THE INCORPORATED OWNERS OF KING'S COURT, CONSORT RISE v. JOHN JOSEPH GUNNING

LDBM 104/2004
LDBM118/2005
(Heard together)

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 104 OF 2004

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IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 118 OF 2005

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JUDGMENT

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Parties of Dispute

1.  Standing on the subject land is a low rise building with car parking spaces on the ground level. There are three flats on each of the three floors above. The roof is divided into three parts and each part is assigned to the respective top floor flat below.  The first proceedings are brought by the incorporated owners (“the IO”) and the current owner of flat 1C (“ the 1C Owner ”) on the ground floor. By these first proceedings the IO is seeking to enforce against the 1C Owner the provisions of the deed of mutual covenant (“ the 1C Owner the IO ”).  

2.  In the course of the dispute giving rise to the first proceedings, the 1C Owner raised with the IO the issue of similar breaches by other owners including two management committee members. After the IO started the first of these two proceedings against the 1C Owner, the latter brought the second proceedings against the IO and all members of the management committee.

Breaches of the DMC by owner other than the 1C Owner

3.  All the breaches of the DMC complained of by the 1C Owner related to building work of one kind or the other. The 1C Owner identified 6 items. Four of them had been removed or was in the course of being rectified. There is no need for an injunction in respect of these four. In any event Mr. Sham, counsel for the 1C Owner, fairly properly did not press for the injunction even though the 1C Owner had not been fully informed of the matter until the time when Mr. Leung, counsel for the IO, was about to open his case.      

Reliefs

4.  By the first proceedings the IO is seeking the usual injunction against the 1C Owner to compel him to rectify the breaches.

5.  By these second proceedings the 1C Owner is seeking the following reliefs:

(1)	against the IO and all the management committee members;
	(i)	a declaration that they have failed to discharge their duty under the DMC and /or the Building Management Ordinance; and
	(ii)	an injunction to compel them to enforce the relevant terms of the DMC against the owners concerned;
(2)	against the chairman of the management committee (“ the Chairman ”); an injunction for the removal of the offending building work; and;
(3)	against one of the management committee members ( “  AC ”), an injunction for the removal of the offending building work.

Injunctions sought by the 1C Owner

6.  The 1C Owner no longer pressed for the injunctions against the Chairman and AC as the building work concerned had been removed or being removed.

7.  Furthermore AC is not the owner of the flat to which the offending building work related. There is simple no basis for an injunction against him for the removal of the building work.

8.  The two items of offending building that remains to be dealt with are the glass canopy and extension to the security office. They were constructed by the  the IO for the benefit of all owners. They are still in use and 1C Owner admit they serve a useful purpose. 

9.  The 1C Owner complained of these structures to demonstrate that there were other unauthorised building works apart form his own. By this, he rather wanted to make the point that he was being treated quite unfairly than to press for an injunction for their removal.

10. The glass canopy and the extension of the security office might well have been unauthorised building work within the meaning of the Building Ordinance. The IO did not seek to contend they are otherwise. However if they are indeed unauthorised building work, it is not unlikely that relevant approval can be obtained.

11. In regard to an injunction to remove these two items of building work, Mr. Leung, counsel for the IO, submitted that injunction should not be granted under these circumstances. I accept his submission. The granting of such injunction would not benefit any owner of the building. In the event that the relevant approval from the Building Department cannot be obtained, it would be most unlikely that the IO would not remove these structures of its own accord. I am of the view that it is a proper case to exercise the discretion not to grant the injunction.

Declaration /Failure of the IO and all the management committee members discharge to discharge their duty

12.  The alleged failure of duty of the IO and its management committee members related to the breaches concerning various items of building works. These breaches were either committed by the parties in these proceedings including the 1C Owner, or other owners. The latter had been or would be rectified. The former would be dealt with in these proceedings. Therefore all possible dispute in so far as to have these breaches rectified no longer exists. A declaration would not serve any useful purpose in this regard.  The remaining dispute would be the costs in these proceedings. These would be provided for whether or not a declaration is granted.  For all these reasons I do not think that it is a proper case to grant a declaration.

13. All these years the IO had no doubt tolerated the breaches before taking action against the 1C Owner.  The duty of an owners incorporation is to enforce the provisions of the deed of mutual covenant.  However it does not automatically follows that tolerance of any kind necessarily amounts to failure of duty. It all depends on circumstances.  In particular it is only required to take any steps reasonably necessary. Furthermore the management committee’s decision can be overridden by a resolution in a corporation meeting and which resolution is also binding on all owners.

14.  In this particular case, there was no complaint about the breaches apart form those by the 1C Owner. The nature of those breaches did not affect the enjoyment and use by other owners of their respective units. The mere failure to take positive steps in my view did not amount to failure of duty.

Injunctions against the 1C Owner

15.  The IO has conceded that there is no ground to compel the 1C Owner to reinstate the drainpipes. As to reinstatement of those items of building work remaining to be dealt with, the 1C Owner raised the usual equitable defences. None of these succeeds for the following reasons.

16. The breaking down of an external wall was regarded by the IO a serious matter and much more serious than breaches of the other owners. The IO was justified in showing concern. This sparked off the present dispute. The alterations undertaken by 1C Owner is of different nature and the defence of acquiescence fails.

17. The dispute over unauthorised building work has reached a stage, that no other owners are going to keep their own unauthorised building work. The question has now become whether the 1C Owner alone should be allowed to keep the unauthorised building work. The management committee might have acted more fairly. For instance the offending management committee members should at least set a good example by removing the unauthorised work relating to their own flat before taking legal action against the 1C Owner.  This alleged unfairness should be looked at together with the interest of other owners. An owners incorporation represents the interest of all owners.  It is important to note that the great majority of owners have committed no such breaches. 

18. Taking into account of the benefit of other owners, I do not think that I do not think it is a proper case to exercise my discretion in favour of the 1C Owner.

Orders

19. An injunction against the 1C Owner for re-instatement of his flat as pleaded (except for the drainpipes ) before 4 July 2008 

20.  All other application for reliefs be refused.

Costs

21. Looking at the history of the matter, none of the parties is entirely free of blame and it appears that each party should bear its own costs. I make an order nisi to that effect to be made absolute in 6 weeks.