THE INCORPORATED OWNERS OF CARADO GARDEN v. GLORY HOME DEVELOPMENT LTD.

HCA 13957/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 13957 OF 1996

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REASONS FOR JUDGMENT

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At the conclusion of the trial in this case, I dismissed the Plaintiff's action with costs for full reasons to be given in due course. These are my reasons.

2. This as Mr Cheung, counsel for the Plaintiff, said is quite a simple case. The 1st Defendant is the registered owner of Commercial Unit 17, Ground Floor, Carado Garden, Tai Wai, Shatin ("the Property"). According to the Defence filed on 1st day of April 1997 by the 1st Defendant, the 2nd Defendant is a tenant of the Property. The Property is subject to a Deed of Mutual Covenant and Management Agreement dated 30 December 1990 and registered with Sha Tin District Land Office by memorial no. 510920 ("the DMC"). There was no dispute that the Plaintiff was and is entitled to enforce the DMC. Long before trial commenced the Plaintiff had discontinued the action against the 2nd Defendant. Hence I was concerned with the case against the 1st Defendant only.

3. The thrust of the case against the 1st Defendant was in paragraph 14 of the Amended Statement of Claim which reads

"14. (a) In breach of the said paragraph 16 of the Seventh Schedule of the DMC, the 1st Defendant has left or caused, permitted or suffered to be left boxes, goods and articles in the space outside the entrance of the Property which is part of the Commercial Common Area.

(b) Further or in the alternative, in breach of section 34I of the Ordinance, the 1st Defendant has permitted to be used the common parts of a building in such a manner as unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; and/or to cause a nuisance or hazard to any person lawfully in the building.

(c) In breach of section 34I(1) of the Ordinance, the 2nd Defendant has converted a part of the common parts of a building to her own use; and/or has used the common parts in such a manner as unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; and/or to cause a nuisance or hazard to any person lawfully in the building."

4. Translated into real life terms, the Plaintiff complained that there was in 1996 a metal cage affixed to one side of the external wall next to the street entrance ("the said entrance") of the Property. There was a canopy over the said entrance and there were boxes and paraphernalia place on the space immediately outside the said entrance. The 1st Defendant's defence was basically denial and non-admission. However, a witness statement filed and served on behalf of the 1st Defendant did admit that there was a metal cage but that had been removed by 1997. There was and still is a canopy but this was and still is common place in many similar commercial units in Carado Garden; even the estate management office under the control of the Plaintiff had and has one. As to boxes and paraphernalia, they were no longer there. Given such evidence from the 1st Defendant, one may be forgiven to think that the Plaintiff should be entitled to judgment.

5. However, as it transpired, there were three insurmountable hurdles for the Plaintiff. First, the question of jurisdiction of the Court of First Instance to entertain the action based on the Building Management Ordinance, Cap. 344 and the DMC. I have already held in Colliers Jardine Management Limited v. Chow Yuk Lan, HCA 16082 of 1998 that, in a case like this, the Court of First Instance has no jurisdiction. Even if the Court of First Instance shares concurrent jurisdiction with the Lands Tribunal in a case like this, in principle action should be commenced in the Lands Tribunal and an order sought for transfer to the Court of First Instance if appropriate. The reasons of my views are already stated in my judgment delived in the Chow Yuk Lan case aforesaid. For the same reasons, the action herein prosecuted by the Plaintiff in the Court of First Instance was misconceived and so should be dismissed or stayed permanently.

6. The second hurdle was an evidential one. The Plaintiff of course diligently prepared bundles of witness statements and documentary evidence as evidence pursuant to directions for trial given by the court. Since the burden of proof was on the Plaintiff it was incumbent upon the Plaintiff to prove that the metal cage, the canopy and the boxes and paraphernalia were on what had been pleaded as Commercial Common Area. However, there was nothing in the trial bundles to show the boundaries or whereabouts of the Commercial Common Area. All the objects or articles complained of, seen clearly in photographs admitted as evidence, were either on a street pavement or protruding into the street pavement. For all we know the street pavement may well be a public area or government land as is usually the case. The Plaintiff produced nothing like a relevant and reliable building plan to prove that the street pavement involved forms part of the private estate of Carado Garden subject to the DMC. This gap in the evidence could not be filled by the oral testimony of the only ordinary witness whom the Plaintiff had available because such a witness could only give hearsay evidence on land boundaries in the circumstances of this case. I suppose the Plaintiff could have sought adjournment of the part-heard trial so as to obtain appropriate evidence to prove that the space invaded constituted Commercial Common Area but there would be penalty by way of costs for the delay and, taking into account other legal problems, I think Mr Cheung quite rightly refrained from seeking an adjournment. The Plaintiff's case therefore closed, in the words of Mr Mo for the 1st Defendant, without getting over the very first hurdle of proof.

7. Finally, as has been noted, most if not all the alleged breaches had been purged by 1997. There was essentially no complaint of relapse after 1997. I could see the justification for injunctive relief as prayed if the breaches continued or if there were real risks of relapse into breaches. But peace and compliance had prevailed for some three years! Injunctive relief is not a matter of right. The court has a discretion to refuse equitable relief (in contradistinction to legal remedy) if such is no longer necessary. The whole point of continuing the case, as Mr Cheung for the Plaintiff indicated, was to recover costs of the action. But the Plaintiff did not even succeed in obtaining an interim injunction. Now, after idling for some three years, the Plaintiff had by the time of trial lost justification for injunctive relief. At most, the Plaintiff might seek a hollow declaration but that was not prayed for; unless it is treated as coming under "Further and/or other relief" in the Amended Statement of Claim.

8. All in all, on legal, evidential and equitable grounds, the Plaintiff must fail. The action was therefore dismissed with costs to the 1st Defendant to be taxed if not agreed.

9. I ought to add that nothing in this judgment should be treated as critical of counsel for the Plaintiff. I understand that counsel was briefed only the day before trial when the case was warned to come on. Mr Cheung was constrained by the meagre materials he had for the trial. When the various problems in the Plaintiff's case were pointed out, apparently those constituting the decision making body of the Plaintiff were not all present in court or contactable to reach a decision that would bring about an amicable settlement. Hence there had to be adverse judgment by the court against the Plaintiff.