PERECT CHINA INTERNATIONAL LTD v. CHAN YAT SIU AND ANOTHER

LDBM 24/2011

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION

NO. 24 OF 2011

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J U D G M E N T

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1.  The applicant is the owner of House No. 31 (“House 31”) of Beaulieu Peninsula (“the Estate”), No. 2 Yu Chui Street, Tai Lam, Tuen Mun.  The respondents are the owner of House No. 30 (“House 30”) of the Estate.

2.  The applicant claims against the respondents for relief in respect of certain illegal structures constructed at House 30 whilst the respondents counterclaim against the applicant for illegal structures within House 31.

Undisputed Background

3.  According to the building plan, both House 30 and House 31 are 3-storey house with a garden on the ground floor and beyond the garden is a turfing slope with retaining walls built along the side of the turfing slope.  There is also a party wall between House 30 and 31 (photo at page 204 of Bundle 3A). 

4.  The applicant acquired House 31 on 24 December 1999 whilst the respondents became the owner of House 30 on 20 June 2007.

5.  Both House 30 and 31 have illegal structures.  The illegal structures of House 31 are :

(a) extension of the garden by erecting new retaining wall at the slope beyond the building boundary line and back filling the soil at the slope behind the new retaining wall (page 86-19 of Bundle 1);

(b) extension of the ground floor canopy by making a concrete cantilever at the existing retaining wall (page 86-18 of Bundle 1);

(c) modification of the window openings at the façade (page 86-29 of Bundle 1);

(d) extension of the door area and roof cover (page 86-21of Bundle 1).

6.  The illegal structures of House 30 are :

(a) building of an additional structure in the garden area (“Additional Structure”) (page 60-1 of Bundle 1);

(b) extension of the 1st floor level (“1/F Extension”) (page 60-2 of Bundle 1);

(c) building of a high wall (“High Wall”) with burglar bars on it (“Burglar Bars”) (page 60-3 of Bundle 1);

(d) building of a concrete structure on the retaining wall (“Green Structure”) (page 60-4 of Bundle 1).

(the above structures are collectively referred to as the “Illegal Structures”)

7.  It is admitted by the applicant that:

(a) the structure under paragraph 5 (a) and (b) above are in breach of Clause 9(a)(a), 9(a)(b) and Paragraph 4(b) and 12 2nd Schedule of the DMC;

(b) the structure under paragraph 5 (c) above is in breach of Clause 9(a)(b) of the DMC;

(c) the structure under paragraph 5 (d) above is in breach of Clause 9(a)(a), 9(a)(b) and Paragraph 4(b) and 12 2nd Schedule of the DMC. 

8.  It is admitted by the respondents that :

(a) the Additional Structure under paragraph 6 (a) above is in breach of Clause 9(a)(a), 9(a)(b) and Paragraph 4(b) and 12 2nd Schedule of the DMC;

(b) the 1/F Extension under paragraph 6 (b) above is in breach of Clause 9(a)(a), 9(a)(b) and Paragraph 4(a), 4(b) and 12 2nd Schedule of the DMC;

(c) the High Wall and Burglar Bars under paragraph 6 (c) above are in breach of Clause 9(a)(b) and paragraph 4(b) and 7(g) 2nd Schedule of the DMC;

(d) the Green Structure under paragraph 5 (d) above is in breach of Clause 9(a)(a), 9(a)(b) and Paragraph 4(b) and 7(n) 2nd Schedule of the DMC.

9.  The applicant started lodging complaint with the management company of the Estate against the respondents since 28 January 2010 (Incident Report kept by the management company at page 563-576 of Bundle 3B).  A letter dated 8 March 2010 from the applicant’s solicitors was being sent to the respondents.  On 26 January 2011, the applicant filed its application in this case.

10.  In the Re-re-amended Notice of Application dated 22 February 2012, the applicant is asking for :

(a) a declaration that the Illegal Structures in House 30 are in breach of the DMC, the New Grant as well as Section 14(1) of the Building Ordinance;

(b) a mandatory injunction against the respondents for the removal of the Illegal Structures;

(c) a prohibitory injunction against the respondents to restrain the putting up of any illegal structure; and

(d) damages.

11.  In the Re-amended Notice of Opposition dated 23 February 2012, the respondents counter-claimed for :

(a) a declaration that the illegal structures in House 31 are in breach of the DMC, the New Grant as well as Section 14(1) of the Building Ordinance ; and

(b) a mandatory injunction against the applicant for the rectification of the breaches in sub-paragraph (a) above.

Relevant Provisions of the DMC

12.  For easy reference, the relevant provisions of the DMC are copied herein.

13.  Clause 9(a) of the DMC

“(a) No owner shall (a) make any structural additions or alterations to any Unit the use of which he is entitled hereunder or (b) alter the exterior appearance of any Unit or the wall or fence thereof or (c) cause any inconvenience to the other occupiers or (d) … or (e) cut or injure the cement flooring columns beams or girders of any building or do anything whereby the structural strength thereof may be affected.” (page 154 Bundle 3A)

14.  Paragraph 4(a) and (b) 2^nd Schedule of the DMC

“(a) Not to make any alteration or additions to any Unit of which he is the Owner whereby the roofed over area thereof is increased beyond the roofed over area thereof at the date on which the Occupation Permit (including a Temporary Occupation Permit) is issued.

(b) Not to make any alterations or additions to the exterior of any Unit or any building or to any walls and fences without the approval in writing of the Company.” (page 162 of Bundle 3A)

15.  Paragraph 7(g) 2^nd Schedule of the DMC

“(g) Not to install any window grille, burglar bars, or metal gate except such which has been approved by the Manager in writing.” (page 163 of Bundle 3A)

16.  Paragraph 7(n) 2^nd Schedule of the DMC

“(n) Not to cut set back fill or alter the shape or gradient of the slopes or any part thereof in the garden or open area of which he is the owner.” (page 164 of Bundle 3A)

17.  Paragraph 12 2^nd Schedule of the DMC

“12. Not to do or permit or suffer to be done any act or thing in contravention of the New Grant or whereby any insurance may become void or voidable or whereby the premium for any such insurance may be increased and in the event of any breach of this Clause in addition to any other liability incurred thereby to pay the amount of any increase in premium caused by or on account of such breach.” (page 165 of Bundle 3A)

The Agreed List of Issue

18.  It is agreed that the issues to be determined for the claim by the applicant are as follows :

(a) Whether the Illegal Structures of the respondents stated in paragraph 6 above were in breach of Clause 9(a)(e) of the DMC?

(b) Whether the Green Structure referred to in paragraph 6(d) above are within the boundary of the Estate?

(c) Did the applicant encourage or approve the respondents in building the Illegal Structures?

(d) If the answer to issue (c) above is in the affirmative, whether the defence of acquiescence/waiver/estoppel is available to the respondents?

(e) Whether the Illegal Structures of the respondents would affect the sea view and wind flow enjoyed by the applicant at House 31?

(f) Whether the Illegal Structures of the respondents would affect the safety of House 31?

(g) Under the doctrine of “Clean Hands”, whether the applicant is barred from seeking equitable relief by reason of its conduct?

(h) Whether it would be just and equitable to grant the equitable relief of injunction in favour of the applicant?

19.  It is also agreed that the issues to be determined for the counterclaim by the respondents are as follows :

(a) Whether the building works in paragraph 5(c) and (d) above were built before the applicant acquired House 31?

(b) Whether the alteration at the slope of the applicant’s garden was due to landslide?

(c) Whether it would be just and equitable to grant the equitable relief of injunction in favour of the respondents?

The Applicant’s Claim

Whether the Illegal Structures stated in paragraph 6 above were in breach of Clause 9(a)(e) of the DMC?

20.  It is the respondents’ defence that the applicant failed to prove that the structural strength of the building is being affected by the Illegal Structures since there is no expert evidence adduced as such. 

21.  The applicant in reply contends that the Illegal Structures are not approved by the Building Department (“BD”) hence they are unauthorised building works (“UBW”). By the mere fact that they are UBW and without evidence to the contrary, the structural strength of the building may be affected.  The BD also showed concern and asked for inspection but declined by the respondents.  Neither can the applicant gained entry to House 30 for any test to be done so no evidence can be adduced to establish whether the structural strength is being affected.

22.  I agree with the respondents that expert evidence is required before this Tribunal can be satisfied that the structural strength of the building may be affected.  It is for the applicant to show that the structural strength may be affected.  The applicant’s expert, Dr. Wong Kam Kau (“Dr. Wong”) had said under cross examination that there is no information about the safety of the Illegal Structures at House 30.  I do not agree with the conclusion that since they are UBW, it must be that the structural strength may be affected.  The BD requested for an inspection as a result of the applicant’s complaint.  Before the BD can conduct the inspection, I can’t see how one can conclude that the BD must have concern about the structural strength since it is the duty of the BD to deal with the complaint of the applicant by investigation, no matter what.  And I also agree with the respondents that it is open to the applicant to come to court asking for an order against the respondents to allow the applicant to conduct whatever test as required as far as the structural strength is concerned.  The failure by the applicant so to do cannot be a blame of the respondents.

23.  I found the applicant had failed to prove that the Illegal Structures in House 30 may affect the structural strength of the building or in any way unsafe.

Whether the Green Structure referred to in paragraph 6(d) above are within the boundary of the Estate?

24.  It is the respondents’ case that the Green Structure on the retaining wall is being built on government land and the government had already granted a short term tenancy in favour of the respondents.  Therefore, the Green Structure is beyond the ambit of these proceedings as it is built outside the Estate, hence not caught by the DMC.

25.  I can’t see how the applicant can deny that the Green Structure is outside the boundary of the Estate.  Mr. Samson Wong (“Mr. Wong”) who is being engaged by the applicant to find out “which parts of the structure now found at House 30 are additional building works to the original structure”, had found in his report that the Green Structure were “unauthorised staircase and platform built at slope area outside estate lot boundary” (page 342 of Bundle 3A).  This also explains why the respondents had to seek approval from the government for the temporary occupation of that part of the land which is government land (page 487-493 of Bundle 3A).

26.  I found the Green Structure located on government land outside the boundary of the Estate and terms of the DMC are not applicable to it.

Did the applicant encourage or approve the respondents’ Illegal Structures?

27.  It is the respondents’ case that Mr. Lam Sui Kei (“Mr. Lam”), Director of the applicant, had suggested and encouraged them in building the Illegal Structures in House 30 and Mr. Lam, who was all along aware of the building works, had in fact approved the same to be constructed.  Mr. Lam denied ever encouraged or having any knowledge of the building works in House 30, least to say approved of the same.  This is a factual dispute.

28.  The 1^st named respondent testified that after acquisition, he moved into House 30 in early 2008 upon completion of renovation.  He then came to know Mr. Lam who lived next door.  On an occasion in late 2008 or early 2009 when Mr. Lam visited him for tea, Mr. Lam had suggested that the respondents should carry out extension work in the garden and to construct a concrete platform on the retaining wall leading to the sea as the other owners of the Estate were doing.  Mr. Lam even showed the 1^st named respondent the extended garden in House 31 and assured him that there should be no problem since such extension was rather common within the Estate. 

29.  The respondents then arranged for works to be done starting from July 2009 with the Illegal Structures completed in January 2010.  During the construction work, Mr. Lam had visited House 30 to see how the work was going and gave comments.  In any event, Mr. Lam would be able to see the ongoing works from the balcony of House 31, so Mr. Lam was well aware of the works to be done.  And in mid November 2009, Mr. Lam had once complained that the platform built on the Green Structure (photo 8 at page 436 Bundle 3A) was too high and blocked his view. The respondents then lowered the height of the platform on Mr. Lam’s request.  When Mr. Lam raised with the management company about the Burglar Bars, the 1^st named respondent didn’t consider this to be a complaint since the parties were still in friendly relationship.  So the 1^st named respondent considered the 1^st complaint from Mr. Lam concerning the Illegal Structures only came with the letter from the applicant’s solicitors.

30.  Mr. Lam testified that the renovation of House 30 commenced in 2008 with scaffolding and non-transparent nylon sheets wrapping around the building.  In mid-2009 after the renovation was completed with the nylon sheets removed, Mr. Lam then noticed the 1/F Extension was being done.  He had visited House 30 and noticed there was additional work done to the sitting room and some other building works were still in progress at the slope but he can’t tell what since it was dark then.  He noticed the completion of the Green Structure in September 2009 and had requested for a platform on it to be lowered since it blocked his view.  The Burglar Bars were erected on the party wall in late 2009.  Since the Burglar Bars and the Green Structure did obstruct his view from House 31, Mr. Lam lodged a complaint with the management company in January 2010.  Works all along carried on and the Additional Structure and the High Walls were completed in December 2010.  Mr. Lam maintained that he was not aware of the work done in House 30.  He further explained that he had not lodged a complaint about the additional works and the 1/F Extension when he first noticed them in 2009 because they didn’t block his view.  But when the Green Structure was erected, his view was already affected and when he noticed the Burglar Bars and the High Wall, he lodged the complaint.

31.  Having heard the evidence, I found Mr. Lam is not an honest and truthful witness.  The building works were being carried out just next to House 31.  There is no suggestion by Mr. Lam that the Additional Structure, the High Wall and the Green Structure were being built discreetly or covered up like the 1/F Extension.  It would be beyond belief for Mr. Lam to assert that he knew nothing about the building works till it was all done.  The building works were just next door right in front of his eyes.  If Mr. Lam had not encouraged the building works, there is no reasonable explanation as to why no complaint was being raised earlier.  And it is Mr. Lam’s evidence under cross-examination that he had in fact raised with the 1^st named respondent about the lowering of a concrete platform at the Green Structure (photo 8 at page 436 Bundle 3A). If Mr. Lam had not approved of the building works, why the complaint is only pinpointed at the platform then when it is Mr. Lam’s case that the Green Structure did obstruct his view?  And why Mr. Lam had not mentioned the lowering of this platform in his witness statement and instead painted a picture in his statement that, despite his request, the respondents “failed to remove the … concrete structure” which he meant the Green Structure (page 105 Bundle 2). 

32.  And on the main factual dispute as to whether the Illegal Structures were built and completed by early 2010 or the Additional Structure and the High Wall were only built in late 2010, i.e. after Mr. Lam had complained about the 1/F Extension and the Green Structure to the management company, I found Mr. Lam’s evidence in this regard conflicting and unconvincing. 

33.  The statement of Mr. Lam gave one the impression that all the building works were done and completed one after the other since 2009 (page 92-93 Bundle 2).  And from paragraph 30-32 of his statement (page 105-106 Bundle 2), Mr. Lam’s evidence is that the Additional Structure and the High Wall were built before he complained to the Manager.  This is utterly different from his evidence in court with no sensible explanation from Mr. Lam.  If what Mr. Lam said is true, i.e. the Additional Structure and the High Wall are built in late 2010, almost a year after the completion of the other illegal structures, one would be surprised to see from the complaint record kept by the Management Company that as far as the first complaint on 28 January 2010 is concerned, apart from the Burglar Bars, additional structure (加建物), extension work (伸建物) and additional structure on slope (斜坡加建物) (page 563 Bundle 3B) were being mentioned.  This is clearly describing 3 different kinds of illegal works.  Mr. Lam for the applicant had tried to persuade this court that the additional structure (加建物) mentioned in the complaint on 28 January 2010 is not the Additional Structure but instead the 1/F Extension.  I disagree.  If the complaint in early 2010 is only concerned with the 1/F Extension and the Green Structure, why did the solicitors acting for the applicant then had requested the Incorporated Owners to take action against the respondents requiring the respondents to reinstate the garden area in its letter dated 1 April 2010 (page 248-250 Bundle 3A)? 

34.  I found the extension work (伸建物) refers to the 1/F Extension, the additional structure on the slope (斜坡加建物) is the Green Structure, and the additional structure (加建物) must be the Additional Structure.  

35.  I accept the evidence of the 1^st named respondent on a balance of probabilities.  His evidence is supported by other witnesses.  The respondents’ expert Mr. So (“Mr. So”) was being engaged by the respondents in February 2010 in relation to the application for short term tenancy with the Lands Department concerning the Green Structure.  Mr. So had visited House 30 in February 2010 and found all the Illegal Structures were built with some paving work and gardening work still in progress.  And Mr. Ho Hon Chung (“Mr. Ho”) who is the site foreman responsible for the construction work in the garden of House 30 also confirmed that all the Illegal Structures were completed by end of January 2010.  I found Mr. So, and in particular Mr. Ho to be an independent witness and his evidence is reliable and credible.

36.  I found as a fact that the applicant had suggested to the 1^st named respondent as to how to erect all the Illegal Structures and was all along well aware of the work involved and approved of the same.

Whether the defence of acquiescence/waiver/estoppel is available to the respondents?

37.  In Wong Pun-man v. Incorporated Owners of Tung Fat Industrial Building [1996] 1 HKDCLR 32, Judge Cruden had said the followings in the judgment :-

“Acquiescence is a long established equitable doctrine. It amounts to a waiver of a party’s rights and raises an equitable species of estoppels, preventing him from later enforcing those rights. The modern approach of the courts is to determine whether it would be unconscionable for a party to deny that which, knowingly or unknowingly, he has allowed or encouraged the other party to assume, to his detriment.”

38.  Given the ruling above that the applicant had in fact encouraged and been aware of the Illegal Structures in House 30, it must be the conclusion that the applicant had acquiesced in the breach and should be estopped from insisting its right under the DMC.

Whether the respondents’ building works would affect the sea view and wind flow enjoyed by the applicant at House 31?

39.  The applicant contends that the sea view enjoyed by the applicant to the south of House 31 and free flow of air and wind is adversely affected by the presence of the Burglar Bars, the High Wall and the Additional Structure.  This is apparent when compared the photos taken in year 2000 (page 270 of Bundle 3A) and in 2011 (page 436 of Bundle 3A).  This is in breach of Clause 9(a)(c) in that inconvenience and interference are being caused to the applicant.  It is also Mr. Lam’s evidence that even though the illegal works at House 32 had blocked his view as well, he had lodged no complaint in connection with the same since the works were there when the applicant acquired House 31.

40.  The respondents contended that there is no common law right in air, wind or sea view.  In any event, there is no expert evidence to show that the free wind and air had been obstructed nor is Mr. Lam’s evidence in this regard reliable. Rather Mr. Lam had confirmed under cross-examination that when he was standing on the upper platform of House 31, his view would be blocked by the boundary wall in any event.

41.  Having heard the evidence, I found the Burglar Bars, the High Wall and the Additional Structure did obstruct the view of House 31, hence causing inconvenience to the applicant.  It is clear from the photographs (page 434-436 of Bundle 3A) taken by Mr. Wong, the applicant’s expert, that the view from House 31 to the left of it is apparently obstructed by these illegal works.  It is also Mr. Wong’s evidence that when he visited House 31, he found the view to the sea was 100% blocked by the High Wall and the Additional Structure, being a solid area.  I accept Mr. Wong’s evidence.

42.  I found the respondents did cause inconvenience to the applicant by building the Burglar Bars, the High Wall and the Additional Structure.  This is in breach of Clause 9(a)(c) of the DMC.

Whether the Illegal Structures would affect the safety of House 31?

43.  It is the contention of the applicant that since House 30 is right next to House 31, if the stability of the Illegal Structures at House 30 is in doubt, the safety of the applicant’s premises would be affected.

44.  As I have found in paragraph 22-23 above, there is no evidence to show that the Illegal Structures at House 30 did affect the structural strength of the building or in any way unsafe.  I found the applicant had failed to substantiate this allegation.

Under the doctrine of “Clean Hands”, whether the applicant is barred from seeking equitable relief by reason of its conducts?

45.  It is not in dispute that a mandatory injunction is an equitable relief and the principle that he who sought equity must do equity is applicable.  The applicant is seeking an equitable relief against the Illegal Structures of the respondents which are in breach of the DMC.  Yet, the applicant also had illegal structures in his own property.  I found that the applicant is not coming to equity with clean hands.

46.  What’s more, I found there is an immediate and necessary relation between the applicant’s breach and the respondents’ breach.  Had it not been the encouragement of Mr. Lam, the respondents will not consider building the Illegal Structures. Even if I am wrong in ruling that the applicant did encourage the illegal works at House 30, to allow the applicant to maintain its illegal works within his property which are in breach of the DMC and yet imposing an injunction against the respondents’ Illegal Structures, this is clearly unjust in all the circumstances of this case.

47.  I found the applicant is not of clean hands and should be deprived of any equitable relief.

Whether it would be just and equitable to grant the relief of mandatory injunction in favour of the applicant?

48.  The respondents contended that in view of the doctrine of clean hands, the encouragement by Mr. Lam in the building of the structures and the fact that the Estate is full of illegal structures in different form, size and scale, it is unjust and inequitable to make a mandatory injunction against the respondents in this case.

49.  It is Mr. So’s evidence that “almost all the owners of House 6 to 32 have erected massive concrete platforms or structures on their garden and/or carried out significant modification” (page 526 of Bundle 3B).  But this cannot be a ground for exercising the discretion in the respondents’ favour.  To do so is to treat what becomes customary as right.  I do not accept that this is a valid ground to decline the granting of the injunction.

50.  Rather, I accept that the clean hands doctrine do justify an exercise of discretion against the applicant for reasons stated in paragraph 45-46 above.

The Respondents’ Counter-Claim

51.  At his final submission, Mr. Chong for the respondents do accept that the clean hands doctrine and the just and equitable principle should also be a defence available to the applicant and asked this court to dismiss the respondents’ counter-claim.

52.  Given this indication, I shall briefly deal with the defence raised by the applicant.

Whether the building works in paragraph 5(c) and (d) above were built before the applicant acquired House 31?

53.  It is the applicant’s case that the window openings at the façade and the ground floor canopy of the garden were in that state when he acquired House 31.  The respondents’ main challenge is the ground floor canopy.  According to the evidence of Mr. So, by comparing the aerial photos of September 2000 and September 2001, the ground floor canopy was extended from 3.8 metres to 4.7 metres and such extension did not come into existence before September 2000 (page 548 of Bundle 3B).

54.  There is no evidence contrary to Mr. Lam’s evidence that the window openings were already in existence before he acquired House 31.  I accept his evidence in this regard. 

55.  As for the ground floor canopy of the garden, I found Mr. So’s evidence in this regard unreliable.  Mr. So, the respondents’ expert, testified that by comparing 2 aerial photos of House 31 in 2000 and 2001 with the assistance of stereoscopes, a 3-dimensional view will be produced and measurement can be made to decide on the size of the canopy.  By measuring the size of the canopy on the 2 aerial photos and found an extension in size, he came to the conclusion that the ground floor canopy of the garden was built in September 2000 and completed well before September 2001. 

56.  The method described by Mr. So in finding the change of size of the canopy had never been mentioned in his first and supplemental report.  It was only when he was pressed hard for an explanation of his findings under cross-examination then he mentioned about the 3-dimensional effect in comparing the 2 aerial photos.  Yet, in his Explanatory Notes produced specifically to explain his findings by means of such method, he failed to give any details as far as the 3-dimensional image is concerned. 

57.  Mr. So had accepted under cross-examination that since the measurement were being obtained by inference from a distance and it was possible that the view may be blocked by objects, so he had to estimate the finding according to his experience.  He even agreed that all his findings are in fact his own estimation based on experience.  This includes estimating the edge of the canopy from where to take the measurement.  This is utterly unreliable.  And even though he emphasised the importance of getting a reference point on the same level with the subject to avoid distortion, he picked a road speed hump as a reference point which is 2 to 3 feet above the garden of House 31.  And he even accepted that there were trees blocking part of the road speed hump and even the length of the hump was an estimation by him by way of judgment.  When further queried why not pick some other object as reference point, Mr. So then said that he was in fact using the width of the road as reference but had not so stated in his Explanatory Notes.  I found Mr. So’s opinion is full of estimation without precision and far from satisfactory and unreliable.

58.  Without evidence to the contrary, I accept the evidence of Mr. Lam that the ground floor canopy was in the same condition when the applicant acquired House 31.

59.  But even if the ground floor canopy is being built before the applicant acquired the property, I cannot see how the applicant can deny liability in it.  Hon Cheung JA said in the case of The Incorporated Owners of Marina Cove v Chu Kam Tai and others (HCMP 2141/2011) that “the enforcement of a negative covenant runs with the land.  It clearly binds the respondents who are the current owners even if they did not build the structures themselves” (at paragraph 8).

Whether the alteration at the slope of the applicant’s garden was due to landslide?

60.  The applicant said that due to heavy rain, landslide occurred in year 2000 in the slope in question.  This is before the applicant moved into House 31 in 2001.  Upon approaching the management office, the applicant was told that the slope is within his sole occupation and possession and the applicant had to arrange for the repair of it.  So the applicant carried out modification work at the slope and converted it into a lower garden.

61.  According to Dr. Wong, the modification involved “the stem of the retaining wall extended vertically by 2 metres.  The space between the extended wall stem and the slope surface was backfilled with soil materials, which was suspected to be obtained by cutting back the upper portion approximately 2.9 metre high of slope.  A vertical wall was formed at the face of the vertical cut” (page 228 and 245 of Bundle 3A).  It is also Dr. Wong’s opinion that since there was extraordinary heavy rain on 14 April 2000, individual landslide in part of the slope of the garden area was very likely to happen (page 582 of Bundle 3B).

62.  After viewing the aerial photos of House 31 back in 1999, 2000 and 2001, Mr. So came to the conclusion that the modification work on the slope was in progress in September 2000 and completed well before September 2001 (page 527 of Bundle 3B). Yet, he agreed that the mud running from the slope to the seafront as shown on the aerial photo of 2000 may be caused by landslide.

63.  I found Mr. Lam’s evidence is again unbelievable.  He had changed his evidence as far as the time of the landslide is concerned, from 2001 to 2000, with his final version coincided with Mr. So’s observation.  I found it beyond belief that the landslide occurred coincidentally when the renovation work of House 31 was still in progress.  I do not accept the evidence of Mr. Lam that the modification work on the slope was done as a result of a landslide back in 2000.  From the timing and extent of the modification, I found it more likely than not that it was a modification work, being part and partial of the renovation of House 31. 

64.  Even if I am wrong in the ruling above, I do not accept the applicant’s contention that the modification work was being done with a cause can justified its existence. The modification work had totally changed the state of the original slope with a garden built on it.  I cannot see how the applicant can argue that it is necessary to build the garden and not just reinstate the slope to its original appearance.  I do not find this can be a ground to justify the modification work.

Whether it would be just and equitable to grant the relief of mandatory injunction in favour of the respondents?

65.  It is submitted that prejudice that would be caused to the applicant outweighs the benefit to the respondents should a mandatory injunction were to be granted. There is no evidence that the illegal structures at House 31 would adversely affect the respondents.  The ground floor canopy and the façade were built before the applicant acquired the property and the modification work at the slope was occasioned by landslide.  The applicant would have to bear substantial costs in the rectification of the illegal structures which gives the respondents no benefit.  In such circumstances, it would be oppressive to grant mandatory injunction against the applicant.

66.  As found above, I do not accept the fact that the illegal structures were not built by the applicant can be relevant in the consideration of whether it is just and equitable.  The applicant had been enjoying the fruits of the illegal structures and there is no justification to allow this to carry on.   Since the modification work is not justified, I cannot see how it can be unjust if the applicant is required to remove the same.  As for the costs to be spent in the rectification work, this should be something for the applicant to consider when the illegal works were being done and if this is to be allowed, all illegal works done should not be reinstated.  This cannot be right.

67.  In any event, Mr. Chong for the respondents accepted in his final submission that the doctrine of clean hands is also applicable to the respondents so the counterclaim by the respondents should be dismissed.  I agree.    

Conclusion

68.  I found both the applicant and the respondents did not come with clean hands and equity demands a denial of the relief sought by them.

69.  Having said so, it is apparent from the evidence of Mr. So that “almost all the owners of House 6 to 32 have erected massive concrete platforms or structures on their garden and/or carried out significant modification” (page 526 of Bundle 3B). This is appalling and I opined that the Building Department should look into this and to take necessary action.  I hereby direct for this case to be referred to the Building Department for their consideration as to follow up action to be taken.

The Order

70.  It is ordered that:-

(a) A declaration that the illegal structures in House 30 and House 31 are in breach of the terms of the DMC of the Estate;

(b) The claim and the counterclaim for injunction be dismissed;

(c) Cost order nisi that there be no order as to costs; 

(d) Unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.