to allow your client’s workers to go through the ‘existing door’ at the basement level connecting to the ‘Lane’ notwithstanding that this arrangement might not be one that causes ‘as little disturbance as possible’ to our client so that no excuse could be made for prolonging the uncompleted work.
For the record, kindly recite other work arrangement.
Our client has shown boundless equanimity in moving this forward. Our client expects no delay in undertaking of the repair works.”
71. On 28 March 2019, Tang & So replied by saying that they are in the course of taking instructions from P[56].
72. On 29 March 2019, Tang & So replied[57]. Further complaints and questions were raised, and amongst others:
“1. From where can [P’s] workers enter into [D’s] property before reaching [D’s] unauthorized structure?
2. After reaching unauthorized structure from outside, from where can [P’s] workers enter into [D’s] unauthorized structure?
3. After entering into the inside of [D’s] unauthorized structure, the proposed route inside before reaching the door facing the Lane?”
Those questions were said to be vital. It was stated that P needed “concrete proposal, as opposed to comments which lead the parties to nowhere” (original emphasis). D was further asked whether, after providing answers to the questions asked, D would agree to a prior site visit.
73. On 2 April 2019, Tang & So issued another letter[58]. Specific queries were “put on record”, that:
“1. Whether or not [D] agrees to [P’s] proposed access for 45 working days and that such works shall take place during the weekdays (i.e. except Saturdays, Sundays and public holidays) between 9 a.m. and 6 p.m.?
2. From where can [P’s] workers enter into [D’s] property before reaching [D’s] unauthorized structure?
3. After reaching unauthorized structure from outside, from where can [P’s] workers enter into the [D’s] unauthorized structure?
4. After entering into the inside of [D’s] unauthorized structure, the proposed route inside before reaching the door facing the Lane?
5. Whether or not [D] would provide an access map and proposed route with assistance of photos so as to ascertain the feasibility of [D’s] proposed access arrangement?
6. Whether or not [D] would arrange prior site visit to both the unauthorized structure and the Lane?”
74. Cheng & Co replied on 4 April 2019[59], materially as follows:
“1. You have previously stated 45 working days between 9 a.m. and 6 p.m. Our letter of 27th March 2019 only made a request for you to recite such arrangement for the record in open letter. You can take it that our client has no objection thereto.
2. Access to the Lane, our client proposes to allow your client’s workers to go through the entrance of J14, then through the basement to come out of the ‘existing door’ into the Lane for work.
3. Site visit, our client has no objection for site visit. Even though accusation would be made that [D] did not make any concrete proposal for site visit (much like access through the existing door), bearing in mind [P] might need to coordinate with the contractor, we shall leave the proposal to [P].”
75. On 9 April 2019, Tang & So wrote back[60]:
(a) They reiterated P’s requests for photographs and proposed routes. 11 reasons for the requests were set out (D’s basement not forming part of the authorized plan, absence of data on its layout, P’s workers not having been there before, whether any staircases down and up the basement and if so the type, measurement and safety, whether a clear map for P’s workers to follow, to avoid dispute and change of preference);
(b) They asked for written confirmation as to whether D was “prepared for multiple entries to House J14 for work, delivery of tools and materials, rest, meal and toilets on daily basis during the said 45 working days”;
(c) It asked for further written confirmation as to whether D would allow temporary storage of materials and tools in the Lane;
(d) It asked for names and contact numbers of the responsible persons for opening entrance and inside J14 “for making way to the existing door of the Lane of House J14 and ensure that he/she is around for the workers’ multiple visits…”; and
(e) It was said that after the provision of photographs and the route, it would arrange P and its contractor to have site visits.
76. Cheng & Co replied on 18 April 2019[61] and stated:
(a) In respect of P’s requests for photographs and route:
“Our client suggests a site visit instead of step by step verbal description of how access can be arranged for your client’s workers to access the ‘Lane’. We simply do not see why a site visit can only be made after you see photos and maps …”
(b) A door had been opened and built at the Front Wall which“could be an alternative for assessing the Lane”;
(c) On multiple visits:
“Since our client is affording maximum accommodation to your client to complete the work, all reasonable requests for access will be entertained. This includes entries in multiple times so long as they are reasonable.”
(d) On temporary storage:
“Again our client is prepared to afford maximum accommodation. Such arrangement so long as it is reasonable, will be considered favourably.”
(e) On particulars of responsible persons for opening door and inside:
“Our client reiterates that maximum accommodation will be exercised. It can be envisaged that domestic helpers who stay in our client’s property will be available to open doors. Again this is subject to reasonable arrangement.”
(f) At the last paragraph:
“We trust that [P] can be assured of the earnest and reasonable approach by [D] to making arrangement for the work to be done, and will respond in like manner.”
77. Tang & So’s reply is dated 2 May 2019[62]. It is a 5-page letter:
(a) Multiple questions (9) were raised on the door opened at the Front Wall;
(b) It seeks details on the alternative access mentioned by Cheng & Co;
(c) It criticized D for its “sudden concern on workers safety”;
(d) In respect of D’s accommodation for multiple access, they said that P and D had different concepts on “reasonable”, and that:
“[P] wishes to have a concrete idea on multiple entries before [P] resumes the work.
[P] expects unlimited multiple entries to the Lane as long asit is for the purpose of wall maintenance or for workers rest, meal and toilets on daily basis from 9 a.m. to 6 p.m. during the said 45 working days.
Please confirm in writing if [D] agrees and if not, state otherwise in substantive terms instead of repeating [D’s] belief that they are ‘reasonable’.” (Original emphasis)
(e) In respect of D’s accommodation for temporary storage, it similar took issue about the word “reasonable”, and sought “clear written understanding”; and
(f) On responsible persons, it sought names and contact numbers.
78. After the letter form 2 May 2019, at least in so far as one can gather from the disclosed correspondence, parties became involved in matters like filing of pleadings and witness statements. On 7 July 2020, Cheng & Co wrote to Tang & So[63], referred to the negotiations between the parties back in March and April 2019 on access to the Lane, pointed out that the trial would still be some time ahead, and suggested that parties should realistically reopen the negotiation to facilitate P’s works. Specifically, Cheng & Co referred to its letter of 18 April 2019 and reiterated that:
(a) D agreed to allow P’s workers to access the Lane:
“either via (l) our client’s podium (with hoardings to be erected to separate the work area and our client’s living quarters) or; (2) through the access door on the front wall facing the main road and standing between our respective clients’ houses.”
(b) D suggested site visit to be carried out, that:
“2. Our client suggests parties (including your client’s workers/agent responsible for the repair works) to carry out site visit and have a meeting thereafter to work out for a concrete repair plan that is workable for all parties. Our respective clients can raise their enquiries and concerns at the meeting, which we believe is more effective and efficient then just discussing the same in correspondence without actually seeing the site.
3. During the site visit, subject to our client’s agreement, your client and its workers/agent can take photographs and draw up plans so as to accommodate your demand as stated in your letter dated 9th April 2019.”
(c) D agreed to multiple entries on daily basis to carry out the repair works for the Yellow Wall, so long as such entries are reasonable, and that subject to reasonable arrangements, domestic workers would be directed to open the doors;
(d) D agreed to allow temporary storage of materials and tools at the Lane so long as reasonable.
79. However, for reasons which are not apparent, one of the proposals put forward by D were changed from walking through the Violet Basement, as was discussed in March to May 2019, back to walking on the Podium with hoarding built to separate the work area and D’s living quarters (as originally suggested on 25 March 2019).
80. That letter sparked off another 5-page reply from Tang & So on 23 July 2020[64]. Multiple questions were raised or repeated on inter alia the suggested access by walking on the Podium, or through the Violet Basement, or via the Front Wall, the definition of “reasonable” multiple visits, and particulars of the “responsible persons for access”. An alternative was suggested, that access from J15 to J14 be permitted via the Sea Side Path, through the Sea Side Path Cross Gate, to the Garden and through the Violet Basement via its doors.
81. Cheng & Co replied on 15 October 2020[65]. It is apparent that they mistook the suggested access via the Sea Side Path as one via the Floating Bridge (the term they used was “the pontoon bridge”). They stressed that the bridge was narrow with no fence preventing one from falling into the sea. Having disclaimed liability for any accident, they said that:
“Please be informed that our client is prepared to open whatever gate or door so that [P’s] workers can gain access to the Lane via the floating bridge.”
They further said that:
“As to the working hours, our client also agrees that [P’s] workers can carry out works from 9 a.m. to 6 p.m. on Monday to Fridays, as well as on Saturdays (subject to the approva1 of Management Office). However, no works should be carried out on Sundays.
Since our client has hired three domestic helpers, they will assign any one of them to stand by at the podium area to open the gate/door for [P’s] workers during working hours as stated in the above paragraph. There is no need to assign a contact person in that regard.
In our letter to you dated 7th July 2020, our client has already agreed that [P’s] workers will be allowed to temporarily store materials and tools for the repair of the Wall at the Lane during the maintenance period.
As to your question of what is reasonableness, we do not expect we need to and are not prepared to elaborate the same, as this term has been widely used in lega1 context and has been extensively discussed in numerous precedents.”
82. Tang & So wrote back on 21 October 2020[66]. They observed that Cheng & Co had not in their letter of 15 October 2020 mentioned the other proposals of walking on top of the Podium, the building of hoarding thereon, or access via the Front Wall. They took it that those proposals had been aborted. They said that the use of the Floating Bridge was out of the question as it would float up and down. They asked what D’s proposed route was. They asked for “a draft plan/map with assistance of photos for the route from outside, pass through the inside and finally reach out to the Lane for maintenance.” They said they expected the route to be fixed during maintenance. They required written confirmation that P be allowed to leave its tools and construction material inside the Lane. They asked D’s confirmation that the number of daily access be “unlimited multiple”. They requested again the name and contact number of the maid to be assigned to take care of the access.
83. Cheng & Co replied on 30 October 2020[67], wherein they:
(a) stated that the route stated in the letter dated 23 July 2020 from Tang & So had been agreed to. The misunderstanding concerning the use of the Floating Bridge however subsisted. They said that:
“Our client also agreed that they will open whatever gate or door at their property for the workers to access to the Lane. We only reminded you of the safety of the pontoon bridge and disclaimed our client’s liability thereof. We do not understand why all of a sudden you claimed that the floating bridge is out of the question. In any event, please confirm if you still maintain your proposal stated in your [23] July Letter. If so, there is no further need to address on the issues concerning accessing routes. If not, we are instructed that our client is prepared to accept whatever route you suggest for [P’s] workers to access to the Lane.” (emphasis added)
(b) confirmed that D would permit multiple entries so long as those entries are reasonable, that
“multiple entries means our client will not limit the number of entries, which echoes with your emphasis on ‘unlimited entries’, and such entries will also include your proposed route in the [23] July Letter.
Our client of course will allow the [P’s] workers to have multiple entries/access to rest, have meals and answer the calls of nature …”
(c) provided to P the names and contact numbers of all 3 of its domestic helpers, that at least one would be stationed at the site to open the door/gate, and D was prepared to provide details of the domestic helper who would be on duty on spot every day before the workers commenced their works.
84. Tang & So replied on 4 November 2020[68]. It was a 4-page letter. Amongst other things, they clarified that P’s proposal was to use the Sea Side Path but not the Floating Bridge. They asked for details of the route to be fixed from the Garden to the Lane. They sought “a draft plan/map with assistance of photos for the route from outside, pass through the inside and finally reach out to the Lane for maintenance.” And despite what Cheng & Co had said in their previous letter concerning multiple entries and domestic helpers, Tang & Co insisted upon further confirmation. As restated in the last paragraph of that letter:
“We sincerely hope that your client can address our concern in one go in order to enable our client to mitigate her damages as soon as possible upon a clear logistic on:-
1. An agreed route to reach the Lane notwithstanding the multiple unauthorized structures inside or attached to House J14 with assistance of floor plan and photos;
2. Confirmation that our client’s workers will have unlimited visits as long as such visits are for the limited purpose of wall maintenance or for workers rest, meal and toilets on daily basis within a specified time frame from 9 a.m. to 6 p.m. during the said 45 working days maintenance
3. The names and contact number of the maid(s) who is/are assigned on operation of multiple access from 9 a.m. to 6 p.m. during the said 45 working days maintenance.”
85. Cheng & Co replied on 3 December 2020[69]. Certain arguments were, with reference to the Sea Side Path Cross Fence, raised as to whether the route suggested by Tang & So was an accessible one. But despite that, Cheng & Co continued and stated that:
“We have reiterated numerous times that our client is prepared to accept whatever route your client suggests for its workers to access to the Lane. You on the other hand ignored our suggestion and keep demanding us to propose routes that you persistently rejected.
In the circumstances, given the fact that your client’s workers were able to access to the Lane freely without any assistance (and approval) from our client to carry out works for 10 months back in 2016-2017, our client now suggests that the workers may gain access to the Lane again via the same means. As our client does not know how the workers gained access to the Lane, please askyour client to ascertain the same from its workers. Alternatively, our client is also prepared to agree to whatever means that your client suggests for its workers to gain access to the Lane.”
86. On 17 December 2020 Tang & So issued another 4-page letter in reply[70]. Multiple issues were raised and discussed. They concluded by saying that:
“We sincerely hope that your client can address our concern in one go in order to enable our client to mitigate her damages as soon as possible upon a clear logistic on:-
1. To reconsider our client’s July Proposal to reach House J14’s garden via concrete path;
2. To either remove the said sealed green metal barrier blocking the concrete path or change the said sealed green metal barrier into a swing garden door so that our client and their workers can reach House J14’s garden;
3. To provide route(s) from your client’s garden to the Lane for our client’s consideration with assistance of photos and floor plan (and not the other way round for our client to provide your client route(s) inside your client’s property).”
87. Cheng & Co replied on 14 January 2021[71]. Amongst other things, they criticized P for having recently erected a Sea Side Path Cross Fence on the J15 side when P had in their previous letter asked D to remove the Sea Side Path Cross Gate on the J14 side and to replace it with a swing gate. But having said that, Cheng & Co continued to say that:
“Be that as it may，if your client is going to remove its fence, our client is also prepared to accommodate your demand at their greatest extent, that is, to remove their fence so that the concrete path at the garden can be accessible by your client’s workers. Our client also suggests (again and repeatedly) a site visit by your client’s contractor to be arranged thereafter, so that the subsequent access route to the Lane can be decided by your client’s workers right away without further unnecessary correspondence exchange between the parties’ legal representatives.
Alternatively, in our letter to you dated 3rd December 2020, we suggested that your client’s workers can access to the Lane via the same means they have adopted during the 10 months’ maintenance period in 2016-2017. You have not responded to the same. Please. reconsider.” (Original emphasis)
88. Tang & So replied on 4 February 2021[72]. They said that the Sea Side Path Cross Fence on the J14 was actually erected by the Club Marina Cove. Cheng & Co and D were criticized for having made wrong accusations against P, having made a wrong assumption, and having adopted “persistent irrational approach which grossly compromise the efficiency of our dialogues.” It was recorded that upon enquiry made by P, Club Marina Cove indicated that it had no objection to P removing the Sea Side Path Cross Fence at its own costs for maintenance purpose once the proposed route was agreed upon. A number of other issues were raised and discussed. In particular, on the issue of site visit, D was demanded to provide beforehand a proposed route to the Lane for examination during the visit, confirm a number of matters to made the site visit “meaningful”. They concluded by requesting D:
“1. To reconsider our client’s July Proposal to reach House J14’s garden via concrete path along the seaside by removing your client’s green gate;
2. To provide your proposed route(s) to the Lane with sufficient precision;
3. To arrange a site visit for the sole purpose of examining your proposed route(s) from the garden door of your client’s house to the Lane;
4. To allow our client to take photo and measurement when examining your proposed route(s).”
89. Cheng & Co replied on 6 May 2021[73]. Amongst other things, they reiterated that D was prepared to accept whatever route so long as P’s contractor confirmed that the same was practical and accessible to them. The determination of the access route should be left to P’s contractors as they were the persons who would carry out the maintenance work, and that they had the expertise to do so. A site visit was to be arranged for that purpose. During the site visit, D would not restrict P or its contractor to gain access to any area within J14 which could lead to the Lane. They would also be allowed to take photographs, take measurements and draw plans to decide the access route, subject to P’s undertaking that any such photographs, plans etc should be“on a without prejudice basis and cannot be relied upon in any court proceedings and can only be used for the purpose of deciding the access route.” D further said that it was prepared to replace the Sea Side Path Cross Fence on the J14 side with a swing gate.
90. Between 12 May and 27 August 2021, more correspondence was exchanged between the parties. Amongst various matters, 2 main issues were debated. One concerned the logistical arrangements for the site visit. P proposed that D should suggest a route with photographs before any site visit[74]. D was not minded to do so, would leave that to P’s contractors, but repeated that D would accept whatever route P’s contractors proposed so long as they confirmed that the route was practical and accessible[75]. The other one related to the use of any photographs and measurements to be taken, and in particular whether they were to be supplied on a without prejudice basis. No consensus was reached. Despite that, a site visit did take place on 26 August 2021.
91. As things turned out, the site visit achieved no breakthrough. Even after the site visit, various options of access continued to be debated[76]. Issues as to who was to bear what costs, concern over the risks involved in the options, question of indemnity etc contained to be argued. Ultimately, nothing came out of the site visit, and legal proceedings got pressed on.
H. Evolution of the disputes between the parties
92. One can distil from above a timeline of the initial evolution of the parties’ disputes:
(a) In January 2017, P formally commenced the Works;
(b) From January to about August 2017, P had been carrying the Works with no complaints from D;
(c) In about August 2017, D started to complain about the Works;
(d) Between September 2017 and February 2018, P on 5 occasions made written requests for access to the Lane to carry out the Works;
(e) In the meantime, not being able at that stage to access the Lane, P on 7 December 2017 dismantled the scaffolding originally erected at J15, and the Works were suspended;
(f) Extensive formal correspondence was exchanged from about November 2017 to August 2021; and
(g) In the meantime, in March 2018, P commenced the present action.
93. The nature of the parties’ dispute has continued to evolve.
94. At the time when the present action was commenced, the Red Structure had not been demolished. One main goal of P’s claim was for a mandatory injunction against D compelling demolition of the Red Structure so that P could complete the Works on the Covered Part of the Yellow Wall.
95. By November 2018, the entire Red Structure had been demolished. The Covered Part of the Yellow Wall has since been exposed. The disputes unfortunately subsisted, the focus of which (as can be seen from the correspondence since about December 2018) got shifted to the means and manner of access onto the Lane to carry out the Works.
96. As at the commencement of the trial, parties were still unable to reach consensus on various matters, including notably the means and manner of access onto the Lane. P had still not recommenced the Works at J15.
97. As I have recited above, one of the Options which parties had been discussing involved the use of the Front Wall Door and the Front Wall Metal Stairs. Parties had not been able to agree on their use as there were disputes over the ownership of the Front Wall, the legality of the Front Wall Door, and the legal implications which their use would give rise to. P’s case is that the Front Wall is a common part of Marina Cove, whilst D’s case is that it owns the same.
98. On the first day of the trial, in the course of Mr Lam’s opening submissions, this Court enquired whether, irrespective of the strict legal position in relation to the ownership of the Front Wall, parties had approached the Management Office to see whether it might consent to the removal of the Front Wall. It turned out that parties had not. If the Front Wall could be removed, accessing the Lane via the Road End would be the obvious option.
99. On that same day, both parties wrote to the Management Office. Both did so without prejudice to their case on the ownership of the Front Wall. Both parties expressed their intention to demolish the Front Wall so as to allow P’s workers to access the Lane for completion of the Works. On that very same day, the Management Office wrote back and said that they had in principle no objection to the proposal.
100. Despite that consent from the Management Office, the disputes somehow remained unresolved, and the trial continued.
101. In his written submissions of 18 March 2022, Mr Lam informed this Court that D had by 24 February 2022 demolished the Front Wall and the Front Wall Metal Stairs. On 1 March 2022, the workers of P’s contractor entered the Lane and commenced what was outstanding of the Works.
102. On 13 May 2022 when parties came back before me to deliver their closing submissions orally[77], I was informed that the Works were progressing well, and there had been no further major issues.
103. So, even the question of access to the Lane had by then been resolved. The disputes however still subsist, being primarily parties’ respective claims for loss and damage, and D’s counterclaim for injunctions against P for removal of the J15 Lightwell Structure, the Pond-like Structure, and the Alleged Unauthorized Drainage Pipes.
I. The issues
104. Parties have not been able to agree on a list of issues.
105. I have considered their respective formulations. Their differences are more matters of emphasis, and whether the main issue in relation to the interpretation of Clause A(4) should be split up into a number of sub-issues in accordance with D’s case based on the 4 Limbs and the Means and Arrangement (as Mr Pun submits it should be). The issues that parties have framed can be re-stated in broad terms as follows:
(a) The proper interpretation of Clause A(4);
(b) In the light of that interpretation:
(i) whether D has been in breach of that clause by having denied P access to the Lane, or
(ii) whether the conditions for P to invoke Clause A(4) had been fulfilled, and if not:
(1) whether P itself has been in breach of Clause A(4), and/or
(2) whether P has committed the tort of trespass, nuisance and/or negligence;
(c) Whether P has been in breach of the DMC in respect of:
(i) the J15 Light Well Structure;
(ii) the Pond-like Structure; and/or
(iii) the Alleged Unauthorized Drainage Pipes;
(d) Depending on the answers to the above, the remedies which parties are respectively entitled to, if any.
J. The witnesses
106. P has called 2 factual witnesses[78]:
(a) Mrs Chan, who has made 3 statements dated 6 May 2019 (“Yick/1”), 20 February 2020 (“Yick/2”), and 2 September 2021 (“Yick/3”); and
(b) Madam Chan, who has made 2 statements dated 6 May 2019 (“Madam Chan/1”) and 20 February 2020 (“Madam Chan/2”).
107. D has called 2 factual witnesses:
(a) Mrs Kwong, who has made 3 statements dated 2 December 2019 (“Mrs Kwong/1”), 21 February 2020 (“Mrs Kwong/2”) and 3 November 2021 (“Mrs Kwong/3”);
(b) Kong, who has made 2 statements dated 8 May 2019 (“Kong/1”) and 21 February 2020 (“Kong/2”).
108. I have considered their evidence. The versions of events they each gave are not inherently improbable, and are materially consistent with the contemporaneous records and correspondence. Whereas their recollection and impressions on certain matters are not entirely the same, I find that they have all made the best effort to relate to this Court what they recalled and believed. I find all of them to be honest witnesses.
109. In any event, I agree with Mr Lam’s submissions that how the issues are to be determined does not depend so much on the witnesses’ oral evidence, as most of the material facts and events are documented by contemporaneous records and photographs. Mr Pun does not dispute that.
110. I will deal with their evidence below on an issue-by-issue basis when necessary.
K. The proper interpretation of Clause A(4)
K.1. LEGAL PRINCIPLES ON THE INTERPRETATION OF A DEED OF MUTUAL COVENANTS
111. This court has in Pierhead Garden Management Co Ltd v Incorporated Owners of Pierhead Garden [2021] HKCFI 678 at §51 summarized the applicable legal principles in interpreting a DMC. Both leading counsel accept them as correct. They are as follows:
“(a) A DMC is a contract which runs so as to bind all owners and their assignees and the manager: Grande Properties Management Ltd v Sun Wah Ornament Manufactory Ltd (2006) 9 HKCFAR 462, §2 (per Chan PJ);
(b) The provisions of the deed are usually aimed at facilitating the management of the building by reducing conflicts among co-owners on the one hand and preventing abuse by the manager and the majority owner on the other. Such conflicts should be resolved by a purposive construction and common sense application of the relevant provisions of the deed and the DMC: Grande Properties Management, §2 (per Chan PJ);
(c) The construction of a document is not a game with words. It is an attempt to discover what a reasonable person would have understood the parties to mean. This involves having regard, not merely to the individual words they have used, but to the agreement as a whole, the factual and legal background against which it was concluded and the practical objects which it was intended to achieve. The overriding objective is to give effect to what a reasonable person rather than a pedantic lawyer would have understood the parties to mean: Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKCFAR 279 at 296C — 297H (Lord Hoffmann NPJ); Smart Essence Development Ltd v Hong Kong Housing Authority, unrep, HCA 450/2016 (28 April 2016), per DHCJ Paul Lam SC at §§44 and 47 citing Multi Link Leisure Developments Limited v North Lanarkshire Council [2010] UKSC 47 at [11];
(d) In commercial contracts, the construction of the contract should generally accord with commercial common sense: Tai Fat Development (Holding) v Incorporated Owners of Gold King Industrial Building, unrep, CACV 22/2014 (23 December 2014) at §16 (per Barma JA);
(e) The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear. But on the other hand, the Court must be alive to the possibility that one side may have agreed to something which with the benefit of hindsight may not have served his interest: Building Authority v Appeal Tribunal (Buildings) (ENM Holdings Ltd) (2018) 21 HKCFAR 194 at §54;
(f) When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time that the contract was made, and which were known or reasonably available to both parties: Smart Essence at §46 (DHCJ Paul Lam SC). Subsequent conduct of the parties is generally inadmissible when construing a contract: SNE Engineering Co Ltd v Chim Kee Machinery Co Ltd, unrep, CACV 101/2016 (11 July 2017) per G Lam J at §52 citing James Miller & Partners Ltd v Whitworth Street Estate Ltd [1970] AC 583 at 603; Marble Holding Ltd v Yatin Development Ltd (2008) 11 HKCFAR 222, §22; The New China Hong Kong Group Ltd (in liquidation) v AIG Asian Infrastructure Fund LP, unrep, CACV 24/2008 (12 February 2009), §78; and
(g) While construing a DMC, the Court is entitled to consider other relevant documents such as the first assignment, the government grant and the approved building plans: Tai Fat Development at §17.”
112. In Eminent Investments (Asia Pacific) Ltd v DIO Corp (2020) 23 HKCFAR 487, Ribeiro PJ and Lord Collins of Mapesbury NPJ at §§42-45 restated the general approach to interpretation of contracts, and explained at §44 that:
“In Wood v Capita Insurance Services Ltd, Lord Hodge JSC reviewed the many cases on interpretation and emphasised that interpretation was a unitary exercise. That is why, where there are conflicting interpretations, account should be taken of the natural and ordinary meaning of the provision in question, the purpose of the contract and of the provision, other relevant provisions, the facts and circumstances known or assumed by the parties at the time that the contract was executed, the quality of the drafting of the instrument, and commercial common sense.”
113. I highlight the observations of Chan PJ in Grande Properties Management at §2, that the “provisions of the deed … are usually aimed at facilitating the management of the building by reducing conflicts among co-owners on the one hand and preventing abuse by the manager and the majority owner on the other.” In my respectful view, the provisions of a DMC should also aim at the prevention of abuse by co-owners between themselves. That must be part and parcel of the aim of reducing conflicts among co-owners.
114. Mr Pun submits[79] that the Court should always adopt a narrow interpretation in construing clauses in a DMC which affect the rights and obligations of parties. The only case he relies on is Incorporated Owners of Kam Man Fung Factory Building v Chewy International Foods Ltd [2019] HKLdT 69 §§28-29. I do not accept that proposition. Kam Man Fung concerned certain exemptions to “repairing and maintaining” costs of the lifts provided in the deed of mutual covenants to certain owners. The issue was whether those costs should be in the context of that deed construed narrowly to include only recurrent costs, or widely to cover other non-recurrent or capital costs. It does not support the wide proposition put forward by Mr Pun.
K.2. WHETHER THE 4 LIMBS CONDITIONS PRECEDENT FOR THE EXERCISE (OR CONTINUOUS EXERCISE) OF THE CLAUSE A(4) RIGHT
115. I have set out D’s case above. It is Mr Pun’s submissions that D is entitled to exercise a right to refuse entry (or continuous entry) by P into its property if any of the following 4 Limbs is not satisfied by P (or if any prior breach has not been remedied). He submits that “[in] other words, P’s right to enter into D’s property is subject to all of these 4 Limbs being fulfilled”[80].
116. Mr Lam does not dispute that for the Clause A(4) Right to be exercised, the Notice Limb and the Purpose Limb should be fulfilled. What he disagrees with is D’s stance that the Minimum Disturbance Limb and the Damage Limb are also in effect conditions precedent for the exercise of the Clause A(4) Right.
117. Whilst Mr Pun has indeed said that P’s right to enter upon J14 is “subject to” all 4 Limbs being fulfilled, he said[81] that Mr Lam has misunderstood D’s case to mean that the Minimum Disturbance Limb and the Damage Limb “are condition precedents to P’s exercise of its rights”. He clarifies and submits that the contractual remedies are separate and in addition to D’s common law entitlement to sue for damages, that every instance of disturbance in and of itself constitutes an actionable wrong, and that “D must be contractually entitled to terminate the grant of entry (or refuse further entry) if P breached any of the Limbs.”
118. My views are as follows.
119. The Fist Schedule (of which Clause A(4) forms part) sets out the “easements rights privileges and obligations” which “each undivided share” and “the full and exclusive right and privilege” are made subject to and with the benefit of (Clause 3 of the DMC).
120. The enjoyment and reservation of such “easements rights privileges and obligations” are vital if a co-ownership scheme regulated by a deed of mutual covenants is to work.
121. One main purpose of the scheme and the related clauses in the DMC is clearly to facilitate enjoyment of the rights of co-owners between themselves. Those “easements rights privileges and obligations” set out in Clause A, whilst important, they comprise mostly daily and routine ones, like pass and repass, lateral support, passage of water, sewage and electricity, and the carrying out of necessary work for maintenance and repair. They are meant to form an informal regime, not one that is technical or legalistic in nature laden with procedural difficulties that only lawyers know how to negotiate through.
122. The DMC in general, and the First Schedule in particular, are there to reduce conflict between co-owners.
123. Depending upon the perspectives, there are two sides to those “easements rights privileges and obligations”. A co-owner who wants to exercise the Clause A(4) Right for example (I will call him for convenience the “Requesting Co-owner”) will regard it as a benefit, whereas a co-owner whose property the first co-owner is seeking to enter upon (the “Requested Co-owner” for convenience) will probably see it as an obligation.
124. There will always be tension between the Requesting and Requested Co-owners.
125. Such tension will not be eased, and any conflict arising not resolved, by allowing the Clause A(4) Right to be construed too legalistically, introducing concepts which invite arguments, or by shifting the balance of rights and obligations unduly toward one particular side. Common sense should instead be adopted.
126. The exercise of the Clause A(4) Right is expressly stipulated to be “on written notice (except in case of emergency)”. The requirement of written notice represents a good balance between the rights and obligations of the Requesting and Requested Co-owners. Whether a written notice has been served is also easy to ascertain. No unnecessary dispute will be introduced. In my view, the fulfilment of the Notice Limb is clearly intended to be a condition precedent.
127. The clear and express language of Clause 4(A) is that the Clause A(4) Right is reserved “for the purposes of carrying out any work necessary for the maintenance and repair of [the Requesting Co-owner’s] own premises or its services.” The Purpose Limb is in my view reasonable, screen out any attempt to carry out works which are not necessary for the stated types of works (for example trivial works for decorative purposes), achieve a good balance between the rights and obligations of the Requesting and Requested Co-owners, accords with common sense, and is consistent with the overall purpose of reducing conflict.
128. The Purpose Limb may give rise to questions as to what works are for “maintenance and repair”, and whether they are “necessary”. Submissions have been made to me in those regards. Mr Lam in his written opening submits that it must mean “necessary in the honest opinion of the [Requesting Co-owner]”[82]. In his oral opening, upon my request for assistance, Mr Lam modified the test to a sort of irrationality test, in the sense of the honest opinion of the Requesting Co-owner being subject to the objective criterion that no reasonable owner in the circumstances would have considered the works to be necessary. In his written closing[83], Mr Lam accepted that it should not be the case that the Requesting Co-owner’s subjective judgment be subject to no legal control. He puts forward the test applicable to contractual discretion, that a contractual discretion must be exercised in good faith and not arbitrarily or capriciously though the courts will not substitute themselves as the decision-maker (FWD Life Insurance Co (Bermuda) Ltd v Poon Cindy [2019] 3 HKLRD 455 at 464, §§35-36.) Mr Pun on the other hand put forward what is in effect an objective test based on a common sense approach[84].
129. There is no direct authority on this point. The 2 cases cited by Mr Pun, Dr Simon Yeung v Darius Potel & Marie Christine Summers [2014] EWCA Civ 481 and Tse Chit Sang v Ho Mei Ling (unreported, DCCJ 2404/2005, 19 June 2009), with respect, contain no reasoned discussion on the test to take.
130. As I will make clear in the latter part of this Judgment, I agree with Mr Lam that there is no need for me to reach any final view on this issue because on the evidence, whatever tests I am to adopt, the Purpose Limb was satisfied.
131. In deference to submissions made, I only make the following observations. As Mr Lam has accepted, the test for “necessity” cannot be entirely subjective without any legal check. The “contractual discretion” test is in my view too technical and complicated for a DMC scheme. The exercise of Clause A(4) Right is also not an exercise of discretion. If I were to rule on the matter, I would be inclined towards the application of a common sense approach (which is neither entirely subjective nor entirely objection) with reference to all circumstances known at the material time, including the views of the Requesting and Requested Co-owners and the reasonableness thereof.
132. As I have mentioned above, Mr Pun’s submission is that the Requesting Co-owner’s exercise of Clause A(4) Right is “subject to” also the fulfillment, and continuous fulfillment, of the Minimum Disturbance Limb and the Damage Limb.
133. To start with, I note that, different from the cases of the Notice Limb and Purpose Limb, that is not what the wording of Clause A(4) expressly stipulates. The phrase “causing as little disturbance as possible” presupposes a stage when the Requested Co-owner’s land has been entered upon and the works already started, and the stage of “making good any damage” even later.
134. Subjecting a Requesting Co-owner’s exercise of the Clause A(4) Right to the fulfillment and continuous fulfillment of the Minimum Disturbance Limb and the Damage Limb introduces into Clause A(4) highly controversial issues not set out in the Clause.
135. Given the wording of Clause A(4) in relation to those 2 limbs, it is not easy to decide whether they have been fulfilled. What is “as little disturbance as possible”? Who is to decide whether the disturbance has been more than “as little as possible” so that the Clause A(4) Right could no longer been exercised? The Requesting Co-owner may argue a high degree of tolerance. The Requested Co-owner may argue the extreme opposite. Even the adoption of a reasonable standard[85] may not reduce conflict, as it may give an unreasonable or unduly subjective Requested Co-owner the platform to refuse entry by the Requesting Co-owner to effect what can be urgent repair. That may lead to abuse.
136. Further, “as little as possible”, in addition to be vague, is a very low threshold. Mr Puns’ submission in effect is that as soon as there is a disturbance higher than “as little as possible”, which may still be relatively minor, the Requested Co-owner can automatically refused the Requesting Co-owner’s Clause A(4) Right. In my view, and viewed objectively, that cannot have been intended by the parties.
137. Even assuming that there has been disturbance which is beyond minimum, and assuming damage has been caused, how should the damage be made good? If payment of compensation is involved, what should be the quantum? The assessment of the quantum may take time. Parties may not be able reach agreement on the same. Does it mean that pending agreement as to the quantum or how the damage is to be made good, the Requesting Co-owner should vacate or be refused his benefit under the DMC regime to effect necessary maintenance and repair?
138. The adoption of the approach argued by Mr Pun has the opposite effect of reducing tension and conflict, and is in my view not the practical object which Clause A(4) is intended to achieve. To do so would be shifting the balance far too much towards and in favour of the Requested Co-owner, beyond what a reasonable person would understand Clause A(4) to mean.
139. I accept Mr Pun’s submission[86] that by the incorporation of the Minimum Disturbance Limb and the Damage Limb, Clause A(4) has expressly made the common law entitlement of the Requested Co-owner to sue for damages contractual terms binding on co-owners. That however does not elevate the status of those 2 limbs to conditions precedent.
140. Mr Pun then states it is not D’s case that the Minimum Disturbance Limb and Damage Limb are conditions precedent. He says that it is a misunderstanding of D’s case to say so. He submits that “D must be contractually entitled to terminate the grant of entry (or refuse further entry) if P breached any of the Limbs.” There is however no elaboration in his written reply as to the legal basis of that submission.
141. I therefore reject Mr Pun’s submissions, and accept Mr Lam’s submission in this regard[87]. There may be extreme cases of non-compliance with the Minimum Disturbance Limb and Damage Limb which warrant the application for an immediate injunction. The non-compliance of those 2 limbs may entitle the Requested Co-owner to claim damages. But that does not mean that the causing of disturbance beyond what is “as little as possible” or the failure to make good damage would axiomatically and automatically entitle the Requested Co-owner to refuse the Requesting Co-owner access or further access.
K.3. IMPLIED DUTY OF CO-OPERATION
142. Clause A(4) only provides for the “right … to enter into and upon”. It contains no provision as to whether the Clause A(4) Right comes with any ancillary rights and obligations, for examples[88] the rights to erect scaffolding or working platform, or the obligation to allow the erection thereof.
143. Mr Lam’s submissions are that Clause A(4) is subject to the implied term of co-operation, and based on the test of “reasonable necessity”[89], D’s obligation of co-operation shall include the duty to do all reasonable acts to enable P to exercise the right (including all ancillary ones) under that clause, so that D shall for examples allow P’s workmen not only to enter J14 but also to erect scaffolding or working platforms as they see fit[90].
144. According to Lewison, The Interpretation of Contracts (7th ed.):
“Where performance of the contract cannot take place without the cooperation of both parties, it is implied that cooperation will be forthcoming.” [388]
“The extent of the implied obligation is governed by the express terms of the contract. As Cooke J explained in James E McCabe Ltd Ltd v Scottish Courage Ltd:
‘A duty to co-operate in, or not to prevent, fulfilment of performance of a contract only has content by virtue of the express terms of the contract and the law can only enforce a duty of co-operation to the extent that it is necessary to make the contract workable. The court cannot, by implication of such a duty, exact a higher degree of co-operation than that which could be defined by reference to the necessities of the contract. The duty of co-operation or prevention/inhibition of performance is required to be determined, not by what might appear reasonable, but by the obligations imposed upon each party by the agreement itself.’
Accordingly, a duty to cooperate cannot be imposed on a party so as to compel him to do something which the contract on its true construction relieves him from doing, and cannot be used to compel a party to do something which he cannot in fact do. Similarly, there is no duty to cooperate in bringing about something that the contract does not require to happen.” [§§6.141-6.142]
145. As explained in McMeel on The Construction of Contracts (3rd ed., 2017), §9.56:
“…A famous statement, quoted in innumerable cases, is that of Lord Blackburn in Mackay v Dick:
‘I think I may safely say, as a general rule, that where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect.’
However, it is necessary to fulfil the usual requirements for implication of a term, and necessity is still insisted upon in some authorities. Furthermore, the scope of the duty is likely to be shaped more by the surrounding express terms than by general considerations of reasonableness.”
146. On this issue, Mr Pun submits that “for the [Clause A(4) Right] to be exercised and fulfilled by parties, it would inevitably require reasonable cooperation from both parties concerned”[91], that that “given the nature of the easement which affects lands of different parties, cooperation between parties is inevitably”[92], “but the scope of cooperation must be reasonable and not to the extent as demanded by P in the present case”[93]. He therefore does not appear to dispute the existence of an implied obligation of co-operation. This in my view is consistent with the authorities. But in so far as he submitting that the extent of the obligation is governed by “reasonableness”, I do not accept the submissions, as being inconsistent with the authorities cited above.
147. On the authorities before me, I am satisfied that in respect of the performance of Clause A(4), there exists an implied duty of co-operation between the Requesting Co-owner and the Requested Co-owner to the extent that is necessary to make Clause A(4) workable.
K.4. THE MEANS AND ARRANGEMENT
148. Clause A(4) does not expressly define the means and route of access, the mechanism to establish the route, which party shall be responsible for arranging such means, or parties’ duties in those regards.
149. As I have described above, since the removal of the Red Structure, the focus of the parties’ disputed have shifted to the means and manner of access onto the Lane to carry out the Works. The Means and Arrangement have developed into an important issue.
K.4.A. PARTIES’ SUBMISSIONS
150. Parties differ as to both the nature and extent of the Clause A(4) Right.
151. There is no direct authority on the issue.
152. Mr Pun calls the A(4) Right a “right of entry” but not a right of way[94]. He submits that:
(a) as the Means and Arrangement are not governed by the DMC, they must then be governed by parties’ mutual understanding and/or agreement voluntarily entered thereafter in consideration of the actual circumstances such as the location of the place where the Works are required to be done[95];
(b) alternatively, if this Court finds that the DMC provides for the Means and Arrangement/right of way, D’s primary position is that the Means and Arrangement/right of way shall be determined by D, or alternatively, governed by parties’ mutual understanding and/or voluntary agreement, but not by the Requesting Co-owner arbitrarily and alone[96];
(c) Mr Pun elaborate upon (b) above in his written reply, to the effect that if parties cannot reach an agreement, they could come to the Court for a determination of the route, employing a “reasonable and sufficiently convenient” test.
153. Mr Lam’s position is as follows:
(a) He submits that the Clause A(4) Right is not a right to enter for entry’s sake, but to enter and then go to the place where works to the Requesting Co-owner’s premises need to be done[97];
(b) He approaches the Clause A(4) Right more as an orthodox right of way. At least he seeks to rely on certain legal principles in relation to such rights, which he, relying on a number of authorities[98], puts forward three[99]:
“(a) A servient owner does not have the unilateral right to alter the route of a right of way unless the grant contains an express or implied right to do so.
(b) Even if a servient owner offers an alternative route, by denying the dominant owner the right to use the route under the grant, there is still an actionable interference.
(c) However, it will be relevant to remedies, in particular, whether a mandatory injunction would be granted. If the alternative route is equally (or not less) convenient than the one under the grant, no injunction would be granted as a matter of discretion.”
(c) He submits[100] that the exact means and route of access could not be governed by “parties’ mutual understanding and/or agreement voluntarily entered”. He submits that that would be an agreement to agree. He also asks rhetorically, “What if the parties cannot reach an agreement?”
(d) He submits that the physical extent or nature of the right granted is essentially a matter of construction. He submits that applying those principles and as a matter of construction, the route intended or contemplated by the Clause A(4) (the “Intended Route”) shall be “the most convenient route to reach the place where the necessary works need to be carried out in accordance with approved plans of the premises where access is required”[101]. He summarizes P’s position as follows[102]:
“Upon a proper construction of the Clause, P was entitled to reach the [Yellow] Wall where works have to be done via the most convenient route within D’s premises in accordance with the approved plans. The intended route could not possibly involve getting through or over the Violet Structure (which did not appear in such plans). In law, D was not entitled to change the intended route. In principle, if D offered an alternative route which was equally convenient as the intended route, the Court would decline to grant an injunction but D would still have committed an actionable interference with P’s right under the Clause. None of the options proposed by D was equally convenient as the Intended Route. D was in continuous breach of the Clause. But for the agreement reached after the trial had commenced, P would have been entitled to an injunction.”
(e) Applying the above to the present case, he describes the Intended Route in further details as follows[103]:
“The most convenient way to access the Lane from J15 must be to enter J14 from the [Sea Side Path] via the [Sea Side Path Cross Gate] at the [Garden], pass the [Garden], which then leads to the Lane … It would not involve any need to enter into any interior part of J14, or climbing up any staircase or over any fence/railing. It would make no sense, and would cause more disturbance, to reach the Lane by entering via the main entrance facing the street, which is apparently much longer and convoluted, and would require entering into and passing through the interior of J14.”
(f) The use of the Intended Route as Mr Lam is contending would necessarily entail the removal of the Lane/Lawn Portion of the Violet Basement[104].
K.4.B. NEITHER RIGHT OF ENTRY SIMPLICITER, NOR AN ORTHODOX RIGHT OF WAY
154. The difficulty Mr Pun faces is that he can produce no authority in support of his distinction between a right of way as we normally know it and “a right of entry” as he calls the Clause A(4) Right, or what a “right of entry” entails. He accepted in the course of his oral closing that he was aware of no such authorities.
155. To the extent of this being Mr Pun’s position, I accept Mr Lam’s submission that the Clause A(4) Right is not a right of entry simpliciter. I repeat my views on the implied duties of co-operation above.
156. On the other hand, approaching the Clause A(4) Right as if it were an orthodox right of way (as Mr Lam seeks to do) also has its difficulties:
(a) As described in Gray & Gray, Elements of Land Law (5th ed.) at §§5.1.78 (with emphasis added):
“A right of way is essentially a right to pass and re-pass along a way and also to do things which are ancillary to such passage or are reasonably necessary for its use or enjoyment …”
(b) The Clause A(4) Right is not one to pass and re-pass, but one that can only be exercised for the stated purpose upon notice. The point is reinforced by comparing Clause A(1) with Clause A(4). The former is an express right to “go pass and repass” (common areas), the latter is not;
(c) As further described in Gray & Gray at §5.1.79 (again with emphasis added):
“A right of way across servient land extends to the entire width of the designated path or roadway, but must have an ascertainable terminus a quo and terminus ad quem.”
(d) But the crux of the Clause A(4) Right is not to pass and repass from the house of the Requesting Co-owner to that of the Requested Co-owner. The point of origin is of no importance. What is important is the destination. Indeed, a workman engaged by the Requesting Co-owner can start from anywhere, but not necessarily the house of the Requesting Co-owner;
(e) Nor is there, until the purpose has arisen, any ascertainable finishing point. Mr Lam indeed acknowledges this, when he submits at §83 of his written closing that “[Clause A(4)] is contained in a DMC applicable to all units within Marina Cove, and the finishing points would vary depending on where the necessary works have to be executed”;
(f) Relying on Kung Ming Tak Tong Co Ltd v Park Solid Enterprises Ltd (2008) 11 HKCFAR 403, Mr Lam submits[105] that the Clause A(4) is “contractual quasi-easement”;
(g) But the concept of “quasi-easement”, be it “contractual quasi-easement”[106] or “quasi-easement” in the Wheeldon v Burrows sense[107], is introduced principally to address the common law principle that easement cannot be created over one’s own land. It does not make something which is otherwise not a right of way a way of way, and does not tell us what the right entails.
157. Given the above distinguishing features of the Clause A(4) Right, I do not find the 3 principles put forward by Mr Lam useful. They all presuppose the existence of a terminus a quo and terminus ad quem, hence a particular route, and hence parties’ rights and obligation when its comes to the alteration of such route or the provision of an alternative. Applying those principles to the Clause A(4) Right is in my view a mis-match.
K.4.C. MEANS AND ARRANGEMENT GOVERNED BY THE DMC
158. Except perhaps for the purpose of drawing analogy from principles applicable to right of way when considering the extent of the Means and Arrangement (see below), it is in my view not necessary to strictly classify what right the Clause A(4) Right belongs. Afterall, Clause A of the First Schedule simply uses the catchall phrase “easements rights and privileges” when referring to inter alia the Clause A(4) Right.
159. What is however important is to decide whether the Means and Arrangement are provided for or governed by the DMC. Mr Pun submits that it is not.
160. The Clause A(4) Right is an express mutual grant and reservation. The mutual grant and reservation are however imperfect, in the sense that there is no provision regulating the Means and Arrangement.
161. As part of his written reply, Mr Pun has placed before me The Rule in Pearson v Spencer – selecting the route of a right of way by Thomas Braithwaite [2009] 73(2) Conv. 93 (the “Braithwaite Article”). The article addresses the issue as to who should choose the route in the context of a grant or reservation of a right of way. The following views of the learned author are by analogy relevant:
“Whether the court is construing an imperfect express grant or establishing the limits of an implied grant, the court is ultimately seeking to give effect to the presumed intentions of the parties. This is subject to one principal qualification however: that a right of way implied by necessity will carry with it only the barest rights to deal with that necessity. Therefore, whereas an ambiguous grant is always interpreted in favour of the owner of the dominant tenement, a grant implied of necessity will tend in favour of the owner of the servient tenement.” (p.93-94)
“… as already discussed, cases of imperfect grants (or imperfect reservations) can often be resolved by recourse to issues of construction.” (p.98)
162. In the above regard, I respectfully find the observations by Li CJ in Kung Ming Tak Tong at §50 also useful, and am guided thereby:
“… in considering the creation or reservation of rights, including the creation of rights consisting of contractual quasi-easements by implication, two different situations must be distinguished. Where the right is sought to be implied as a right implicit in the DMC – for instance, as to whether there is contractual quasi-easement in the nature of a right of way over the common area or over certain other parts of the building (as in Chiu Shu Choi v Merrilong Dyeing Works Ltd) – the question is simply one of construction of the DMC. The Court should apply the normal rules which govern the implication of terms in a contract and the rule in Wheeldon v Burrows throws no light on the matter since such cases involve no grantor and no grantee.”
Along the same line are the observations of the English Court of Appeal in St Edmundsbury v Clark (No 2) [1975] 1 WLR 468 at 476G-H, that:
“… what is the proper approach upon the construction of a conveyance containing the reservation of a right of way? We feel no doubt that the proper approach is that upon which the court construes all documents: that is to say, one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.”
163. In my view, whilst the Means and Arrangement are not expressly provided for, they are part and parcel of the Clause A(4) Right. They are akin to the case of “imperfect express grant” referred to in the Braithwaite Article. Their nature and extent are a matters of implication as a matter of necessity.
164. I therefore do not accept Mr Pun’s principal submission that the Means and Arrangement/right of way are not governed by the DMC.
K.4.D. SO WHO CHOOSES, AND HOW?
165. There is again no direct authority on the point. As Mr Lam confirmed during his oral closing, neither parties had been able to locate any authoritative judgment on the matter, and there is a certain degree of uncertainty in this area of the law.
166. I for analogy refer again to the Braithwaite Article:
(a) As noted by the learned author, the answers to the questions as to, under different scenarios, who may choose the route “are surprisingly obscure”[108]. The answers can be different depending on various factors, including whether it is a case of imperfect grant or way of necessity, whether there is in fact any choice[109], whether it is a case of grant or reservation, whether the original common owner retains the dominant tenement or the servient tenement, or whether he has disposed of both. There is then the “orthodox rule”[110] and “an alternative rule”[111];
(b) In addition to the question as to who has the right to choose, there are the considerations as to the criteria to be adopted when choosing the route. In those regards, the learned author says[112] that:
“Clearly, the route that is actually selected must be one that does not frustrate the very purpose of the right granted (i.e. the principle of non-derogation from grant). It also seems from the cases considered that the right of selection is tempered by the requirement that the way not just be a viable one, but that it also be a ‘convenient’ or ‘reasonable’ one to the other party. The courts would therefore appear to have to balance the rights of each party.
…
The better view, therefore, is that the court is engaged in a balancing exercise. Ultimately, if the right to select is to mean anything, the test must be whether the right so selected is sufficiently convenient to the other party given the intended use of the way and bearing in mind that a route once chosen cannot be changed …” (emphasis added)
(c) I add immediately that the underlined words in the paragraph cited above are not applicable to our present case. I observe further that any un-adapted adoption of the “orthodox Pearson v Spencer rule” or the “alternative rule” may not be appropriate. To do so would ignore the fact the Clause A(4) Right arises in the context of a DMC, that the original common owner is the developer who has disposed of its interest in the estate and dropped out of the picture, and that the Requesting Co-owner and Requested Co-owner are both grantor and grantee at the same time due to the mutual nature of the grants and reservations. But with the above cautions in mind, I find the discussions in the article helpful in considering the Means and Arrangement in the present case;
(d) I have considered Noye v Ocean Park Ltd [1991] 97 Nfld & P.E.I.R. 55 cited in the Braithwaite Article. It was a case of imperfect grant, in the sense that parties (the applicants and respondent being respectively the owners of the dominant and servient tenements) accepted that a right of way had been granted, and that the only issue in dispute was its location. There was no evidence before the court as to the circumstances surrounding the original grant. The respondent had put forward two alternatives. The court rejected both as being unreasonable, the first one involving a third party’s land being encumbered, and the second one requiring the applicants to incur considerable expenditure in clearing the woodland. In the end, guided by The Canadian Law of Real Property (2nd Ed. 1985) page 948 and on the evidence, the court concluded upon a route put forward by applicants, which the court described as the “most reasonable route of access” and “most direct”, notwithstanding certain inconvenience to the respondent;
(e) Towards the end of the article, the learned author of the Braithwaite Article gives a summary:
“The principles discussed can be summarised as follows:
· Where the original common owner of land grants part of his land with an imperfect or implied right of way over the retained part, the right to select the route clearly vests in that original common owner as owner of the servient tenement.
· Where the original common owner of land grants part of his land, reserving an imperfect or implied right of way over the part granted out in favuor of the part retained, it is not clear in whom the right to select vests. It either vests in the original common owner by virtue of his former ownership of the land, or it vests in the owner of the servient tenement by virtue of the fact that the way is to pass over his land. It is submitted that the latter alternative is the better one, though the position appears to be open on the authorities.
· Where the original common owner of land severs his land and simultaneously (or perhaps sequentially) grants it all out subject to an imperfect or implied grant or reservation of a right of way, the position is again unclear. It may be that the court will seek to determine his intention at the time of the relevant grant; or it may simply be that the right of selection vests in the owner of the servient tenement for the time being. Again, it is submitted that the latter alternative is the better view.
· Where the person with the right of selection fails to exercise the right, or does so unreasonably, it is probably open to the other party to make the selection in his stead. Ultimately, if they cannot agree the court will have to determine the route having regard to the respective advantages and disadvantages.
· The route chosen must be reasonable and convenient to the other party though it might be argued that the selector should be given more latitude when the way is one of necessity.”
167. I do not accept Mr Lam’s submissions that there is upon a proper construction of Clause A(4) an “intended route”, or that that Intended Route should be “the most convenient route to reach the place where the necessary works need to be carried out in accordance with approved plans of the premises where access is required”:
(a) Mr Lam’s approach is in fact a multi-step exercise, entailing at least first of all the obtaining and consideration of the approved building plans, the identification of any unauthorized building structure, then the ascertainment of the “Intended Route”, then deciding whether the route offered is the same as that Intended Route, and if not whether any alternative route offered is “equally convenient” as the Intended Route[113];
(b) None of those steps are within the express provisions of Clause A(4);
(c) Such ascertainment of the Intended Route is time-consuming, and can be arbitrary and controversial. More so on the question as to whether any alternative route is “equally convenient”. The introduction of such issues in fact invites conflict, rather than reducing it;
(d) I do not find the three factors relied upon by Mr Lam at §86 of his written closing (the approved plans, the purpose of Clause A(4), and the provisos of causing “as little disturbance as possible”) and elaborated upon at §§87 and 88 justify the implication into Clause A(4) the Intended Route or his formulation therefor. In my view, a reasonable person, as opposed to a pedantic lawyer, would not have understood the parties to have included in the mix the approved plans;
(e) Given the nature of the Clause A(4) Right (in particular the features which I have highlighted in §156 above), the infinite variations in which Clause A(4) might need to be invoked, and the impossibility of foreseeing what those variations are at the stage of drafting, I do not accept a reasonable person would have understood the parties to have contemplated an “Intended Route” or to have adopted such formulation;
(f) I do not accept that for Clause A(4) to be workable, it is necessary or even reasonably necessary to imply into Clause A(4) an intended route, and then to imply into it further the “most convenient route” formulation as put forward by Mr Lam;
(g) I note and derive assistance in the above regard from Donnelly v Adams [1905] 1 IR 154. That case concerned an implied grant of a right of way under a lease. On the facts, the court held that the lessor (owner of the servient tenement) may vary the path from time to time, so long as it was one reasonably fit for the lessee to bring in coal. There was no suggestion that the path had to be one which is “the most convenient one”;
(h) Mr Lam relies on Noye. In my view, the court in that case was guided by The Canadian Law of Real Property, and that the conclusions were factual. It does not as a matter of law and principle support Mr Lam’s contention.
168. Nor do I accept Mr Pun’s unqualified original position that the extent of the Means and Arrangement/right of way should be determined by the Requested Co-owner (or D in the present case). Mr Pun relies on D’s property right and privacy right protected by the Basic Law and Bill of Rights. I agree with Mr Lam that those rights have little to do with the interpretation of Clause A(4) which is akin to a contract between two private parties. Further, in the context of a DMC, giving the entire say to the Requested Co-owner shifts the balance of rights and obligations unduly towards the Requested Co-owner. I have discussed in this regard the tension between the Requesting Co-owner and Requested Co-owner. Nor do I accept Mr Pun’s original unqualified submissions that they should be a matter of further agreement or mutual understanding. Leaving aside the strict legal position as to whether that leave the Clause A(4) unenforceable[114], it leaves unregulated the position where parties fail to agree. Such an approach is also not a principled one, and is not conducive towards any reduction of tension and conflict between co-owners.
169. In the absence of any direct authorities, but with reference to the limited authorities cited before me, I state my views and conclusion on the Means and Arrangement are as follows:
(a) The provisions of the DMC, including Clause A(4), are aimed at facilitating the management of Marina Cove by reducing conflicts amongst co-owners;
(b) Common sense is to applied;
(c) Whilst Clause A(4) is silent on the Means and Arrangement, but for the Clause A(4) Right to be workable, it is necessary to imply into it a mechanism for determining the Means and Arrangement;
(d) Co-operation of the Requesting and Requested Co-owners is required;
(e) The Requested Co-owner’s property is to be entered upon. Notice is required to be given to him. As little disturbance as possible is to be caused to him. The Requested Co-owner knows his house best. The parties must have intended that the views of the Requested Co-owner should be consulted first and respected;
(f) If agreement can be reached between parties, good and fine. Things move on;
(g) If not, it is to start with for the Requested Co-owner to suggest a route. The principle of non-derogation from grant is relevant. That route should not frustrate the grant. It should not be just a viable one, but also one that is convenient or reasonable to the Requesting Co-owner. It does not need to be the shortest or the most convenient one. I accept and adopt Mr Pun’s formulation of a “reasonable and sufficiently convenient” test[115]. That test is also consistent with Noye;
(h) In the absence of any suggested route from the Requested Co-owner which passes the “reasonable and sufficiently convenient” test, the Requested Co-owner may suggest. It should pass the same “reasonable and sufficiently convenient” test, but bearing in mind at the same time the express Minimum Disturbance Limb;
(i) If parties cannot reach agreement, legal proceedings can be resorted to. When considering the matter, the court bears in mind Chan PJ’s observations and wise words in Grande Properties Management in relation to the aims and purpose of having a deed of mutual covenant so as to resolve conflicts by a purposive construction and common sense application of Clause A(4). The Court may apply the “reasonable and sufficiently convenient test”. The court is engaged in a balancing exercise. The interest and rights of both the Requesting Co-owner and Requested Co-owner, together with all relevant facts should be considered. The approved plans can be one of such relevant facts, but not for the purpose of deciding upon the Intended Route, but for the purpose of considering the reasonableness and convenience of the suggested routes;
(j) In my view, and applying the normal rules governing the interpretation of DMC and implication of terms, the above would give effect to the presumed intention of the parties.
170. I apply the above when I consider below whether any of the parties have been in breach of the Means and Arrangement aspects of Clause A(4).
L. Whether the Notice Limb fulfilled
171. I have cited the evidence above. To recapitulate, P has given the following 5 written notices to D and requested access:
(a) by K&F on 29 September 2017 (the “First Notice”);
(b) also by K&F on 25 October 2017 to the Management Office, and passed on by the Manager to D on 30 October 2017 (the “Second Notice”);
(c) by Or & Co on 8 November 2017 (the “Third Notice”);
(d) by Or & Co on 11 December 2017 (the “Fourth Notice”); and
(e) by Tang & So on 20 February 2018 (the “Fifth Notice”).
172. On the evidence, I find that the Notice Limb has been fulfilled. It was first fulfilled on 29 September 2017.
M. Whether the Purpose Limb fulfilled
M.1. THE OWNERSHIP OF THE YELLOW WALL
173. To be precise, the Purpose Limb in fact comprises 2 sub-limbs:
(a) “for the purposes of carrying out any work necessary for the maintenance and repair of”; and
(b) “his own premises or its services”.
174. It is necessary to split up the Purpose Limb as Mr Pun submits[116] that D has never admitted that the Yellow Wall or its exterior belongs to P, and that P has failed to prove that.
175. Mr Lam objects to Mr Pun taking that point, on the basis that it has not been pleaded.
176. In my view, Mr Lam’s objection on pleading is justified. It is a point which, unless specifically raised, would take P by surprise. It is unfair for D not having pleaded the point, and then to criticize P for “not adducing expert and/or factual evidence to proof [sic.] the boundary of J15”[117].
177. In any event, my view is that the point is not a valid one.
178. In contending that the exterior face of the Yellow Wall (i.e. the face facing the Lane) belongs to D, Mr Pun relies principally on the First Agreement concerning J15[118], that “the saleable area” shall mean (with emphasis added):
“The floor area of the unit … measured from the exterior of the enclosing walls of the said unit except where such enclosing walls separate two adjoining units in which case the measurement shall be taken to the middle of those walls… but shall exclude the common parts outside the enclosing walls of the said unit Provided that if any of the enclosing walls abut onto a common area, then the whole thickness of the enclosing walls which so abut shall be included …”
179. Mr Pun submits therefore that “measurement of the floor area of J15 shall be taken only to the middle of the Yellow Wall”[119].
180. However, as is clear from Annexure A, J14 and J15 are separate houses. Each has their own enclosing walls on either side of the Lane (the Yellow on its left, and the enclosing wall of J15 on its right). The Yellow Wall is not shared. On a proper interpretation of the First Agreement, I accept Mr Lam’s submissions that the exception in the definition applies only to “two adjoining units”, i.e. those semi-detached houses within Marina Cove which share a dividing wall. There are indeed a lot of such semi-detached houses[120].
181. The other matters put forward by Mr Pun (the Management Office’s view and the alleged understanding of P’s witnesses) in my view do not advance his contention further in this regard. The view of the Management Office or the subjective understanding of the parties are of little relevance to the issue.
182. According to Hope Brothers Ltd v Cowan [1913] 2 Ch 312, and as applied by Cheung J (as he then was) in Wealthy China Trading Ltd v Huie Man Kit & Ors [1999] 3 HKC 832 at 836A-F, the demise of a room or an office bounded in part by an outside wall prima facie includes both sides of that wall, unless there be an exception or a reservation or something in the context to exclude it.
183. I do not accept Mr Pun’s submissions[121] that Mr Lam’s submissions based on Wealthy China apply equally to J14. The Yellow Wall is clearly shown on Site Plans of the First Agreement and the Assignment of the J15[122] as an enclosing wall of J15. In contrast, the Yellow Wall is not shown on the Site Plan attached to the Assignment of J14[123], which has its own separate enclosing wall.
184. On the evidence, I find that P has proved to the requisite standard that the Yellow Wall (including the external face) is P’s property.
185. In any event, as I have raised with Mr Pun in the course of his oral closing:
(a) His case on this point at its highest goes to the ownership of the exterior face of the Yellow Wall. He accepted that P at least owns the inside half of the Yellow Wall;
(b) Noting the nature of the Works (which I deal with next), there is a strong case that P would need to have access to the Lane to carry out works necessary for the maintenance and repair of that part of the Yellow Wall, which is undeniably P’s.
M.2. WHETHER “WORK NECESSARY FOR THE MAINTENANCE AND REPAIR OF” J15
186. I have considered the evidence before me.
187. Mrs Chan testified that water leakage was a common problem at Marina Cove. She first discovered leakage problem inside J15 in about 2007 or 2008. Cracks, water stains and water blisters were found in many areas of the house. She engaged a contractor to do some repair works, but the problem was only abated briefly.
188. From 2011 to end of 2015, the leakage problem became more and more serious. In about 2015 or 2016, the rooftop collapsed. She wanted to do a major and fundamental maintenance and renovation. However, her daughter was planning to get marry, and wanted to do that from J15. So Mrs Chan decided to engage some urgent repair works to the rooftop first, and the major renovation would only take place after her daughter’s marriage.
189. Mrs Chan’s evidence in the above regards is clearly supported by the photographs produced[124], some of them depicting specifically the Yellow Wall[125].
190. Letters from K&F[126] also support P’s case that P needed to access the Lane to carry out the Works.
191. I note that under cross-examination, Mrs Chan was challenged on the basis that there was no photograph showing the leakage before 2016. The subsequent and more contemporaneous photographs however clearly support P’s case. I accept Mrs Chan’s evidence in that regard.
192. I note Kong’s evidence. At §11 of Kong/1, she talks about a visit into J15. She did so upon the invitation of Madam Chan. It was a brief visit, lasting less than 15 minutes. That was her only time inside J15. To her knowledge, no other members of the Kwongs had been inside J15.
193. In her witness statement, she said that she did not notice any sign of leakage inside J15. She however accepted during cross-examination that she was not there intent on checking for signs of leakage. She was shown during cross-examination photographs[127] showing signs of leakage inside J15 close to the sea side. She said that she did not go that far into J15.
194. I find that J15 indeed had serious water leakage problems. That is well supported by the photographs produced. Kong might not have seen those signs. She might simply have missed them, as she was not there looking for them.
195. Mr Pun takes the point that no expert evidence has been adduced by P in support of its case. However, it is not necessary in my view for expert evidence to be adduced. The evidence before this court is of sufficient probative value to make good the point. In any event, D’s previous application[128] to adduce expert evidence “on the source of water leakage in [P’s] property and whether access to [D’s] property is necessary to carry out rectification work” has been refused, and D has not sought to appeal against that ruling.
196. In his written closing, Mr Pun makes reference to a number of cases on water leakage. He submits in those types of cases, the onus is on the plaintiffs to “establish on balance that the source of water was the defendants’ flat”[129], and that “the existence of water stain marks at certain position(s) alone is not necessarily conclusive proof of the source of leakage”[130].
197. With respect, this is not one of those water seepage cases. P is not claiming against D for water seepage from J14. All P is required to fulfill is the Purpose Limb, whatever the source of the seepage. The reference to those cases is in my view of no assistance.
198. Mr Pun also submits[131] that “Clause A(4) only allows entry of P into D’s property for the purpose of carrying necessary ‘repairing and maintenance’ works for P’s property, it does not entitle the said entry to be for the purpose of ‘renovating and refurbishing’ its property”. I agree with Mr Lam that such contention verges on turning the interpretation exercise into a game with word, which Lord Hoffmann NPJ has warned against in Jumbo King.
199. On the evidence before me, whether the test for “necessity” is subjective or objective, and whether the irrationality test or the common sense approach is to be adopted, I find that P has clearly established and fulfilled the Purpose Limb.
N. Whether denial of P’s Clause A(4) Right
200. With the above in mind, I proceed to consider whether D has been in breach of Clause A(4) by having denied P access to the Lane.
N.1. ALLEGED BREACH OF THE MINIMUM DISTURBANCE LIMB AND THE DAMAGE LIMB
201. Mr Pun submits that at the latest by October 2017 when the First and Second Notices were given, P had already breached the Minimum Disturbance Limb and the Damage Limb.
202. D refers to and relies on a numbers of acts and incidents in support of its case that P has failed to fulfilled the Minimum Disturbance Limb and the Damage Limb (the “Alleged Substantial Disturbances”)[132].
203. In D Closing/Annex, Mr Pun groups the Alleged Substantial Disturbances under the following headings:
“F.2.1 Numerous safety matters
F.2.1(a) No regular safety inspection of the scaffolding
F.2.1(b) Collapse of scaffolding on two occasions
F.2.1(c) Renovation wastes
F.2.1(d) Safety of P’s workers
F.2.2 Various other security and privacy matters
F.2.2(a) Blocking the door of the Red Structure
F.2.2(b) Damaging D’s security sensors
F.2.2(c) Scaffolding erected on the canopy outside Senior Mrs Kwong’s room
F.2.2(d) Long ladder and moveable metal platform placed in the Lane overnight and the importance of scaffolding lamps
F.2.3 Serious hygiene issues
F.2.3(a) Misbehaviour of P’s workers
F.2.3(b) Accumulation of renovation waste
F.2.3(c) P’s Pond-like Structure
F.2.3(d) P’s Unauthorised Lightwell Structure
F.2.4 Destruction of and/or damage to D’s properties
F.2.4(a) Demolishment of the Lightwell Wall and mosaic tiles;
F.2.4(b) Damage to the Red Structure causing water leakage
F.2.4(c) Damage to D’s glass bricks on its garden wall
F.2.4(d) Damage to the glass table in D’s garden
F.2.4(e) Damage to the D’s spotlight in the garden
F.2.4(f) Blockages of D’s drainages on two occasions
F.2.4(g) Porsche vehicle parts placed in the Lane
F.2.4(h) The waterproofing layer on the [Front] Wall
F.2.4(i) Damage of the floor of the Lane
F.2.5 The unlawful intrusion of P’s Unauthorized Drainage Pipes into D’s property”.
204. I have ruled on D’s case in relation to the Minimum Disturbance Limb and Damage Limb, and have concluded that any non-fulfillment of the Minimum Disturbance Limb and Damage Limb would not automatically and axiomatically entitle D to refuse P access or further access to the Lane. I have considered the nature and extent of the Alleged Substantial Disturbances. I do not accept that they, even if substantiated, whether individually or together, gave D any contractual entitlement to deny P its Clause A(4) Right.
205. Mr Lam accepts, and I agree, that the Alleged Substantial Disturbances are relevant to D’s Counterclaim. I will come back to them in the latter part of this Judgment.
N.2. THE DENIAL OF ENTRY IN OCTOBER 2017
206. Mr Pun submits[133] that it was reasonable for D to deny P access in October 2017 despite the First and Second Notices. He submits that in those notices, the term “共用牆” was used when referring to the Yellow Wall, that it was reasonable for D to have checked the ownership of the wall, and that there was no reference to Clause A(4).
207. I do not accept those submissions. Those Notices clearly conveyed the message that P requested entry upon J14 to effect work on the Yellow Wall. Use of the term of “共用牆” by laymen when referring to the Yellow Wall is understandable. I repeat further my discussions and ruling above on the ownership of the Yellow Wall. There is further no requirement that Clause A(4) should be expressly mentioned.
N.3. REFUSAL SINCE NOVEMBER 2017
208. Mr Pun criticizes[134] the Third Notice as being given on a wrong basis (on the basis that P owned the Yellow Wall), and was conditional upon the unreasonable condition of requiring D to demolish the Red Structure. He comments that P had not demanded for the demolition of the Red Structure before, did so when solicitors were engaged, that “P’s change of position was sudden and awkward”[135], and that “P’s insistence on demolishing the Red Structure must thus not be motivated by genuine necessity but aimed at creating difficulties for D because P was discontent with D’s complaints during the period of the Early Renovation Works”[136], so that “[it] was therefore unreasonable for P to insist on P’s Condition.”
209. I reject those submissions. I have ruled that P owns the Yellow Wall. It was D who had erected the Red Structure. It blocked up the Covered Part of the Yellow Wall. P had been trying to undertake the Works with the Red Structure there. D complained that the steps its contractors took were causing damage to the Red Structure[137]. Mrs Chan said she felt frustrated, and finally came to realize that unless the Red Structure was demolished, there was no way P could complete the Works. I accept her evidence in those regards. Mr Pun’s above criticisms made against Mrs Chan and P are without basis. Cheng & Co’s argument in their letter of 21 November 2017 about revoking any licence which D had given to P is also legally not correct. The Clause A(4) Right is a contractual right, but not a licence.
N.4. THE CONDITIONS IMPOSED BY D
210. Mr Pun submits that the Conditions imposed via the letters of 21 November 2017 by Cheng & Co on D’s behalf upon P were reasonable.
211. I have recited in Section G above parties’ correspondence. Those between 21 November 2017 and 21 February 2018 are relevant to the Conditions.
212. The Clause A(4) Right is a contractual right binding on the parties. D had no legal rights to impose any conditions on P’s exercise of the right. I accept Mr Lam’s submissions[138] in this regard
213. I note and add that P did give an apology. D however criticized it as being “insincere, phony and preposterous”. Such choice of words is unfortunate, and is hardly helpful towards reduction of conflicts between neighbours.
N.5. PARTIES’ SUBSEQUENT CONDUCT AND EXCHANGE
214. Mr Pun submits[139] that in any event, entry has been allowed by D at the latest since 25 March 2019[140] when Option 1 and Option 2 about Means and Arrangement for the entry was proposed.
215. On the evidence, and for the following reasons, I accept Mr Pun’s submissions in this regard.
216. I have summarized the evolution of the disputes between the parties in Section H above. In February 2018, D remained insistent on P’s fulfilment of the Conditions. At the time when the present case was initiated in March 2018, the Covered Part of the Yellow Wall remained blocked and covered by the Red Structure.
217. By November 2018, the entire G/F Red Structure and 1/F Red Structure had been demolished, and the Covered Part of the Yellow Wall exposed. The focus of the parties’ dispute shifted to the Means and Arrangement.
218. I have set out the extensive correspondence between the parties between November 2017 and August 2021. I have in particular set out the material contents of Cheng & Co’s letter of 25 March 2019.
219. In respect of Option 1:
(a) I repeat my observations on the means of access to the Lane after the demolition of the entire G/F Red Structure and 1/F Red Structure. Option 1 envisages getting to the Lane from the sea side. It involves getting to the Lawn, up the Podium Staircase, and then down to the Lane via the Podium Gap with a descend of about 2m (i.e. the height of the Violet Basement);
(b) The Sea Side Path Cross Fence or Gate would pose no difficulty. The one on the J15 side had not always been there, and the one shown on the photograph[141] was erected by Club Marina Cove, which had indicated that it had no objection to its removal for maintenance purpose. The one on J14 could easily have been removed, or converted into a swing gate, as D subsequently indicated that it would be prepared to do;
(c) In their letter in reply, Tang & Co commented that the Violet Basement was one floor high, and that climbing up and down involved serious risks and practical difficulties to P’s workers;
(d) The climb-up would have been via the Podium Staircase. It does not appear to involve much risk. The climb-down would only be about 2m. It would reasonably and conveniently be achieved with the aid of a low scaffolding or platform. I bear in mind that between December 2016 and August 2017, a full height scaffolding had been erected around J15, and P’s workers had been descending upon the Lane via much more inconvenient means;
(e) Any erection of hoarding, or protection or even removal of the Glass Fence at the Podium Gap, would not have been difficult issues to overcome;
(f) I note Mr Lam’s submissions in respect of the “Intended Route”, that the Lane/Lawn Portion of the Violet Basement ought not to have been there based on the approved plans[142];
(g) I have rejected P’s case based on the Intended Route. I have considered the fact that the Lane/Lawn Portion of the Violet Basement is not on the approved plans. But the consideration here is the reasonableness and convenience of Option 1, not the legality of the structure concerned. In any event, there is nothing before me which suggests that Option 1 would be rendered thereby dangerous, unreasonable or not convenient. I accept Mr Pun’s submission that P’s concerns in those regards are speculative[143];
(h) In my view, Option 1 was and would have been a reasonable and sufficiently convenient route.
220. In relation to Option 2:
(a) Creating a proper access through the Front Wall is obviously the best option in order to access the Lane;
(b) It is unfortunate that parties, P in particular, got bogged down by issues of titles and legality, failed to resort to common sense, and did not approach the Management Office, on a without prejudice basis if necessary, to resolve the matter, as parties ultimately did on the first day of the trial. Several years of time, inconveniences to both sides, large amount of costs, and a costly trial could have been saved;
(c) In April 2019, D caused the Front Wall Door to be built, and the Front Wall Metal Stairs installed;
(d) Mr Lam submits[144] that the “small size of the door, the unknown and dubious structural integrity of the metallic staircase, and the illegality of the opening at the Front Wall made it clear that this option cannot be equally convenient as the Intended Route”;
(e) Whilst Mr Lam has criticized the size of the Front Wall Door as being too small, there is no evidence suggesting that it is not reasonably fit for the carrying out of the Works;
(f) There is no evidence that the Front Wall Metal Stairs were of “dubious structural integrity”. In any event, the drop from the level of the Front Wall Door to the ground of the Lane is a small one, about 1.4m. It could easily have been overcome otherwise;
(g) I refer to the definition of “saleable area” contained in the First Agreement. I accept Mr Pun’s submissions, save possibly the exterior face of the same[145], that the Front Wall is owned by D;
(h) Even if the construction of the Front Wall Door was against the Management Office’s ownership of the external face of the Front Wall, it would be a matter between the Management Office and D. It does not necessarily lead to any safety concern;
(i) As submitted by Mr Pun, despite an indication of intent by the Management Office[146], there is no evidence that the Management Office had demanded reinstatement;
(j) I accept Mr Pun’s submissions[147] that even if any speculated risk were justified, the current legal system in Hong Kong provides reasonable protection to P against D as owner of the Front Wall Door and the Lane;
(k) In my view, the title/legality matters related to Option 2 had been exaggerated;
(l) I have rejected Mr Lam’s submission based on the “Intended Route”. The question is not whether the Option 2 is equally convenient as the Intended Route. On the evidence before me, I am of the view that Option 2 is also a reasonable and sufficiently convenient route. It is in my view in fact the most reasonable and most convenient route.
221. Parties have taken me extensively to the correspondence between the parties. I have set them out in some details above. My overall observations and findings on parties’ conduct as evinced thereby are as follows:
(a) At the earlier stage, before the commencement of the present action, and in particular prior to the demolition of the G/F and 1/F Red Structure, D’s stance had been much less accommodating. There was for example the allegation that the apology given by P was “insincere, phony and preposterous”, and the imposition of and insisting upon the Conditions which I have found that D was not entitled to impose;
(b) D’s stance clearly changed subsequently, and in particular after the demolition of the G/F and 1/F Red Structure. It proposed Option 1 and Option 2 in March 2019. When P on 26 March 2019 counter-proposed Option 3, which involved going inside the Violet Basement and going out to the Lane via the Violet Basement Lane Doors, D was highly receptive and replied favourably the following day;
(c) Whist there had been a highly unfortunate misunderstanding between the parties as to whether the Sea Side Path or the Floating Bridge was to be used for access, D had shown a large degree of accommodation and reasonableness;
(i) D on 4 April 2019 readily acceded to P’s request for site visit into J14, and subsequently repeatedly urged P to conduct one. P would be allowed to take photographs, draw up plans and take measurements to decide upon the access route. D would not restrict P or its contractor to gain access to any area within J14 which could lead to the Lane;
(ii) D had between October 2020 and August 2021 on no less than 5 occasions said that it was prepared to accept whatever route P’s contractor would propose and deem practical;
(iii) D acceded to the number of days of access which P said were required, despite the fact that the number requested had been increasing. The hours of access were agreed upon. It repeatedly stated that it consented to P storing construction materials and tools in the Lane, and to P’s workers having multiple entries so long as being reasonable. Even the contacts of the D’s domestic helpers who would be tasked to handle the entries had been provided;
(d) On the other hand, P had been repeatedly asking multiple questions in respect of each of the Options suggested. Problems were in my view exaggerated. Detailed particulars of the route were insisted upon, concrete proposal demanded, and maps, plans, photos were required to be provided before any site visit. P took issue with the meaning of “reasonable” in the context of multiple access and temporary storage, and demanded “clear written understanding”. Matters were repeatedly dwelt upon and argued. Excessive details and information were sought. Borrowing by analogy the words of Lord Hoffmann NPJ in Jumbo King, most of those in my view verge on being “game with words” from “a pedantic lawyer”, if not beyond;
(e) I am of the view that during the period after 25 March 2019, the stances and attitude of the parties had swapped. P had during that stage become unreasonable and unaccommodating.
N.6. CONCLUSION ON THIS ISSUE
222. For the above reasons, and on the evidence before me, I find that D had between 29 September 2017 (which the First Notice was served) and 25 March 2019 been in breach of Clause A(4) by denying P access to the Lane for carrying the Works on the Yellow Wall, and in particular the Covered Part of the Yellow Wall. On 25 March 2019, D proposed Options 1 and 2. I find both to be reasonable and sufficiently convenient. I do not accept P’s case based on the Intended Route. I find that after 25 March 2019, it was P who had refused to accept the same and enter upon the Lane to complete the Works. The other way to look at it, as accepted by Mr Lam in the course of his oral closing, is that P had since then failed to mitigate its loss.
O. The relief sought by P
223. As I have recorded above, the G/F Red Structure and 1/F Red Structure had been removed. The Works have re-commenced upon removal of the Front Wall. P is no longer seeking any injunction. The order being sought that “[D] shall allow [P] and its contractor (including its workmen) to have access to the Lane by a route to be determined by the Court”[148] is also no longer necessary. I note that in §144 of his written opening, Mr Lam invites this Court to make a consequential order that D shall, within a reasonable time, demolish the Violet Structure or such part thereof, so that P’s workmen may access the Lane without passing through the interior thereof. Such a consequential order is also no longer necessary, and I refuse to make any.
224. The remaining relief being sought by P is entirely monetary in nature.
225. The particulars of loss and damage sought are pleaded in §15 of the RASOC. They have also been set out in the Scott Schedule. The Scott Schedule is however not as useful as it ought to be. D simply states therein that “As [D] does not admit liability, it is not in a position to propose amount of damages (if any).” Such an attitude is not helpful, and is most unfortunate.
226. P’s claim fails into 2 categories: (1) alternative accommodation costs, and (ii) additional construction costs.
O.1. ALTERNATIVE ACCOMMODATION COSTS
227. Relating to this limb of the claim, I make the following findings:
(a) I do not accept Mr Pun’s submissions[149] that renovation of J15 could have continued despite D’s denial of P’s Clause A(4) Right. I accept Mrs Chan’s evidence that until the completion of the renovation of all the external walls, including the Yellow Wall, internal renovation and refurbishment works, including the laying of electricity wiring, could not be carried out. There was no water, electricity, or even toilet. It was reasonable for her family to have moved out and remained in alternative accommodation in the meantime;
(b) I do not accept the suggestions put to Mrs Chan that P had deliberately and intentionally created non-existent problems to inflate the amount of the damages, or that the Chans decided not to move back into J15 out of convenience. The suggestions were denied by Mrs Chan, whose evidence in these regards I accept. There is in my view no basis to those suggestions. The Chans expected to be back to J15 by the end of 2017. The licence agreement for Harbourview Horizon All-Suit Hotel was signed for a term between 11 August 2017 and 11 February 2018, and after that only renewed to 11 May 2018[150]. They have since then been staying at Ma On Shan. It was leased accommodation, substantially smaller than J15 (about 1200 vs 2064sq ft), 3 rooms vs 5, no maid, and involved them living apart with other members of the family;
(c) In Yick/1 at §100, Mrs Chan accepted that but for the interruption of the Works since about August 2017, all the waterproofing and maintenance structural works could have been completed by the end of December 2017, at which time interior decoration and air-conditioning works could have been commenced, which would have been completed by the end of May 2018;
(d) There is therefore no basis for P to claim any alternative accommodation costs between January and May 2018 (despite the pleadings and Mr Lam’s opening submissions). I accept Mr Pun’s submissions[151] in this regard. Mr Lam has also accepted[152] that;
(e) I have found Options 1 and 2 put forward on 25 March 2019 to be reasonable and sufficiently convenient. I have also found that after 25 March 2019, it was P who had refused to accept the same and enter upon the Lane to complete the Works. The other way to look at it is that P had since then failed to mitigate its loss;
(f) I find that had P accepted Option 1 or Option 2, it could have finished the Works by about August 2019 (by adding 5 months from March 2019). I accept Mr Pun’s submission on this point[153];
(g) I will only allow P’s claim for alternative accommodation costs between June 2018 and August 2019 (15 months in total, both months inclusive).
228. In respect of quantum as pleaded in §15(a) of the RASOC and the table thereunder:
(a) I disallow Item 1 thereunder. It related to alternative accommodation costs of Mr and Mrs Chan before May 2018;
(b) I allow 15 months out of Item 1a in relation to the rental of a flat and carpark space at Ma On Shan for Mr and Mrs Chan at HK$32,000 per month, in the total sum of HK$480,000;
(c) I disallow Items 2 and 2a. They related to alternative accommodation costs of Madam Chan prior to May 2018. After May 2018, Madam Chan moved in the flat at Ma On Shan together with Mr and Mrs Chan;
(d) Item 2b concerns the alternative accommodation costs of Chan Sin Yee:
(i) I have found that she got married in November 2016 and moved out of J15 and live with her husband;
(ii) I however accepted Mrs Chan’s evidence that that was only temporary. The intention was for her to move back to J15 after completion of the Works. Her evidence is supported by the project contract issued by Centro (which covered works for “4/F 女房”), and a contemporaneous photograph[154] showing that the wall between the daughter’s original room and an adjacent room had been removed to enlarge daughter’s room, so that she and husband can move back to live in;
(iii) Mr Pun submits that that intention was inconsistent with the first lease (dated 4 October 2018) which was for 2 years. But as Mr Lam has pointed out, that tenancy had a break clause which could be involved after one year;
(iv) P’s claim under this Item only starts from 1 November 2018[155];
(v) The quantum is otherwise supported by contemporaneous documents,
(vi) I hence allow P’s claim under Item 2b for the period of 1 November 2018 and August 2019 (10 months, HK$15,800 per month), in the total amount of HK$158,000;
(e) I disallow Items 3 and 4, which related to the renting of car parking spaces before May 2018;
(f) I allow 15 months out of Item 4a for the renting of a second car parking space, at HK$2,200 per month, in the total sum of HK$33,000. Mrs Chan was challenged under cross-examination as to why they did not leave one car at J14. I accept her evidence that the car needed to be tended and tuned. The quantum is otherwise supported by contemporaneous documents;
(g) The furniture from J15 was stored inside an industrial unit owned by an associated company of P. That unit could have been rented out at HK$20,000 per month. Mrs Chan was challenged on the basis that that unit could be rented out, and that another cheaper unit could be rented for storage of the furniture. She explained that she at that stage did not know for how long the furniture would be required to be stored, and frequent moving could result in damage. I accept her explanations. I allow 15 months out of Item 5 for storage of furniture, at HK$20,000 per month, in the total amount of HK$300,000;
(h) In summary, I allow P’s claim for alternative accommodation costs in the total sum of HK$971,000 (HK$480,000 + HK$158,000 + HK$33,000 + HK$300,000).
(i) I disallow the claim for continuing loss and damage under §15(f) of the RASOC.
O.2. ADDITIONAL CONSTRUCTION COSTS
229. The additional constructions costs are pleaded at §§15(b) to (e) of the RASOC. The contractors concerned are K&F, 中英, Centro and榮光, in the respective sums (according to the Scott Schedule) of HK$382,000, HK$50,378, HK$1,580,412 and HK$12,395.
230. I first of all repeat my findings set out in §§227(a) and (b) above, which are also relevant to this head.
231. In relation to K&F:
(a) According to the evidence, which I accept, and as summarized by Mr Lam in §159(a) of his written opening:
“K & F was engaged to carry out works in relation to the exterior part of J15. P was initially required to pay HK$2,000,000. P had paid HK$1,850,000 (ie HK$150,000 less). K & F quoted a sum of HK$532,000 to complete the outstanding work. The additional cost is HK$(532,000 – 150,000) = HK$382,000.”
(b) I have considered the submissions made by Mr Pun at section K.1.2(a) of his written closing. He submits that the claim is devoid of details, that Mrs Chan does not know which part of the works under the original K&F contract was related to the non-finished exterior part of the Yellow Wall, that the HK$150,000 is without breakdown, that only one quotation was obtained, and that the new quote was much higher than the unfinished work;
(c) I do not accept those submissions. The receipt[156] states that the HK$150,000 was deducted “因J14阻礙未完工程”. The quotation for HK$532,000 was expressly stated to be for “進入匡湖居J14 範圍替J15做回部份先前未能完成之外牆防水批盪及油漆”. Further, that quotation cannot simply be compared with the corresponding items in the original contract. As Mrs Chan has recited the explanations given to her by K&F, the costs of labour and materials had increased, and some works had to be redone due to the delay;
(d) The new quotation is dated 27 March 2019, very close to the time when Options 1 and 2 were put forward;
(e) I allow this part of P’s claim and assess the quantum at HK$382,000.
232. In relation to中英:
(a) According to the evidence, which I accept, and as summarized by Mr Lam in §159(b) of his written opening:
“P engaged [中英] to make various fittings, fixtures and furniture at HK$105,000. [中英] now charged HK$134,378. P had also already paid HK$21,000. Hence, the additional cost is HK$(134,378 – 105,000 + 21,000) = HK$50,378.”
(b) Mr Pun criticizes[157] the new quotation as being high, that it was 6 months after 25 March 2019 when Options 1 and 2 were put forward, and contains certain items which are not in the original quotation;
(c) Mrs Chan has given some explanation in those regards, that some of the materials originally chosen were no longer available, and the discount package had lapsed. I accept Mrs Chan’s explanations in those regards;
(d) The new quotation was obtain 27 September 2019[158]. It is indeed, as submitted by Mr Pun, about 6 months after the time when Options 1 and 2 are put forward;
(e) The new quotation indeed contained some items which were not in the original quotation;
(f) Without attempting to be arithmetically accurate, I discount the claim by 25%, and assess this part of P’s claim at the rounded-off figure of HK$37,800.
233. In relation to Centro:
(a) According to the evidence, which I accept, and as summarized by Mr Lam in §159(d) of his written opening:
“P engaged [Centro] to deal with the interior decoration works. The original contract sum was HK$1,770,000 and P had paid HK$885,000. The cost of variation work was HK$85,748 and P had paid HK$50,374. P had also ordered some furniture at the cost of HK$162,449 and had paid HK$81,000. [Centro] issued a notice of cessation of work in March 2018. On 7 July 2019, [Centro] decided to terminate the Project Contract. After negotiations, [Centro] agreed to refund HK$605,374 and HK$78,460 totaling HK$683,834. P, however, will not claim against D for a sum of HK$180,000 concerning additional works which was agreed between it and [Centro]. P engaged a new contractor to perform the work at HK$3,286,620. P’s arithmetic shows that the additional cost should be HK$1,580,412.”
(b) Included amongst P’s calculation is a sum of HK$147,000, which it says Centro had forfeited. On the evidence, I am not satisfied that that was a forfeited sum, but related either to works that Centro had done or, as Mr Lam has submitted, to certain wasted costs. I am not satisfied that P has proved its case in this regard. I disallow that sum;
(c) Mr Pun submits[159] that “… P would in any event terminate its contract with Centro given their breakdown of trust and would inevitably need to engage an alternative contractor …” I do not accept that submission. It is not supported by the evidence;
(d) The quotation from Hung To was obtained on 12 September 2019[160];
(e) Whilst the quotation from Hung To was item-by-item higher that the quotation from Centro, I accept Mrs Chan’s evidence that Hung To was the only one of the several contractors she had approached who was willing to give a quote, as few of them was prepared to pick up Centro’s uncompleted works. As Mr Lam has submitted, there is otherwise no evidence suggesting that the quotation from Hung To was unreasonable;
(f) I first of all discount from the claim the sum of HK$147,000. I then give a 20% discount to address the time factor. I allow this part of the claim and assess the quantum at the rounded-off sum of HK$1,147,000.
234. In relation to榮光:
(a) As summarized by Mr Lam in §159(c) of his written opening:
“P engaged [榮光] for air-conditioning work. It charged HK$96,390 initially. P had paid HK$65,635. And it would need to pay HK$43,150 to complete the work. The additional sum is HK$(65,635 + 43,150 – 96,390) = HK$12,395”;
(b) I accept Mrs Chan’s evidence that whilst all compressor had been installed, the internals parts could not be completed until other works had been completed;
(c) The new quotation is dated 25 September 2019;
(d) I give a 20% discount to address the time factor. I allow this part of the claim and assess the quantum at the rounded-off figure of HK$9,800.
235. In summary, I allow P’s claim for additional construction costs, and assess the quantum at HK$1,576,600 (HK$382,000 + HK$37,800 + HK$1,147,000 + HK$9,800).
O.3. CONCLUSION ON P’S MONETARY CLAIM
236. For the reasons set out above, I allow P’s monetary claim to the extent of HK$2,547,600 (HK$971,000 + HK$1,576,600).
P. D’s Counterclaim
237. The monetary part of D’s Counterclaim is pleaded on the basis of P’s breach of common law duty[161], breach of Clause A(4), trespass and/or nuisance[162]. The total particularized damage is HK$230,700[163]. As I have mentioned above, injunctive relief is also sought to compel removal of the J15 Lightwell Structure, the Pond-like Structure, and the Alleged Unauthorized Drainage Pipes.
238. At Section B.2 of his written opening, Mr Pun addresses the relevant general principles applicable inter alia to trespass, nuisance and negligence. They are not controversial. I apply them when necessary.
239. At §98 of his written closing, Mr Pun, in the context of the Minimum Disturbance Limb, submits that it is proper to adopt the “unreasonable user and foreseeability” test (as applicable to private nuisance) when determining what amounts to “as little disturbance as possible”.
240. Mr Lam does not dispute the application of that test[164]. He highlights the following passages from Clerk & Lindsell on Torts 23rd ed., at §19-35, that:
“Unreasonable user and foreseeability ‘The very essence of a private nuisance… is the unreasonable user by a man of his land to the detriment of his neighbour.’ But though actual or constructive knowledge of such detriment on the part of the defendant is one element in determining whether user is reasonable, the courts have habitually taken more into account when assessing reasonableness of user. In addition to the defendant’s conduct and knowledge there are the considerations of the nature of the claimant’s interest and a balancing of that interest against that of the defendant, the character of the interference and its duration, and indeed all material circumstances including the interests of third parties and those of the community as a whole. Negligence, on the other hand, though requiring a consideration of circumstances as well as conduct, is rarely a question of degree ... But the use of land to the detriment of a neighbour may involve some foreseeable harm which the court considers not excessive as between neighbours and to a degree which has to be tolerated under a principle ‘of give and take, or live and let live’. Reasonableness of user in nuisance therefore cannot be taken as solely determinable by reference to the character of the defendant’s conduct, and this may be the source of the difficulty in understanding properly those judicial statements which speak of ‘fault’ as distinguished from negligence as a requirement for nuisance.”
241. In my view, the material circumstances that need to be taken into account when deciding whether there has been any private nuisance or breach of the Minimum Disturbance Limb also include the implied duty of co-operation between the parties as discussed above, which I repeat. I agree with Mr Lam[165] in this regard, that the correlative of D’s duties under the implied term of co-operation is P’s ancillary rights under Clause A(4).
P.1. THE ALLEGED SUBSTANTIAL DISTURBANCES
242. Except those relating to the injunctive relief, the Alleged Substantial Disturbances are alleged to have taken place during the phase of Works between about December 2016 and October 2017 (which D defines as the Early Renovation Works).
243. I shall go through the Alleged Substantial Disturbances in the way as structured by Mr Pun in D Closing/Annex. The evidence and materials cited therein are extensive. I may not recite and discuss them in full below, but I have considered them.
P.1.A. “NUMEROUS SAFETY MATTERS”
244. Under the heading of “Numerous safety matters”, submissions on 4 matters have been made.
P.1.A.I. “NO REGULAR SAFETY INSPECTION OF THE SCAFFOLDING”
245. By letter of 9 August 2017, the Management Office complained to K&F that, amongst other things, there was no safety certificate on the scaffolding. Rectification within 7 days was requested. The situation had been rectified by 16 August 2017[166], and an inspection conducted on 14 August 2017[167].
246. The complaint was based primarily upon Kong’s evidence[168], that based upon a safety certificate she had seen, only 2 inspections (of 14 August and 27 October 2017) were recorded, she “suspected” that the scaffolding had not been inspected in accordance with the law. She otherwise has no evidence of the exact state of the inspections.
247. In my view, the evidence does not establish any actionable breach.
P.1.A.II. “COLLAPSE OF SCAFFOLDING ON TWO OCCASIONS”
248. On 23 and 27 August 2017, Hong Kong was hit by respectively Typhoons Hato and Pakhar. They were both very powerful typhoons.
249. As recorded in the Incident Report[169], on 23 August 2017 a bamboo fell into the Garden and damaged certain properties. It also recorded that P’s contractor would accept responsibility for the same. I will deal with the loss separately below (as it was dealt with separately in D Closing/Annex).
250. As further recorded in the Incident Report, part of the scaffolding collapsed on 27 August 2017. It was also recorded that P’s contractor would handle the dangerous parts as soon as possible. When giving evidence, Kong also fairly accepted that the situation was understandable, and that P’s contractors would need time to deal with the problems, as it was dangerous for them to do so in the middle of the typhoons. According to the Incident Report, the dangerous scaffolding was removed on 29 August 2017 by P’s contractor.
251. On the evidence, and as clarified by Mr Pun[170], it is not D’s allegation that there was any delay on P’s part in dealing with the fallen scaffolding after the typhoons, but that their collapse together with the alleged lack of inspection “show that no sufficient preventive measure was implemented by P.”
252. In my view, in all the circumstances of the case, given the cause of the matters, their ad hoc nature, and the remedial actions taken, save the properties actually damaged (the glass table etc.) which I will come back to, no actionable breach has been established.
P.1.A.III. “RENOVATION WASTES”
253. In gist, the complaint is that P failed to properly manage and handle its renovation waste, thereby creating serious safety concerns[171].
254. I accept that according to the evidence, and as highlighted by Mr Lam at section E1(x) of his written closing, P’s contractors did from time to time clear and otherwise deal with them. They did not ignore the complaints. I do not however agree that such occurrences were “inevitable”. P’s contractors could have done more. Permitting debris to fall onto J14 should have been prevented. The bottom part of the canvas nets covering the scaffolding for example could also have been secured (which they were not according to Kong, whose evidence in this regard I accept).
255. The dropping of renovation debris in the absence of precaution is foreseeable. It is unreasonable. It is preventable. Nuisance and breach of the Minimum Disturbance Limb has been established.
256. No special damages are being claimed under this sub-heading.
P.1.A.IV. “SAFETY OF P’S WORKERS”
257. I accept Kong’s evidence about she having seen workers working without safety equipment. However, no authority has been cited to me that such conduct constituted “disturbance” or “nuisance”.
258. No actionable breach has been established.
P.1.B. “VARIOUS OTHER SECURITY AND PRIVACY MATTERS”
259. The second heading is “Various other security and privacy matters”, under which there are 4 sub-headings.
P.1.B.I. “BLOCKING THE DOOR OF THE RED STRUCTURE”
260. The evidence establishes that the door of the G/F Red Structure leading to the Lane had been blocked by certain wooden planks and structures built by P’s contractors at the Lane. The door was blocked for several days towards the end of July and early August 2017. That was not reasonable, and more than minimum disturbance.
261. No special damages are being claimed.
P.1.B.II. “DAMAGING D’S SECURITY SENSORS”
262. D’s case is that sometime in August 2017, P’s contractors cut off the wirings at the Lane connecting the security sensors of J14.
263. P admits having done so. I however do not accept the suggestions put to Mrs Chan during cross-examination that she instructed the workers to cut the wires because the sound of the system was noisy.
264. Mr Lam submits[172] that:
“Perhaps P should have informed D first. But the sensor and the wires were put on the Wall belonging to P by D without P’s consent and knowledge in the first place. To carry the works to the Wall, cutting the wire would have been inevitable in any event. Moreover, this was a one-off matter.”
265. I have concluded above that the Yellow Wall belonged to J15.
266. However, even though one of the sensors was mounted on the Yellow Wall, it does not necessarily mean that P was entitled to cut off the wiring. P is not putting forward a case of self-help. There is no suggestion that the sensor could not have been dislodged from the Yellow Wall, so that the wiring had to be cut.
267. The incident may have been a one-off matter. But that does not mean that the cutting of the wire cannot be an act of trespass, which I hold it is.
268. I have considered Mr Lam’s criticisms of D’s evidence[173]. Despite those criticisms, I accept Kong’s evidence that the security had been re-connected. The costs and expenses involved were HK$12,000[174], which I allow.
P.1.B.III. “SCAFFOLDING ERECTED ON THE CANOPY OUTSIDE SENIOR MRS KWONG’S ROOM”
269. The complaint is that part of the scaffolding blocked the window of the master bedroom of J14, caused inconvenience to the residents there, created security risk, and compromised the occupants’ privacy.
270. I have considered the evidence. I have in particular considered the relevant photograph[175]. Bearing in mind the proximity between J14 and J15 and the extent of the inconvenience, I am on balance of the view that it was not excessive as between neighbours. Any possible trespass should also be considered in the context of P’s ancillary rights under the implied duty of co-operation.
271. No actionable breach has been established in this regard.
P.1.B.IV. “LONG LADDER AND MOVEABLE METAL PLATFORM PLACED IN THE LANE OVERNIGHT AND THE IMPORTANCE OF SCAFFOLDING LAMPS”
272. D’s complaint is that P allowed its contractors to leave a long ladder and a moveable metal platform unattended overnight in the Lane, thereby creating significant security risks for D.
273. I accept Mr Lam’s submissions that the use of scaffolding, metal platform and long ladder are within P’s ancillary rights under Clause A(4)[176]. In terms of security risk, I also accept Mr Lam’s submissions that as J15 was locked and secured, there was no real or substantial risk of trespassers entering J15 and then access the Lane via the scaffolding, metal platform or long ladder.
274. In terms of scaffolding lights, D complained that it took P’s contractors some 10 days to install one scaffolding light, and that even so, it was not dutifully turned on afterwards.
275. The timeous installation and use of scaffolding lights would have enhanced the level of security. I see Kong’s concern. But on the facts of the case, and as submitted by Mr Lam[177] which I have to accept, it is difficult to see why the absence of scaffolding lights could constitute a “disturbance”. Nor has any authority been shown to me showing that that could constitute a nuisance or trespass.
276. On the evidence, no actionable breach has been established.
P.1.C. SERIOUS HYGIENE ISSUES
277. I now come to the third main heading, under which there are 4 sub-headings.
P.1.C.I. “MISBEHAVIOUR OF P’S WORKERS”
278. D’s complaints relate to the misbehavior of P’s workers and hygiene issues. Kong says that the Lane smelt of urine. Shorts and soft drink cans were squeezed into the gaps between the Glass Brick Walls.
279. On the evidence, I am of the view that the disturbances were more than minimum, unreasonable, foreseeable and avoidable.
280. No special damages are being claimed.
P.1.C.II. “ACCUMULATION OF RENOVATION WASTE”
281. The complaint is that P allowed various renovation wastes, debris and rubbish to accumulate in and around J14, which created serious hygiene concerns.
282. I have considered the various photographs, entries in the Incident Report and the communications between P’s contractors and the Management Office. Renovation waste and debris had in fact been shown to have been allowed to be accumulated on places like the Lane and the top of the Red Structure. I have considered the evidence discussed by Mr Lam at section E1(x) of his written closing, and in particular the steps taken by P’s contractors to clean up. I repeat Kong’s evidence that the bottom part of the canvas nets covering the scaffolding was not secured. I accept also her evidence that despite the undertakings given by P’s contractors to the Management Office to finish work earlier every day to clean up the site, that was not done.
283. I have considered the intrinsic nature of renovation works which Mr Lam has emphasized. However, on the evidence, I am of the view that the disturbances were not minimum, unreasonable, foreseeable and avoidable.
284. I will deal with quantum together with the claim relating to blockages of J15’s drainages.
P.1.C.III. “P’S POND-LIKE STRUCTURE”
285. The complaint is that any stagnant water in that structure would be the source of mosquitos.
286. The so-called Pond-like Structure was originally part of the basement of J15. It became a bit of a void upon commencement of the Works. It however remained under cover. Mrs Chan has confirmed that it would be closed back up upon completion of the Works.
287. D’s first official complaint through its solicitors to P was only made on 6 May 2021, to which P through its solicitors replied that P had instructed a contractor to spray insecticide on 11 December 2020.
288. D’s concern at one stage was the uncertainty in respect of the time when the Works would be completed. As I have recorded above, with the opening up of the Front Wall, the Works had been resumed.
289. In my view, no actionable breach has been established.
P.1.C.IV. “P’S UNAUTHORISED LIGHTWELL STRUCTURE”
290. I have described the J15 Lightwell Structure above.
291. Kong’s concern is that the roof of canopy of the J15 Lightwell Structure would be another source of mosquitos.
292. The photograph shows that there is a drain hole on the canopy of the J15 Lightwell Structure. There is no evidence which suggests that it did not or does not function.
293. No actionable breach has been established.
P.1.D. “DESTRUCTION OF AND/OR DAMAGE TO D’S PROPERTIES”
294. I now come to the fourth main heading, under which there are 9 sub-headings.
P.1.D.I. “DEMOLISHMENT OF THE LIGHTWELL WALL AND MOSAIC TILES”
295. There is no dispute that at the early state of the Works, P took down the Lightwell Section of the Yellow Wall. It has since been rebuilt. Parties’ dispute lingered on as to how it should be refurbished.
296. I have ruled that on the evidence, P has proved to the requisite standard that the Yellow Wall (including the external face) is P’s Property.
297. This limb of D’s Counterclaim is not made out.
P.1.D.II. “DAMAGE TO THE RED STRUCTURE CAUSING WATER LEAKAGE”
298. It is Mrs Chan’s evidence[178] that:
“原告工人並沒有損壞了違例建築物。唯一做過的是我們要鎅開少許違例建築物與我們牆的接合點，因違例建築物非法覆蓋J15號屋牆身而我們需要有防水接口位，以便收口。”
299. The Red Structure at that stage did block the Covered Part of the Yellow Wall.
300. According to the photographs, the cut appears consistent with the reasons given by Mrs Chan for its creation. P’s contractor also stated that the gap would be closed up upon completion.
301. The entire Red Structure had shortly afterwards been demolished.
302. In my view, and having taken into account all the factors, the cut was reasonable. Not actionable breach has been established.
P.1.D.III. “DAMAGE TO D’S GLASS BRICKS ON ITS GARDEN WALL”
303. I have described the Glass Brick Walls above.
304. Photographs show that part of the scaffolding rested on the J14 Glass Brick Walls[179].
305. On the evidence, I am satisfied that the Works had resulted in damage to a number of bricks of the Glass Brick Walls.
306. Such damage is not minimum, unreasonable, foreseeable, and avoidable.
307. I will deal with quantum later together with the part of D’s Counterclaim in respect of the floor tiles of the Lane.
P.1.D.IV. “DAMAGE TO THE GLASS TABLE IN D’S GARDEN”
308. It was damaged by certain bamboo sticks that got blown off the scaffolding during Typhoon Hato. P in my view is liable to compensate D for the same.
309. Having considered the evidence, including Mr Lam’s criticisms of the same, I assess the damages (costs of a new glass table together with transportation costs) at HK$7,700[180].
P.1.D.V. “DAMAGE TO THE D’S SPOTLIGHT IN THE GARDEN”
310. A spotlight in D’s Garden was damaged by bamboo sticks fallen from the scaffolding. P is liable to compensate for that. Having considered the evidence, including Mr Lam’s criticisms of the same, I assess the damages at HK$2,500[181].
P.1.D.VI. “BLOCKAGES OF D’S DRAINAGES ON TWO OCCASIONS”
311. Given the discussions above, I accept that the Works would have caused blockages to the drainages both at the Lane and the canopy outside the master bed room. They were more than minimum and unreasonable.
312. I however do not accept that Works necessitated the reconstruction and relocation of the drainage outside the master bedroom. I disallow the claim in this regard.
313. I assess the damages, together with the part of the Counterclaim in relation to accumulation of renovation waste, at HK$2,500[182].
314. In respect of Item 12 of the Scott Schedule in relation to the clearing and reconstruction of the drainage at the canopy outside the master bedroom, I allow only HK$2,500 as the costs for its clearing[183], but not the balance of HK$32,000 for its reconstruction.
P.1.D.VII. “PORSCHE VEHICLE PARTS PLACED IN THE LANE”
315. The complaint is that P’s workers unwrapped the Porsche vehicle parts placed by D inside the Lane, which acts caused rainwater, debris and dust to have accumulated and damaged those parts.
316. I accept Kong’s evidence under cross-examination that those parts were originally covered and protected by plastic. The covering was removed in the course of the Works. The inherent likelihood is that it was removed by P’s workers.
317. The disturbance is more than minimal and unreasonable.
318. I accept Kong’s evidence that a replacement had been purchased and paid.
319. I assess the damages at HK$28,000[184].
P.1.D.VIII. “THE WATERPROOFING LAYER ON THE [FRONT] WALL”
320. On the evidence, I accept that the part of the scaffolding had rested on the Front Wall. The waterproofing on it had as a result been damaged. The damage and disturbance was more than minimal, unreasonable, foreseeable and avoidable, it not also a trespass.
321. I assess the damage at HK$12,000[185].
P.1.D.IX. “DAMAGE OF THE FLOOR OF THE LANE”
322. On the evidence, I do not accept that Kong’s evidence that concrete had been used to fixed the scaffolding onto the floor of the Lane. Rather, it appears to squares of wood or concrete were placed between the floor and parts of the scaffolding support with the apparent purpose of protecting the floor tiles.
323. However, and I have observed above, supported by various photographs, there had been renovation debris on the floor of the Lane from time to time. There were also stains which could not be removed. All those resulted in disturbances beyond being minimum, and were unreasonable.
324. On the evidence, I accept that D has suffered loss, assessed at, together with the part of the Counterclaim in relation to the glass bricks and the reasonable costs for their replacement, HK$125,000[186].
325. I also allow the “Miscellaneous works including general and protection works”, at HK$6,500[187].
P.1.E. “THE UNLAWFUL INTRUSION OF P’S UNAUTHORIZED DRAINAGE PIPES INTO D’S PROPERTY”
326. I will come back to the Alleged Unauthorized Drainage Pipes when I deal with the injunctive relief sought by D.
P.2. CONCLUSION ON THE MONETARY PARTS OF D’S COUNTERCLAIM
327. At §28 of the RRRAD&C, D particularized damages in the total sum of HK$230,700.
328. At §1 of the Prayer, D seeks “The sum of HK$230,700 as pleaded in paragraph 28 above, or alternatively damages to be assessed”.
329. For the reasons set out above, I allow part of D’s Counterclaim, and assess and award damages in the total sum of HK$198,700 (i.e. the total amount as particularized and prayed for save the amount of HK$32,000 in relation to the re-construction of the drainage at the canopy outside the master bedroom.
P.3. THE INJUNCTIVE RELIEF SOUGHT
P.3.A. THE POND-LIKE STRUCTURE
330. I have described the Pond-like Structure above. I repeat that it will be closed back up upon completion of the Works.
331. On the evidence, I see no basis for any permanent injunction for its demolition.
332. D’s latest position, as revealed in D Closing/Annex[188], is that it is no longer insisting upon an injunction for demolition of the Pond-like Structure. There, Mr Pun says that:
“… in order to avoid any further unnecessary conflicts between the parties, P should be ordered to cover P’s Pond-Like Structure to the extent that no further nuisance will be caused immediately after 60 working days since 1.3.2022.”
333. There is no evidence in support of or explaining why the period of 60 days proposed is appropriate or otherwise reasonable.
334. As things turned out, and as I have recorded above, the oral deliveries of parties’ closing submissions have been delayed. When parties ultimately came back on 13 May 2022, parties informed the Court that the Works were progressing well, and there had been no further major issues. That proposed period had also lapsed.
335. I decline any injunctive relief in relation to the Pond-like Structure.
P.3.B. THE J15 LIGHTWELL STRUCTURE
336. I have also described above the J15 Lightwell Structure.
337. D’s latest position, also revealed in D Closing/Annex[189], is that it is no longer insisting upon an injunction for the wholesale demolition of the J15 Lightwell Structure. There, Mr Pun says that:
“… D accepts that it is no longer necessary to demolish the entirety of P’s Unauthorised Lightwell Structure, but a Court Order is still warranted for the demolition of its rooftop/canopy.”
338. I do not accept that the proposed order is “still warranted”.
339. I have stated my views on the drain hole on the canopy of the J15 Lightwell Structure, which I repeat.
340. Further, such “scaled-down” injunction has never until D Closing/Annex been part of D’s case. P has never been afforded the chance to answer it. It would be grossly unfair to P if one is to be ordered at this stage.
341. I refuse any injunction relief in relation to the J15 Lightwell Structure.
P.3.C. THE ALLEGED UNAUTHORIZED DRAINAGE PIPES
342. D’s complaint is that P has, as part of the Works, moved some portion of the drainage pipes serving J15 to the outside of its external wall above the Lane, thereby encroaching upon the airspace of D’s property.
343. I have studied the photographs produced by Kong in support of her complaint[190]. Two sets of pipes are impugned:
(a) one is shown by the photographs at [C2/278 and 280][191] (“Set A”);
(b) the other set is shown by the photograph at [C2/279][192] (“Set B”).
344. As explained by Mrs Chan[193] and supported by the photograph she has produced[194], Set A is actually outside the Lane. I accept her evidence in this regard. No trespass has been established.
345. In relation to Set B[195], they were mounted along a section of the Yellow Wall towards the sea side, comprising a horizontal and vertical section. The horizontal section is mounted at a height at about the roof top of J15. The vertical section runs from the roof of J15 to somewhere where the top of the 1/F Red Structure used to be, and then turns towards the front wall of J15 facing the sea (and hence no longer within the Lane). The “thickness” of those pipes projects several inches into the airspace of the Lane.
346. Mr Lam relies on the following passage from §18-03 of Clerk & Lindsell, that:
“It may be a trespass to invade the air-space above land. Intrusion into air-space at any height, is not automatically wrongful, but it is clear that it is a wrong where such air-space is necessary for the full use of land below.”
347. However, reading that paragraph of Clerk & Lindsell as a whole, it is quite clear that the learned authors are principally discussing the question of trespass of airs-space by aircrafts, and whether intrusion into air-space “at any height” is automatically wrongful.
348. A more relevant case is Laiqat v Majid [2005] EWHC 1305 (QB) cited by Mr Pun:
(a) In that case, the subject act involved the installation by the defendants of an extractor fan on their property which protruded through the side of the wall separating the claimant’s premises from the defendant’s promises so that it was “partially above the rear yard of the claimant’s premises” (§2 of the judgment).
(b) A number of authorities were considered. One of them (Kelsen v Imperial Tobacco Company (of Great Britain and Ireland) Ltd [1957] 2 QB 334) involved an advertising sign erected by the defendants projected a few inches into the airspace above the one-storey shop of a neighbouring occupier, who commenced proceedings;
(c) Having considered those authorities, Silber J observed at §34 that:
“… all the authorities establish that if a defendant interferes with a claimant’s airspace, this amounts to trespass except that this conduct would not constitute trespass if the interference were at such great height – such as by high flying aircraft – that it does not interfere with the claimant's airspace. As Scott J explained in the passage, which I have already quoted, ‘if somebody erects on his own land a structure, part of which invades the air space above the land of another, the invasion is trespass’. By the same token, Griffiths J, had previously stated, as I have already explained, that, ‘adjoining owners … have no right to erect structures overhanging or passing over their neighbour’s land’.”
349. I respectfully agree.
350. I find that Set B, in so far as they project into the airspace of the Lane, constitutes trespass.
351. Mr Lam submits nonetheless no mandatory injunction should be granted. He points to the fact that prior to the Works, there were some horizontal pipes on the Yellow Wall that similarly protruded into the airspace of the Lane. D had not complained. He also relied on Wilmes Lai Shim v Ng Jess (unreported, LDBM 266/2013 & LDBM 280/2013, 3 December 2014) where the Lands Tribunal held that where no damage has been occasioned and the grant of a mandatory injunction would inflict damage on the defendant out of all proportion to the relief given to the plaintiff, the court ought to refuse it.
352. Wilmes Lai Sim is of different facts. It related principally to breaches of DMC for unauthorized alteration and occupation of common area. In the present case, we are concerned with the property right of D, which the law has to uphold, protect and respect.
353. For the same reasons, the absence of any objection by D of the old pipes does not deprive them of their entitlement to uphold their property right. In any event, the old pipes are different from Set B. The consideration will be different if Set B had been there for a long time without objection.
354. Mr Lam submits that it is wrong to say that re-routing the pipes would cause no hardship to P, as P would need to find another place to relocate them at extra costs. I do not see those as hardship, but the necessary consequence of trespass.
355. Mr Lam, with reference to §37 of Laiqat v Majid, subject that it is relevant to consider whether the trespass is de minimis.
356. On the evidence before me, I am of the view that the trespass constituted by Set B cannot be described as de minimis.
357. For completeness, I come back to Set A and add the following. I have concluded that on the evidence before me, no trespass has been established in respect of Set A. If there were any, for example if a small part of Set A had protruded over the airspace of the Lane at the point where it had turned from outside into J15 near the top of the Front Wall, such trespass might properly be de regarded as de minimus.
358. I therefore grant a mandatory injunction for the removal of Set B, namely the horizontal and vertical set of pipes mounted along a section of the Yellow Wall towards the sea side which protrude into the airspace of the J14 (and as shown in the photograph at [F1/84]).
P.4. CONCLUSION ON D’S COUNTERCLAIM
359. For the reasons set out above, I allow part of D’s Counterclaim to the following extent:
(a) damages assessed in the total sum of HK$198,700 be awarded to D, and
(b) a mandatory injunction be granted against P for the removal the horizontal and vertical set of pipes mounted along a section of the Yellow Wall towards the sea side which protrude into the airspace of the J14 (and as shown in the photograph at [F1/84]).
Q. Overall disposition
360. For the reasons set out above:
(a) In respect of P’s Claim:
(i) I allow P’s monetary claim to the extent of HK$2,547,600; and
(ii) The balance (save interest and costs dealt with below) is dismissed;
(b) In respect of D’s Counterclaim, I allow part of it to the following extent:
(i) damages assessed in the total sum of HK$198,700 be awarded to D;
(ii) a mandatory injunction be granted against P for the removal the horizontal and vertical set of pipes mounted along a section of the Yellow Wall towards the sea side which protrude into the airspace of the J14 (and as shown in the photograph at [F1/84]);
(iii) the balance (save interest and costs dealt with below) is dismissed.
361. In terms of interest, I make the following order nisi:
(a) In respect of the sum of HK$2,547,600, interest shall run at half the judgment rate from the date of the Writ till judgment, and thereafter at judgment rate till payment;
(b) In respect of the sum of HK$198,700, interest shall run at half the judgment rate from the date of the Defence and Counterclaim till judgment, and thereafter at judgment rate till payment.
362. In terms of costs:
(a) I bear in mind that P originally sought an injunction for the removal of the Red Structure, which prayer has since been deleted;
(b) Even in the current form, P on the first day of the trial was still seeking an order that D should allow P to use the Intended Route, and a consequential order for removal of inter alia the Violet Structure, none of which P obtains;
(c) P is successful in establishing D’s denial of its Clause A(4) Right prior to 25 March 2019, but otherwise fails in respect of its case after that date, though otherwise successful in part of its monetary claim;
(d) D is successful in resisting P’s monetary claim after 25 March 2019;
(e) D is successful in part of its monetary counterclaim, and in part of its counterclaim for injunctive relief;
(f) Overall, I regard it as fair that there should be no order as to costs in respect of the whole action (claim and counterclaim included), and I make a costs order nisi to that effect.
363. Both the interest order nisi and costs order nisi shall become absolute in 21 days of the handing down of this Judgment. Any application for variation may be made during the interim by letter to this court, upon receipt of which further directions may be given, with the view of the same being disposed of on the papers.
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(Keith Yeung)
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Judge of the Court of First Instance
High Court |
Mr Paul Lam SC leading Ms Sabrina Leung instructed by Tang & So, for the Plaintiff
Mr Hectar Pun SC leading Ms Carol Lee instructed by ST Cheng & Co, for the Defendant
Annexure A
Agreed Ground Floor Plan
[1] I describe the wall as such without ignoring parties’ disagreement over the ownership of that wall or its external face.
[2] In circumstances which I will describe.
[3] The Revised Agreed Plan (2) (the Explanatory Notes not incorporated).
[4] [D1/9].
[5] [D1/9-10].
[6] [D1/43].
[7] [D1/47-48].
[8] [D1/49-50].
[9] I say “sought” as parties’ disputes have evolved over the course of last several years, in the manner which I will explain. Whilst P started off seeking an injunction, it no longer does so.
[10] At section E of his written opening.
[11] See e.g. §§10 and 19D of the RRRAD&C.
[12] [F3/531].
[13] [F2/265].
[14] [E1/139].
[15] The stretch of the Yellow Wall from the Pedestrian Road to the Front Wall was given during the trial the co-ordinations of A to B on Annexure A.
[16] [F1/133].
[17] [F3/531].
[18] Which was given during the trial the co-ordinations of B to C on Annexure A.
[19] [F1/4].
[20] The stretch of the Yellow Wall the lower part of which having been covered by the Red Structure was giving during the trial the co-ordinations of C to D on Annexure A.
[21] Parties cannot agree on what it should be called. I will simply refer to it neutrally as “the Violet Structure”.
[22] [D2/376-378].
[23] §4 of Yick/2 (as defined below).
[24] [D2/364].
[25] [D2/366-367].
[26] [E1/1-6].
[27] §11 of Yick/2.
[28] Marked by an orange rectangle on Annexure A, and explained by Note 11.
[29] [F2/298 and 299].
[30] Compared [F2/298] with [F2/299], and see [E1/217-222].
[31] The fence facing the sea is marked as “White Gate” on Annexure A.
[32] Marked on Annexure A as the “Green Gate”.
[33] Which according to the assignment plan at [D1/132] is 5.40m.
[34] See the photograph at [F1/245].
[35] Compared with §17 of the Agreed Statement of Facts.
[36] In fact even §17 of the Agreed Statement of Facts are not fully agreed.
[37] The handwritten notice at [D2/364], and transcript of the same at [D2/399-2].
[38] [D2/401].
[39] [D2/400].
[40] See [D1/194].
[41] §45 of Yick/1.
[42] [E1/1-3].
[43] [E1/7-14].
[44] [E1/41-42].
[45] [E1/44-45].
[46] At §82 of his written opening.
[47] [E1/49-51].
[48] [E1/52-54].
[49] §88 of his written opening.
[50] [E1/55-57].
[51] [E1/58-59].
[52] [E1/105-108].
[53] [E1/120].
[54] [E1/121-125].
[55] [E1/126].
[56] [E1/127].
[57] [E1/129-131].
[58] [E1/132-133].
[59] [E1/134].
[60] [E1/135-138].
[61] [E1/139-142].
[62] [E1/143-147].
[63] [E1/177-178].
[64] [E1/179-185].
[65] [E1/186-187].
[66] [E1/188-190].
[67] [E1/191-192].
[68] [E1/193-196].
[69] [E1/197-199].
[70] [E1/200-213].
[71] [E1/214-216].
[72] [E1/217-222].
[73] [E1/224-232].
[74] See eg [E1/235-239] and [E2/245-262].
[75] [E1/240-244], and [E2/273-274].
[76] [E2/279-286].
[77] Which has been delay due to the pandemic.
[78] Although Mr Chan has made 1 statement dated 6 May 2019, he has not been called.
[79] §17 of his written closing.
[80] §50 of his written opening.
[81] §§19 to 20 of his written reply.
[82] §44 of his written opening.
[83] §16.
[84] §§57-59 of his written closing, and Parts II.1 and II.2 of his written reply.
[85] See §98 of Mr Pun’s written closing, arguing that it is proper to adopt the “unreasonable user and foreseeability” test for finding private nuisance.
[86] §§34 to 35 of his written closing.
[87] §23 of his written closing.
[88] Which are given by Mr Lam at§54 of his written opening.
[89] §26 of his written closing.
[90] Sections G of his written opening, and D of his written closing.
[91] §51.1 of his written opening.
[92] §72.1 of his written closing.
[93] §72.2 of his written closing.
[94] §8 of his written closing and §44 of his written reply.
[95] At §54 of his written opening.
[96] At §§24-25 of his written closing.
[97] §2 of his written reply.
[98] which include Greenwich Healthcare National Health Service Trust v London and Quadrant Housing Trust [1998] 1 WLR 1749, Ford Chamber Ltd v Deanminster Ltd and another [2006] EWHC 1961 (Ch), Crane Road Properties LLP v Hundalani [2006] EWHC 2066 (Ch), Heslop v Bishton and others [2009] EWHC 607 (Ch), Kettel v Bloomfold Ltd [2012] EWHC 1422 (Ch), Lea v Ward [2017] EWHC 2231 (Ch), Regency Villas Title Ltd and otehrs v Diamond Resorts (Europe) Ltd and another [2017] Ch 516 at 530, Tsan Luk Yuk Lin v Secretary for Environment, Transport and Works [2008] 2 HKLRD 33.
[99] §81 of his written closing.
[100] §84 of his written closing.
[101] §87 of his written closing.
[102] §4(b) of his written closing.
[103] §88(c) of his written closing
[104] See §89 of his written closing.
[105] §34 of his written opening.
[106] As explained by Lord Hoffmann NPJ – see Kung Ming Tak Tong §22.
[107] As explained by Li CJ at §44 of Kung Ming Tak Tong.
[108] Page 93.
[109] Because if for example a path already exists over the servient tenement leading to the dominant tenement.
[110] That “the right of way is chosen in the first instance by the person whose grant gave rise to the need for the way” (p.95).
[111] That “the right of selection vests in the owner of the servient tenement. Sometimes a gloss is added: that if the owner of the servient tenement does not exercise the right of selection the owner of the dominant tenement may do so”(p.96).
[112] Pages 100 to 101 under the heading of “What factors apply?”
[113] See section F2. of his written closing.
[114] Which I do not believe so noting that Clause A(4) is an express mutual grant and reservation. Any mechanism for deciding the route may be decided by recourse to issues of construction. I accept Mr Pun’s submissions at §57 of his written reply in this regard.
[115] §57.3 of his written reply.
[116] Section E.1 of his written closing.
[117] §84 of Mr Pun’s written closing.
[118] [D1/63].
[119] §79 of his written closing.
[120] See [E1/4], [F1/6, 151-152] and [F2/280].
[121] §6 of his written Reply.
[122] [D1/82 and 85] respectively.
[123] [D1/132].
[124] [F1/10-50].
[125] For examples [F1/11], [F3/552], [F1/16-1], [E2/252-254] and [F1/47-50].
[126] For examples [D2/364 and 367].
[127] [F1/11].
[128] By summons of 4 January 2019, [B/36-39].
[129] §88 of his written closing.
[130] §92 of his written closing.
[131] §59 of his written opening.
[132] See “Annex to Part F” (“D Closing/Annex”), which is a 29-page document attached to his written closing.
[133] Section G.1. of his written closing.
[134] Section G.2.1 of his written closing.
[135] §112 of his written closing.
[136] §113 of his written closing.
[137] §§39(g) and (h) of Yick/1, [C1/15].
[138] §66 of his written closing, and §18 of his written reply.
[139] §45 of his written opening, and Section H of his written closing.
[140] And see also §19D(1) of the RRRAD&C.
[141] [F2/299].
[142] In particular Section G of his written reply.
[143] §136 of his written closing.
[144] §131 of this written closing.
[145] See §1 of the letter of the Management Office of 18 May 2019, [D1/207].
[146] See §3 of the letter of the Management Office of 18 May 2019, [D1/207].
[147] §143 of his written closing.
[148] §(1) of the Prayer.
[149] Section K.1.1 of his written closing, repeated in §225 of the same.
[150] [D1/232-233].
[151] §226.1 of his written closing.
[152] §152 of his written closing, and §28(a) of his written reply.
[153] §226.2 of his written closing.
[154] [F1/40].
[155] And see also §109(5) of Yick/1.
[156] [D2/326].
[157] At Section K.1.2(c).
[158] [D2/276-277].
[159] §204 of his written closing.
[160] [D2/268-273].
[161] §27 of the RRRAD&C.
[162] §28 of the RRRAD&C.
[163] §28 of the RRRAD&C, and see Items 8-16 of the Scott Schedule.
[164] §§15 and 22 of his written reply.
[165] §26 of his written closing.
[166] [D2/447].
[167] [F1/208].
[168] §21 of Kong/1.
[169] [D2/376].
[170] §§266 and 267 of D Closing/Annex.
[171] §274 of D Closing/Annex.
[172] §32 of his written closing.
[173] Section H2(ii) of his written closing.
[174] Item 4 on [C3/550], and Item 9 of the Scott Schedule.
[175] [C2/260].
[176] §39 of his written closing.
[177] §43 of his written closing.
[178] §39(g) of Yick/1, [C1/15].
[179] See for example [F2/316].
[180] Item 16 of the Scott Schedule, and [D2/406].
[181] Item 13 of the Scott Schedule, and item 5 on [D2/407].
[182] Item 10 of the Scott Schedule.
[183] The last item of item of [D2/407].
[184] Item 15 of the Scott Schedule, and [C3/554].
[185] Item 11 of the Scott Schedule, and item 3 on [D2/407].
[186] Item 8 of the Scott Schedule, and [D2/406] (quoted costs plus insurance).
[187] Item 14 of the Scott Schedule.
[188] At §335.
[189] At §340.
[190] Kong/1, §43, and the photographs at [C2/278-280].
[191] And also Note 21 on Annexure A.
[192] And also Note 20 on Annexure A.
[193] Yick/1, §92.
[194] [C1/156].
[195] See also the photograph at [F1/84].
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