KAI SHING MANAGEMENT SERVICES LTD v. TAM SIU MAN, ISBELLA AND ANOTHER

LDBM 289 of 2005

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 289 OF 2005

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J  U  D  G  M  E  N  T

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Background

1. The Applicant is the building manager of the property development erected on the Tseung Kwan O Town Lot No. 55, known as Ocean Shores (“the Estate”) situated at No. 88 O King Road, Tseung Kwan O, Sai Kung, New Territories.  The 1^st Respondent is the tenant of Flat E on 52/F of Tower 17 of the Estate (“the Property”) and the 2^nd Respondent is the husband of the 1^st Respondent and the occupier of the Property.  All the owners and occupiers of the Estate are bound by and shall observe and perform the covenants, provisions and restrictions contained in the Deed of Mutual Covenant and Management Agreement of the Estate dated 10 May 2001 and registered in the Land Registry by Memorial No. 473189 (“the DMC”).

2. By an amended Application dated 23 January 2006, the Applicant pleaded that in breach of the provisions of the DMC of the Estate, “the 1^st Respondent has permitted or allowed the occupier (s) to create disturbing noise at the Property during daytime and at night which created a nuisance and annoyance to the owners and occupants of the neighbouring units in the Estate”.  Despite of the receipt of written requests from the Applicant to stop the above said acts, the Respondents did not stop creating the nuisance.  Therefore, the Applicant applied for (a) a mandatory injunction ordering the 1^st and 2^nd Respondents, whether by themselves/himself/herself, their/his/her agent(s) or servant(s) do(es) forthwith stop creating nuisance; (b) costs of this application; and (c) further or other relief.

3. The 2^nd Respondent who acted for himself as well as for his wife, the 1^st Respondent, filed a Notice of Opposition on 2^nd May 2006 setting the following grounds and particulars: -

(A) I am the main victim of this case, and have been subject to heavy poundings from the floor above (53/F) since I moved in 20 months ago.

(B) This couple (Mr. & Mrs. Ng) upstairs, when playing with their gymnastic equipment, continuously drops heavy objects on the floor.  This normally occurs from 06:15 – 02:00

(C) I have never stopped complaining to the management Co. (Kai Shing) about this.

(D) Mr. Ng’s is a twin unit on the top floor; & his family also owns units at Ocean Shores.

(E) It is likely Kai Shing does not want to confront a prominent customer of Sun Hung Kai Properties like Ng family.  It puts the business interest of SHK Properties before its responsibilities as a property management manager.  Whilst it has omitted totally the illegal activities of Mr. Ng, no officer of Ka Shing has bothered to contact me to work out a solution.

(F) Their application is simply fuelled by ill-intention.

Provisions of the DMC

4. Paragraph 7 of Section I of the DMC provides that: -

“(a) ………………..

(b) Every owner with the exclusive right and privilege to hold, use, occupy and enjoy any Residential Unit together with his tenants, servants, agents, invitees and licensees shall have the full right and liberty (in common with the Manager and others having like rights) to go pass and repass over and along and to use the Development Common Areas and Facilities for all purposes connected with the proper use and enjoyment of the same.

(c) In each of the above cases the right and liberty shall be subject to the provisions of this Deed, the rights of the Manager and the Development Rules relating to the DMC.”

5. Under the Third Schedule of the DMC, it was provided that: -

“4. Subject to the rights reserved to the First Owner under the DMC, no Owner shall cause or permit or suffer to be done any act ot thing which may be or become a nuisance or annoyance to or cause damage or inconvenience to the other Owners and occupiers or the time being of the Lot and the Development and/or any neighboring premises.”

“6. … no Owner shall do or suffer or permit to be done anything in such areas as may be or become a nuisance to any other owners or occupiers of any other part of the Lot and the Development.”

“13. No Owner shall make or cause or permit any disturbing noise in his Unit or do or cause or permit or suffer anything to be done which will interfere with the rights, comforts and convenience of other occupants of the Development.”

6. Pursuant to clause 37 of Section III of the DMC, the Applicant “shall have full and unrestricted authority to do all such acts and things as may be necessary or expedient for and in connection with the use of  the Lot and the Development and the management thereof” including, inter alia, the following: -

- Clause 37(w) provided that “to prevent (by legal action if necessary) any person including an Owner from occupying or using any part of the Lot and the Development in any manner in contravention of the Conditions or this Deed or the Deed of Grant of Easement or the Lease of the Communications Network Area”.

-   Clause 37(x) provided that “to prevent (by legal action if necessary) and to remedy the breach by any Owner or other person occupying or visiting the Lot and the Development any provisions of the Conditions or this Deed.”

-   Clause 37(ae) provided that “to enforce the due observance and performance by the Owners and occupiers of the terms and conditions of the Conditions and this Deed and any relevant Sub-Deed and the Development Rules and to take action in respect of any breach thereof including the commencement, conduct and defence of legal proceedings and the registration and enforcement of charges as herein mentioned.”

The Applicant’s case

7. The Applicant called for the evidence of Mr. Ng Yuen Sze, the owner of the flat (53/F Flats E & F, combined into one single domestic unit for occupation) immediately above that of the Property.  He affirmed his witness statement (pages 10 to 12 of Exhibit AR-1).  He stated that he had heard about the nuisance noise since September 2004, sometimes in the form of screwdriver’s operating noise and sometimes in the form of knocking or banging of the walls by heavy objects.  His flat was shaking when he heard these types of nuisance noises.  He complained to the Police for over 10 times, in addition to complaining to the estate manager of the Applicant.  Also, Mr. Ng said that on 16 January 2005, a police officer had visited his flat in the company of the 2^nd Respondent but discovered no large scale amusement machine or gymnastic equipment in his flat.  Mr. Ng understood that the 2^nd Respondent had complained to the Police alleging that Mr. Ng and his wife had been playing/using this type of machine or equipment inside their flat, hence causing nuisance to the 2^nd Respondent.  On another occasion on 28 April 2005, said Mr. Ng, the Police had visited his flat again but discovered no such machine or equipment as alleged by the 2^nd Respondent.

8. Mr. Ng also added that on 16 January 2005, the 2^nd Respondent confirmed to the Police officer investigating the noise complaint incident that the 2^nd Respondent had created the nuisance noise as revenge to Mr. Ng’s conduct.

9. The Applicant called for the evidence of Mr. Kwok Tak Yuen, the security staff working for Block 17 of the Estate.  He affirmed his witness statement as well as the record of noise complaint incident in Block 17.  (Pages 209 to 219 of Exhibit AR-1).

10. Mr. Kwok confirmed that during the period since September 2004 when the subject noise complaint incident started, he himself did hear intermittent screwdriving noise coming out from the Property when he patrolled the Block 17 of the Estate as part of his job.  On the other hand, he himself had never heard any such noise coming out from the flat on top of the Property.

The Respondents’ case

11. The 2^nd Respondent gave evidence himself.  He also represented his wife, who is the 1^st Respondent, in the hearing.  It appears from the evidence that the 2^nd Respondent was apparently residing alone at the Property.  The 2^nd Respondent alleged that he had been suffering from noises created by the owner and occupant of the flat upstairs (i.e. 53/F., Flats E and F) for a long time.  He did complain to the Applicant’s staffs but no action was taken by the Applicant against the alleged offenders.  The 2^nd Respondent spent considerable amount of time challenging the authenticity of the Written Record for the noise complaint incident produced by Mr. Kwok Tak Yuen.  His main arguments were that Mr. Kwok and/or the Applicant’s staff preparing this Record did not give a true and complete account of all the complaints lodged with the Applicant.  For example, several of the complaints made by the 2^nd Respondent and others against Mr. Ng Yuen Sze was missing.

12. The 2^nd Respondent also summoned his next door neighbour, Ms. Yeung Ching Man Iris (also known as Mrs. Tong) who gave evidence on 14 July 2006.  Ms. Yeung is the tenant of 52/F., Flat F of Block 17 of the Estate.  Ms. Yeung said that from December 2005, around 12 mid-night every day she heard nuisance noises in the form of screwdriver noises and noises of banging the walls.  The noises of screwdriver drilling certain hard structure lasted for about 6 months and they represented about 90% of the noises she heard.  The noises were intermittent in nature, sometimes in between pauses of 10 some seconds, or one to two minutes, or about an hour.  She at first did not know the exact source of the noises.  But on one and two occasions, she touched the common wall of her flat and that of the Respondents, and felt the shaking of that wall at the same time when she heard the said noises.  She therefore believed that the noises came from the Respondents’ flat.  On the other hand, she said she had not heard any noise originated from the flat upstairs (i.e. 53/F., Flats E and F)

13. The 2^nd Respondent in his oral submission, in his oral evidence and in his final written submission all admitted that he did retaliate to his alleged nuisance noise created in the first place by the owner and occupant of the flat upstairs (i.e. 53/F., Flats E and F) by creating intermittent noises inside the Property on many occasions during both the daytime as well as at nights, including odd hours at mid-nights.  Such noises created by the 2^nd Respondent were in the form of firstly, the drilling of the ceiling concrete slabs or some other structural members of the Property by a screwdriver and seconding, the heavy knocking or banging of the wall of the Property.  These noises also correspond with the noises heard by all the three witnesses including (i) Mr. Ng Yuen Sze, the owner/occupant of 53/F., Flats E and F (the “original offender” as suggested by the 2^nd Respondent), (ii) Mr. Kwok Tak Yuen, the security staff of Block 17 of the Estate, and (iii) Ms. Tong, the resident of the flat next to the Property.  Therefore, there is actually no need for this Tribunal to decide on whether the 2^nd Respondent has been creating the alleged nuisance noise, which is forbidden by the DMC of the Estate.  Therefore, the question is whether any of the defenses put up by the Respondent carries any weight in deciding whether despite of the Respondent’s persistent breach of the DMC, the Tribunal should refrain from granting the injunction as sought by the Applicant.  I will consider these grounds one by one below.

That the Respondents have been subject to heavy pounding from the floor above (i.e. 53/F., Flats E and F) before the 2^nd Respondent retaliated

14. Although Mr. Ng Yuen Sze, the owner of 53/F., Flats E and F gave evidence in this case as one of the witnesses of the Applicant, he is not a party of this action.  For this reason, this Tribunal has no jurisdiction to make any order against him as the owner of a flat in the Estate.  Also, there is no application against him with this Tribunal for which a finding of facts has to be made.  Therefore, this Tribunal will not decide on the issue of whether the owner of 53/F., Flats E and F has ever or persistently created nuisance noise affecting the Respondents and /or the other owners and the other occupants of the Estate. 

That the Applicant puts the business interests of its parent company, Sun Hung Kai Properties before its responsibilities as the property manager of the Estate

15. The 2^nd Respondent gave evidence that he had never stopped complaining to the Applicant about the nuisance created by the owner of 53/F., Flats E and F but his action was of no avail.  He was of the view that the Applicant puts the interests of her parent company, i.e., Sun Hung Kai Properties before her responsibility as the property manager of the Estate.  This was because, according to the 2^nd Respondent, the owner of the flat upstairs (i.e. Mr. Ng Yuen Sze) and his family members owned several flats in the estate and were prominent customers of Sun Hung Kai Properties.  I am quite amazed by this argument.  It was simply an assertion of the 2^nd Respondent, not supported by any evidence.  Apart from the admission by Mr. Ng Yuen Sze that his family member also owned another flat in the Estate, there was not any evidence or even suggestion that Mr. Ng Yuen Sze had any other business relationship with Sun Hung Kai Properties, one of the biggest real estate companies listed in the Hong Kong Unified Stock Exchange.  Yet this ownership of 2 or 3 flats by Mr. Ng and his family was sufficient for both the Applicant and Sun Hung Kai Properties to put their business interests before the Applicant’s responsibility as the property manager of the Estate is beyond my understanding.  In any event, if the Respondents find that the Applicant has not been doing her job properly as the property manager of the Estate, it’s up to the Respondents to take whatever appropriate action against the Applicant under the DMC or the Building Management Ordinance.   Summing up, I find that the Respondents could not use this as a defense in the present case.  

That this application is fuelled by ill-intention of the Applicant

16. As a corollary of the above ground, the Respondents claimed that the Applicant filed this application in order to protect herself.  It is in general difficult to ascertain the intention behind certain action undertaken by a party of litigation.  In the present case, it is clear from the chronology of events, as shown from the oral and documentary evidence adduced by the parties, that it had been quite some months after many complaints of noise nuisance were lodged by the owner of 53/F., Flats E & F as well as by other owners against the owner/occupant of the Property in creating nuisance noise, the investigation by the staff of the Applicant as well as the reporting of the nuisance to the Police that the Applicant finally decided to take legal action against the Respondents.  I simply do not find that the evidence adduced in the present case support this allegation of the Respondents.

17. The 2^nd Respondent also submitted that the Applicant treated the complaints put up by himself and those of Mr. Ng Yuen Sze differently.  The Applicant simply put up a deaf ear to the 2^nd Respondent’s complaints.  Again, although this is not an issue that has to be decided by this Tribunal, judging from the abundance of evidence adduced in this case, I do not find any merit in the Respondents’ contention.  However, if the Respondents are still not satisfied with the performance of the Applicant as the Property manager of the Estate, they should take appropriate action accordingly. 

18. All in all, I find that all the grounds cited by the Respondents in the Notice of Opposition are all not relevant and are also not supported by the evidence.

Conclusion

19. As stated above, I find that all the grounds of opposition cited by the Respondents fail.  Since the 2^nd Respondent frankly admitted the creation of the nuisance noise, which was also supported by evidence of witnesses called by the Applicant, I find that the Applicant succeeded to prove that the Respondents should be held responsible for the continuing creation of the nuisance noise for a considerable period of time.  This is clearly not allowed under the DMC of the Estate.  Under the circumstance, I grant the mandatory injunction as sought by the Applicant.

Orders

20. I make the following orders: -

(1) A mandatory injunction be granted ordering the 1^st and 2^nd Respondents, whether by themselves or by himself or by herself; their agents, his or his agent; their servants, his or her servant, do or does stop forthwith in creating nuisance noise in the Property of the Estate;

(2) Cost of this Application to the Applicant, at District Court scale, to be taxed if not agreed.