GREAT SOURCE ENTERPRISE LTD v. LAM KA ON ALLAN AND ANOTHER

LDBM 193/2002

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 193 of 2002

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J U D G M E N T

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Background

1. The Applicant is the registered owner of Unit B, 6/F, Block 2, Skylodge 2, No. 8 Yin Ping Road, Dynasty Heights, Kowloon, Hong Kong ("the Applicant's Premises"). The Respondents are the registered owners of Unit B, 5/F, Block 2, Skylodge 2, No. 8 Yin Ping Road, Dynasty Heights, Kowloon, Hong Kong ("the Respondents' Premises"), which is situate immediately below the Applicant's Premises.

2. Both the Applicant's Premises and the Respondents' Premises are situate in the piece or parcel of ground under the Conditions of Sale dated 15th December 1993 and registered in the Land Registry as New Kowloon Inland Lot No. 5924 as modified by a Modification Letter with dated 4th September 1998 and registered in the Land Registry by Memorial No. 7567327 ("the Conditions") of which the development erected thereon is known as Dynasty Heights ("the Development").

3. The Applicant and the Respondents being owners holding undivided shares of the Development are bound by the terms and conditions contained in the Deed of Mutual Covenant and Management Agreement dated 19th January 1999 and registered in the Land Registry by Memorial No.7685467 ("the DMC").

4. In or about July 1999, the Respondents installed three canvas canopies ("the Canopies") at the Respondents' Premises. Two of the Canopies are fixed outside the bedrooms on the external wall of the Respondents' Premises. They are affixed by means of five brackets, each of which is in turn affixed to the external wall by two anchor bolts. The remaining one of the Canopies is fixed outside the living room of the Respondents' Premises. It is affixed to the floor slab between the Applicant's Premises and the Respondents' Premises by means of two brackets, each of which is in turn affixed to the soffit of the floor slab by two anchor bolts. The parties have agreed at the trial that the floor slab is a common part of the Development.

5. The Respondents have never obtained the approval of the Buildings Department or the approval of the Director of Lands in respect of the erection of the Canopies. There was also no prior written consent given by the Manager of the Development, Sino Estates Management Limited ("the Manager"). There was only a letter dated the 2nd August 2002 issued by the Manager to the Respondents' solicitors stating that it had no adverse comment on the installation of the Canopies as long as "the installation shall not constitute any infringement to statutory requirements and the Deed of Mutual Covenant of Dynasty Heights."

6. The Applicant contends that the Canopies have partially obstructed the full open view of the Applicant's Premises. The Canopies are of light mango yellow colour, which is not pleasing to the eyes when light shines on them. The light reflected by the Canopies into the Applicant's Premises during summer also has the effect of raising the room temperature of the Applicant's Premises and more air-conditioning power is consumed. The Canopies produce splattering noise when rain falls on them.

7. By a letter dated 16th March 2002, the Applicant's solicitors wrote to the Respondents stating that the Canopies were in breach of the building management rules and the DMC, and that they affected the normal and reasonable enjoyment of the Applicant's Premises by the Applicant. The Respondents were demanded to dismantle and remove the Canopies.

8. By a letter dated 28th March 2002 from the Respondents to the Applicant's solicitors, the Respondents replied that the Canopies were erected in July 1999 to provide shelter from rain and falling objects and that they had never received any instruction and objection from the Management Office that such canopies were not allowed. The Respondents also denied that the Canopies affected the normal and reasonable enjoyment of the Applicant's Premises by the Applicant, and stated that "The canopies are below his foot level and from his eye level, he should enjoy the sea view far in front of his property instead of looking down at our balcony".

9. Since the Respondents have not removed the Canopies as requested, the Applicant applies in the present proceedings for the following reliefs:-

"(a) a declaration that the erection of the Canopies, one outside the living room, and two outside the bedrooms of the Respondents' Premises at Unit B on 5th floor of Block 2 (Skylodge 2), No. 8 Yin Ping Road, Dynasty Heights, Kowloon by the Respondent:-

i) was building works carried out without the prior approval of the Buildings Department in contravention of Section 14(1) of the Building Ordinance whereby Clause 2 and Clause 6 of the 4th Schedule of the DMC and Clause 9 and Clause 12(a) of the Special Conditions in the Conditions have been breached;

ii) was carried out not in accordance with the plans approved by the Buildings Department and the design and disposition of the elevated garden approved by the Director of Lands whereby Clause 16(a)(i) of the General Conditions and Clause 12(f) of the Special Conditions in the Conditions as modified by modification letter dated 4th September 1998 and clause 2 and clause 6 of the 4th Schedule of the DMC have been breached;

iii) was carried out without the written consent of the manager of Dynasty Heights and the consent of the Director of Lands whereby Clause 16 of the 4th Schedule of the DMC has been breached;

iv) has altered the facade or external appearance of the Block 2 (Skylodge 2) of Dynasty Heights without the prior consent in writing of the manager whereby Clause 17 of the 4th schedule of the DMC has been breached;

v) constitute a structure built upon a flat roof or balcony without the prior written consent of the manager whereby Clause 30 of the 4th schedule of the DMC has been breached;

vi) constitute a structural alteration of the building which has, by reasons of the facts contained in paragraph 12B of re-re-re-amended Particulars of Application, damaged, interfered with and affected the use and enjoyment of the Applicant's Premises and has interfered with and affected the rights of the Applicant and has, as regard the canopy outside the living room of the Respondent's Premises, damaged, interfered with and affected the use and enjoyment of the Applicant's Premises by cutting, injuring, damaging and altering the floor slab of its living room; and has, as regard the two canopies outside the bedrooms, cut, injured, damaged, altered and interfered with the external wall which is part of the Common Areas and Facilities of Dynasty Heights whereby clause 1 of the 4th schedule of the DMC has been breached;

vii) has, by reasons of the facts contained in paragraph 12B of the re-re-re-amended Particulars of Application, caused nuisance, annoyance, inconvenience and damage to the Applicant and the occupiers of the Applicant's Premises whereby clause 5 of the 4th schedule of the DMC has been breached.

(b) A mandatory injunction order ordering the Respondents to dismantle and remove the Canopies and re-instate the external wall and floor slab to its original condition; and upon the said re-instatement to allow the Applicant and its Authorized Person to inspect the same at the Respondent's Premises.

(c) An injunction order to restrain the Respondents, by themselves their agents, servants or otherwise however from

(i) installing or erecting canopies or other structures at or outside the external wall of Block 2, (Skylodge 2), No. 8 Yin Ping Road, Dynasty Heights, Kowloon or the floor slab of the Applicant's premises or causing or permitting structural alteration to the external wall of Block 2 (Skylodge 2), Dynasty Heights which may damage or interfere with or affect the use and enjoyment of the Applicant's Premises or which may interfere with or affect the right of the Applicant or which may cause nuisance or annoyance or inconvenience or damage to the Applicant or to the occupiers of the Applicant's Premises;

(ii) cutting, injuring, damaging, altering or interfering with any part or parts of the Common Areas or Facilities or the floor slab of the Applicant's Premises;

(iii) carrying out building works at or outside the external wall of Block 2 of Skylodge or at the floor slab of the Applicant's Premises, without the prior consent of the Buildings Department;

(iv) putting up structures extending outside the exterior of the buildings without the written consent of the manager of Dynasty Heights and the consent of the Director of Lands;

(v) altering the facade or external appearance of Block 2, Skylodge without the prior written consent of the manager of Dynasty Heights.

(d) damages to be assessed;

(e) costs of these proceedings; and

(f) such other appropriate orders or directions as the Tribunal deems fit."

10. At the trial, the Applicant agreed not to pursue with the claim for damages. Thus, the Applicant is basically seeking for 3 reliefs: a declaration in respect of the 7 matters as aforesaid, a mandatory injunction and a prohibitory injunction.

Declaration

11. The Respondents admitted at the trial that the 3 Canopies were unauthorized structures and they were in breach of the DMC. However, the Respondents submitted that it did not matter which provisions of the DMC were breached and that since the Respondents were not arguing with the Applicant about the breaches of the DMC, the Tribunal should not grant any declaratory relief. In this regard, the Respondents relied on the judgment of Megarry V-C in Metzger and others v. Department of Health and Social Security [1977] 3 All ER 444, at 451, where it was said that:-

"The court does not make declarations just because the parties to litigation have chosen to admit something. The court declares what it has found to be the law after proper argument, not merely after admissions by the parties. There are no declarations without argument: that is quite plain."

12. This case was in fact relied upon by the Applicant to say that the Tribunal should not grant a declaration simply because the parties had agreed on the declaration, but should have a trial to determine the issues before granting the declaration. This was also the reason why the Applicant had refused to settle the case with the Respondents when the Respondents were at one stage agreeable to remove the Canopies.

13. Nevertheless, the Respondents seemed to understand the case in another way. The Respondents suggested that if they had chosen not to argue the issues, the Tribunal cannot grant a declaration at all. This is not my understanding of the case. I think what Megarry V-C was saying in the case is that the court should not be a rubber stamp and grant a declaration on the admission of the parties. I do not agree that the judgment of Megarry V-C goes so far to say that when a party chooses not to argue the issue in question, then the court will be barred from making a declaration.

14. My view is supported by the following passages in Lord Woolf's book : The Declaratory Judgment, 3rd ed., paras. 4.086 and 4.087:-

"An unusual case calling for special consideration in this context is Grant v. Knaresborough Urban District Council. There the claimant claimed a declaration that a notice served on him by the local rating authority, requiring him to make certain returns, was unauthorized and ultra vires. A few days afterwards the defendants withdrew that notice. The claimant, nevertheless, went on with the action, and the defendants then put in a defence denying the invalidity of the notice. But subsequently they stated that they did not propose to contest the action further, they admitted the invalidity of the notice, and by leave withdrew their defence. This had actually put an end to the dispute between the parties. The claimant was then entitled to obtain a judgment in default of defence and an order for costs. The claimant, however, insisted on getting the declaration he claimed, which could not be done without the court hearing evidence and argument on the subject matter of the declaration. The defendants argued that, the invalidity being admitted, a declaration was unnecessary. But the court held that the claimant was entitled to proceed with the action, and after hearing evidence made the declaration asked for, and ordered the defendants to pay full costs. Astbury J. said:

"At the date of the [claim form] the [claimant] was entitled to make out that case. He was not bound in the circumstances to move for judgment in default of defence if, on such a motion, he could not obtain the relief he was clearly entitled to."

This decision illustrates that where a dispute exists which justifies the institution of declaratory proceedings, the subsequent withdrawal of the defence and admission of the claimant's right will not necessarily retrospectively deprive the claimant of his right to a declaration on the grounds that the issue is now theoretical. If a declaration will still serve some purpose, then the court will be favourably disposed to granting declaratory relief. If, however, the declaration would serve no purpose the court might well take the view that it was unreasonable for the claimant to continue with the action and in these circumstances refuse to grant declaratory relief."

15. The Respondents then submitted that the issue before the Tribunal ceased to be of practical importance. A declaration was meaningless and served no useful purpose as the Respondents had admitted the Canopies were unauthorized structures. The Respondents also submitted that the issue before the Tribunal was theoretical and hypothetical because the Applicant sought for a declaration in fear of future dispute.

16. I do not accept the Respondents' arguments at all. A declaration has to be clear and unambiguous as it has binding effect on the rights and obligations of the parties. The Respondents have only admitted that the Canopies were unauthorized structures and they were erected in breach of the DMC. There is no admission as to which particular provisions of the DMC have been breached. So the Respondents have only made a partial concession or admission. Not all the issues in this case have been disposed of. The Tribunal still needs to decide which provisions of the DMC and/or the Conditions have been breached before it grants the injunctions sought by the Applicant. These issues are related to the Canopies in existence, not future canopies, but the declaration will help to avoid future dispute because it can set out clearly what breaches were committed by the Respondents as so to prevent the Respondents from committing the same breaches again.

17. I am therefore of the view that the declaration sought by the Applicant does serve some purpose and is not theoretical or hypothetical.

Which provisions of the DMC and the Conditions have been breached

18. From the wordings of the declarations sought, the Applicant contends that the Respondents have been in breach of Clauses 1, 2, 5, 6, 16, 17 and 30 of the 4th Schedule of the DMC, Clause 16(a)(i) of the General Conditions in the Conditions and Clauses (9), (12)(a) and (12)(f) of the Special Conditions in the Conditions. I shall deal with them in sequence of the items mentioned in the declaration sought.

Building works without prior approval of the Buildings Department

19. Clause 2 of the 4th Schedule of the DMC states that:-

"No Owner shall permit or suffer to be done any act or thing in contravention of the terms and conditions of the Conditions or whereby any insurance on the Development or any part thereof may become void or voidable or whereby the premiums for any such insurance may be increased and in the event of any breach of this Clause by any Owner, in addition to any other liability incurred thereby, such Owner shall pay to the Manager the amount of any increase in premium caused by or on account of such breach."

20. Clause 6 of the 4th Schedule of the DMC states that:-

"No Owner shall use or permit or suffer any part of the Development owned by him to be used except in accordance with the Conditions, this Deed and any Ordinances and Regulations from time to time applicable thereto."

21. Clause 2 of the 4th Schedule of the DMC will be breached if an owner permits or suffers to be done any act or thing in contravention of any terms and conditions of the Conditions. Clause 6 of the 4th Schedule of the DMC will be breached if an owner uses or permits or suffers any part of the Development owned by him to be used not in accordance with the Conditions, the DMC and any Ordinances and Regulations from time to time applicable thereto.

22. Section 14(1) of the Buildings Ordinance provides that:-

"Save as otherwise provided, no person shall commence or carry out any building works or street works without having first obtained from the Building Authority-

(a) his approval in writing of documents submitted to him in accordance with the regulations; and

(b) his consent in writing for the commencement of the building works or street works shown in the approved plan."

23. It is undisputed that no approval has been obtained from the Buildings Department for the carrying out of the construction of the Canopies. "Building works" is defined in Section 2 of the Buildings Ordinance "as any kind of building construction, site formation works, ground investigation in the scheduled areas, foundation works, repairs, demolition, alteration, addition and every kind of building operation". It is the evidence of the Applicant's expert, Mr. Yung Chi-Kin, that the erection of the Canopies is "building works" within the definition of Section 2 of the Buildings Ordinance and that they are not exempted under Section 41(3) of the Building Ordinance. I accept Mr. Yung's evidence in this regard. The Respondents are therefore in breach Section 14(1) of the Buildings Ordinance as they have failed to obtain the approval from the Buildings Department.

24. The Canopies are erected within the Respondents' Premises at the garden deck. As aforesaid, the Respondents in so doing are in breach of Section 14(1) of the Buildings Ordinance. They are also in breach of Clause 6 of the 4th Schedule of the DMC by using their premises in a way that is in breach of the Buildings Ordinance. In addition, the breach of Section 14(1) of the Buildings Ordinance also causes the breaches of Clauses (9) and (12)(a) of the Special Conditions in the Conditions. Clause (9) of the Special Conditions in the Conditions provides that the Purchaser (which includes all owners) shall "develop the lot by the erection thereon of a building or buildings complying in all respects with these Conditions and all Ordinances, Bye-laws and Regulations relating to building, sanitation and planning which are or may at any time be in force in Hong Kong." Clause (12)(a) of the Special Conditions in the Conditions provides that "any building or buildings erected or to be erected thereon shall in all respects comply with the Buildings Ordinance, any regulations made thereunder and any amending legislation."

25. In breaching Clauses (9) and (12)(a) as aforesaid, the Respondents are then in turn in breach of Clause 2 of the 4th Schedule of the DMC, because they have permitted something to be done in breach of the Conditions.

Not in accordance with plans approved by the Buildings Department and the design and disposition of the elevated garden approved by the Director of Lands

26. Clause 16(a)(i) of the General Conditions in the Conditions provides that the Purchaser (which includes all owners) shall "maintain all buildings in accordance with any approved building plans without variation or modification thereto."

27. Clause (12)(f) of the Special Conditions in the Conditions, as added by modification letter dated 4th September 1998, provides, inter alia, that the design and disposition of the elevated private garden decks shall first be approved by the Director of Lands.

28. Since it is not disputed that the Canopies are not included in any approved building plans and no approval has been obtained from the Director of Lands in respect of the erections of the Canopies, which have in my view changed the design and disposition of the elevated private garden deck of the Respondents' Premises, the Respondents are clearly in breach of Clause 16(a)(i) of the General Conditions in the Conditions and Clause (12)(f) of the Special Conditions in the Conditions. The Respondents are also in turn in breach of Clauses 2 and 6 of the 4th Schedule of the DMC.

No written consent of the Manager and no consent of the Director of Lands

29. Clause 16 of the 4th Schedule of the DMC states that:-

"Subject to the rights of the First Owner under this Deed, no external signs, signboards, notices, advertisements, flags, banners, poles, cages, shades, or other projections or structures whatsoever extending outside the exterior of the Buildings or any part of the Development shall be erected, installed or otherwise affixed to or projected from the Buildings or the Development or any part thereof save as otherwise provided in this Deed or except with the written consent of the Manager and (if required) also consent of the Director of Lands in accordance with the Conditions."

30. Clause 16 of the 4th Schedule of the DMC is clearly breached by the Respondents as the Canopies were erected without the written consent of the Manager or the consent of the Director of Lands. The letter dated 2nd August 2002 from the Manager is not a written consent as it is subject to qualifications and is not unequivocal. I also do not find that the Manager has in anyway acquiesced the erection of the Canopies. The Manager has in fact no power to give such acquiescence: Taikoo Shing (Management) Ltd. v. Trillon (H.K.) Ltd. LDBM 35 of 1995.

Altering the facade or external appearance

31. Clause 17 of the 4th Schedule of the DMC states that:-

"No Owner shall, save as otherwise provided in this Deed, paint the outside of the Buildings or any part of the Development or do or permit to be done any act or thing which may or will alter the facade or external appearance of the Buildings or the Development without the prior consent in writing of the Manager."

32. Clause 17 of the 4th Schedule of the DMC has also been breached as I find that the external appearance or facade of the Development has been altered by the erections of the Canopies and they were done without the prior written consent of the Manager.

Structure built upon a flat roof or balcony

33. Clause 30 of the 4th Schedule of the DMC states that:-

"Subject to the rights of the First Owner under this Deed, no Owner shall without the prior written consent of the Manager erect or build or suffer to be erected or built on or upon the roof, flat roof or balcony forming part of a Unit any structure whatsoever either of a permanent or temporary nature. The Manager shall have the right to enter and remove from such roof, flat roof or balcony such unauthorized structure at the cost and expense of the defaulting Owner."

34. I find that the elevated garden is a kind of flat roof or balcony. It is admitted that the Canopies are unauthorized structures. So the Canopies constitute structures built upon a flat roof or balcony. Clause 30 of the 4th Schedule of the DMC has therefore been breached because no prior written consent of the Manager has been obtained.

Breach of Clause 1 of the 4th Schedule of DMC

35. Clause 1 of the 4th Schedule of the DMC states that:-

"No Owner or Manager shall make any structural alteration to any part of the Development owned by him (including but not limited to the external walls structure or façade of the Buildings or any installation or fixture therein) which may damage or affect or interfere with the use and enjoyment of any other part or parts of the Development whether in separate or common occupation (in particular the supply of water, electricity or gas) or interfere with or affect the rights of other Owners nor shall any Owner cut, injure, damage, alter or interfere with any part or parts of the Common Area and Facilities or any equipment or apparatus on, in or upon the Lot not being equipment or apparatus for the exclusive use and benefit of any such Owner. No provision shall be made preventing an Owner from taking legal action against another Owner in this respect."

36. Clause 1 may be breached under the following circumstances:-

(1) if an owner makes structural alteration to any part of the Development owned by him (including but not limited to the external wall, structure or façade of the Buildings or any installation or fixture therein) which may damage or affect or interfere with the use and enjoyment of any other part or parts of the Development whether in separate or common occupation (in particular the supply of water, electricity or gas) or interfere with or affect the rights of other owners; or

(2) if an owner cuts, injures, damages, alters or interferes with any part or parts of the Common Area and Facilities or any equipment or apparatus on, in or upon the Lot not being equipment or apparatus for the exclusive use and benefit of any such owner.

37. The Applicant contends that the erection of the canopies caused nuisance, annoyance, damage and inconvenience to the applicant and the occupiers of the Applicant's Premises for reasons set out in paragraph 12B of the Re-re-re-amended Particulars of Application. The site visit conducted on the second day of the trial demonstrated to me how the view of the Applicant's Premises was obstructed. Observations were made in three situations, namely, when the Canopies were stretched out to an extent as alleged by the Applicant, when the Canopies were stretched out to an extent as alleged by the Respondents and when the Canopies were fully retracted. In the first situation, the driveway was obstructed when viewed from the living room of the Applicant's Premises and the driveway and the buildings in front were obstructed when viewed from the bedrooms of the Applicant's Premises. In the second situation, part of the driveway was obstructed when viewed from the living room of the Applicant's Premises and the whole driveway and part of the buildings in front were obstructed when viewed from the bedrooms of the Applicant's Premises. According to the evidence of the Applicant, the erection of the Canopies also causes splattering noise when it rains. The sunlight reflected by the Canopies in summer is unpleasing to the eyes and the temperature is raised and more air-conditioning is used.

38. I accept that the view of the Applicant's Premises is to a certain degree obstructed by the Canopies. The Applicant cannot see the driveway and part of the buildings in front when the Canopies are stretched out. The Applicant is entitled to look at the view near the window and to look down at the driveway and the buildings opposite. There is no ground for the Respondents to suggest that the Applicant should only look at the view from his eye level and not below.

39. I also accept the evidence of the Applicant that the erection of the Canopies does cause splattering noise when it rains and the sunlight reflected by the Canopies in summer is unpleasing to the eyes. The temperature of the Applicant's Premises is also raised and more air-conditioning is used.

40. It is my finding that all these matters do cause nuisance, annoyance, damage and/or inconvenience to the Applicant, and hence the use and enjoyment of the Applicant's Premises have been interfered with by the erection of the Canopies at the Respondents' Premises. The first limb of Clause 1 is therefore breached.

41. I accept the evidence of Mr. Yung that by drilling holes into the external wall and floor slab and inserting anchor bolts into them, it will cause damage to the external wall and the floor slab. Thus, the second link of Clause 1 is also breached.

Breach of Clause 5 of the 4th Schedule of the DMC

42. Clause 5 of the 4th Schedule of the DMC states that:-

"No Owner shall use or permit or suffer the part of the Development owned by him to be used for any illegal or immoral purpose nor shall he do, cause or permit or suffer to be done any act or thing which may be or become a nuisance or annoyance to or cause damage or inconvenience to the other Owners and occupiers for the time being of the Development and/or any neigbouring premises."

43. There are also 2 limbs of Clause 5 of the 4th Schedule of the DMC. Clause 5 will firstly be breached if an owner uses or permits or suffers the part of the Development owned by him for any illegal or immoral purpose or secondly if he does, causes, permits or suffers to be done any act or thing which may be or become a nuisance or annoyance to or cause damage or inconvenience to other owners or occupies for the time being of the Development and /or neighbouring premises.

44. The first limb of Clause 5 is breached as the Canopies are illegal structures contravening the Buildings Ordinance. The second limb of Clause 5 is also breached, as it is my finding that there are nuisance, annoyance, damage or inconvenience caused to the Applicant as aforesaid.

Applicant is a company

45. The Respondents, however, submitted that all these matters could not be nuisance, annoyance, damage and/or inconvenience to the Applicant because the Applicant is a limited company. I totally reject this argument. First of all, a company can also suffer nuisance: Realty Harvest Ltd. & others v. Gold Margin Development Ltd. & another HCA11197 of 1998. Moreover, the Applicant enjoys the Applicant's Premises through its director, Mr. Fong Chau-kwai. Mr. Fong is therefore the occupier of the Applicant's Premises. Clause 5 stipulates that no nuisance, annoyance, damage or inconvenience should be caused to the occupiers as well. So the Respondents cannot do anything to cause Mr. Fong nuisance, annoyance, damage or inconvenience.

Delay

46. The Respondents submitted that the complaint of interference with the enjoyment of the Applicant's Premises was lodged after 3 years and the letter of complaint dated 16th March 2002 from the Applicant's solicitors was vague in that only normal and reasonable enjoyment of the Applicant's premises was mentioned. The Respondents also submitted that the particulars in paragraph 12B of the Re-Re-Re-Amended Particulars of Application were given at a late stage and therefore there was no true inconvenience.

47. The 1st Respondent gave evidence that Mr. Fong had only talked to him once a few weeks before receiving the letter dated 16th March 2002. On the other hand, Mr. Fong gave evidence that he rang the doorbell of the Respondents' Premises and asked the Respondents to retract the Canopies shortly after they had been erected but met with no response. He said that he treated the Respondents as neighbours. He tolerated the Canopies for quite some time hoping to solve the problem. He talked to the Respondents the next year and was told that there was some problem in retracting the Canopies. He talked to the Respondents again next year but the Canopies were still not retracted. He consulted his lawyers when the Respondents had simply ignored him.

48. I find that the evidence of Mr. Fong is reliable and consistent with documentary and circumstantial evidence of the case. In the letter from the Respondents to the Applicant's solicitors dated 28th March 2002, the Respondents denied any obstruction of view. This clearly demonstrates that Mr. Fong did verbally raise the issue of obstruction of view to the Respondents. The letter also demanded Mr. Fong not to ring the Respondent's door-bell as he was not welcomed at all times. This also demonstrates that there were previous antagonistic encounters between Mr. Fong and the Respondents. The 1st Respondent explained in his evidence by simply saying that his wife did not want disturbance, but I do not accept that this would cause such strong words to be used in the letter.

Interference with enjoyment

49. The Respondents referred to paragraph 12B of the Applicant's Re-Re-re-Amended Particulars of Application and then cited Clerk & Lindsell on Torts to support their contention that there were no interference and nuisance caused to the Applicant. It is stated in paragraph 19-10 of Clerk & Lindsell on Torts that no precise universal formula is possible but a useful test is what is reasonable according to ordinary usages of mankind living in a particular society. One has to consider all surrounding circumstances to decide whether the user is ordinary and reasonable (see Paragraph 18 of Vol. 34 Halsbury's Laws of England).

50. I am however of the view that there are interference and nuisance caused to the Applicant having considered the following circumstances:-

(1) Usages involving breaches of the DMC and the Conditions and the Building Ordinance cannot be regarded as ordinary usages.

(2) The Development is a luxurious estate. Both the Respondents and the Applicant paid a purchase price of over 10 million in the purchase of the respective properties.

(3) One of the important attributes of the premises in the Development is the stunning view for which the Applicant had paid a very high premium.

(4) The Applicant is entitled to enjoy the full view by standing in front of the window.

(5) The layout and landscape of the Development including all buildings and landscape is exquisitely designed.

(6) The existence of the Canopies diminishes the stunning and magnificent view, which may be enjoyed at the Applicant's Premises. By analogy, the annoyance is similar to a narrow strip of paper being stuck at the bottom of the lens of a pair of spectacles which one wears it.

(7) There is a contractual obligation under Clause 5 of the 4th Schedule of the DMC whereby the Respondents are prohibited from doing anything which would cause nuisance, annoyance, damage or inconvenience to the other owners or occupiers.

Mandatory Injunction

51. Since it is my finding that the Respondents have been in breach of the DMC and the Conditions as aforesaid, the Applicant is entitled to a mandatory injunction to enforce its rights under the DMC by requiring the Respondents to undo the breach, i.e. to dismantle and remove the Canopies and to re-instate the external wall and floor slab to their original conditions.

52. Such an order is however subject to the balance of convenience test, and may be refused if the prejudice suffered by the Respondents in having to restore the original position heavily outweighs the advantage that would be derived from such restoration by the Applicant. The court will also take into account of the nature of the breach in applying the balance of convenience test.

53. The Respondents erected the Canopies to provide shelter from rain and falling objects. A number of authorities were cited to support their contentions that the mandatory injunction ought to be refused, such as Incorporated Owners of Dragon View v. Nalpak Ltd [1989] 1 HKC 549 and Sharp v. Harrison [1922] 1 Ch. 502.

54. However, I am of the view that the following factors outweigh the Respondents' need for a shelter:-

(1) The Respondents purchased their premises with the elevated private garden deck and with full knowledge that the garden deck was an uncovered area. They are not entitled to anything more than an open garden deck.

(2) The Canopies are unauthorized structures and are liable to be dismantled by the Buildings Department.

(3) There is no assurance as to the structural stability of the Canopies. There is no evidence whatsoever to prove proper test has been conducted on the stability and the endurance of stress of the Canopies.

(4) Breach of the General and Special Conditions in the Conditions may entail a right of re-entry under Clause 19(b) and Clause 20(a) of the General Conditions of the Conditions.

(5) Use and enjoyment of the Applicant's Premises is interfered with and affected adversely. Moreover, the continued existence of the Canopies will also adversely affect the rent or the selling price of the Applicant's Premises in the event the Applicant decides to let out or sell the Applicant's Premises.

(6) The Respondents have been in breach of the restrictive covenants of the DMC.

(7) According to the evidence of the 1st Respondent, he was told that he could erect a canopy when he took possession of the property. He said that he would not do so if he had not been so advised by the Manager. However, the Applicant should not suffer as a result of the wrongful advice given by the Manager, and the Respondents have not lost anything nor got anything less than what they contracted for in the purchase of their premises.

(8) Without the Canopies, the garden deck can still be used for other purposes such as drying clothes and other things. It can also be used for planting purposes, as originally intended. Two photographs produced by the Applicant show that the Respondents have used the garden deck for drying purpose.

(9) There is a drainage system in the garden deck to drain away the rain.

55. I am therefore of the view that when applying the balance of convenience test, it tips in favour of the Applicant and the mandatory injunction ought to be granted.

Prohibitory Injunction

56. Para. 27-040 of Chitty on Contracts summarizes the law on prohibitory injunction as follow:-

"Where a contract is negative in nature, and contains an express negative stipulation, breach of it may be restrained by injunction. In such cases, an injunction is normally granted as a matter of course, even though the remedy is an equitable and thus in principle a discretionary one. A defendant cannot, in particular resist an injunction simply on the ground that observance of the contract is burdensome to him and that its breach would cause little or no prejudice to the plaintiff; indeed, breach of an express negative stipulation can be restrained even though the plaintiff cannot show that the breach will cause him any loss. In such cases, the court is not concerned with "the balance of convenience or inconvenience." This rule, however, only applies to a prohibitory injunction restraining a defendant from future breaches."

57. In the case of Doherty v. Allman (1878) 3 App. Cas. 709, which relates to the enforcement of a negative agreement by a prohibitory injunction, Lord Cairns said at page 720:-

"If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of Equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction does nothing more than given the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury - it is the specific performance, by the court, of that negative bargain which the parties have made, with their eyes open, between themselves."

58. However, the Respondents submitted that there was no imminent danger nor was there any particular hardship which warranted the granting of a prohibitory injunction. Paragraph 45-13 of Snell's Equity was cited in support of this contention. I do not accept the Respondents' submission in this regard. Imminent danger is only applicable to cases when an infringement has not taken place but is merely feared or threatened. In the present case, the breach of the DMC has already taken place. There is no need for the Applicant to prove imminent danger or particular hardship. Furthermore, as where there is a contractual negative covenant, the court is not concerned with the balance of convenience or inconvenience. The Court simply gives sanction to what has been previously agreed by way of prohibitory injunction order (see paragraph 28-055 of Chitty on Contract and paragraph 45-06 of Snell's Equity and the case of Doherty v Allman, supra.).

59. Furthermore, in the case of Lo Yu Chu v. Kam Fu Lai Dev. Co. Ltd. & The I.O. of Pearl House, No. 50 of 1994 (Civil) (C.A.), the Appellant was awarded damages by the Court below for nuisance caused to her as a result of noise produced by an air-conditioner which serves 152 shops in the lower levels. On appeal, it was held that damages was insufficient and inadequate and an injunction was granted by the Appeal Court to prohibit and restrain the continuance of the nuisance. Godfrey, JJ.A has this to say at page 17 of the judgment:

"It will be rare that damages will be an adequate remedy for a nuisance which the defendant proposes to continue unless restrained by injunction from doing so. Remedies at law are especially unsuitable where reliance on them renders it necessary to bring repeated proceedings for damages, such as where continuing wrongful acts are expect to take place. In such cases, the right to obtain an injunction is particularly valuable".

60. The Respondents have erected and maintained the Canopies since 1999 and despite warning letters and the present proceedings, the Canopies have not been dismantled. Moreover, I accept the evidence of Mr. Fong that on 24th April 2003 the 1st Respondent mentioned to the Applicant that if he lost the case, he intended to re-erect the canopies. I therefore find that unless restrained by a prohibitory order, the Respondents are likely to repeat the breaches by re-erecting the Canopies. In that case, the Applicant has to repeat litigation against the Respondents and such courses will be costly and highly undesirable.

61. It is therefore my view that a prohibitory injunction is appropriate in the circumstances.

Conclusion

62. By reason of the matters aforesaid, I find that the Applicant has proved its case against the Respondents, and the Applicant is entitled to the declaration, mandatory injunction and prohibitory injunction as claimed. I therefore make orders in terms of the application for these 3 reliefs as aforesaid. I also give leave to the Applicant to withdraw the claim for damages. As to costs, I order that there be a costs order nisi for the Respondents to pay the Applicant its costs of the application, to be taxed at the District Court Scale if not agreed. If there is no further application on costs within 14 days, the costs order nisi shall become absolute.