THE INCORPORATED OWNERS OF CHUNG YUEN MANSION v. WINNER SCENE LTD

HCA 444/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 444 OF 2013

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D E C I S I O N

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1. There are before me cross applications for costs. These proceedings started off as an application by the plaintiff for an injunction to enjoin the defendant from blocking the access to the machine room on top of Chung Yuen Mansion. The machine room is on top of the lifts and access to it is needed for inspection and repair of the lifts which serve the various floors of the building.

2. The defendant is a half-owner of the roof. Access to the machine room can only be had through the roof.  The defendant, under the Deed of Mutual Covenant, is obliged to provide such access.  The defendant is owned and controlled by one Madam Ho.  Her husband is one Mr Chung.

3. According to the plaintiff, access to the machine room had been denied on about 23 February this year when Mr Chung engaged workers to install a fire alarm push bar on the roof door and erected a wire gauze to surround the roof as well as the cat ladder leading to the machine room.  Since access to the machine room was denied, maintenance to the lift could not be carried out and no inspection was possible.  The lifts were then suspended.

4. The plaintiff then gave the defendant a letter dated 8 March this year requiring the defendant to remove the obstructions. The plaintiff then started these proceedings on 12 March.  The application for interim injunction was returnable on 15 March, but was adjourned to 19 March, as the defendant did not appear on the 15th.

5. On 19 March, the defendant gave the plaintiff a key to open the door of the roof and a password to unlock the padlock of the wire gauze, hence no interim injunction was required.  All that is left is the question of costs. 

6. On 18 July, the plaintiff proposed that costs of the proceedings be to the plaintiff, save that the costs of 15 March be not included in the costs order and that leave be given to the plaintiff to discontinue these proceedings.  The defendant refused and instead asked for costs.

7. This obstruction to the machine room was not the first time.  As a matter of history, the first obstruction happened on 26 October 2012.  When the caretaker discovered that access to the machine room had been blocked, he liaised with Madam Ho and asked for the access to be restored.  However, Madam Ho refused. 

8. There was then an arrangement between the plaintiff and Madam Ho for the lift to be inspected on 21 November 2012, but Madam Ho did not appear on that day and the maintenance service was deferred to the next day.  However, after the inspection and maintenance, Madam Ho locked up the door to the roof again.

9. On 27 November 2012, Lift No. 1 went out of order and it was only until 17 December 2012 that Madam Ho provided access to the machine room for repair to be undertaken.  Therefore, Lift No. 1 was out of service for some 20 days.

10. Then on 20 December, Lift No. 1 was again out of order.  It was until 22 January that Madam Ho provided access for the repair and maintenance. 

11. On 23 February, the defendant installed an alarm push bar on door to the roof and erected some wire gauze surrounding the roof and the cat ladder, blocking access to the machine room again. 

12. On 5 March, the lift company had to provide maintenance service to the lifts, but could not enter the machine room, as to do so would set off the alarm.  On 7 March, the technician pushed open the fire alarm push bar and opened the door, thereby invoking the alarm.  However, access to the cat ladder was still not possible because it was surrounded by the wire gauze. 

13. After the fire alarm had been set off, Mr Chung was contacted to switch it off, but he refused, saying that the alarm would come to a stop six hours later upon exhaustion of the battery.  The alarm continued until 1 am, causing great disturbance and annoyance to the owners. 

14. The lifts were then suspended because of the want of maintenance and inspection.  The rest I have already referred to above.

15. The defendant says that a key had been provided to an owner of the building so as to provide access to the machine room. However, that had not been made known to the plaintiff and such an attempt to solve the problem was a futile one.  In fact, there is not even the evidence by this other owner to support this allegation. 

16. The defendant further argued that the door to the roof could be opened by pushing open the fire alarm push bar, but that would invoke the fire alarm which Mr Chung had refused to provide means to switch off.  That is an unreasonable measure.  If the fire alarm could not be switched off right away, then the fire alarm push bar constitutes an unreasonable obstruction.

17. The third ground of the defendant is that the wire gauze had been taken away one or two days before the hearing on 19 March. However, there is no evidence that the plaintiff had been apprised of this and, in any case, that was too late. 

18. I emphasise that access to the machine room must be maintained at all times as the lifts can go out of order at any time and maintenance and inspection has to be made as and when the lift company sees it necessary.

19. There has also been an argument on whether inspection can take place at night with additional charges to be borne by the defendant.  The plaintiff says that this was never mentioned by the defendant and there was never any offer by the defendant to pay the additional charges. In any case, even if the maintenance could be all arranged to be conducted at night when the defendant would be available to provide access, such an arrangement is no solution to sudden instances when the lifts go out of order.

20. On the whole, I do not see any merit in the defendant’s resistance to the plaintiff’s application for costs and I order that the plaintiff shall have all the costs, including the costs of 15 March.

21. In the light of the previous instances of obstructions, which I have already recounted above, and also the defendant’s attitude on 18 July, I further order that the costs from 18 July onwards be taxed on an indemnity basis. 

(Discussion re leave to discontinue action)

22. Leave be granted to the plaintiff to discontinue this action.