MTR CORPORATION LTD. v. HWANG XIAO YUN SHERRY

LDBM 109/2002

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 109 of 2002

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J U D G M E N T

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Background

1. The Applicant is the Manager of Hongway Garden, No. 8 New Market Street, No. 7 On Tai Street, Hong Kong ("the Estate"). The Respondent is the registered owner of Unit "05" together with the Flat Roof thereof ("the Flat Roof") on the Second Floor of Block B of the Estate.

2. The Applicant contends that the Respondent has erected or caused to be erected on the Flat Roof partition walls with a cover made of cement to enclose the Flat Roof ("the Illegal Structure"), and that the erection of the Illegal Structure is in breach of Clause 32 of the Third Schedule to the Deed of Mutual Covenant of the Estate ("the DMC"), which reads as follows:-

"Subject to Clause 7 of Section A of Part II of the Second Schedule hereto, no Owner shall erect or place or cause or permit to be erected or placed any external signs, signboards, notices, flags, banners, poles, cages, advertising signs, posters or illegal structures on any of the roofs and flat roofs of the Estate or any part thereof and the Manager shall have the right to remove anything erected or placed on any roof or flat roof in contravention of this provision at the costs and expense of the defaulting Owner."

3. Thus, the Applicant applies for the following reliefs:-

(1) An Order that the Respondent do forthwith demolish and remove the Illegal Structure;

(2) An injunction restraining the Respondent, whether by herself, her servants or agents, from erecting, placing or causing or permitting to be erected or placed any external signs, signboards, notices, flags, banners, poles, cages, advertising signs, posters or illegal structures on the Flat Roof and/or any of the roofs and flat roofs of the Estate or any part thereof.

4. Ms. Chang for the Applicant, however, submits that the Applicant no longer wishes to pursue the second relief as aforesaid. I am therefore only concerned with the granting or refusal of the order to demolish and remove the Illegal Structure.

5. The defences raised by the Respondent, as stated in the Notice of Opposition, are as follows:-

(1) The DMC is not applicable to, binding on or enforceable against her;

(2) She is not in breach of the DMC; and

(3) If she is in any way in breach of the DMC, such breach has been waived by the Applicant and/or the Applicant is by its conduct estopped from raising any objection to her breach.

6. In relation to the first defence, Mr. Yeung for the Respondent has raised a preliminary issue for me to decide, namely, whether Clause 32 of the Third Schedule to the DMC is applicable to the Respondent as owner of the Flat Roof. I have already made my ruling in respect of this preliminary issue and my decision is that Clause 32 of the Third Schedule to the DMC does apply to the Respondent as owner of the Flat Roof. My decision has in fact disposed of the first defence raised by the Respondent and it is not necessary for me to deal with it again. The issues before me are therefore whether the Respondent is in breach of Clause 32 of the Third Schedule to the DMC and whether there are waiver and/or estoppel on the part of the Applicant.

Whether the Respondent is in breach of the DMC

7. The Applicant called two witnesses, Mr. Chan Yuk-ming and Mr. Lee Siu-Cheung, to give evidence, whereas the Respondent called no witness at all. Mr. Chan was an expert witness and produced his expert report as Exhibit "A1". Mr. Chan's evidence was that he conducted a site inspection and survey to the Flat Roof in the afternoon of 8 October 2002. He had no direct access to the Respondent's property, but access to another unit at upper floor level as well as the neighbourhood buildings to carry out the inspection. From the site inspection, Mr. Chan found that there were:-

(1) Full storey height partitions (of about 3 metres in height) existed on the Flat Roof separating the Respondent's property from the adjoining units;

(2) A concrete-like slab (of about 2.5m x 5.0m in size) covering portion of the Flat Roof; and

(3) A steel frame cage (of about 3.5m x 6.5m in size) enclosing portion of the Flat Roof.

8. Mr. Chan had checked the approved building plan and noted that in the original design, there should be no structure on the Flat Roof. He opined that the erection of the aforesaid structures was not qualified as exempted work under Section 41 of the Buildings Ordinance, Cap. 123, and hence these structures were illegal structures. Mr. Chan also opined that the presence of these additional structures might have other adverse effects. One of the possible adverse effects was that the original roofing materials might have been disturbed or damaged by the construction of these structures.

9. The Respondent concedes that the concrete-like slab and the steel frame cage are illegal structures and is prepared to demolish and remove them. The Respondent, however, disputes whether the partition walls are illegal structures. As Mr. Chan did not conduct any test on the material of the partition walls nor make any calculation of the weight of the partition walls, Mr. Yeung submits that there was no scientific basis for Mr. Chan to draw the conclusion that the partition walls were illegal structures, and that the Applicant has failed to discharge the evidential burden of proof to show that they are actually illegal structures. Mr. Yeung also refers me to the case of Dei Chuen Ho Industrial Ltd. v. Leung Yin Por & anor. [1993] 2 HKC 495, in which Rhind J. has ruled as follows:-

"If there were evidence that the only reason for the discrepancy between the occupation permit, the original building plans, and the assignment plan was the mere erection of partitions, I would agree with the vendor's counsel that such works fell within the ambit of the exemption conferred by s 41(3), because the putting up of such partitions would not involve the structure of the building. In the case before me, however, there is simply no evidence that the conversion of the four shops contemplated by the occupation permit into the 24 shops shown on the assignment plan was confined to the putting up of partitions. The critical factor determining exemption under s 41(3) in the present case is whether or not the partitioning involved any alteration to the structure of Fook On Building. What the vendors have failed to show by any evidence is that the partitioning did not involve such alteration to the building's structure."

10. I disagree with Mr. Yeung's submission. Mr. Chan's evidence was that by virtue of Section 41(3) of the Buildings Ordinance, building works involving the structure of any building were not exempted works, and it meant that the works in question could not damage or overload the structure of the building in order to be qualified as exempted works. The partition walls appeared to him to be made of brick and concrete, and from his experience he could easily tell that the weight of the partition walls was very much over the loading capacity of the Flat Roof. Thus, it was not necessary for him to make any detailed calculation or conduct any test on the partition walls. Mr. Chan gave a simple calculation in his evidence and explained that even if the partition walls were about 1 foot tall, they would already be over the loading capacity of the Flat Roof. The partition walls were about 3 metres in height, i.e. about 9 feet tall, it was obvious to him that the partition walls were very much over the loading capacity of the Flat Roof.

11. I accept Mr. Chan's evidence. In fact, from the letters dated 29 June 1990 and 11 September 1991 (pp. 58 and 59 of Exhibit "AR1"), it can be seen that the partition walls were referred to as brick walls and they had damaged the waterproof layer of the Flat Roof and caused water leakage to the restaurant below. So, unlike the case of Dei Chuen Ho Industrial Ltd., there is evidence in the present case that the partition walls had altered the structure of the building by overloading the Flat Roof and damaging the waterproof layer. Since the Respondent did not adduce any evidence to rebut Mr. Chan's evidence or the evidence from the letters, I find that the partition walls were made of brick and concrete and they had overloaded and damaged the Flat Roof. It is also my finding that the erection of the partition walls is not exempted work under the Buildings Ordinance and requires approval from the Building Authority. Since the approved building plan does not contain the partition walls in question, I find that the partition walls have not been approved by the Building Authority and are therefore illegal structures.

12. It is stipulated in Clause 32 of the Third Schedule to the DMC that no owner shall erect or place or cause or permit to be erected or placed any illegal structures on the Flat Roof. As it is my finding that this clause does apply to the Respondent and that the partition walls in question are illegal structures, the Respondent is clearly in breach of this clause.

Waiver and/or estoppel

13. As the Respondent has not pleaded any particulars of the alleged waiver and/or estoppel, nor called any evidence, it is difficult to see how the Respondent contends that there were waiver and/or estoppel on the part of the Applicant. Mr. Yeung, however, submits that there was laches on the part of the Applicant in bringing the present proceedings. I do not find any evidence to support such contention. The evidence of Mr. Lee was that the Applicant had all along been pursuing the matter concerning the Illegal Structure and was trying to resolve the matter with the Respondent by other means first. The correspondence on pages 57 to 76 of Exhibit "AR1" also confirmed that the Applicant had never given up of the option of taking legal action against the Respondent or her predecessors. I accept that it is reasonable for the Applicant to try to resolve the matter amicably with the Respondent or her predecessors first before adopting the last resort of taking legal action. I do not therefore find that there was any delay on the part of the Applicant at all.

14. Moreover, laches would only be relevant when the word was referring to "the position caused by the delay, and especially its effect on the defendant himself, rather than the delay itself, which causes the court to deny relief" (see Guardian Property Management Ltd. & anor. v. Lui Man Ho [1998] 2 HKC 244 and The Incorporated Owners of Hipway Towers v. Wong Chi-kit [2000] HKLT52). Mr. Yeung has no dispute with this principle, but submits that the Respondent was prejudiced by the delay because she could no longer bring an action against her predecessors in title for an indemnity of the breach of the DMC.

15. I do not agree with Mr. Yeung on this contention. The Applicant has all along been asking the Respondent to rectify the breach. If the Respondent did intend to seek for indemnity from her predecessors, the Respondent could bring an action against her predecessors right from the time when she first learned about the Illegal Structure. There is no need for the Respondent to wait for the Applicant to commence an action against her first. So, even assuming there was delay on the part of the Applicant in bringing the present action, I do not accept that the Respondent was prejudiced by such delay. Without suffering any prejudice, the Respondent cannot rely on the doctrine of laches as aforesaid.

16. I do not therefore find that there was any waiver, estoppel or laches on the part of the Applicant as alleged by the Respondent.

Mandatory injunction

17. Mr. Yeung submits that the Applicant has failed to establish any damage caused by the Respondent's breach of the DMC. In reliance of my earlier decision in another case, WongSui Fung and Sham Pui Kuen v. Yip Siu Keung, LDBM 248 of 2000, Mr. Yeung submits that I have a wide discretion to refuse the grant of a mandatory injunction when there is no proof of damage. However, as aforesaid, I do find that the partition walls had overloaded and damaged the Flat Roof. So there is damage caused by the Respondent's breach of the DMC. I do not therefore think that it is right for me to refuse the grant of the mandatory injunction sought by the Applicant.

18. Mr. Yeung further submits that even if I were to grant the mandatory injunction, I should limit the extent of the injunction by allowing the Respondent to retain the partition walls at a height below 6 feet because the Respondent has to fence her property. I do not agree with Mr. Yeung that I should limit the extent of the injunction at all. The partition walls are overloading the Flat Roof. Mr. Chan has already given evidence that even if the partition walls were 1 foot tall, they would overload the Flat Roof. I see no practical benefit to the Respondent by allowing her to retain the partition walls at a height below 1 foot. The Respondent should fence her property by some other proper and legal means rather than retaining part of the partition walls.

19. In the circumstances, I see no justification to refuse or limit the grant of the mandatory injunction sought by the Applicant.

Conclusion

20. In view of my findings as aforesaid, I come to the conclusion that the Applicant has proved its case and the Respondent has no defence to the Applicant's application at all.

21. I therefore grant the following orders:-

(1) The Respondent shall within 21 days from the date hereof demolish and remove the partition walls, the concrete-like slab and the steel frame cage from the Flat Roof of the Respondent; and

(2) Costs order nisi: The Respondent shall pay the costs of this Application to the Applicant, to be taxed if not agreed. If there is no further application on costs within 14 days from the date hereof, the costs order nisi shall become absolute.