THE INCORPORATED OWNERS OF SHAN KWONG TOWERS PHASE II v. LI SUET CHING

LDBM 290/2006

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 290 of 2006

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JUDGMENT

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Background

1. The Applicant is the owners’ corporation of Shan Kwong Towers Phase II, No. 24 Shan Kwong Road, Happy Valley, Hong Kong (“the Building”).  By an Assignment dated 15 November 2004, the Respondent became the registered owner of Flat E on the 13^th Floor of the Building (“the Flat”) and Car Parking Space No. 217.  The Respondent’s son, Mr. Edmond Wong, is the occupier of the Flat.

2. There is no dispute that the window of the living room of the Flat was enlarged by chiselling down the external wall of the Building below the window.  The Applicant contends that the alteration of the window in this manner is in breach of Clauses 4(m)(i) and 10(a) of the Deed of Mutual Covenant of the Building (“the DMC”).  Thus, in this application, the Applicant claims against the Respondent for a mandatory injunction requiring the Respondent to reinstate the wall below the window of the living room of the Flat, and a prohibitory injunction restraining the Respondent from repainting, redecorating or altering the appearance of the exterior of the Building or any part thereof or constructing, erecting and making any alteration to the structure of the Building without the Applicant’s permission.

3. The Respondent denies that there was any breach of the DMC and even if there was such a breach, the Respondent contends that the Applicant is not entitled to any injunctive relief.  The Respondent did not state any grounds for this contention in the Notice of Opposition, but in the Respondent’s Skeleton Submission, the Respondent submits that it is not an appropriate case for the court to exercise any discretion for the granting of any injunctive relief against the Respondent on the following grounds:-

“(a)      Any wrongful act done previously was not by the Respondent.

(b)       The Applicant should be treated to have tolerated and acquiesced in the act done by the previous owner.

(c)      In the acquisition of the subject premises by the Respondent on 15 November 2004, the Applicant and/or the management company did not alert the Respondent the existence or the altered structure despite pre-completion enquiry was made in relation to DMC issue as a matter of normal conveyancing transaction.

(d)      The alteration was relatively minor on its outer appearance.

(e)      Members of the public could not easily discover that there had been any change in the appearance of the exterior of the building related to the Respondent’s premises which is not readily observable.

(f)       No one is going to suffer by such alteration.”

4. The Respondent therefore contends that it is unjust and inequitable to grant the injunction.

Any breach of Clause 4(m)(i)

5. Clause 4(m)(i) of the DMC stipulates that:-

“No owner shall without the consent in writing of the Manager do or cause or   permit to be done any of the following:-

(i)    Repaint redecorate or alter the appearance of the exterior of the said Building or any part thereof.”

(underlines added)

6. I have no doubt that the appearance of the exterior of the Building was altered when the window in question was enlarged.  The window will no longer look the same as the other windows of the Building.  It will give a disproportionate appearance to the exterior of the Building.  On the other hand, as the window in question is facing a very large slope at Stubbs Road and there is a very limited space on the ground level of the Building facing the window, I agree with the Respondent that not many people would be able to notice the alteration.  However, it does not mean that when there are not too many people who could notice the alteration, there is no alteration at all.  People who make closer look at the Building, such as the two witnesses of the Applicant, can still observe the alteration easily.  There is also another building right next to the Building.  People staying in the other building at more or less the same level of the Flat should be able to see the alteration clearly.

7. Nevertheless, there is no dispute that the alteration was not made by the Respondent but by one of the previous owners of the Flat.  The Applicant’s witness, Mr. Lam Kwong Sang gave evidence that he had been a caretaker of the Building for about 11 to 12 years, and the window of the Flat had already been altered when he first started the job there.  In other words, the alteration was made at least 11 years ago.  There is absolutely no evidence from the Applicant as to whether the owner of the Flat who made the alteration then had obtained written consent from the Manager or not.  If the then owner had obtained such a written consent, there is absolutely no breach of Clause 4(m)(i).  Mr. Lam’s evidence also shows that there were 7 other flats which had their windows similarly enlarged.  I cannot therefore discount the possibility that the Manager might have consented to the alteration of the windows.  The burden is on the Applicant to establish the breach.  When this essential element of whether written consent was obtained is not established, the Applicant simply fails to show that Clause 4(m)(i) has been breached.

8. In the circumstances, I do not find that there is any breach of Clause 4(m)(i) of the DMC.

Any breach of Clause 10(a)

9. Clause 10(a) of the DMC stipulates that:-

“Each party hereto hereby covenants with the others as follows:

(a)   Not to make any structural alterations in his part of the said Building which may damage the other parts thereof or cause any inconvenience to the other occupiers and not to make any alteration to the water or gas pipes electrical wiring or plumbing which may cause such damage or inconvenience as aforesaid and not to cut or injure the cement concrete flooring columns beams or girders of the said Building or do any thing whereby the structural strength thereof may be affected.”

(underlines added)

10. In Incorporated Owners of Elite Garden v. Profit More Co. Ltd. [2002] 2 HKLRD 518, the clause of the deed of mutual covenant in question was similar to Clause 10(a) above.  It was held by the Court of Appeal that the term “alteration” was something which altered the form or structure of a building.  The “form” of a building concerned its appearance or visual aspect.  Hence, the opening of the windows was unarguably an “alteration” to the building.  The addition of the word “structural” did not fundamentally change this meaning.  Nothing in the clause, nor its context, required some special technical meaning to be ascribed to the word “structural”, which should be given its natural and ordinary meaning.  The opening of windows undoubtedly pertained to the framework or structure of the building and affected its visual aspect.  That being so, it constituted a “structural alteration”.

11. Likewise, the enlargement of the window in the present case is a “structural alteration”.  It was made possible by chiselling down the external wall below the window.  The cement and concrete of the external wall below the window must have been cut and injured, and the external wall must have been damaged.  I have no doubt that Clause 10(a) has been breached. 

12. Unlike Clause 4(m)(i), it does not matter whether there was any written consent from the Manager.  In fact, the Manager cannot waive or acquiesce any breach of such a covenant (see The Incorporated Owners of Hoi Luen Industrial Centre and anor. v. Ohashi Chemical Industries (Hong Kong) Limited, CACV 3 of 1995and The Incorporated Owners of Perth Garden v. Chan Kwok Wai, LDBM 339 of 2005).

13. It also does not matter that the Respondent was not the owner who made the alteration.  Clause 16(b) of the DMC stipulates that the word “Owner” shall include each person in whom for the time being the legal estate in any undivided share in the said premises and the said Building is vested.  The definition of “Owners” in Clause 16(b) makes it clear that any liability caused by the alteration shall run with the land and is imposed upon the owner for the time being, binding all successive owners (see Hang Yick Properties Management Limited v. The Incorporated Owners of Tuen Mun Kar Wah Building [2005] 2 HKLRD 499 and Chi Kit Co. Ltd. v. Lucky Health International Enterprise Ltd. [2000] 3 HKCFAR 268).

14. Thus, the Respondent is responsible for the breach of Clause 10(a) of the DMC.

Whether mandatory injunction should be granted

15. Even though I have found that Clause 10(a) of the DMC has been breached and the Respondent is responsible for that breach, I am however not prepared to grant the mandatory injunction sought by the Applicant.  The court always has a wide discretion in granting or refusing a mandatory injunction.  In Morris v. Redland Bricks Ltd. [1970] AC 652,  Lord Upjohn of the House of Lords gave the following judgment:-

“The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be “as of course.”  Every case must depend essentially upon its own particular circumstances.  Any general principles for its application can only be laid down in the most general terms:

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….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….

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…”

16. From the above judgment, it is clear that in granting or refusing a mandatory injunction, the court has to consider the particular circumstances of the case and the jurisdiction should be exercised cautiously.  It is necessary to consider that damages will not be a sufficient or adequate remedy, and the cost to the defendant to do works should also be taken into account.  Further, in Sharpv. Harrison [1922] 1 Ch. 502 and Wong Sui Fung & anor. v. Yip Siu Keung LDBM 248 of 2000, it has been held that where no damage has been occasioned and the granting of a mandatory injunction would inflict damage on the defendant out of all proportion to the relief given to the plaintiff, the court ought to refuse it.

17. Looking at the circumstances of our case, I do not agree with the Applicant that if the mandatory injunction is refused, the Applicant and the other owners of the Building will suffer damages.  The loss suggested by the Applicant is that the selling price of the flats of the Building will be reduced as a result of the appearance of the Building being affected by the alteration of the window.  There is absolutely no evidence to that effect.  As mentioned above, not many people would be able to notice the alteration, and I do not accept that the prices of the other flats would be affected by the alteration of the Flat in any significant manner.

18. On the other hand, the Respondent would need to incur expenses to reinstate the window and the external wall below the window.  Although there is no evidence on the cost of reinstatement, I think it would be reasonable for me to assume that the cost would not be cheap.  The only benefit that would bring to the Applicant if the mandatory injunction were granted is that the Building will look a bit more tidy from certain limited angles of view.  I do not think that such a small benefit is proportionate to the amount that the Respondent is going to spend on the reinstatement.

19. There is no way that the other owners would be encouraged to make similar alterations in the future as suggested by the Applicant, as my judgment has made it clear that the alteration is in breach of the DMC.  The Applicant can always enforce the DMC in respect of any future breach.  I can also grant a declaration to make it clear that the alteration is a breach of the DMC instead of granting the mandatory injunction, as has been done in Hon Hing Enterprises Limited v. Honolulu Land Investment Co. Ltd. & anor. HCA 3557 of 1991.

20. Moreover, the alteration in question has already been there for more than 11 years, and the Applicant has never taken any action for all these years until 2006.  When the Respondent purchased the Flat in 2004, the Applicant also did not raise this matter to the Respondent’s solicitors when they were asked whether there were any outstanding repairs and renovations to be done.  I do not think that it is fair for the Applicant to raise it only when they want to have a major renovation of the Building.

21. In fact, the present case is very similar to the case of Incorporated Owners of Dragon View v. Nalpak Ltd. [1989] 1 HKC 549, where Godfrey J also refused to grant a mandatory injunction.  It was held in that case that injunction being a discretionary remedy, it was open to a defendant to show that it would be unjust and inequitable to require him to restore the position.  As the alteration in that case had been made over three years ago and no harm had been done to anyone as a result, nor any damage done to any owner or the plaintiff, it would be unjust and inequitable to grant a mandatory injunction.  Likewise, I also find that it would be unjust and inequitable to grant a mandatory injunction in the present case.

Costs

22. Although the Applicant’s claim for a mandatory injunction fails, I am of the view that the Applicant is entitled to take the present proceedings against the Respondent to enforce the DMC.  Thus, the costs should be to the Applicant (see Hon Hing Enterprises Ltd. v. Honolulu Investment Co. Ltd. & anor., supra. and Guardian Property Management Limited v. The Incorporated Owners of Greenville Gardens of Shiu Fai Terrace & anor. LDBM 83 of 1997).

Conclusion

23. In view of my findings above, I make the following orders:-

(1)     A declaration that the enlargement of the window of the living room of the Flat by chiselling the external wall below the window is a breach of Clause 10(a) of the DMC.

(2)     A prohibitory injunction restraining the Respondent, whether by herself, her servants, agents, tenants or otherwise howsoever, from making any further structural alterations in the Flat in breach of Clause 10(a) of the DMC.

(3)     Costs order nisi: The Respondent do pay the Applicant costs of the proceedings herein to be taxed on District Court Scale if not agreed.