YEUNG TSUEN PUI also known as TERENCE YEUNG AND ANOTHER v. CHUNG CHUN MAN formerly trading as BAIYI AND OTHERS

DCCJ 1105/2022

[2023] HKDC 572

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1105 OF 2022

-------------------------

-------------------------

-----------------

DECISION

-----------------

1.  This is the plaintiffs’(“Ps”) application for a default judgment against the 1^st and the 2^nd defendants (“D1” and “D2”) pursuant to Order 19 rule 7 of the Rules of the District Court.

2.  In an application for a default judgment pursuant to Order 19 rule 7 of the Rules of the District Court, the court would give judgment according to the case pleaded by the plaintiff alone, and no evidence is permitted.[1]

3.  Ps, together with the 3^rd to the 18^th defendants (“D3 to D18”), are the co-owners of a building known as No.10 Tong Shui Road and Nos. 2M and 2L Marble Road, Hong Kong (“the Building”).

4.  The gist of Ps’ case as pleaded in the Amended Statement of Claim is as follows:

“4.  The rights and obligations of all co-owners of the Building are governed by the provisions of the DMC and/or the Building Management Ordinance, Cap. 344 (“BMO”).

5.  The DMC expressly provides, inter alia, the following terms and covenants:-

…………

7.  Section 34I of the BMO expressly provides that:-

…………

8.  In breach of the provisions of the BMO[2] and the DMC, [D1 and D2] or any of them (a) had, without knowledge consent and/or approval of [Ps] and [D3 to D18] and/or their predecessors-in-title, on a date or dates unknown to [Ps] and [D3 to D18], wrongfully constructed and/or maintained an unauthorized structure of street stall (“Unauthorized Structures”) on a private access road (“Access Road”) adjacent and attached to the external wall (“External Wall”) of Shop D on Ground Floor of the Building; and (b) have, since then, been in wrongful use and occupation of the Access Road and the External Wall thereby trespassing onto the common parts of the Building and causing nuisance to all co-owners of the Building and other lawful users thereof, as well as depriving of their rights to peaceful use and enjoyment of the Access Road.

9.  The Access Road has, at all material times, been forming part of the common part(s) of the Building which is for identification purpose only in yellow in the Ground Floor Plan of the Building and is annexed hereto.”

5.  Ps are claiming for, inter alia, an order requiring D1 and D2 to demolish the Unauthorized Structures, and an order restraining D1 and D2 from occupying the Access Road.

6.  Ps’ causes of action against D1 and D2 as pleaded in the Amended Statement Claim are (a) breach of s.34I of the BMO, and (b) breach of the DMC.  In my view, Ps could not succeed by relying upon these causes of action.

(1)  S.34I of the BMO reads as follows:

“(1) No person may—

(a) convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners’ committee (if any);

(b) use or permit to be used the common parts of a building in such a manner as—

(i) unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; or

(ii) to cause a nuisance or hazard to any person lawfully in the building.

(2)  Any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building.”

(2) Clearly, the obligation in s.34I of the BMO is an obligation owed by a co-owner to the other co-owners of the building under the deed of mutual covenant governing that building.

(3) It is important to note that both D1 and D2 are not co-owners of the Building.

(4) While D1 and D2 are not co-owners of the Building, they are not bound by the DMC.  Ps cannot rely upon s.34I of the BMO and/or the DMC to found any cause of action against D1 and D2.

7.  According to Ps, D1 and D2 are merely squatters occupying part of the land belonging to the co-owners of the Building.  Ps may succeed if they are relying upon trespass as a cause of action against D1 and D2.  However, trespass has not been pleaded as a cause of action in the Amended Statement of Claim.  Mr Cheung for Ps has tried to suggest that trespass has been pleaded in [8] of the Amended Statement of Claim.  With respect, at the beginning of [8] of the Amended Statement of Claim, it is pleaded “[i]n breach of the provisions of the BMO and the DMC …”, and then everything in [8] is following this preamble.  Reading [8] of the Amended Statement of Claim fairly, the causes of action as pleaded in this paragraph in fact are breach of s.34I of the BMO and breach of DMC, no more and no less.  Trespass has not been pleaded as a cause of action against D1 and D2.

8.  At the end of the hearing, Mr Cheung sought leave to withdraw the application for a default judgment.  I granted leave to Ps to withdraw the application, with no order as to costs.