XCHRX CHAN SIU MEI CARY and Another v. THE INCORPORATED OWNERS OF GRAMMY CENTRE

HCMP 2944/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. HCMP 2944 OF 1998

(ON APPEAL FROM BM 141 OF 1996)

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J U D G M E N T

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Liu, J.A.:

1. This case is all about kitchen walls and pipes on an external wall. The applicant is the Incorporated Owners of Grammy Centre. The respondents are respectively owners of Flat A, on the 1st floor of Block A of Grammy Centre and Flat F, also on the 1st floor of Block A of the same building. Before the Lands Tribunal, facts were agreed as follows:

1. The applicant, the Incorporated Owners of Grammy Centre ("the Building") was incorporated on 18 February 1993.

2. At all material times, the 1st respondent [Mr Chan] was and is the registered owner of Flat A, 1st floor (together with its flat roof) of the Building ("Flat 1A").

3. At all material times, the 2nd respondent [Mr Lee] was and is the registered owner of Flat F, 1st floor (together with its flat roof) of the Building ("Flat 1F").

4. Plotio Property and Management Company Limited ("Plotio") had been the manager of the Building since the issue of Occupation Permit of the Building in January 1987 until January 1995 when the applicant took over management of the Building .

5. About ten years ago, the 1st respondent and the 2nd respondent had :

(a) demolished part of the kitchen walls adjacent to the flat roof of Flat 1A and Flat 1F respectively;

(b) roofed and partitioned the flat roof of Flat 1A and Flat 1F respectively.

6. About six years ago, two pipes were constructed on the external wall of the Building connecting the flat roof of both Flat 1A and Flat 1F with the rear lane of the Building.

7. At all material times, there were and are erected and installed three water tanks on the flat roof of Flat 1A and 1F ("the Water Tanks").

8. Plotio had inspected the Water Tanks during the period while it was the manager of the Building.

9. The applicant and/or its agent had inspected the Water Tanks since it took over management of the Building from Plotio in January 1995.

10. On or about 15 July 1995, the applicant had sent a letter to the 1st and 2nd respondents informing the latter of its intention to take legal action in relation to the items stated in paragraphs 5 and 6 of hereinabove.

11. On or about 17 October 1995, Messrs. Yip, Tse & Tang, the applicant's solicitors sent a letter to the 1st and the 2nd respondents reiterating the applicant's intention to take legal action against them.

12. On or about 21 November 1996, Notice of Application was filed.

2. It was on these agreed facts that the parties came before His Honour Judge Li in the Lands Tribunal. It was heard on 3 April 1998 and judgment was delivered on 15 May 1998, whereby the judge ordered:

(1) that the respondents by themselves, their agents or otherwise do within one month from the date of service of this order remove the pipes leading from the flat roof of A premises and F premises respectively to rear lane of the Building and restore the external wall of the Building from which the pipes will be removed;

(2) that the respondents by themselves, their agents or otherwise do within one month from the date of service of this order restore the flat roof A premises and F premises respectively to the condition as revealed in building plans of the Building filed with and approved by the Building Authority.

(3) that in default of either or both respondents, the applicant may take action on behalf of the respondent or respondents in default to comply with this order and recover the expenses therefor from the respondent or respondents in default; and

(4) that costs to the applicant against the respondents jointly and severally, to be taxed if not agreed with certificate for counsel.

3. The respondents, Mr Chan and Mr Lee, feel aggrieved by the orders of the judge. They wish to appeal but filed no Notice of Appeal within time. They seek an extension and, upon the granting of an extension of time, a stay of the judge's orders. The respondents did not apply under O. 59 r. 14 of the Rules of the High Court (RHC) but, instead, they filed an originating summons. On behalf of the applicant, Ms Lee resists the extension sought on the grounds, first, that it was procedurally impermissible. There seems to be some substance in Ms Lee's opposition as a matter of procedure, but the application has been made and this court has notice of it. No prejudice has been caused. If this application were to be decided on the procedural objection alone, this court would feel disposed to allow Mr Kwan to proceed with his application for extension and stay, albeit by an originating summons. However, in order to apply for an extension, it is incumbent upon the respondents, Mr Chan and Mr Lee, to show that the delay was excusable and that the respondents' intended appeal are meritorious. It is further incumbent upon the respondents to show that the applicant would not be materially prejudiced by the delay.

4. The judgement was given on 15 May 1998. The respondents had 21 days thereafter to lodge their appeal, and the prescribed period within which an appeal must be lodged expired on or about 5 June 1998. Apparently, the respondents took minimal interest in the orders made by the judge. It was the actual occupier, Mr Lee Chun Nam, who expressed concern. Mr Lee Chun Nam, the occupier, only came to know of the orders after his receipt of a copy from solicitors of the respondents on 21 May 1998. Clearly, 21 May 1998 fell within the 21 days prescribed by RHC for lodging an appeal against the judge's orders. According to his affirmation dated 17 June 1998, Mr Lee Chun Nam was trying his level best to contact the respondents. Mr Lee Chun Nam explained that for his own travel plans in connection with his business on the mainland, the respondents were not located until 8 June 1998. It is to be remembered that the application for extension and stay was not filed until 17 June 1998, another 9 days later. In his affirmation, Mr Lee Chun Nam was silent on the further delay of 9 days. Mr Kwan, counsel for the respondents, submits that 9 days is a short span which, of itself, is good enough an indication that the respondents were not dilatory. The respondents must account for all the delay. On this alone, it would seem that the respondents' application must fail.

5. Turning to merits, the judge drew an inference that the objectionable walls, pipes and alterations were the responsibility of the respondents. This is what the judge said :

"Counsel for the Respondents seems to suggest that there being no evidence as to who affixed the pipes, the Respondents cannot be held responsible even if the pipes are offending. The simple answer is that because the pipes lead from and run for the benefit of the Respondents' properties it is safe to infer that either the Respondents or their predecessors-in-title affixed the pipes and so in any event the Respondents being the present owners are held liable for breach of the DMC caused by the pipes."

6. A like analysis would seem to have been similarly attempted on the kitchen walls, but it did not appear to be positively argued that the infringing kitchen walls were not the responsibility of the respondents. Admittedly, these kitchen walls and pipes have been and still are being used for the benefit of the properties of the respondents. The inference drawn against the respondents is hardly open to challenge. It is further admitted that the applicant has throughout been under a statutory obligation to enforce the DMC and that the breaches flowing from these infringing kitchen walls and pipes are continuing breaches. On these concessions, it is difficult to appreciate how it can be said that the acquiescence submission could be successfully run. Moreover, the judge relies on the ratio in The Incorporated Owners of Hoi Luen Industrial Centre & Anor. v. Ohashi Chemical Industries (Hong Kong) Limited, [1995], 2 HKC 11. In delivering judgment of this court, Godfrey, JA said this at p.13C/D to E/F:

"It follows that in the instant case the plaintiffs were not only entitled but bound to take proceedings for the enforcement of these covenants [convenants in the DMC]. It follows, too, that they could not have granted expressly to this defendant or any other owner of any unit in this building the right to act in contravention of the deed of mutual convenant as the defendant has done. What cannot be done expressly cannot be done impliedly. Although equity will sometimes restrain a plaintiff in the exercise of his legal rights because it would be inequitable and unjust in all the circumstances to allow him so to exercise those legal rights, equity will not hold him bound by acquiescence to allow something which he could not have allowed by express grant. (For these propositions, reference may usefully be made to The Incorporated Owners of Chungking Mansions v Shamdasani (CA 199/91, unreported))."

7. The judge was right to rely on this ratio. This court is bound by its own decisions. I cannot accept that the respondents would have a reasonable prospects of succeeding in their intended appeal. Counsel for the respondents referred to the draft Notice of Appeal which contains three grounds: first, it would be inequitable for the applicant to be granted the injunction. There are no circumstances to remotely suggest that the respondent should not be so restrained. After all, illegal structures and alterations should be put right immediately or at least as soon as practicable. The second ground is acquiescence which this court has dealt with. The third ground involves the contention that there was insufficient evidence to associate the infringements with the respondents. The judge drew his inference from the fact that the kitchen walls and the pipes were linked to the respondents' properties. The finding of the judge cannot be faulted.

8. For all these reasons, it is patently clear that the respondents' application should not be acceded to. Any interference with the exercise of a legal right is prejudicial, but no substantial prejudice is shown in this application. It remains for this court to dismiss the respondents' application with costs to the applicant. Obviously, the application for stay calls for no separate determination. It falls with the application of the respondents for extension of time.

(B Liu)

Justice of Appeal of the Court of Appealof the
High Court