LAM SUK YEE AND ANOTHER v. THE INCORPORATED OWNERS OF KAM KIN MANSION

CACV 24 /2019

[2020] HKCA 507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 24 OF 2019

(ON APPEAL FROM HCA NO 748 OF 2011)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the plaintiffs’ application for leave to appeal to the Court of Final Appeal against a judgment of this court handed down on 20 November 2019 (“CA Judgment”)^[1], in which we dismissed their appeal against the judgment of Deputy High Court Judge To on 19 December 2018 (“CFI Judgment”)^[2].

2.  The judge dismissed the plaintiffs’ claim in negligence and nuisance for injunctive relief and damages arising out of water leakage from the driveway of the building (being a common part of the building) to the plaintiffs’ premises, which were converted from a semi-open covered playground into three enclosed units thereby creating an air-tight chamber effect.  He granted a mandatory injunction requiring the plaintiffs to remove unauthorised building works in the plaintiffs’ premises counterclaimed by the defendant incorporated owners (“the IO”).  He held that the plaintiffs had failed to establish that the IO was in breach of its duty of care and had failed to prove that had the premises not been so converted, the leakage would have affected the enjoyment of the premises as a covered playground.  The judge’s holdings and reasons were encapsulated in the concluding paragraphs of the CFI Judgment at §§161 to 163 and summarised in the CA Judgment at §§25 to 35.

3.  The plaintiffs issued a notice of motion on 19 December 2019 seeking leave to appeal to the Court of Final Appeal.  The notice of motion set out nine grounds of appeal, a number of which are similar to the grounds in the notice of appeal that we had considered.

4.  In the plaintiffs’ skeleton submission, it was stated that this application was made pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 and that the questions set out in the submission are ones which, by reason of their great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.  The questions were said to be distilled from the grounds of appeal in the notice of motion and they are as follows:

“Question 1: The User of Ps’ Premises

(a) In ascertaining the user of Ps’ Premises, whether the Court was entitled to draw an inference and find an intention that Ps’ Premises were to be used as domestic purposes, having regard only to the settings and layouts but discarding evidence of actual use for non-domestic purposes (Question 1a).

(b) Even if there was an intention to use the premises for domestic purpose, whether it per se, in the absence of evidence of actual use, could amount to a breach of the Occupation Permit (Question 1b).

(c) Whether a breach of the Occupation Permit is an illegal/unlawful use of Ps’ Premises and thus a breach of Clause 22(i) of the DMC (Question 1c).

Question 2: The Standard of Care

(a) In considering the standard of care in negligence, whether it should be construed against the point of time at which the DMC was entered, or at which the alleged breach took place (Question 2a).

(b) Whether the Court is entitled to compare the user of Ps’ Premises, not on its own but against the rest of the Building (Question 2b).

(c) Whether the standards of care of the duties owed by the IO in their respective capacities, i.e. as an owner and as the Manager, should be considered independently (Question 2c).

(d) Where the aforesaid standards of care are not the same, which of them should take precedent [sic] (Question 2d).

Question 3: Nuisance

Whether the Court was correct to regard Ps’ change in user as abnormal sensitivity (as found by the Deputy Judge), or unforeseeable use (as held by the Court of Appeal), thereby depriving Ps’ right to enjoyment of their premises free of unreasonable interference under the law of nuisance and under the DMC (Question 3).”

Questions 1a to c: user of the plaintiffs’ premises

5.  These questions are directed at the judge’s holdings that the covered playground was converted by a predecessor in title of the plaintiffs into the three enclosed units for domestic use contrary to the user stipulated in the occupation permit^[3], that the effect of this conversion resulted in the domestic part of the building exceeding the permitted plot ratio^[4], that there were unauthorised building structures in the plaintiffs’ premises^[5], and that there was clear breach of clause 22(i) of the DMC, which provided that the owners shall not at any time “use or cause or suffer or permit to be used the unit or units of the said Building of which they are entitled to the exclusive use occupation and enjoyment … for any illegal unlawful or immoral purpose”^[6]. These holdings, which relate to the counterclaim, are also relevant to the appropriate standard of care for the claim in negligence and nuisance as fully explained by the judge.

6.  The arguments run by Mr K M Chong, who appeared for the plaintiffs throughout, were that the three units were for non-domestic use, that the court should have regard to the actual or existing use in that the three units were left vacant since 2008, and that there was no contravention of clause 22(i) in that any user contrary to the occupation permit was not illegal or unlawful.

7.  Mr Chong sought to revive in the intended appeal the above arguments.  The argument in Question 1c (that “illegal” and “unlawful” in clause 22(i) meant the same thing and a breach of user in the occupation permit is not an offence, hence there was no contravention of clause 22(i)) was not pursued in the Court of Appeal.  All his arguments were rejected by the judge and by the Court of Appeal, for the reasons fully set out in the respective judgments.  We do not think they are reasonably arguable.  We decline to grant leave to appeal for any of them.

Questions 2a to d: the standard of care

8.  An important factor the judge took into consideration in determining the appropriate standard of care was the conversion of the covered playground into an unlawful user not envisaged in the DMC.  The plaintiffs had turned a blind eye to the fact that the covered playground was designed, constructed and intended for non-domestic use and that the carpark above and the driveway were not designed and constructed with heavy duty waterproofing material.  The judge held it would not be fair, just and reasonable to require the IO to comply with a higher standard of care in favour of one of the owners who had converted his unit into a user not anticipated in the DMC, especially if such user is unlawful.

9.  The questions in 2a to d sought to address the above holdings. Mr Chong’s arguments, which have been considered and rejected by the judge and on appeal, are not reasonably arguable.

10.  In this application, he advanced an additional argument by relying on clause 25(iii) of the DMC which reads:

“Neither the parties hereto nor any of the owners of the said pieces of land and Building shall at any time:- …

(iii)  cause or suffer or permit to be done anything in or upon the said Building which may create unnecessary noise or which may be or become a nuisance annoyance or inconvenience to the occupiers of the other parts of the said Building or of properties in the neighbourhood.”

11.  Mr Chong relied on this clause to contend for the first time that this imposed on the IO “an absolute prohibition”^[7] and an “absolute duty”^[8] as a co-owner to deal with the leakage.  It is not permissible to raise this new point in contravention of the principles in Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 at §39.  Besides, it has no merit at all.

12.  We refuse to give leave to appeal in respect of any of the questions in Question 2.

Question 3: nuisance

13.  The arguments advanced in respect of Question 3 are wholly without merit and have been fully addressed in the CFI and CA Judgments. We refuse to grant leave on this question.

Conclusion and costs

14.  We are not satisfied that the plaintiffs have raised any questions of great general or public importance that are reasonably arguable, nor have they advanced any reason why leave to appeal should be granted on the “or otherwise” limb. We dismiss the notice of motion.

15.  Costs of this application should follow the event.  Having considered the statement of costs for summary assessment submitted by the defendant, we assess the amount of reasonable costs to be paid by the plaintiffs to the defendant at $100,564.