THE INCORPORATED OWNERS OF MARINA COVE v. CHU KAM TAI AND OTHERS

HCMP 2141/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 2141 OF 2011

(ON AN INTENDED APPEAL FROM LDBM 118/2010)

____________

BETWEEN

____________

________________________

REASONS FOR DECISION

________________________

Hon Cheung JA (giving reasons for decision of the court) :

1.  On 14 February 2012 we dismissed the respondents’ application for leave to appeal against the judgment of H H Judge Michael Wong sitting as Presiding Officer in the Lands Tribunal. The 1^st and 3^rd respondents’ application also included an application for extension of time. We now give our reasons.

2.  The applicant who is the incorporated owners of Marina Cove, a residential complex in Sai Kung, complained that the respondents who are the owners of a house in Marina Cove had constructed an iron gate and a low wall with iron fence (‘the structures’) behind their house at the common part of Marina Cove.  The respondents refused to let the applicant demolish them.

3.  The respondents denied that they had constructed the structures but admitted that they had refused to let the applicant demolish them.

4.  The judge found that the respondents had regarded the structures as their own.  He ordered the respondents to demolish the structures.

5.  Subject to leave, an appeal may be made against the decision of the Lands Tribunal if it is erroneous in point of law.  Three grounds of appeal were relied upon by the respondents.

1)  The judge erred in finding that the respondents had prevented the applicant from entering the common part through the structures.

2)  The judge had erred in finding that the respondents had regarded the structures as their own.

3)  The judge erred in concluding that the respondents were in breach of the terms of the Deed of Mutual Covenants (‘DMC’) by using the relevant common part.

6.  We are of the view that the respondents had failed to show that they have a reasonable prospect of success in their appeal.  It is accepted by the respondents that the applicant could not gain access to the common part because of the structures.  On the face of it, the respondents had in breach of the DMC made use the common part as their own property to the exclusion of the other owners of Marina Cove.  The presence of the gate must be the clearest evidence that the respondents had prevented the applicant from entering the common part. 

7.  The respondents contended that they did not build the structures and relying on Discovery Bay Services Management Ltd v. Buxhaum [1995] HKDCLR 7, argued that they could not be liable for breach of covenant that had occurred before they became owners.

8.  The judge did not make any express finding that the structures were built by the respondents although the evidence from the applicant showed that the structures only appeared after the respondents became the owners of their house.  But in any event by reason of the respondents’ own admissions that they refused to let the applicant demolish the structures, the judge must be correct to find that the respondents had regarded the structures as their own.  This is clearly a finding of fact by the judge.  The Buxhaum case was concerned with the enforcement of a positive covenant.  The position here is the enforcement of a negative covenant which runs with the land.  It clearly binds the respondents who are the current owners even if they did not build the structures themselves.

9.  Accordingly the application was refused with costs to the applicant.