CHI FU FA YUEN LTD v. CHO WAI MAN RAYMOND

LDBM 108/2007

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. 108 of 2007

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JUDGMENT

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Background

1.  The Applicant is the manager of the building known as Fu Yi Yuen, No. 7 Chi Fu Road, Chi Fu Fa Yuen, Hong Kong.  The Respondent is the owner of two adjoining units, Flat C (“Flat C”) and Flat D (“Flat D”), 21^st Floor, Block H-7 of the Building.  The Respondent became the owner of Flat C and Flat D on 21 September 2006, and wanted to make an opening at the load-bearing wall between Flat C and Flat D (“the Wall”) so as to convert Flat C and Flat D into a single unit.

2.  The Respondent engaged an architect, Mr. Chao Chi Man of L & N Architects Ltd., to carry out alteration works to the Wall so as to make the desired opening (“the Works”).  An application was made to the Buildings Department for approval of the Works on 15 December 2006.  By a letter dated 12 February 2007, the Buildings Department approved the Works.

3.  On 27 February 2007, the Respondent, through his contractor Forest Interior Design Ltd., submitted the following documents to the Applicant for the purpose of carrying out renovation works at Flat C and Flat D:-

(1)	A Renovation Works Application Form (“the Application Form”);
(2)	An undertaking signed by the Respondent (“the Undertaking”); and
(3)	A decoration deposit in the sum of HK$5,000.

4.  In the Application Form, only 3 items of renovation works were mentioned, namely painting, floorboards, and furniture.  There was, however, no mentioning in the Application Form about the Works.

5.  By a letter dated 1 March 2007, the Buildings Department issued the “Consent to the commencement and carrying out of building works or part of any building works or of street works” and the Respondent proceeded to carry out the Works.

6.  On 12 March 2007, residents of Block H-7 complained of excessive noise coming out from Flat C and Flat D.  Upon investigation by the Applicant, it was discovered that the Wall was being demolished and a hole in the size of 3 feet x 2 feet was opened at the Wall at that time.

7.  Upon discovering demolition works being carried out at the Wall, the Applicant made repeated requests to the Respondent to cease the demolition works, including the following:-

(1)	Oral requests to stop all demolition works were made by the Applicant to the Respondent and his contractors on 12, 13, 14 and 15 March 2007.
(2)	District Councillor Mr. Chu, the police, some residents of Block H-7 and the Applicant negotiated with the Respondent’s contractors to stop the demolition works on 14 March 2007; and
(3)	On 14 March 2007, the Applicant issued a letter to the Respondent requesting cessation of the demolition works.

8.  The Chi Fu Fa Yuen Residents’ Association also held urgent meetings to discuss and condemn the demolition works on 14 and 15 March 2007.  A notice dated 17 March 2007 was sent to all the owners of Chi Fu Fa Yuen informing them of the residents’ concerns relating to the demolition works and that legal advice was being sought on the matter.

9.  Despite brief periods in which the demolition works had temporarily ceased, the Respondent ultimately allowed the demolition works to continue.  The demolition works were completed on 19 March 2007 and a large opening was made at the Wall enabling people to walk through it to gain access from Flat C to Flat D and vice versa.

10.  By a letter dated 21 March 2007, the Applicant’s solicitors wrote to the Respondent demanding that the Wall be reinstated, as the removal of any portion of the Wall was a breach of the Deed of Mutual Covenant of the Building (“the DMC”) and Section 34I of the Building Management Ordinance (“the BMO”).

11.  By a letter dated 4 April 2007, the Respondent’s solicitors wrote to the Applicant’s solicitors denying any breach of the DMC or BMO.

12.  Thus, by this application, the Applicant applies for a mandatory injunction to compel the Respondent to reinstate the Wall, as well as for damages and costs on an indemnity basis pursuant to Clause 10(g) of the DMC.

13.  In the Notice of Application, the Applicant also refers to the breach of the Undertaking, but the Applicant indicates at the trial that it will not rely on the breach of the Undertaking as a cause of action for this application.  Thus, it is not necessary for me to deal with this ground of the application.

Provisions in the DMC

14.  Clause 5 of the DMC provides that:-

“	The owner or owners shall at all times hereafter be bound by and shall observe and perform the covenants provisions and restrictions contained herein and in the Second Schedule hereto.”

15.  Paragraph 4 of the Second Schedule of the DMC provides that:-

“

Save as provided in Clause 16(d) hereof, not to make any structural alteration to any flat or shop of which he is the owner which may damage, or affect or interfere with the use and enjoyment of any other part of any building on the Estate whether in separate or common occupation or use, nor cut, injure, damage, alter or interfere with any part or parts of any building in common use or any of the sewers, drains, water-courses, conduits, pipes, cable, wiring, fixtures, equipment apparatus or services of any building on the Estate.”

16.  Clause 17(b) of the DMC provides that:-

“	The House Rules set out in the Third Schedule hereto shall come into force on the date of these presents and shall remain in force until expressly revoked or amended by the Company.  …  Such House Rules shall be binding on all the owners and may be enforced as herein provided.”

17.  Paragraph 4 of the House Rules provides that:-

“

Not to make any structural alteration to any flat or shop of which he is the owner which may damage, or affect or interfere with the use and enjoyment of any other part of any building on the Estate whether in separate or common occupation or use, nor cut, injure, damage, alter or interfere with any part of parts of any building in common use or any of the sewers, drains, water-courses, conduits, pipes, cable, wiring, fixtures, equipment apparatus or services of any building on the Estate.”

18.  Clause 20 of the DMC provides that:-

“

Each owner may place in his own flat or shop at his own expense any additions, improvements, fixtures, fittings and decoration Provided the same may be installed fixed and removed without structural damage to or interference with the enjoyment of any of the buildings on the land or any parts thereof or any of the services apparatus and equipment of any of such buildings and each such owner shall have the right to remove the same at his own expense”.

19. The Applicant relies on the above provisions to say that the Respondent is in breach of the DMC.  However, Clause 17(b) of the DMC and Paragraph 4 of the House Rules have not been pleaded in the Notice of Application.  It is not right for the Applicant to rely on these provisions when they are not pleaded.  It is also not necessary for the Applicant to rely on Paragraph 4 of the House Rules when it is almost identical with Paragraph 4 of the Second Schedule of the DMC.  Thus, I will not deal with the question of whether Clause 17(b) of the DMC and Paragraph 4 of the House Rules have been breached.

The issues

20. The Respondent raises the following issues in dispute:-

(1)	Whether the Wall is a common part;
(2)	Whether the opening of a slot at the Wall constituted a breach of the DMC, i.e. a structural alteration which may damage or affect or interfere with the use and enjoyment of any other part of any building on the Estate;
(3)	Whether the opening of a slot contravened the BMO; and
(4)	Whether the Tribunal ought to grant a mandatory injunction for the reinstatement of the Wall.

Whether the Wall is a common part

21. It is a common ground that there is no definition of “common part” or “common area” in the DMC.  However, Section 2 of the BMO defines “common part” to mean “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 “unless so specified or designated, those parts specified in Schedule 1”.

22. There is no instrument in the Land Registry specifically designating the Wall to be for the exclusive use, occupation or enjoyment of an owner, including the Respondent.  The assignments of Flat C and Flat D giving title to the Respondent do not specifically designate the Wall to be for the exclusive use, occupation or enjoyment of the Respondent.  So Schedule 1 of the BMO is applicable.  Paragraph 1 of Schedule 1 of the BMO specifically defines “load bearing walls” to be common parts.  It is therefore clear to me that the Wall is a common part of the Building.

23. Nevertheless, the Respondent argues that according to the Code of Measuring Practice (1999) issued by the Hong Kong Institute of Surveyors, the ‘saleable area’ of a unit comprises the floor area exclusively allocated to the unit including balconies and other similar features but excluding common areas such as staircases, lift shafts, lobbies and common toilets, and it shall be the area contained within the enclosing walls of the unit measured up to the exterior face of an external wall or “the centre line of a separating wall between adjoining units”, as the case may be.  As the Respondent has purchased both Flat C and Flat D, the Respondent shall own the Wall and the Wall is not a common part or a common area of the Building.

24. The Respondent submits that the above conclusion confirms with common sense.  If that was not the case, then any alteration or work done to the said wall (such as painting the wall, fixing a nail to the wall, encasing a water-pipe or conduit of wires in the wall, etc.), however minimal, would constitute a use of the common part of the building or a conversion of the common part of the building to the Respondent’s own use.

25. The Respondent relies on the case of Metro City Management Limited v. Tsui Fee Hung Vincent and Lam Wai Fun, HCA 4327 of 2003, in support of his contention.  By applying the concept of ‘saleable area’, Mr. Recorder Chan SC in that case was of the view that the external wall concerned was not part of the Residential Common Areas.  In paragraph 50 of his Judgment, Mr. Recorder Chan SC said this:-

“

The idea of having a common area within one’s property is an unattractive one.  Given that either side of the wall is occupied exclusively by the Defendants it is difficult to see how any other owners of Metro City may properly enjoy and make use of the wall.   Hence I am of the view that the wall in question is not part of the Residential Common Areas.”

26. On appeal (CACV 328 of 2005), Rogers VP, after citing the definition of Residential Common Areas as being “Those parts of the Residential Development … not otherwise specifically assigned to or for the exclusive use of any one or more Residential Owners, including but not limited to … flat roofs (unless specifically assigned) … , external walls of the Towers…”, said this:-

“

In my view the opening words of that clause are clear.  The whole of the flat and the flat roof which appertain thereto has been assigned for the exclusive use of the defendants.  Whereas the other external walls of the Tower no double come within the term Residential Common Areas the clause should be read as excluding that for the purpose of considering the common areas.  As the judge pointed out, it would almost be absurd to consider that any of the other owners should have a right of access to that part of the wall which was otherwise clearly bounded by the defendants’ property.”

27. It should be noted that Woo VP in that case agreed with the judgment of Rogers VP, but Yuen JA held a different view in this regard and was of the view that the external wall concerned was a common area.

28. The Respondent also relies on Wong Lai Kai v. The Incorporated Owners of Lok Fu Building, Yuen Long,CACV 189/99 and Wong Lai Kai v. Wu Chan Choi & Others, CACV 195/99, which was a consolidated appeal, to support his contention.  One of the issues at the appeal was whether the exterior wall to which the awning in question was attached was a common part.   Mayo VP in that case, by relying on the First Schedule of the BMO, held that the exterior wall was a common part.  However, Keith JA in that case opined that whether that part of the external wall to which the awning attached was part of the shop which the 1^st to 4^th defendants had had the exclusive right to occupy depended on what was originally assigned to them or their predecessors-in-title.  Keith JA did not consider that the deed of mutual covenant or the BMO were of any assistance to the Court in answering this question.  He said this in his Judgment:-

“

But whatever the Deed of Mutual Covenant may have said about what parts of the building constituted the common parts, the Deed of Mutual Covenant could have been no substitute for what was actually assigned to the 1st to 4th Defendants or their predecessors-in-title. … The First Schedule included “external walls”.  I do not think that this definition helps.  Excluded from the common parts are “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”.  By not causing to be produced to the judge the instrument by which the shop was assigned to the 1st to 4th Defendants or their predecessors-in-title, the Plaintiff has not proved that that part of the external wall to which the awning was attached had not been specified or designated in it as being for the exclusive use, occupation or enjoyment of the owners of the shop for the time being.”

29. Also, in Wong Lai Kai’s case, Woo JA (as he then was) said this:-

“

For my part, I would hold that by reason of the evidence before the judge and his findings, the part of the building to which the awning was attached should be treated as part of the shop in the circumstances of this case, and as such, the 1st to 4th Defendants as the owners and the 5th Defendant as the tenant had the exclusive right to use, occupy and enjoy that part of the building.  The same approach was adopted in So John v Lau Hon man [1993] 2 HKC 356, where this Court, differently constituted, held that the floor slab occupied by water pipes exclusively feeding outlets within a flat was properly treated as part of the flat.  At p 362H, Rhind J, delivering the judgment of the Court said: “We agree entirely with the approach adopted by the learned judge … He was right, in our view, to treat the circumstance that the sole purpose of the pipe was to serve the respondents’ flat as the determining factor as to whether the pipe was in the respondents’ part of the building.” … I consider that although there is no evidence of ownership of the 1st to 4th Defendant of the part of the building to which the awning was attached, by reason of the use, occupation and enjoyment of the awning, realistically no one else including the 6th Defendant apart from the 1st to 4th Defendants as owners and the 5th Defendant as tenant of the shop, could possibly use, occupy and enjoy that part of the building.  The 1st to 4th Defendants or the 5th Defendant should be treated as having the exclusive right to use, occupy and enjoy that part of the building.”

30. Thus, the Respondent argues that looking at the reality of the present case, apart from the Respondent being the owner of Flat C and Flat D, no one else in the Building could possibly use, occupy and/or enjoy the Wall.  So the Wall ought to be regarded as part of Flat C and Flat D.

31. Nevertheless, I do not accept the Respondent’s arguments in this regard.  First of all, the Respondent has never raised any issue about the Code of Practice in his Notice of Opposition, nor did he put his case and/or the propositions he now seeks to rely on to the witnesses.  The Respondent only raises the arguments in the closing submission.  So the Applicant has not been able to deal with the Code of Practice in evidence.  It would be unfair for the Respondent to rely on it now.

32. Further, the case of Metro City is distinguishable from our present case.  Mr. Recorder Chan SC in that case derived the “saleable area” formula from the phrase used in the sale and purchase agreement of the premises in question.  In paragraph 45 of his judgment, Mr. Recorder Chan SC states, “Reference to the agreement for sale and purchase would reveal that the salable area of the property agreed to be sold to the Defendants would include the whole wall in question.”  However in the present case, the Respondent has not produced the sale and purchase agreements as evidence.  It is unknown whether the sale and purchase agreements of Flat C and Flat D would reveal the same as that found in Metro City.  The deed of mutual covenant in Metro City made it clear that the premises purchased by that Plaintiff were to be regarded as one unit.  However there is no such equivalent clause in the DMC.  The Respondent has simply purchased two separate units instead of one single unit.

33. Wong Lai Kai’s case does not assist the Respondent either.  No doubt, whether an area is a common part, the assignment of the premises must be referred to.  The assignments of FlatC and FlatD, which have been produced, do not specifically designate the Wall to the Respondent.  So Keith JA’s criticism of not having the first assignments before himis not applicable in the present case.  The decision of Woo JA was made on the basis that there was no evidence before him to prove that the external wall was a common part.  It is for this reason he had to resort to the approach adopted by the So John case, that is, to assess whether the owners had exclusive use, occupation, and enjoyment of the awning.  In the present case, however, the evidence is clear that there was no such designation to the Respondent.

34. Painting the Wall, fixing a nail to the Wall, encasing a water-pipe or conduit of wires in the Wall would not amount to conversion of the Wall as suggested by the Respondent.  They are in fact permitted under Clause 20 of the DMC, as long as they would not cause structural damage to or interference with the enjoyment of any of the buildings on the land or any parts thereof or any of the services apparatus and equipment of any of such buildings.  However, making an opening in the Wall as the Respondent did is totally different from painting, fixing a nail or encasing a water-pipe or conduit of wires.

35. I am therefore of the view that the Respondent’s arguments in respect of the “common part” issue are not sustainable.  The Wall is clearly a common part of the Building.

Breach of DMC

36. It is not in dispute that the opening of a slot at the Wall is a ‘structural alteration’.  The Respondent, however, contends whether such an alteration may damage, affect or interfere with the use and enjoyment of any other part of the Building.

37. In this regard, the Applicant called Dr. Lau Sui Ming to give expert evidence as to the effect of Works on the Building.   Dr. Lau admitted that he had not done any calculations for preparing or making his report.  He was not sure about what reinforcement or strengthening measure having been made or taken at the opening.  Dr. Lau, however, opined that the overall stability of the Building would be adversely affected if continuous opening up of the structural walls with a great amount were carried out at different locations of the Building”.  He also opined that the serviceability and maintenance of the Building was affected by the opening.  

38. The Respondent, on the other hand, called Mr. Law Yue Kei, a registered structural engineer, to give expert evidence as to the structural safety of the Works.  He took the worst scenario (by taking the width of the wall as 3,800 mm) to do the calculation and found that the stiffness factor obtained (85) was much higher than the standard (16).  According to the authority known as “Shear Walls – An appraisal of the design in box-frame structures” issued by the Directorate of Civil Engineering Development, where the stiffness factor exceeds 16.0, the slot may be ignored and the composite unit designed as a solid wall.   Mr. Law further testified that the larger the wall with the same opening, the better would be the result of the stiffness factor.  He opined that as the opening could be ignored and the composite unit could be regarded as a solid wall, the stiffness of the Wall was not affected by reason of the opening.   This was the case even without the strengthening measure having been made at the opening.  He did not agree that the serviceability of the Building was affected for reason that the stiffness of the Wall had not been affected by reason of the opening.

39. Although I agree with the Respondent that with the opening at the Wall, the Wall or the Building is still structurally safe, it does not mean that the opening has not damaged, affected or interfered with the use and enjoyment of the Building or any other part of the Building.  In fact, the question of whether the opening is structurally safe is not the issue here.  The real question should be whether the opening has damaged, affected or interfered with the use and enjoyment of the Building.  As I have ruled, the Wall is a common part.  The other owners are entitled to have the Building to be structurally supported by an intact wall or to use the Wall in any manner they see fit.  The owners are also entitled to use the other parts of the Wall as they see fit.  However, as agreed by both experts, with the opening at the Wall, when the other owners want to make structural alteration to the Wall at some other parts, they would be prevented or have limitations to do so, since they could not have other openings without considering the opening made by the Respondent.  This in fact shows that the strength of the Wall has been weakened, even though it is still safe with the opening.  The other owners have therefore been deprived of the benefit of having a stronger wall as before.

40. Thus, I am of the view that the opening did damage, affect and interfere with the use and enjoyment of any other part of the Building.

41. Moreover, Paragraph 4 of the Second Schedule of the DMC has two limbs.  What the Respondent is contending concerns only with the first limb, not the second.  The second limb clearly stipulates that the Respondent cannot “cut, injure, damage, alter or interfere with any part or parts of any building in common use”.  By having an opening at the Wall, it is clear to me that the Respondent has done what is prohibited under this second limb.  The Respondent argues that this second limb has no application in this case because the Wall can hardly be said to be in common use by the owners of the Building.  I totally reject this argument.  The Wall is used by all the owners to support the weight of the Building.  It is of benefit to all the owners, not just the Respondent.  The Respondent’s argument has simply ignored the primary load bearing function of the Wall.

42. I therefore find that the Respondent is in breach of both Clause 20 and Paragraph 4 of the Second Schedule of the DMC.

Breach of the BMO

43. Section 34I of the BMO stipulates as follows:-

“	(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.”

44. The Respondent argues that section 34I of the BMO is not applicable to the present case because the Wall is not a common part.  However, as I have found that the Wall is a common part, section 34I of the BMO is clearly applicable to the present case.

45. The Respondent also argues that he has not converted any part of the Wall to his own use, and that no owners other than him could possibly use the Wall.  He contends that the function of the Wall as a load bearing wall has not been affected for the reasons that the opening of the slot can be ignored and the Wall is as good as a solid wall.

46. I totally reject these arguments.  The removal of part of the Wall is clearly a conversion, as the Wall does not belong to the Respondent and the Respondent has no right to use it in the manner he did.  I simply cannot see how the Respondent can argue that it is not conversion.  The other owners, as said above, are using the Wall to support the Building.  So it is not just the Respondent who can use the Wall.  Also as aforesaid, even though the opening does not cause any safety concern, the opening has interfered with the other owners’ right to the use and enjoyment of an intact wall with the original strength.

47. It is clear to me that both section 34I(1)(a) and (b)(i) of the BMO have been breached by the Respondent.

Mandatory Injunction

48. The Respondent contends that even if there was a breach of the DMC and the BMO, the Tribunal should not grant a mandatory injunction.  The Respondent refers to some authorities.  In Bowers v. Law (1870) L.R. 9 Eq. 636, there was a covenant against building in a particular way. That covenant was broken, and a building in breach of it was in fact erected.  James V.C. refused a mandatory order, and said that the question for the court was: “whether a mandatory injunction ought to be granted, or whether the alternative jurisdiction, which has been given to the Court by recent legislation, should be resorted to”.  James V.C. was of opinion that “having regard to all the circumstances, and considering that no substantial annoyance has been occasioned to the plaintiff, and no substantial injury done to any right of property of his, that a declaration will be sufficient for the purpose of protecting the title”, and that it was not necessary “to give the plaintiff the power of doing such an unreasonable and unneightbourly act as that of taking down this vinery, which is a great convenience to the defendant, and the taking down of which would not confer on the plaintiff himself any benefit”.  So there was a clear breach in that case, but the Court took into consideration the circumstances of the case, and in his discretion refused to do that which, in his judgment, would have inflicted an unnecessary injury upon the defendant and given no benefit to the plaintiff.

49. In Harrison v. Good (1871) L.R. 11 Eq. 338, Bacon V.C. said that “because we all know that, although the Court of Chancery interferes, when it thinks it right, by way of injunction to prevent the violation of a covenant, yet, if the violation is so slight, formal, and unsubstantial that the plaintiff can have no ground in conscience to complain of it, the Court will not grant an injunction”.

50. In Sharp v. Harrison [1922] 1 Ch. 502, Astbury J stated that “Prima facie, where a defendant commits a breach of a negative covenant with his eyes open, and after notice, the Court will grant a mandatory order, but there is, and must be, some limitation to this practice.  Supposing that this defendant had taken a brick out of her south wall, and put in an iron ventilator, that would have been a direct breach of this covenant, as far as breach is concerned, as direct as the particular breach in the present case; but it is idle to suppose that any Court would listen to an action claiming a mandatory injunction if those had been the facts.  The reason is this, that if there is really no damage of any sort or kind suffered by a plaintiff by reason of the breach of a negative covenant of this character, and if the granting of a mandatory order would inflict damage upon the defendant out of all proportion to the relief which the plaintiff ought to obtain, the Court will, in my opinion, and ought, in my judgment, to refuse it.”

51. Thus, the Respondent argues that the mandatory injunction may cause him inconvenience.  The Respondent’s wife would, due to her pains in her spine, suffer an even greater inconvenience, as she has to walk out and in Flat C and Flat D frequently after the reinstatement.  On the other hand, it is hard to see what actual or substantive damage the Applicant or any other owners of the Building may suffer due to the opening of the slot at the Wall.  It is difficult to see what should be the proper form or contents of a reinstatement order.  The Court should not make ‘an idle and ineffectual order’ (see para. 45-20 of Snell’s Equity(13^th Ed.)).

52. The Respondent also argues that Dr. Lau seemed to accept that under certain conditions the situation would be worse off after the reinstatement, but from the evidence of madam Yeung Kit Sum, the Applicant seemed content with any form of reinstatement.  This may be evidenced by the fact that the Applicant has not taken or considered to take any action against Flats 24A & B in Block 19 after they learnt that the wall had been reinstated.  There is no record with the Building Authority that may show how the opening in Flats 24A & B were reinstated.  Apparently the Building Authority has not approved such reinstatement work.  It seems that the Applicant is completely ignorant about the way that the opening was reinstated.  Therefore, a reinstatement order may not guarantee that the situation would be improved after the reinstatement.  On the other hand, the Court in granting a mandatory injunction should let the defendant know exactly what he is expected to do in pursuance of the order.  The Respondent therefore submits that in the present case the Applicant has not stated clearly or exactly what form of reinstatement it is indeed seeking, and hence the mandatory injunction should not be granted.

53. I do not accept the Respondent’s submissions in this regard either.  First of all, the authorities cited by the Respondent are the older authorities.  As submitted by the Applicant, the principles governing the granting of a mandatory injunction are set out in a more recent and leading case of Morris v Redland Bricks Ltd. [1970] AC 652 as follows:-

“	1.	A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future.  As Lord Dunedin said in 1919 it is not sufficient to say “timeo.” [Attorney-General for the Dominion of Canada v. Ritchie Contracting and Supply Co. [1919] A.C. 999, 105, P.C.].  It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.
	2.	Damages will not be a sufficient or adequate remedy if such damage does happen.  This is only the application of a general principle of equity; it has nothing to do with Lord Cairns’ Act or Shelfer’s case [1895] 1 Ch. 287.
	3.	Unlike the case where a negative injunction is granted to prevent the continuance or recurrence of a wrongful act the question of the cost to the defendant to do works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account:
		(a)	Where the defendant has acted without regard to his neighbour’s rights, or has tried to steal a march on him or has tried to evade the jurisdiction of the court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour he may he ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff.  As illustrative of this see Woodhouse v. Newry Navigation Co. [1898] 1 I.R. 161;
		(b)	But where the defendant has acted reasonably, though in the event wrongly, the cost of remedying by positive action his earlier activities is most important for two reasons.  First, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only upon a much smaller scale than anticipated.  Secondly, because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for he has his action at law and all his consequential remedies in equity.
		So the amount to be expended under a mandatory order by the defendant must be balanced with these considerations in mind against the anticipated possible damage to the plaintiff and if, on such balance, it seems unreasonable to inflict such expenditure upon one who for this purpose is no more than a potential wrongdoer then the court must exercise its jurisdiction accordingly.  Of course, the court does not have to order such works as upon the evidence before it will remedy the wrong but may think it proper to impose upon defendant the obligation of doing certain works which may upon expert opinion merely lessen the likelihood of any further injury to the plaintiff’s land. Sargant J. pointed this out in effect in the celebrated “Moving Mountain” case, Kennard v. Cory Bros. & Co. Ltd. [1922] 1 Ch. 265 at the foot of p. 274 (his judgment was affirmed in the Court of Appeal [1922] 2 Ch. 1).
	4.	If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions.”

54. The Wall is a load-bearing wall and by its very nature any alteration should not be taken lightly.  Dr. Lau gave evidence that the present opening can cause adverse effects on the lateral stability to the building, there are chances of cracks developing in the Wall by reason of the Works, the approval by the Building Department has not taken into account the overall structural behaviour of the Building and the reinstatement of the Wall is necessary to reduce the problems of maintenance and serviceability.  Dr. Lau has not supported his opinion with any calculations.  I must say that without any calculations, his evidence in this regard is not very convincing to me.  However, Mr. Law has conceded in his evidence that his opinion is based on the presumption that there has not been a previous opening in the Wall.  He also seems to agree that his calculations do not equate with a calculation on the serviceability and maintenance of the Building.  It seems to me that there are still some risk factors caused by the opening at the Wall.  In particular, Dr. Lau gave evidence that the Wall is not only to support the vertical stability of the Building but also the lateral stability of the Building by carrying the wind load and gravity load.  Mr. Law does not seem to have taken that into consideration.  I therefore cannot discount the potential danger that might be caused by the opening of the Wall in this regard.

55. In his evidence, the Respondent agrees that he knew the Wall was a load-bearing wall before he submitted his plans to the Buildings Department for approval in mid-December 2006, he made the decision to open the Wall, and he checked the DMC before he decided to have the opening although he also claims to have relied on the advice and expertise of his architect and structural engineer.  However it is the evidence of Mr. Chao that he had advised the Respondent to check whether the works contravened the DMC and that he fully advised the Respondent of section 14(2) of the Buildings Ordinance, ensuring the Respondent understood this.  Mr. Chao conceded that he was in no position to advise the Respondent of the DMC as he had not fully read the DMC prior or during the Works.  Mr. Law gave evidence that he was not responsible for advising the Respondent on section 14(2) of the Buildings Ordinance.  The Respondent conceded that he read the letters issued by the Buildings Department although he did not ask what section 14(2) of the Buildings Ordinance entails.  From the evidence, it seems to me that the Respondent has not in fact taken all reasonable steps to ensure that the opening at the Wall would not contravene the DMC.

56. Moreover, the Respondent failed to disclose the Works in the Application Form submitted to the Applicant and deprived the Applicant of the chance to consider whether approval should be given to the Works.  He did not forward or notify the Applicant of the submissions to the Buildings Department relating to the Works and the approval issued by the Buildings Department before the commencement of the Works.  He knew the objections raised by the residents of the Building against the Works.  Nevertheless, he chose to continue with Works.  It is clear to me that the Respondent has acted in such a manner that the rights of his neighbours have been unreasonably ignored.

57. The relief sought by the Applicant is clear.  The Respondent should know exactly what reinstatement he has to carry out if the mandatory injunction is granted.  In any event, the reinstatement work, as conceded by Mr. Chao, would have to be approved by the Buildings Department.  So the Respondent would have clear guidance from the Buildings Department on the precise method of reinstatement.

58. In respect of the case of Sharp v Harrison, there was only a minor technical breach.  It is distinguishable from the present case as the opening in the Wall is substantial.  As shown in the amended plans produced, the dimensions of the opening are 1200mm x 2465mm.  Hence Sharp v Harrison is not really applicable in the present case.

59. It is unfair to say that Ms. Yeung is content with any form of reinstatement.  First of all, that proposition was not put to her and that was not the evidence she gave.  Secondly, Ms. Yeung is not an expert on these matters and she cannot be expected to expound in detail on what form of reinstatement should be done on the Wall.  The submission relating to the Applicant not considering or taking action against other flats is groundless and irrelevant.  There is simply no evidence that there is no consideration in taking action against the other flats and, furthermore, Ms. Yeung had already testified in open court that she had no knowledge of these works until the Buildings Department informed her.

60. The Respondent asks this Tribunal not to grant the injunction on the basis that the reinstatement would not improve the situation but cause inconvenience to him and his wife.  The reinstatement would certainly improve the situation, as the Wall would have the original strength and all the risk factors can be eliminated.  The inconvenience is in fact a fait accompli caused by the Respondent’s erroneous decision to demolish the Wall without the Applicant’s approval.  The Respondent is not entitled to rely on self-induced inconvenience as a reason for defending an order of mandatory injunction.  The Respondent commenced the works without the approval of the Applicant and had failed to disclose the works when he filled out the Application Form.  Moreover, he continued with the demolition works with full knowledge of the objections raised by the Applicant and the residents, failing to wait until a resolution of the matter before proceeding with the demolition works.  I do not see how in all these circumstances it would be unfair to grant the mandatory injunction when the inconvenience was caused by the Respondent himself.

61. By reasons aforesaid, I am of the view that the mandatory injunction should be granted.

Damages

62. The Applicant concedes that there are no special damages involved, but nominal damages are being sought.  The Applicant relies on the case of The Mediana [1900] AC 113 at 116, where Earl of Halsbury LC stated:-

“

‘Nominal Damages’ is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed.”

63. In the recent case of Tai Yip Dyeing Factory Ltd. v. Kong Hoi Sang [2007] 1 HKLRD 608, Saunders J observed that a sum of $100 is usually awarded in Hong Kong for nominal damages.

64. The Applicant submits that it should be awarded damages, even though it is nominal on the following grounds:-

(1)	The Applicant is the manager of the Building and is duty bound to enforce any contraventions against the DMC and/or the BMO;
(2)	The Respondent has acted in contravention of the DMC;
(3)	The function of nominal damages is not only to signify that the Applicant was correct in bringing the proceedings but also that the Respondent had contravened the DMC and/or the BMO; and
(4)	To provide a basis for the Applicant to seek costs.

65. I do not agree with the Applicant in this regard.  The Applicant will be entitled to a mandatory injunction, which by itself is an acknowledgment of the legal rights being infringed.  The Applicant does not need nominal damages to signify the correctness of bringing the proceedings.  Thus, I will not award any nominal damages.

Costs

66. The Applicant asks for costs on an indemnity basis pursuant to Clause 10(g) of the DMC, but Clause 10(g) does not stipulate any costs on indemnity basis.  It reads as follows:-

“

The Company shall further have power to commence proceedings for the purpose of enforcing the observance and performance by any owner or any person occupying any flat or shop through under or with the consent of any such owner of the covenants, conditions and provisions of this Deed and of the House Rules made hereunder and of recovering damages for the breach non-observance or non-performance thereof.  The provisions of paragraphs (d) (e) and (f) of this Clause shall apply to all such proceedings.”

67. However, the Applicant submits that should the Tribunal rule in the Applicant’s favour in respect of the legal issues and finds that the Wall is a common part and/or the Respondent has breached the DMC and/or the BMO, the Applicant should be entitled to costs on an indemnity basis, irrespective of whether the Tribunal grants the injunction order.  The principles and considerations relating to an order for costs to be taxed on an indemnity basis were considered in the case of Town Planning Board v Society for Protection of the Habour Ltd. (No. 2) (2004) 7 HKCFART 114, where the Chief Justice held that:-

“	Neither statements of principle nor authority provide any support for the board’s proposition that the attributes of the parties and the character of the proceedings are irrelevant to the exercise of the discretion to award indemnity costs.  In relation to the award of costs generally, it has been accepted, as Chu J pointed out, that while
“	the grounds [upon which costs are awarded] must be connected with the case.  This may extend to any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation, but no further.” (emphasis updated)
	(Scherer v. Counting Instruments Ltd. [1986] 1 WLR 615 at 621F, per Buckley LJ).  There is no reason why this statement does not apply with equal force to the exercise of the discretion to ward indemnity costs.”

68. The Applicant submits that costs should be awarded against the Respondent on indemnity basis for the following reasons:-

(1)	That prior to the commencement of the demolition works, the Respondent did not seek approval from the Applicant and did not inform the Applicant of the works.  The matter did not come to the Applicant’s knowledge until investigation of the residents’ complaints revealed that the Respondent was demolishing the Wall;
(2)	The Respondent had mislead the Applicant when he submitted the Application Form for the renovation works which only listed 3 items and failed to list the demolition of the Wall;
(3)	The Respondent’s evidence is that he only relied on his own reading of the DMC and the advice of Mr. Chao and Mr. Law.  However in cross-examination, Mr. Chao stated he had told the Respondent to check whether the works contravened the DMC and/or the laws of Hong Kong.  Mr. Law however testified that it was not his duty to advise the Respondent on such matters;
(4)	The Respondent could have stopped the demolition of the works when objections were first raised on 12 March 2007 when the opening was only 3ft x 2ft.  However despite repeated requests, the Respondent refused to stop the demolition works pending a resolution of whether the Respondent could demolish the Load-bearing Wall.  The Respondent was insistent on continuing with the works despite the strong objections raised by the Applicant and the residents of the Building.  The Respondent clearly states in paragraph 12 of his witness statement that he instructed works to continue so as to avoid further delay; and
(5)	The Applicant should be fully compensated for enforcing the DMC for the common good of all residents of Block H7 and therefore should be awarded costs on a basis that would entitle maximum compensation.

69. Nevertheless, I am not prepared to grant the costs on an indemnity basis to the Applicant.  The Respondent is no doubt responsible for causing the demolition works to proceed, but to some extent I think he is acting on the wrong advice given to him by the architect or has been ignorant of the law and the effect of the DMC.  Thus, I do not find that costs on an indemnity basis is warranted in this case.

Conclusion

70. In the circumstances, I give judgment to the Applicant and order as follows:-

(1)	The Respondent whether by himself or his servants or agents do reinstate the Wall within 2 months from the date hereof in accordance with any directions or guidelines given by the Buildings Department; and
(2)	Costs order nisi: The Respondent do pay costs of the proceedings to the Applicant to be taxed on party and party basis and on District Court scale with certificate for counsel if not agreed.  If there is no application for costs within 14 days from today, the costs order nisi shall become absolute.