THE INCORPORATED OWNERS OF MEI FOO SUN CHUEN STAGE VI v. GRANDYIELD KNITTERS LTD

LDBM 110/2011

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 110 of 2011

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J U D G M E N T

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1.  This is an application taken out by the applicant against the respondent for an injunction that the respondent should remove the exhaust unit of a split-type air conditioner installed or affixed to the external wall.

The Background

2.  It is not disputed that the applicant is a corporate owner incorporated under the Building Management Ordinance Cap.344 (“BMO”) and has power under the BMO to manage, inter alia, the common parts of Mei Foo Sun Chuen – Stage VI (“the Building”) situate at all those Sub-sections 1 & 2 of Section B of New Kowloon Inland lot No. 5085 (“the Land”).

3.  The developer of the Building is Broadway-Nassau Investment Limited (formerly known as Mei Foo Investments Limited hereinafter called “Mei Foo Investment”).  The Building is subject to a Deed of Covenant dated 10 June 1974 registered in the Land Office by Memorial No. 1083939 (“the DMC”).  By the DMC, Mei Foo Investment has been appointed the manager of the building and is still the manager.

4.  The respondent is the current owner of Flat A, 6^th Floor of the Building (“Flat 6A”). According to the record of the Land Office, Flat 6A was first assigned by Mei Foo Investment to one Madam Cheung Sau Wah (“Madam Cheung”) on or about 9 August 1976 and the Assignment is produced as “R-1” (“the First Assignment”).  And by an assignment dated 20 June 2000, Flat 6A has been assigned to the respondent.

5.  It is not disputed that the respondent has installed or allowed an exhaust unit of a split type air conditioner with ancillary fittings (“the exhaust unit”) be fixed onto the external wall outside Flat 6A in 2006.  The applicant has requested the respondent to remove the exhaust unit from the external wall and the respondent refused. 

The applicant’s case

6.  The first issue in dispute is whether the external wall is part of the common parts of the Building.

7.  I refer to the Amended Grounds of Application.  The applicant first relies on the DMC.  Clause 9(a) provides that –

“Each party hereto hereby covenants with the others ….. not to make any structural alterations of the Unit to the use of which he is entitled hereunder which may damage any other Unit or the Common Parts or cause any inconvenience to the other occupiers…and not to cut or injure the cement concrete flooring columns beams or girders of the Building or do anything whereby the structural strength thereof may be affected and at all times to comply with any direction given by the Manager to observe and perform the provision of all Ordinances and Regulations for the time being in force.”

8.  In the DMC, the follow definitions are relevant –

“The Section” means all those pieces or parcels of ground registered in the Land Office as Sub-section 1 and 2 of Section B of New Kowloon Inland Not No. 5085 …

“The Building” means all of the buildings erected on the Section.

“The Unit” means each of the parts of the Building and the Section set out in the second column of the First Schedule hereof ….

“The Common Parts” means all parts of the Building and Section except the Units.

9.  It is the applicant’s case that the external wall surrounding Flat 6A is common parts as defined by the DMC and the respondent is not entitled to erect or maintain the exhaust unit on the external wall of the Building which is part of the common parts.

10.  In the alternative, the applicant contends that it is empower under the DMC and BMO to demand the respondent to remove the exhaust unit, which the defendant has wrongfully failed to do.

11.  The applicant relies on sections 2 and 34I of the BMO.  Reading section 2 with Schedule 1 of BMO, the applicant contends that the external wall of the Building is common parts.  By reason of section 34I of the BMO, the respondent is not entitled to convert part of the external wall for their personal use, namely to maintain the exhaust unit.  And the applicant as the manager of the Building is entitled to request the respondent to remove the exhaust unit from the external wall. 

12.  As an alternative argument, the applicant also relies on Clause 1 of the Second Schedule of the DMC which said –

“[Mei Foo Investment] is hereby appointed the Manager to manage and provide services in respect of the Building …. and shall have the following power :-

(a) Full and unrestricted authority to bind each Owner in all matters relating to action authorized by these present and to management of the Building the Section or the Common Area ….

(b) To make vary or annul any rules relating to the use of the Common Parts ….”

13.  The applicant said in or about 31 July 2000, a direction has been given by its manager Mei Foo Investment, under the said power, to all the owners that split type air-conditioners are not allowed to be installed onto the external walls of the Building with effect from 1 August 2000, which the respondent has failed to comply.

14.  Further and in the alternative, the applicant also relies on sections 2 and 14 of the Building Ordinance that the exhaust unit and the fittings are building works.  No person shall commence or carry out any building works without first having obtained the written approval from the Building Authority.  It is the case of the applicant that it is entitled under clause 9(a) of the DMC to direct the respondent to remove the exhaust unit.  This they have issued notices to the respondent hereinafter mentioned and the respondent has failed to comply.

15.  And still further and in the alternative, if the external wall is not part of the common parts, section 18(1)(c) of the BMO provides that the applicant as the corporation shall do all things reasonably necessary for the enforcement of the obligations contained in the DMC for the control, management and administration of the Building.  Ms. Lam for the applicant submits that this is wide enough to cover all parts of the Building irrespective of whether that is common part.  And the exhaust unit is a nuisance to other co-owner or occupiers of the Building and the applicant is entitled to demand the respondent to remove it.

16.  By letters dated 22 July 2006 and 23 August 2006 to the respondent, the applicant through Mei Foo Investment demanded the respondent to rectify the breach and by a further letter dated 26 October 2006, the applicant through their solicitors demanded the respondent to remove the exhaust unit.  The respondent has failed to comply.  Now they apply for the injunction above mentioned.

17.  Further, in or around April 2008, when a large scale maintenance and report project took place involving maintenance and repair to the external wall of the Building, another notice was issued by Mei Foo Investment to all owners demanding them to remove all split-type air conditioners from the external wall.

The Defendant’s case

18.  It is the main contention of the respondent that the external wall of Flat 6A is not part of the common parts of the Building as defined in the DMC or BMO and the applicant has no locus standi to bring this action.  Mr. Lee, counsel for the respondent submits that the external wall of Flat 6A has been assigned to Madam Cheung, who in terms has assigned the wall to the respondent. 

19.  In particular, Mr. Lee refers to the plan annexed to the First Assignment and invited me also to look at the reverse side of the plan to determine the area coloured pink.  He submits that by looking at the front and the reverse side, one can see that the wall has also been coloured pink and hence has been assigned by Mei Foo Investment to Madam Cheung.  He relies heavily on the judgment of Mr. Justice Cheung (as he then as) given in Wealthy China Trading Ltd. v. Huie Man Kit & Ors [1999] 3 HKC 832, that when assessing the area assigned, His Lordship has been shown both sides of the plan. 

20.  And secondly, in the opening submission of Mr. Lee, he submits that in the habendum of the First Assignment, there is an exception and reservation clause, which read –

“The Vendor [referring to Mei Foo Investment] DOTH hereby assign unto the Purchaser [referring to Madam Cheung] ALL THAT the estate right title and interest of and in ALL THAT the estate right title and interest of and in ALL THAT one equal undivided 1500^th part or share of and in [description of the land] ……

the Vendor DOTH hereby assign unto the Purchaser ALL THAT the right to the exclusive use occupation and enjoyment of ALL THAT FLAT “A” on the SIXTH FLOOR of NO. 28 NASSAU STREET as shown and coloured Pink on the Plan hereto annexed Together with all other rights and benefits of the Vendor under and by virtue of the said Deed of Covenant so far as they relate to the premises hereby assigned EXCEPTING AND RESERVING unto the Vendor the right to the exclusive use occupation and enjoyment of ………and the surface of any walls of the building other than the surface within the said Flat TO HOLD the said premises hereby assigned unto the Purchaser absolutely subject to the covenants terms and conditions in the said Deed of Covenant contained so far as they relate to the premises hereby assigned …”

21.   In the closing submission, Mr. Lee also relies on a similar provision in the assignment by Mei Foo Investment to the first purchaser of a Unit of the Building, Madam Fung Lan, which assignment is registered in the Land Office by Memorial No. 1083938 (“the First Purchaser’s Assignment”).  As set out above, BMO define “common parts” as “the whole building, except such parts as have been specified or designated in an instrument registered in the Lands Registry as being for the exclusive use, occupation or enjoyment of any owner”.  By the above reservation in the First Assignment and/or First Purchaser’s Assignment, Mr. Lee argues that the surface of the external wall of Flat 6A or the Building is reserved to the exclusive use and occupation of Mei Foo Investment and therefore is not common parts according to the definition of “common parts” in the BMO.  And if it is not common part, the applicant has no locus standi to bring the action.

22.  Mr. Lee also submits that in bringing this Application, the applicant is not looking after the interest of the co-owners of the Building but the interest of Mei Foo Investment as the owner to the exclusive right to the surface of all walls.  Mei Foo Investment has been using the applicant as its vehicle and utilised the applicant’s financial resources to institute these proceedings against the respondent.  He submits that this is a typical champerty.

23.  Mr. Lee agrees that his client’s case would fail if the external wall is a common part. 

The Evidence

24.  At the trial, the respondent has elected not to call any factual witness.  By agreement, the original of the First Assignment is produced as “R-1”.

25.  The applicant called Madam Ho Yin Wah (“Madam Ho”) to give evidence.  She adopted her witness statement dated 23 September 2011 as her evidence in chief. 

26.  Madam Ho is the property manager of Mei Foo Investment.  Mei Foo Investment is the manager of the estate called Mei Foo Sun Chuen, which includes the Building.  It is the evidence of Madam Ho that the respondent’s right to occupy use or enjoy Flat 6A is subject to and with the benefit of the DMC, which is not disputed.  She also refers to clause 9(a), and the definition of “common parts” in the DMC which I have set out above, and Clause 1 of the Second Schedule of the DMC.  She said in or about 31 July 2000, a written direction has been given by Mei Foo Investment, under the said power under clause 9(a), to all the owners that split type air-conditioners are not allowed to be installed onto the external walls of the Building with effect from 1 August 2000.

27.  She has been advised that the external walls of the Buildings are common parts which I shall deal with later.  She has also been advised that installation of split type air-conditioner on the external wall is building works and approval and consent from the Building Authority should first be obtained.

28.  It is her evidence that the exhaust unit was installed since July 2006.  And to the best of her knowledge, the respondent has not obtained approval or consent from the Building Authority.

29.  She adduced the letters dated 22 July 2006 and 23 August 2006 to the respondent, when she requested the respondent to remove the exhaust unit, followed by a demand letter from the solicitors for the applicant, dated 26 October 2006. 

30.  She also said that in or around 2008, a large scale maintenance and repair project took place and the project would involve extensive maintenance and repair to the external walls of the Building.  To facilitate the execution of the project, and/or to unify the external appearance of the Building, on 14 September 2007, Mei Foo Investment issued a letter to demand all owners of the Building (including the respondent) to remove all split type air-conditioners (and ancillary fittings thereof) from the external walls.

31.  Further warnings have been given to the respondent in 2010 and 2011.  The exhaust unit has not been removed. And until now, the exhaust unit is maintained on the external wall of Flat 6A.

32.  Mr. Lee on cross-examination asked the basis for Madam Ho to say that no consent or approval has been given by the Building Authority.  Madam Ho agrees that she has not checked with the Building Authority if consent has been given.  She relies on the fact that despite the various demand letters to the respondent, it has never stated that it has obtained consent from the Building Authority.  And on re-examination, it is confirmed that more than 5 letters of demand has been issued to the respondent in relation to the exhaust unit, and no reply has been given by the respondent suggesting that it has obtained consent or approval.

33.  That is the applicant’s case.

34.  And as mentioned above, the respondent has not adduced any factual witness and relies on the legal argument of Mr. Lee.

Common Parts

35.  The key issue in this case is whether the external walls of Flat 6A is part of the common parts of the Building.  I would first consider section 2 of BMO on the definition of common parts and section 34I.  They reads as follows –

“2. In this Ordinance, unless the context otherwise requires-

"common parts" (公用部分) means-

(a) the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and

(b)unless so specified or designated, those parts specified in Schedule 1;

34I. (1) No person may-

(a) convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners’ committee(if any);

(b) use or permit to be used the common parts of a building in such a manner as-

(i) unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; or

(ii) to cause a nuisance or hazard to any person lawfully in the building.

(2) Any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building.”

36.  In determining if an external wall is part of the common parts, the question is whether the external wall of Flat 6A has been assigned, or designated or specified for the exclusive use or enjoyment of any owner in whole or in part..

37.  Ms. Lam, counsel for the applicant, contends that no share has been allotted by the DMC to the external wall and there is no assignment of the external wall to any owner of the Building.  Accordingly, it is common part, both according to the definition in the DMC and BMO.

38.  Mr. Lee argues that the wall has been assigned to Madam Cheung in the First Assignment and now, as the owner of Flat 6A, the respondent enjoys the exclusive use and enjoyment of the wall.  He refers me to the Wealthy China’s case.  In the judgment of Mr. Justice Cheung, as he then was, reference has been made to the English case Hope Brothers Ltd. v. Cowan [1913] 2 Ch 312 which states that “the demise of a floor or a room or an office bounded in part by an outside wall prima facie includes both sides of that wall, unless there be an exception or a reservation or something in the context to exclude it.”

39.  This principle has been rejected by the Court of Appeal in Incorporated Owners of Elite Garden v. Profit More Co. Ltd. [2002] 2 HKLRD 518.  As stated by Madam Justice Le Pichon in the judgment, Hope Brothers’ case is “of no assistance when one is here dealing with the system of landholding in multi-storey buildings, which is peculiar to Hong Kong.  When analysed, what is owned are undivided shares in the land with exclusive possession to a particular unit.  True it is that the respondent is the owner of the surface of the exterior walls, but that is not to be equated to the exterior walls themselves.”  And this passage is re-confirmed by the Court of Appeal in Hollywood Shopping Centre Owners Committee Ltd v. the Incorporated Owners of Wing Wah Building Mongkok Kowloon CACV 185 of 2010.

40.  At the closing, Mr. Lee concedes that Hope Brothers’ case does not assist him.  He only relies on the Wealthy China’s case to invite me to inspect the reverse side of the plan to ascertain the area that has been coloured pink. 

41.  And it is provided in the First Assignment that Mei Foo Investment has assigned to Madam Cheung, inter alia, “ALL THAT the right to the exclusive use occupation and enjoyment of ALL THAT FLAT “A” on the SIXTH FLOOR of [the Building] as shown and coloured Pink on the Plan hereto annexed”.  Mr. Lee submits that by looking at the reverse side of the plan, it can be shown that the external walls surrounding Flat 6A have been coloured pink on the plan and therefore is part of Flat 6A and has been assigned by Mei Foo Investment to Madam Cheung for her exclusive use and occupation, and hence the respondent.  Accordingly, it is not common part.

42.  Ms. Lam submits that if the respondent contends that the plan has to be understood by looking at both the front and the reverse sides, this must be supported by expert opinion.  Since we have no expert evidence, I should look at the plan in the usual manner, namely, from the front.  I agree.  When one look at the front of the plan, it bears a lot of information of Flat 6A.  It has the direction of the Building and Flat 6A, it is signed by some authorized person, and an area is coloured pink, which should be Flat 6A.  The wall appears as black lines.  And there is no suggestion that it has to be read with the reverse side.  The front version does not assist the argument of Mr. Lee.

43.  It is true that Mr. Justice Cheung has read both the front and reverse side of the plan in Wealthy China’s case. But I do not know what the evidence before His Lordship is and it is not clear if he is influenced by any drawing on the reverse side to come to the conclusion that the unit includes the external wall.  In any event, that is a finding of fact. 

44.  Even if I have to look at both the front and the reverse side, I have to determine if the reverse side is meant to be part of the plan.

45.  When I look at the reverse side, there is nothing except a patch of pink colour dye.  Since it is translucent, one can barely read the word and drawings on the front, but in the reversed manner.  The patch of pink colour dye on the reverse side appears at the position of Flat 6A on the front.  And this patch of dye is roughly rectangular in shape, and roughly the same size of the area of Flat 6A.  But all the sides of this patch of colour are not straight.

46.  Ms. Lam reminds me that some part of the external wall of Flat 6A has not been covered by the pink dye in the reverse side.  I note the point, which supports the argument that the reversed side is not meant by the drawer to be read for interpreting the area coloured pink.  If otherwise, I would have expected all the walls are covered by colour, and with straight boundary lines.

47.  I do not believe this patch of colour is to be read together with the image on the front.  The map is understandable when one read the front.  I therefore do not consider the reverse side of any relevance.

48.  And it does not make sense that the wall surrounding Flat 6A is assigned to Madam Cheung or the respondent. For if the wall is assigned to Madam Cheung, and is not part of the common parts, she has the responsibility to maintain the wall.  And the external of any building is just one structural wall and part of the same building.  It is impossible for Madam Cheung and now the respondent to maintain just one area on the wall.  And as rightly pointed out Mr. Justice Chung in Main Choice Development Ltd. v. Convey Advertising Co. Ltd. HCA 2429/2001, “co-owners of multi-storey buildings co-own the land (together with the building).  Their inter-relationship (for example, their rights to use certain parts of the building and obligations arising therefrom and the like) are governed by the deeds of mutual covenants and/or the provision of the [BMO].  The fact remains, however, that they are all co-owners of the whole property.”  And the building itself including the external wall must be co-owned by all owners.

49.  And the plan is only to define the area of Flat 6A which is for the exclusive use occupation and enjoyment of Madam Cheung.  What has been assigned to Madam Cheung is a share in the Section and the Building, together with the exclusive use occupation and enjoyment of Flat 6A, and the plan is to identify the area.  Mr. Lee also submits that the wordings of the First Assignment would include the external wall, when the inner surface of the wall is reserved to the respondent. 

50.  I refer to the judgment of Court of Appeal in Nation Group Development Ltd. v. New Pacific Properties Ltd. CACV 160/1999.  In the judgment of Mr. Justice Godfrey, and in interpreting the area allotted to the exclusive use and enjoyment of the purchaser in the case, His Lordship said “In my opinion, this includes the right to the exclusive use of the floor and ceiling surfaces of the First Floor and of the air space between them; and of all the external surfaces of the canopy and flat roof. It does not include any right to any part of the structure of the building.”  This part of the judgment has not been disturbed by the Court of Final Appeal when the case went on appeal.  And applying the same principle, the area for the exclusive enjoyment of Madam Cheung and now the respondent must be the space surrounded by the external walls and the ceiling and floor slab, with the surfaces of the ceiling the floor and the inner surfaces of the walls.  The enjoyment does not extend to the structure, namely the concrete wall and the floor slab. 

51.  Having considered the First Assignment, and the able argument of Mr. Lee, I am not convinced that the First Assignment has by any express provision assigned the external wall surrounding Flat 6A to Madam Cheung.  Hence the external wall has not been assigned later to the Respondent.

52.  And in any event, I am not convinced that the external wall has been assigned to, or specified or designated by the First Assignment or otherwise for the exclusive use and possession of Madam Cheung or any owner.  The external wall is by definition of the BMO part of the common parts of the Building.

53.  Before I move on the next argument of Mr. Lee, I should also mention that, according to the definition of the DMC (quoted above), it is clear that on the Units of the Building as defined in the DMC are not common parts.  There is no provision in the DMC that any part of the external wall is part of the Units and hence the external wall must be part of the common parts as defined by the DMC.

54.  The second argument of Mr. Lee is that the surface of the Building has been reserved exclusively to Mei Foo Investment, the developer of the Building in the First Purchaser’s Assignment.

55.  In the First Purchaser’s Assignment, it has been reserved to Mei Foo Investment the rights to the exclusive use occupation and enjoyment of, inter alia, the surface of any walls of the Building other than the surface within the Flat assigned to Madam Fung Lan.  Mr. Lee again refers me to section 2 of the BMO on the definition of “common parts”.  As the external surface of the walls of the Building has been reserved for the exclusive use and enjoyment of Mei Foo Investment in “an instrument” (referring to the First Purchaser’s Assignment), it is not common parts of the Building. 

56.  Mr. Lee also refers to the First Assignment which also provides that the surfaces of the walls are reserved to Mei Foo Investment, other than the surface of the walls inside Flat 6A.  But there is one distinction between the First Purchaser’s Assignment and the First Assignment.  In the First Purchaser’s Assignment, there is no reference to the DMC.  In the First Assignment, it is stipulated being subject to the DMC.  I would deal with the First Assignment separately.

57.  When Mei Foo Investment signed the DMC, it agrees with Madam Fung Lan, and is so provided in the DMC, that “the Section and the Building other than the Units” are common parts.  It has not further reserved the surface of the walls to its exclusive use and enjoyment. All surfaces of the Building which may have been reserved to Mei Foo Investment with other parts of the Building must by the DMC become part of the common parts and is no longer for the exclusive use and enjoyment of Mei Foo Investment.  And as the surface of the external wall is not for the exclusive use and enjoyment of Mei Foo Investment, it would also be common parts under the BMO. 

58.  The argument of Mr. Lee comes down to this – since the external surface of all walls have been reserved to the exclusive use and enjoyment of Mei Foo Investment by “an instrument”, namely, the First Purchaser’s Assignment, then notwithstanding what how the rights to the surface of the external wall may be changed subsequently, the wall is not common parts according to the definition of BMO.  Mr. Lee relies heavily on the words “an instrument” used for the definition of common parts in section 2 of the BMO.  I do not agree.

59.  And if Mr. Lee is correct, then other parts of the Building, such as staircases, lift lobby, pipes and other common facilities which have also been reserved under the First Purchaser’s Assignment to Mei Foo Investment could not be common parts and the applicant could not manage or control them.  That cannot be correct.

60.  Mr. Lee has referred me to the judgment of Lord Hoffmann NPJ given in Jumbo King Ltd. v. Faithful Properties Ltd & Ors [1999] 2 HKCFAR 279 at 296, when His Lordship states “the construction of a document is not a game with words.  It is an attempt to discover what a reasonable person would have understood the parties to mean.  And this involves having regard, not merely to the individual words they have used, but to the agreement as a whole, the factual and legal background against which it was concluded and the practical objects which it was intended to achieve.”

61.  Using the same principle, I see no reason why I should not read the DMC with the First Purchaser’s Assignment, both being signed contemporaneously.  And the effect of the documents is to assign one unit to Madam Fung Lan and at the same time create all areas other than the Units, which must include the external surface of the walls of the Building, to be common parts, which common parts are to be jointly enjoy by Madam Fung Lan with other co-owners subject to the terms of the DMC.  Accordingly, I found that the surface of the external wall has not been reserved for the exclusive use or enjoyment of Mei Foo Investment and is common parts.

62.  It is clear that the First Purchaser’s Assignment is signed at the same time as the DMC.  Mr. Lee suggests that technically, the First Purchaser’s Assignment must have been signed first before she could sign the DMC.  That is artificial.  I believe they are contemporaneous documents signed at the same time, reflecting the overall agreement of the parties.

63.  And when BMO said an instrument, one must bear in mind that the document must be read according to the conveyancing law and practice, and has to be read and understood with the related documents.  And as analysed above, once the DMC is signed, the exclusive reservation to Mei Foo Investment in respect of, inter alia, the external wall does not exist anymore.

64.  Hence notwithstanding the reservation clause in the First Purchaser Assignment, the assignment is subject to the DMC and it is clear that the occupation and use of the surface of the wall of the Building is governed by the DMC and meant for common use of all co-owners and not for the exclusive occupation and enjoyment of Mei Foo Investment.  It has not reserved the surface of the external wall for the exclusive use and occupation of Mei Foo Investment as suggested by Mr. Lee.

65.  And when Mei Foo Investment assigns the Units to subsequent purchasers, including Madam Cheung for Flat 6A, the assignment is stipulated in the recital to be subject to the DMC.  The DMC is binding on Mei Foo Investment, and also Madam Cheung, and now the respondent, and indeed all co-owners and their successors.  The use of the surface of the wall so reserved is subject to the DMC, and must therefore be for the common use of all co-owners as provided in the DMC.

66.  I have considered all the argument of both counsel and considered the cases they referred me to, some of which I have not recited herein.  In conclusion, I found that the external wall, both the surfaces and the wall is common parts and the applicant is entitled to exercise all rights and powers of the owners thereto, including taking this action.

Is the installation in breach of DMC or BMO?

67.  It is clear that by maintaining the exhaust unit, the respondent is in breach of the DMC and BMO by converting the commons parts to its own personal use (section 34I of the BMO).  I see no reason why the applicant cannot demand the respondent to remove the exhaust unit.

Other Breaches of the DMC?

68.  That is sufficient for me to find in favour of the applicant.  Nevertheless, I would also deal with the alternate argument of Ms. Lam.

69.  Further and in the alternative, Ms. Lam submits that the respondent has been in breach of the DMC by maintaining the exhaust unit on the external wall, be it common part or not, in causing nuisance or hazard to any person lawfully in the Building and is in contravention of Section 34I(1)(b)(ii) of the BMO.  The applicant is entitled to request the respondent to remove the exhaust unit.

70.  It is the evidence of Madam Ho that the exhaust unit is a nuisance.  Mr. Lee submits that every air-conditioner has to have exhaust unit.  While that is correct, it does not mean that the exhaust unit could not create nuisance or annoyance.  The respondent has not adduced any evidence to refute the claim of nuisance.  I accept the evidence of Madam Ho and found that the exhaust unit created nuisance and the applicant would be entitled to direct the Respondent to remove the exhaust unit.

71.  Further, Mr. Lee agrees that the unit is a structural alteration.  Ms. Lam also refer to section 2 of the Building Ordinance and I am satisfied that the alteration is a building work.  Ms. Lam submits that the work is without consent from the Building Authority and the applicant is entitled to demand the respondent to remove the same.  The main argument of Mr. Lee is that Madam Ho has no evidence to support her claim that the erection of the exhaust unit is done without the consent or approval of the Building Authority. 

72.  As Madam Ho pointed out, not withstanding the various demand letters sent, the respondent never suggested that it has the consent from the Building Authority to erect the unit.  And the Respondent has not adduced any evidence for this hearing to refute the Plaintiff’s case.  If there is consent, one would have expected the respondent to present such consent, at least for this hearing. 

73.  Mr. Lee submits that the burden rest on the applicant to prove that no consent has been obtained.  I agree. While there is no direct evidence, on the facts before, I am prepared to draw the inference that the respondent has carried out building work without consent or approval of the Building Authority.

74.  And on the maintenance of the Building, the applicant is entitled to direct all owners to remove the split type air-condition from the external walls to create a unified outlook for the Building.  This must be within the power of the applicant as provided by section 18 of the BMO.

75.  Accordingly, the applicant is also entitled under the additional grounds to request the respondent to remove the exhaust unit.

Ruling and Order

76.  Given the above, I found that the external wall outside Flat 6A is common parts of the Building and the respondent is not entitled to maintain the exhaust unit thereon.  And alternative, the applicant is also entitled under the DMC, as analysed above, to demand the respondent to remove the exhaust unit.

77.  On the above finding, the applicant is entitled to the injunctions claimed.  I therefore grant an injunction that the respondent do remove the exhaust unit from the external wall of the Building and reinstate the wall to its original state within 1 month from today and a further injunction that the respondent be restrained, whether by its agents, employees, servants, tenants licensee or otherwise from erecting exhaust unit or similar structure on the external wall of the Building.

78.  I have not heard evidence of damages.  I could safely assume there is no claim for damages save for costs. And on costs, I see no reason why costs should not follow the event.  I give an order nisi that the applicant do have costs of this action to be taxed on District Court scale if not agreed and there be certificate for Counsel for the trial.  The order nisi shall become absolute within 14 days from today.