WONG SUI FUNG AND ANOTHER v. YIP SIU KEUNG

LDBM 248/2000

BETWEEN

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J U D G M E N T

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The Claim

1. The Applicants are and were at all material times the registered owners of House D (“House D”) of Greenland Villas erected on Sha Tin Town Lot No. 195 situate at Nos. 8-12 Ma Yeung Path, Shatin, New Territories (“the Estate”).

2. The Respondent is and was at all material times the registered owner of House E (“House E”) of the Estate.

3. House D and House E were erected on two pieces of adjoining lands in the Estate as shown on the plan (“the Plan”) attached to the Amended Notice of Application.

4. The Applicants contend that in about March 2000, the Respondent caused, permitted or suffered the following acts to be done:-

5. The Applicants also contend that:-

6. The relevant provisions in Clause 11 of the DMC read as follow:-

7. The Applicants contend that by reason of the Respondent’s breach of the DMC, they have suffered considerable inconvenience as follows:-

8. The Applicants therefore claim for an injunction to restrain the Respondent from continuing the breaches of the DMC and a mandatory injunction requiring the Respondent to restore the appearance of House E to its original condition and to reinstate all the walls and fences along the boundary of House E to their original height and position, together with costs.

The Defence

9. The Respondent admits that all the works concerning Structures I, II, III, IV and V were carried out on House E, but raises the following defences in the Amended Notice of Opposition:-

10. At the commencement of the trial, the Respondent, appearing in person, tried to raise 4 more grounds of defence as follows:-

11. The Respondent was all along, except for the trial, represented by counsel and solicitors.  The Notice of Opposition and the Amended Notice of Opposition were settled by counsel.  The Respondent, however, alleged that his legal representatives did not put forward his case properly and hence he had to raise the above 4 grounds of defence at the trial.

12. Since the Respondent did not include the above 4 grounds of defence in his Amended Notice of Opposition, he had to amend the same before he could raise these new grounds of defence.  The Respondent was therefore asked whether he would like to seek for further amendments to the Amended Notice of Opposition and he did.  Mr. LOK on behalf of the Applicants objected to the proposed amendments and asked for an adjournment if such amendments were granted because the Applicants had to reply to the new grounds of defence and file further witness statements in response to the Respondent’s allegations.

13. I was of the view that the Respondent was entitled to raise these new grounds of defence by amending the Amended Notice of Opposition.  I therefore allowed the amendments.  I was also of the view that the Applicants were entitled to an adjournment to put in their reply and produce further evidence in response to these new grounds of defence.  I therefore granted an adjournment to the Applicants and ordered the Respondent to pay the Applicants their thrown away costs.

14. Nevertheless, the Respondent withdrew his application for amendments after I had granted the adjournment and ordered him to pay costs.  I therefore rescinded my orders and the parties proceeded with the trial without any further amendments as aforesaid.

15. By withdrawing the application to amend, the Respondent must have waived his right to put forward the 4 new grounds of defence.  Nevertheless, the Respondent tried to introduce evidence in relation to these new grounds during the course of the trial.  Mr. LOK objected to such course being taken and I stopped the Respondent from doing so.  The Respondent was well aware that he could not put in evidence concerning these new grounds.  In fact, he raised objection to the Applicants putting in evidence concerning some other inconvenience on the same ground that they had not been pleaded by the Applicants.

16. Despite that, the Respondent tries to resurrect these new grounds of defence in his written closing submissions.  He argues that in paragraph 5(e) of his Amended Notice of Opposition, he has pleaded the equitable defence of acquiescence.  Paragraph 5(e) states that “Boundary walls or fences of various heights have been erected by other owners of the Estate around their respective houses.  No action was against these owners”.  The Respondent alleges that these sentences have included the presence of boundary walls and fences in the Applicants’ house as well, and it conforms to the meaning of acquiescence.

17. I do not agree with the Respondent.  The phrases “other owners of the Estate around their respective houses” and “No action was against these owners” clearly indicate that the Respondent is referring to other owners not including the Applicants or the Respondent himself.  The phrase “No action was against these owners” also does not indicate clearly that the Respondent is alleging that the Applicants had acquiesced the Respondent’s breaches.  It could mean that no action was taken by the owners committee or the Building Authority against these other owners.

18. It is trite law that equitable defences must be specially pleaded and full details given : Sutcliffe v. James (1879) 27 W.R. 750; 40 L.T. 875.  Thus, by failing to plead specifically the equitable defences of acquiescence and that the Applicants are not of clean hands, or to give full details of such equitable defences, the Respondent is not entitled to rely on these defences.  The Respondent was given the opportunity to amend his pleading, but he chose not to, it must mean that he did not intend to pursue with these other grounds of defence.  To allow the Respondent to reopen these issues, it would mean that the Applicants have been deprived of the opportunity to reply and call evidence in response to these new grounds of defence.  In the circumstances, I will not entertain the Respondent by allowing these issues to be reopened when they are not specifically pleaded.

19. I shall therefore deal with the defence raised in the Amended Notice of Opposition as it stands.

Change of window to door (Structure I)

20. In the Amended Notice of Application, the Applicants seek for a mandatory injunction requiring the Respondent to restore the appearance of House E to its original condition.  However, in the written closing submissions of the Applicants, Mr. LOK suggests that the Applicants do not seek the Respondent to reinstate the appearance of House E but only raise this in support of their allegations of breaches of the DMC.  It is not clear whether the Applicants are therefore withdrawing this claim.

21. However, the Applicants submit that the Respondent has breached Clauses 11(a) and 11(g) of the DMC by converting a window into a full door and hence altering the facade of House E.  The Applicants contend that the Respondent should seek approval from other owners or the chairman of the unincorporated owners committee when there was no Manager in the Estate.  The Applicants also contend that such alteration is likely to be a building work within the definition of the Buildings Ordinance and the Respondent has to seek prior written approval from the Building Authority.

22. I do not agree with the Applicants’ said contentions.  Clause 11(g) only requires the Respondent to seek written consent from the Manager.  It does not stipulate what the Respondent should do when there is no Manager.  It is a bit far-fetched to suggest that the Respondent has to seek consent from other owners or the chairman of the unincorporated owners committee when the DMC does not require the Respondent to do so.  The Applicants also did not adduce evidence to show that Structure I was building work within the definition of the Buildings Ordinance, the mere allegation that it is likely to be so would not suffice.

23. Clause 11(g) does not stipulate that the written consent hasto be obtained prior to the alteration or that the Manager cannot rectify the alteration by giving subsequent written consent.  The Respondent did in fact obtain written consent from the Manager, AA Property Management Ltd. when it was appointed, as confirmed in its letter dated 28^th June 2001, (P.B203 of Exhibit “AR1”).  I cannot see that the Respondent was in breach of the DMC at all.

24. In the circumstances, I find that the Respondent was not in breach of Clauses 11(a) and 11(g) of the DMC in converting the window on the ground floor of House E to become a door (Structure I) and the Respondent is not liable to reinstate the window.

Erection of the Walls (Structures II, III, IV and V)

25. The Applicants submit that the erection of the walls (Structures II, III, IV and V) have breached Clauses 11(d) and 11(n) of the DMC because they are unauthorized building works and that Structure IV have encroached on Government land.

26. Section 14(1) of the Buildings Ordinance. Cap. 123 states as follows:-

“Save as otherwise provided, no person shall commence or carry out any building works or street works without having first obtained from the Building Authority-

(a) his approval in writing of documents submitted to him in accordance with the regulations; and

(b) his consent in writing for the commencement of the building works or street works shown in the approved plan.”

27. It is common ground that the Respondent did not obtain such approval pursuant to section 14(1) of the Buildings Ordinance.  The Respondent however submits that he does not require such an approval as the construction of the walls are exempted under section 41(3) of the Buildings Ordinance, which reads as follows :-

“Building works other than drainage works, ground investigation in the scheduled areas or site formation works not involving the structure of any building may be carried out in any building without application to or approval from the Building Authority.”

28. The Respondent further submits that the walls do not come under the definition of “building works” in section 2 of the Buildings Ordinance, which includes “any kind of building construction, site formation works, ground investigation in the scheduled areas, foundation works, repairs, demolition, alteration, addition and every kind of building operation, and included drainage works.”

29. It is misconceived for the Respondent to rely on section 41(3) of the Buildings Ordinance.  Section 41(3) is concerning building works in any building not involving the structure of the building.  The walls in question are not part of House E, but surrounding walls along the boundary of the land in which House E was erected.  They are therefore not building works carried out in any building as contemplated by section 41(3).  The respondent cannot rely on this section at all.  The case relied upon by the Respondent, Dei Chuen Ho Industrial Ltd. v. Leung Yin Por & Anor [1993] 2 HKC 495, is concerning partitioning inside a building and has no relevancy in our present case.

30. The walls are actually buildings on their own.  Section 2 of the Buildings Ordinance clearly defines “building” to include a “wall”.  The Respondent is trying to rely on the English case of Seabrink Residents Association Ltd and others v. Robert Walpole Campion & Partners (a firm) and others, 14 ConLR62 to say that walls which are not part of a building are not “a building” for the purposes of the English Building Regulations 1972.  This case is only concerning the interpretation of the English Building Regulations 1972, which may not have the same definition as in section 2 of the Hong Kong Buildings Ordinance.  Thus, it does not give any help to the interpretation of “building” in the Buildings Ordinance.

31. The Respondent also relies on the case of Chan Chik Sum v. Great Pearl Industries Ltd.[1997] 1 HKC 27 to say that iron gates, gate posts, railings and a planter wall were held not to be structural works.  This case, however, was decided in the context of whether a good title was shown.  It is not clear from the judgment whether the definition of “building” in section 2 of the Buildings Ordinance had been considered.  It is also not clear from the judgment as to the size and magnitude of the planter wall which may not be the same as the walls in this case.

32. As held in Good Think Consultants v. AG [1996] 4 HKC 782, whether an object is a building is a matter of degree.  In our present case, the walls erected by the Respondent are in my view of substantial size and magnitude, as shown in the photographs produced.  The Respondent’s own expert, Dr. LAM, also acknowledged that a wall is considered a building and requires building work approval under the Buildings Ordinance.  Thus, it is my finding that the walls in question, i.e. Structures II, III, IV and V are buildings within the definition in section 2 of the Buildings Ordinance.

33. I also find that the construction of the walls in question is clearly caught by the definition of “building works” in section 2 of the Buildings Ordinance, and hence requires prior approval from the Building Authority pursuant to section 14(1) of the Buildings Ordinance.

34. The Respondent, however, further relies on Clause 10 of the Land Grant of the Estate, which states that “No structure other than boundary walls and fences shall be erected or constructed within the non-building area shown coloured pink hatched black on the plan annexed hereto except with the prior written approval of the said Director”.

35. Clause 10, as argued by the Respondent, shows that the Government expects the owners to build boundary walls and the erection of the boundary walls would be exempted from approval, and that boundary walls and fence walls were not considered as buildings in the Land Grant.

36. The Land Grant, however, is just a contractual agreement between the Government and the owners, and cannot override statutory provisions under the Buildings Ordinance.  So, again Clause 10 of the Land Grant cannot assist the Respondent in any way.

37. The Respondent places much emphasis on the safety of the walls, but the issue is not whether the walls are safe or not.  The issue is whether the walls are authorized by the Building Authority.  If there is no prior approval, the walls are unauthorized building works and contravene the Buildings Ordinance.  Even though the Building Authority may not take any action because the walls do not pose an imminent hazard to life and property, it does not mean that the provisions in the Buildings Ordinance have not been breached.

Encroachment on Government Land

38. The Respondent admits in his evidence that his glass boundary wall (Structure IV) does encroach on Government land, but alleges that the encroachment is only by 0.3 – 0.5m and the Lands Department has tolerated this minor encroachment.

39. The Respondent also contends that Clause 11(n) of the DMC is inapplicable because it does not govern any structure that lies on Government land outside the boundary of the lot of the Estate.

40. The Applicants however submit that the Respondent has in fact hired workers to do some landscaping beyond the glass boundary wall and by building the glass boundary wall, the Respondent is utilizing the open space of House E as stipulated in Clause 11(n) of the DMC.

41. However, Clause 11(n) stipulates that the structure should not contravene the provisions of the Conditions or any legislation.  The Applicants have not adduced any evidence or submission on what provisions of the conditions or any legislation that have been contravened.  If it is simply encroachment on Government land, it may just be a case of trespass to land under the Common Law.  It is not clear what provisions of the Conditions or any legislation that have been breached.  Thus, I do not find that the applicants have proved any breach of the DMC in relation to the encroachment on Government land.

Breach of the DMC

42. Nevertheless, since I have found that the construction of the walls in question requires prior approval from the Building Authority and there is no such approval obtained by the Respondent, the Respondent is clearly in breach of section 14(1) of the Buildings Ordinance.

43. By reason of the breach of section 14(1), the Respondent is also in breach of Clauses 11(d) and 11(n) of the DMC, as the construction of the walls contravenes the relevant legislation.

Inconvenience to the Applicants

44. However, the Applicants are required to establish that there is an actual or threatened injury to some of their rights before the injunctions sought for are granted.  Mere inconvenience is not sufficient for the grant of an injunction.

45. The Applicants submit that the heightened walls have led to a security blind-spot whereby robbers are able to hide behind the walls.  I do not agree that the heightened walls are a direct threat to the Applicants’ right.  If there are robbers who want to break into the Applicants’ house, they would find their way in with or without the walls.  The threat comes from the robbers rather than the heightened walls.  It is also the duty of the patrolling security guards to patrol those hidden places.  They cannot simply ignore the blind-spot.  I do not therefore find that the heightened walls have caused any inconvenience to the Applicants as alleged.

46. The Applicants’ witness, Mr. LI has given evidence that the wall has provided an access for the robbers to enter into the upper floors of House D, but this matter has not been pleaded.  I will not therefore deal with this issue.

47. There are also other issues raised by Mr. LI when he gave his evidence, but they are not pleaded.  Mr. LOK has conceded that he will not rely on those matters that have not been pleaded.  It is therefore not necessary for me to deal with them.

48. The main injury caused to the Applicants, however, is the uneven land subsidence caused by Structure III.  This is an actual injury to the Applicants because it has caused the fresh water supply pipe to House D to burst causing leakage, the displacement of the gate and water logged patches to form after rain.

49. The Respondent denies that there is any uneven land subsidence but admits that there was a leakage from an underground pipe belonging to House D when structure III was built.  The Respondent’s expert, Dr. LAM, also gave evidence that settlement could not occur in the manner alleged by the Applicants.

50. On this issue, I accept the evidence of the Applicants’ witness Mr. LI and their expert, Mr. TSUI.  It is in fact common sense that when a low wall increases its height to an extend like Structure III, it is natural that there will be settlement caused by the greater weight or load.  The evidence of Mr. LI that the gate was displaced only when Structure III was erected clearly confirms that there was a settlement caused by Structure III.  The crack appeared after the erection of Structure III also confirms that the new wall has exerted heavy weight and load on the old wall.

51. On the other hand, I do not accept the Respondent’s allegations that the water pipe leakage was a result of aging or poor maintenance and that the crack in the old wall was just a natural occurrence.  I do not accept that these things happened at the time of the erection of Structure III just by coincidence.

52. I also accept the evidence of Mr. LI that the land adjacent to Structure III has become undulated causing water logged patches to form after rain.

53. It is therefore my finding that the erection of Structure III has caused uneven land subsidence, which in turn has caused the fresh water supply pipe to House D to burst causing leakage, the displacement of the gate and water logged patches to form after rain.

54. However, as to the Applicants’ allegation that the erection of Structure III caused the width of the passage along the side of House D to become less than 85cm in width at certain points making it difficult to access for the purpose of cleaning and maintenance, I do not accept that the Applicants have a right to claim that.  Mr. LI himself has admitted that Structure III was built entirely on the Respondent’s land, so there should not be any reduction in width of the passage caused by Structure III.

55. I also do not accept that the Applicants can claim any right to use the air space above the Respondent’s land and hence they are not entitled to say that they are inconvenienced because of the difficulty to access the passage for the purpose of cleaning and maintenance.

56. By reasons of my aforesaid findings, the Applicants have suffered injury to their rights in the use of House D as a result of uneven land subsidence caused by the erection of Structure III.  I do not find that there is any other actual or threatened injury to the Applicants caused by the erection of Structure II, IV and V.

Other grounds of defence

57. In paragraph 5(d) of the Amended Notice of Opposition, the Respondent has raised the matters concerning the agreement to built the old wall between House D and House E.  These matters are neither here nor there, as there is no allegation made against the building of the old wall.

58. The Respondent has also tried to rely on paragraph 5(c) of the Amended Notice of Opposition to say that the Applicants have acquiesced on other fence walls in the Estate.  As aforesaid, I will not deal with the issue of acquiescence because it has not been specifically pleaded.  I should however mention that the mere fact that the Applicants did not take action against the other owners would not be sufficient to raise acquiescence because as the Applicants contend, these other fence walls did not affect them at all.  Thus, there would not be any actual or threatened injury to the Applicants caused by these other fence walls, and the Applicants would not be entitled to claim any injunction in relation to these other fence walls.

59. The Respondent has raised the issue of consent of the Applicants to the Respondent building the walls in his closing submissions, but this matter has not been pleaded.  I will not therefore deal with this issue.

60. In the closing submissions, the Respondent has also raised the legal point that a court does not have jurisdiction to grant an injunction to a private citizen to compel the performance of positive statutory duties.  He relies on the cases of Devonport Corporation v. Tozer [1903] 1 Ch 759 and Gouriet v. AG [1978] AC 435.

61. I agree with Mr. LOK that this argument is misconceived and misplaced.  The Applicants are not bringing this action on behalf of the Government.  The cause of action is simply a contractual one based on the DMC.

62. The Respondent mentions about the role of the Incorporated Owners in his closing submissions.  He alleges that the Incorporated Owners are the statutory body empowered by the Building Management Ordinance to enforce the DMC.  It is not clear why the Respondent mentions about the Incorporated Owners.  If he is saying that the Applicants are not entitled tomake these claims because it is for the Incorporated Owners to make the claims, it is again a misconception on his part.  The Incorporated Owners is only empowered to deal with claims in relation to the common parts of the building: section 16 of the Building Management Ordinance, Cap. 344.  The present case, however, is not concerned with the common parts of the Estate, but the breaches in relation to the Respondent’s own land.

Conclusion

63. Having made the above findings, I come to the conclusion as follows:-

Orders

64. I therefore grant the following orders:-

Costs

65. As the Applicants have succeeded in his claim concerning Structure III only, I will order the Respondent to pay half of the Applicants’ costs.

66. I therefore make an order nisi that the Respondent shall pay half of the Applicants’ costs, to be taxed, if not agreed.  If there is no further application in relation to costs within 14 days from the date hereof, the costs order nisi shall become absolute.