富嘉大廈業主立案法團 v. CHAN YEE SHEUNG AND OTHERS

LDBM 53/2023

[2025] HKLdT 73

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 53 OF 2023

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J U D G M E N T

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1.  The Applicant is the Incorporated Owners of Fu Kar Building, No. 223/230 Johnston Road, Wanchai, Hong Kong (“the IO”). Fu Kar Building has 23 storeys, with 44 residential units on 2/F to 23/F, 7 shops/offices on 1/F and 8 shops on G/F (“Building”). The IO was incorporated on 13 August 1979.

2.  The 1^st Respondent (“R1”) and 2^nd Respondent (“R2”) are the registered owners of Flat A on 2/F including Flat Roof of the Building (“Property”). They are father and daughter. The 3^rd Respondent (“R3”) was the tenant of the Property from July 2022 to June 2024. He lived in the Property with his wife, their child and a domestic helper.

3.  The Property has two flat roofs, one at the front and one at the back (“Two Flat Roofs”). Like the Property, there are also 2 flat roofs at the front and back of Flat B on 2/F of the Building.

4.  Prior to their removal, there were (i) metal fences running along the walls of the Two Flat Roofs (“Metal Fences”); (ii) 5 canopies (“Canopies”) on one of the Two Flat Roofs; (iii) a house structure on one of the Two Flat Roofs (“House Structure”) and (iv) miscellaneous possessions of R3 (“Clutter”) on the Two Flat Roofs.

5.  The IO is represented by Ms Fiona Chong. R1 and R2 are represented by Ms Michelle Liu. R3 is represented by Mr C.Y. Lam. The Respondents’ positions align on most matters. Each adopted the others submissions, save when they took separate points to protect their own interests. Where there are differences between R1 and R2, the landlords on the one hand and R3, the tenant on the other, I shall refer to them individually. I shall not distinguish between the Respondents or who made a particular submissions when they are at one.

The dispute

6.  The case concerns the IO’s right to access the Property and the Two Flat Roofs for its contractor Mega Praise Construction & Engineering Limited (“Contractor”) to erect scaffolding to carry out inspection and repair works to the external wall of the Building, which is a common part (“Works”). The IO alleges that in breach of clauses 3 and 4 of the Deed of Mutual Covenant dated 17 December 1977 (“DMC”) and/or section 40(1) of the Building Management Ordinance, Cap. 344 (“BMO”), the Respondents unreasonably refused to allow the IO and/or the Contractor to enter the Two Flat Roofs of the Property to carry out the Works.

7.  Further or alternatively, the IO alleges that the Two Flat Roofs were full of unauthorised building works (“UBW’s), including the Canopies, Metal Fences and House Structure (together the “Structures”) and Clutter which prevented the Contractor from erecting scaffolding at the Two Flat Roofs. The IO claims that as a result, there was delay to the Works in relation to the external wall outside Flat A on 2/F to 4/F (“2A-4A Walls”) and this caused the IO loss and damage.

8.  The IO’s case is that the material events took place between January 2023 and December 2023: -

(1)  The IO originally planned for the Contractor to access the Two Flat Roofs and erect scaffolding from the Two Flat Roofs to the top of the Building in order to carry out necessary works to the external walls and pipes of the Building (“original plan”);

(2)  This could not be done due to the disputes between the parties. The Contractor thus erected scaffolding from other locations to complete the Works as far as possible;

(3)  The Contractor still had to access the Two Flat Roofs and erect scaffolding in order to complete works at the external wall outside Flat A on 2/F to 4/F of the Building (“2A-4A Walls”). The Contractor was only able to do so in December 2023, many months after the original planned time.

9.  The IO says that: -

(1)  The Contractor did need to access the Two Flat Roofs at the material time to do the Works and that the IO had the right to do so.

(2)  R1, R2 and/or R3 have unreasonably delayed in agreeing to the IO’s access to the Two Flat Roofs;

(3)  The Structures erected on one of the Two Flat Roofs prevented the Contractor from erecting scaffolding on the Two Flat Roofs. R1, R2 and/or R3 unreasonably delayed in removing them;

(4)  There was also Clutter on the Two Flat Roofs, which prevented the Contractor from erecting scaffolding and carrying out other related works on the Two Flat Roofs. R1, R2 and/or R3 also unreasonably delayed in removing the Clutter.

(5)  The Contractor commenced scaffolding works at the Two Flat Roofs on 20 December 2023 which additional scaffolding works were completed in May 2024.

(6)  This caused the IO to suffer loss and damage

10.  R1 and R2 deny that they have ever refused to allow the IO or the Contractor to carry out the Works at the Two Flat Roofs. R1 and R2 have all along allowed entry and have taken all reasonable steps to procure R3’s cooperation. Further, R1 and R2 deny that the Structures or Clutter (if any) prevented the Contractor from carrying out the Works and deny that there was delay in removing the Structures. R1 and R2 say that they have all along been cooperative and were not in breach of the DMC or BMO.

11.  R3, being the tenant also denied that he refused access, obstructed the works or was in breach of the DMC or BMO or liable to pay damages as alleged.

12.  If the Respondents are found liabile they dispute the amount of loss and damages claimed by the IO.

Notice of Application

13.  The IO’s Form 29 Notice of Application dated 18 May 2023 was amended on 15 March 2024 (“NOA”). The IO NOA had sought a mandatory injunction and claimed damages:

(1)  The IO did not pursue a mandatory injunction because the Contractor had ultimately accessed the Two Flat Roofs on 20 December 2023, around 7 months after these proceedings were commenced and 10 months since the Respondents were asked to allow the IO to access the Two Flat Roofs. This, however, should be a fact to be considered when it comes to costs;

(2)  The IO seeks damages in the sum of HK$422,193, or a sum to be assessed, being additional costs for the Works incurred by the IO as a result of Respondents’ actions: §9 NOA;

(3)  The quotations for the additional costs of the Contractor are HK$402,193 and of CSL Consultancy Services Limited (“Consultant”) HK$20,000;

(4)  As of June 2024, the 1^st instalment of the fee payable to the Contractor in the sum of HK$282,403 and fee payable to the Consultant in the sum of HK$20,000 were paid on 18 April 2024.

Notices of Opposition

14.  R1 & R2’s Amended Notice of Opposition dated 10 April 2024 (“R1 & R2 NOO”) and R3’s Amended Notice of Opposition dated 10 April 2024 (“R3 NOO”) each deny the claims against them. I shall refer to particulars averred only as necessary below.

LIST OF ISSUES

15.  The agreed List of Issues are:

(1)  Have R1, R2 and/or R3 breached the DMC and/or the BMO which resulted in delay in the IO’s entry to the Two Flat Roofs for carrying out repair and renovation works to the Building, including:-

(a)  Did R1, R2 and/or R3 refuse the IO’s entry to the Two Flat Roofs, and if so, was the refusal reasonable?

(b)  Did the Canopies, Metal Fences and House Structure obstruct the IO’s Contractor from erecting scaffolding at the Two Flat Roofs? If so, did R1, R2 and/or R3 delay in removing them?

(c)  Was there Clutter at the Two Flat Roofs? If so, did the Clutter obstruct the IO’s Contractor from erecting scaffolding at the Two Flat Roofs? And if so, did R1, R2 and/or R3 delay in removing it?

(2)  If so, did such breach(es) cause the IO to have to pay additional costs for the repair and renovation works to the Building?

(3)  If so, did the IO mitigate its loss and what/ how much damages are payable by R1, R2 and/or R3?

16.  Although not stated explicitly in the Joint Agreed List of Issues as a separate issue, whether the IO gave the Respondents reasonable notice is a sub-issue under Issue 1(a).

17.  During the trial it was conceded that the Metal Fences did not obstruct the erection of scaffolding at the Two Flat Roofs. Thus, whether the Metal Fences obstructed the Contractor is no longer an issue under Issue 1(b).

DMC clauses

18.  Paragraphs 3(d) and (e) of the DMC provide: -

“3. Each owner shall hold his part of the said building and the said premises subject to and with the benefit of the following rights privilege and obligations namely: -

…

(d) The right for the owner or occupier for the time being of any part of the said building with or without servants, workmen and others at all reasonable times on notice (except in case of emergency) to enter into and upon the other parts of the said building and the common areas thereof for the purposes of carrying out any work necessary for the maintenance and repair of the said building or any part thereof ensuing as little disturbance as possible and making good any damage caused thereby.

(e) Full right and privilege for the manager of the said building with or without surveyors workmen and others at all reasonable times on notice (except in case of emergency) to enter into and upon each part of the said building for the purpose of rebuilding, repairing, renewing, maintaining, cleansing, painting or decorating the said building or any part or parts thereof or any sewers, drains, watercourse, cable, pipes, pumps, tanks, wires or services therein or any other apparatus and equipment used or installed for the benefit of the said premises and building or any part thereof as part of the amenities thereof and not by any individual owner for his own purposes or enjoyment.”

19.  Paragraphs 4(c), (k)(v) and (q) of the DMC provide: -

“4. Each owner shall be bound by and shall observe and perform the following covenants provisions and restrictions: -

…

(c) It shall be the duty of the Manager to manage and provide services in respect of the said building and in particular the Manager shall arrange for refuse disposal from each unit in the said building and from the common parts thereof and for the lighting and ventilation of the common parts and repairing renewing maintaining and cleansing of the common parts services and facilities.

…

(k) The Manager shall have power and authority to do all or any of the following acts and things, namely:

…

(v) To repair renew maintain service clean and paint the said building or any of the common areas and common facilities thereof and for such purpose to engage and to enter into contracts with any person firm or corporation.”

20.  The IO maintains that it had the duty under the DMC to carry out the Works and to repair / maintain common parts, such as the external walls and pipes of the Building. While the Respondents deny any breach of the terms of the DMC.

LAW

Building Management Ordinance, Cap.344

21.  Section 40(1) of the BMO provides: -

“(1) A member of a management committee and any other person authorized in that behalf by the management committee may, on reasonable notice to the owner or occupier thereof, enter a flat at any reasonable time for the purpose of –

(a) inspecting, repairing, maintaining or renewing –

(i) any common parts in the flat; or

(ii) any other property in the flat the condition of which does or may affect adversely the common parts or other owners…”

Applicable legal principles

22.  The IO relies on the following authorities on DMC terms. In The Incorporated Owners of Potek House v Ka Ye Catering Management Co Ltd & Another [2023] HKLdT 74 the respondents refused to allow the IO access to their unit to carry out drainage works. The IO sought an order for access (§9). They eventually granted the IO access to their unit, and the parties agreed to discontinue their claims, but costs had to be determined (§11-12). The Tribunal took a broad-brush approach to determine the likely outcome of the application if it proceeded to trial (§36). The Tribunal found that reasonable notice was given to the respondents (§36). Further, the obligation to indemnify, which the present DMC does not have in relation to the right of access when exercised by the Manager, is not a pre-condition for the IO to properly and legally exercise its right of entry (§§40 & 50). It was held that in granting access to the unit, unrestricted access should be given (namely, no chattel or objects will be present to block the IO and its contractors or workers’ access to the common facilities pending repair), otherwise the object of granting access will be rendered meaningless (§42).

23.  In Residential Management Services Ltd v So Sai Cheong [2021] HKLdT 70, the issue was whether the respondents had unreasonably denied the IO access to their flats and so delayed works. The Tribunal held that on the evidence, the respondent did unreasonably deny the IO access to their flat (§44-46). The Tribunal also accepted that the respondent’s unreasonable refusal had resulted in delay to works and caused additional costs to be incurred (§§48-52). The respondents were ordered to pay, inter alia, the additional costs incurred as damages (§88(5)).

24.  In The Incorporated Owners of Kam Ming Court v Wong Man Yin & Ors LDBM 156/2014 (unrep) (21 November 2016), the IO sought an injunction and damages from the registered owners (R1 and R2) and tenant (R3) of the unit in question for breaches of the DMC, including unreasonably preventing the IO’s workmen from accessing their unit to carry out repairs of common parts. This led to the IO having to pay extra costs (§12(i)(c)). The Tribunal found that the registered owners and the tenant were all obligated not to prevent the manager from accessing the flat when notice had been given and access was at a reasonable time (§§93-99). On the evidence (§§60-73), the Tribunal held that the respondent had unreasonably refused the IO’s access and that they were jointly and severally liable to compensate the IO for the fees incurred as a result (§116(vii)).

25.  R1 and R2 add that whether or not a respondent has unreasonably denied the IO’s access depends on the facts of each case. In a building management context, the rights of parties under a DMC are not absolute and must as a matter of construction be subject to an element of reasonableness and also must coexist with other provisions in the DMC unless specifically excluded: see Silver Triumph Holdings Ltd. v. Guardian Property Management Ltd., HCMP 566/2012 (unrep., 18 May 2012) at §17. Thus, the exercise of the IO’s power under the DMC is subject to an element of reasonableness.

26.  In my view the primary task is to construe the DMC in the present case. Even before considering what, if any, terms ought to be implied, the express terms must be considered. The DMC clause 3(d) expressly materially provides for the right at all reasonable times “on notice (except in case of emergency) to enter into and upon the other parts of the said building… for the purposes of carrying out any work necessary … ensuring as little disturbance as possible and making good any damage caused thereby”.

CHRONOLOGY OF THE MATERIAL EVENTS

27.  The Joint Agreed Chronology of Events includes the following material events:-

(1)  8 August 2017 the IO received two Fire Safety Instructions from the Fire Services Department, requesting the IO to provide or improve certain fire service installations and equipment in Building.

(2)  13 October 2017 the IO received a Mandatory Building Inspection Order from the Buildings Department and a Mandatory Window Inspection Order.

(3)  20 March 2021 Owners’ Meeting resolved that the Consultant be engaged as the project consultant for the Works.

(4)  16 December 2022 Owners’ Meeting resolved that the Contractor be selected to carry out the Works.

(5)  18 January 2023 meeting of the Management Committee (“MC”).

(6)  2 February 2023 meeting at the Property between Foreman Li, Chan the scaffolding supervisor, Mr Yu of the Manager and Lin Lai Lai (Lin), R3’s wife.

(7)  17 February 2023 MC meeting.

(8)  13 March 2013 the IO’s Contractor entered the Two Flat Roofs and carried out some works.

(9)  17 March 2023 meeting at the Property between Project Manager Lee, Forman Li, Mr Yu, Chan Ping Sun (CPS), Chan Yiu Cheung (“Jason”) and Lin during which the IO produced a draft undertaking which was given to CPS, Jason and Lin.

(10)  21 March 2023 the Manager by letter gave R1 and R2 notice to allow entry on or before 27 March 2023 when the Contractor would be leaving the Building.

(11)  22 March 2023 letter from C&Y to C&L giving notice of the 27 March 2023 deadline.

(12)  27 March 2027 the Respondents delivered to the IO the CPS Letter, the Respondents Agreement and R3’s Undertaking. The Contractor’s scaffolding team left the Building (according to the IO).

(13)  29 March 2023 meeting at the Property between Foremen Li, Jason and Lin.

(14)  15 April 2023 Owners Meeting (“EGM”) resolving, inter alia, to commence legal proceedings against the Respondents.

(15)  19 May 2023 these proceedings were commenced.

(16)  20 December 2023 the IO’s Contractor commenced scaffolding work at the Two Flat Roofs.

(17)  18 April 2024 the IO paid the Consultant HK$20,000 and the Contractor HK$282,403, being the first installment of the additional works (according to the IO).

(18)  May 2024 the additional scaffolding works were completed.

28.  The IO’s case is that 27 March 2023 is a material date because that is when the scaffolding team of the Contractor left the Building and additional fees started to be incurred.

WITNESSES

29.  The IO called one factual witness, Ms. Wu Mei Mei Catherine (“Madam Wu”), witness statement dated 20 June 2024, to support its claim. R1 & R2 called 4 factual witnesses (i) Ms Chan Lai Kuen (“R2”) witness statement dated 13 August 2024, (ii) Mr Chan Ping Sun (“CPS”) witness statement dated 20 June 2024, (iii) Mr Chan Ho Sun (“2B Mr Chan”) witness statement dated 20 June 2024 and (iv) Mr Chan Yiu Cheung (“Jason”) witness statement dated 20 June 2024. R3 called 2 factual witnesses (i) Mr Lorho Divy (“R3”) witness statement dated 20 June 2024 and (ii) Ms Lin Lai Lai (“Lin”) witness statement dated 20 June 2024.

30.  Each witness called confirmed and adopted their witness statement as their evidence-in-chief.

Assessment of credibility legal principles

31.  The IO relies on the general principles of assessing witnesses’ testimony summarised in Hydrotech Waterproofing Solutions Limited v Shun Yuen Construction Company Limited [2022] HKCFI 1170 in §§3-6 per Hon Mimmie Chan J: -

(1)  The Court decides an outcome on the basis of facts and evidence as presented to the Court, according to applicable legal principles and not out of sympathy for any particular party;

(2)  Assessment of a witness’s demeanour, and of whether a witness has been discredited over matters to which he has given evidence, are two matters which will be considered by the Court in assessing the general credibility of a party’s case on any particular issues;

(3)  Other relevant and important considerations are whether a party’s case is inherently plausible or implausible, and whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is either undisputed or indisputable;

(4)  It is also useful to keep what Lord Pearce observed in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 (cited in §5 of Hydrotech) in mind: -

“Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over-much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”

32.  R1 & R2 refer to the same principles as set out in Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at §53. In assessing the credibility of a party's case on a particular issue, the Tribunal should take into consideration the following:-

(1)  Whether the party's case is inherently plausible or implausible;

(2)  Whether the party's case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3)  Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, this is relevant to the assessment of his overall credibility; and

(4)  The demeanour of the witnesses.

33.  I have considered all of the evidence of each witness, both written and oral.

Witness called by the IO

Madam Wu

34.  Madam Wu’s live evidence contained, inter alia, the following material points:-

(1)  After the IO received the Fire Safety Instructions and Mandatory Inspection Orders in 2017, it took more than 4 years for the IO to select a contractor for the works.

(2)  She had not entered the Property since R3 moved in.

(3)  The IO’s case is that everything on the Two Flat Roofs had to be cleared before the Works could be carried out.

(4)  The IO had the details of all flat owners in the Building but the IO did not contact R1 & R2 directly. She agreed that the IO had a duty to contact the flat owners to make arrangements for access to the Two Flat Roofs.

(5)  At the 18 January 2023 MC meeting, the IO asked 2B Mr Chan to contact R1 & R2, but there is no record in the meeting minutes that the IO asked him to do so. The minutes state that the Contractor would contact the owners of 2/F for the scaffolding works.

(6)  From 18 January 2023 to 3 February 2023, neither the IO nor the Management Company contacted R1, R2 or CPS. She believed that 2B Mr Chan contacted R3 on or around 1 February 2023.

(7)  She claimed that the requirement for the Respondents to remove everything on the Flat Roofs was stated by the Contractor on 2 February 2023, but that was not recorded in writing.

(8)  Asked why the requirements of the IO were not recorded in the meeting minutes, Madam Wu claimed that the meeting minutes only recorded the general items and they are not complete records of what as discussed in the meetings.

(9)  She accepted that there was no meetings, communications or letters between the IO and R3 before the 17 February 2023 MC meeting, in which the IO decided to take legal action against the Respondents.

(10)  She accepted that it was correct for Lin to consult R1 & R2 to discuss the arrangements for the works.

(11)  She admitted that the Respondents had allowed the Contractor’s workers to enter the Two Flat Roofs for the Works from the very beginning, but said that the Contractor was unable to carry out the Works.

(12)  She agreed that there was a house structure on the flat roofs of Flat 2B, and the Contractor informed the IO that it would not affect the scaffolding works on the flat roofs. She also admitted that the house structure at Flat 2B was similar to the one at Flat 2A. She was not aware of the existence of a canopy at the 2B flat roof.

(13)  She agreed that in various meeting records and letters from the IO’s solicitors or the Management company, there were no mention of a request to remove the Metal Fences, Canopies, House Structure, Clutter and other miscellaneous items on the Flat Roof by the en of March 2023.

(14)  Her request that the Respondents were to communicate with the IO through lawyers was because the IO had no idea as to the identity of the landlord and the tenant.

(15)  Works were carried out at the Two Flat Roofs on 13 March 2023. Madam Wu agreed that R3 allowed the Contractor’s workers to enter and access the Two Flat Roofs to carry out works, and some temporary works were done.

(16)  A draft undertaking was prepared by the IO and presented on 17 March 2023. Madam Wu did not agree with the wording stated in clause 1 namely, that the reason for the removal of items was for personal and property safety.

(17)  She stated that during the 17 March 2023 meeting at the Property, the Contractor told the Respondents they would consider their requests, as it showed a certain degree of courtesy. She did not agree that the requests made by the Respondents were reasonable. The Contractor and the Consultant both advised the IO to maintain the original terms of the undertaking, but such advice was not mentioned in her witness statement.

(18)  She had no comment about the calculation of the costs of the additional works because it was approved by the Consultant. The IO did not discuss with the Contractor the price of the additional works before engaging the Contractor for the works.

(19)  She also agreed that the water proofing works on the Two Flat Roofs has yet to be carried out, and the payment for water proofing works has yet to be approved by the Consultant for payment.

(20)  The quotation from the Contractor issued on 4 March 2024 was prepared because the IO’s solicitors asked for a quotation to be prepared.

(21)  She confirmed that the IO sought no further amendment to the NOA.

35.  The IO submits that Madam Wu gave direct and detailed answers on matters that she had knowledge of.

36.  While R1 & R2 submit that Madam Wu is a dishonest and unreliable witness. Throughout her testimony, she was evasive and gave conflicting versions of events. She was also uncooperative and refused to answer questions unfavourable to her. R3 submits that Madam Wu’s evidence lacks credibility, showed inconsistency with the contemporaneous records, such as letters and minutes of meetings, she refused to provide an answer to multiple questions asked during cross-examination, and her explanation to certain events was illogical and/or unreasonable.

37.  The IO does not understand the criticisms made by R1 and R2. For example, Madam Wu did not give conflicting accounts of the structure erected on 13 March 2023. Her case has been clear throughout that the structure was not proper scaffolding but more akin to a temporary ladder.

38.  The IO answers R3’s the criticisms of Madam Wu thus: -

(1)  Whilst Madam Wu did not personally attend the meetings with the Respondents at the Property, there are letters from the Contractor that report on what took place during some of the meetings. There is no reason to doubt such reports, particularly when there are inherent difficulties with the Respondents’ evidence;

(2)  R3 referred to Madam Wu’s refusal to answer certain questions during cross-examination. The more pertinent question, however, is whether those questions are relevant to the material issues in dispute. The identity of the tenant mentioned in the Notice dated 22 September 2022 (a copy of which is not even in the trial bundle) or the “bitch” she referred to in her WhatsApp message are not major issues in these proceedings;

(3)  3 has raised one example of “discrepancy”. Madam Wu could not be expected to be able to memorise the contents of each and every single document in the trial bundle, or to be able to perfectly recall all the MC meetings that were held without reference to records.

39.  I found material parts of Madam Wu’s evidence were contradicted by documentary evidence and there was some internal inconsistency, as more particularly addressed below.

Witnesses called by the Respondents

40.  The IO raised two issues with the Respondents’ witness statements, before going to the substantive content of the witnesses’ evidence:-

(1)  Material parts of the witness statements of R1, R2, 2B Mr. Chan, CPS, and Jason are identical therefore no weight should be placed on any of the witnesses;

(2)  R3’s witness statement only refers to Lin’s witness statement and confirms the truth of its contents (including those concerning events that he has no personal knowledge of), without any elaboration on or independent account of events that took place. No weight should be placed on R3’s evidence.

41.  In Ho Sing Yin v Chan Yiu Ling the Administratrix of the estate of Tsang Kwong Lik Deceased HCA 90/2010 (unrep) (13 July 2012), DHCJ Saunders addressed witness statements of different witnesses being identical, at paragraphs 58 to 65, and in particular: -

“58. This is not the first time that I have seen witness statements from two witnesses in which the majority of the paragraphs are precisely identical. I accept Mr Leung’s submission that where witness statements are presented to the court which are substantially identical, it will often be unlikely that the court will be able to place any weight at all on either witness.

59. It is right that Yau Man said that she did not have any discussion with Yau May before making her witness statement, and denied having read Yau May’s witness statement before signing her own witness statement. If that was the case the only inference that can be drawn from the fact that 64% of her witness statement was precisely identical to another witnesses statement is that the solicitors who have prepared her witness statement have slavishly copied that of another witness. It is simply unbelievable that two witnesses, even sisters, could have used precisely the same words and punctuation in telling their story.

60. … The only proper way in which such a witness statement can be taken is for a solicitor to sit with the witness and question the witness, in the same way as evidence would have been elicited in the past in chief. From the answers to the questions the narrative, or “the story”, is built up in the form of a witness statement.

61. The fact that our system now requires full disclosure of a party’s case, in part by the exchange of witness statements prior to the trial, is not a license to solicitors to tailor or engineer witness statements in order that they may corroborate each other. If they do so, it will be transparent, as it is in this case, and it is likely that the court will reject the evidence of the witnesses.

62. Mr Chong sought to justify the identical paragraphs by saying that:

“It is common in the legal profession that witness statements are prepared by solicitors upon the instructions given by the witnesses. The presentation of one’s evidence in a witness statement such as the choice of words, phrases, expressions and formatting preferences is usually a matter of style determined by solicitors who know much better than the witnesses as to the relevance and weight of different events and matters.”

63. …. I accept that a solicitor may determine the formatting of a witness statement.

64. But it is not for a solicitor to “choose” the words, phrases, or expressions in a witness statement. Those are all matters for the witness. Where witness statements are identical it is difficult if not impossible to believe that the witnesses have independently provided, what Mr Chong correctly described as, the “raw materials” for the preparation of the witness statement.

65. The preparation of the witness statement for a trial is a matter which is not to be undertaken lightly, or handed down to the most junior solicitor. It is an important and delicate task, requiring a proper understanding of the case, particularly the jurisdictional basis upon which any application might be made or relief might be sought. It is a task which must be undertaken by solicitors responsibly, ensuring that words are not put in a witnesses mouth, and that the witness should express himself in his own words, words which he will understand when he is cross-examined on that statement.” [emphasis added]

42.  The IO also relies upon Leung Wing Hong v Leung Yiu Cho, the administrator of the Estate of Leung Kam Wah, the Deceased HCMP 1473/2014 (unrep) (11 August 2016) §§24-28, in particular: -

“28. … The contents of the Interveners’ affirmations were clearly mostly “copied and pasted” from the same version … In their affirmations, they had all confirmed what D had said were accurate and in this respect, they had not really given any independent evidence as to their own recollection or version of events, in particular in relation to the disputed 1993 Agreement and the 2009 Agreement. I therefore accept that the Interveners’ affirmations, in so far as they purported to confirm what D had said about the two agreements should not be given any weight.”

43.  In Hay Design Limited v Heng Tai Contracting (Int’l) Co Limited [2020] HKCFI 358 at §21 Hon Mimmie Chan J declined to give weight to similar evidence where, inter alia, a witness did not give any direct evidence as to his discussion and alleged agreement with Chan in early 2009. He only referred to another persons witness statement, and confirmed the truth of its contents, without any elaboration on or independent account, citing Ho Sing Yin.

44.  The IO compared the witness statements of R1 and R2. First, §4 of R1’s witness statement and §5 of R2’s witness statement are identical. There is a mistaken reference to “my brother’s daughter” in R1’s witness statement (copied from R2’s witness statement), which should read “my son’s daughter”. Secondly, the remaining paragraphs of both witness statements are almost word for word identical, save for changes as to pronouns or names.

45.  Comparing the witness statements of 2B Mr. Chan, CPS and Jason, descriptions of material events that they have personally attended (and hence should have individual recollections of) are again almost identical. CPS and 2B Mr Chan attended the 17 February MC meeting. CPS and Jason attended the 17 March meeting at the Property. While the 15 April 2023 EGM was attended by all 3, CPS, 2B Mr Chan and Jason.

46.  Other parts of the witness statements of 2B Mr. Chan, CPS and Jason are substantially identical, being hearsay evidence of matters told by the other person. For example, only Jason attended the 29 March 2023 meeting but CPS gives evidence on what he was told by Jason. I agree that repetition of events by persons with no personal knowledge adds nothing to the evidence, and shall be disregarded.

47.  Cross-examined about the circumstances in which they gave instructions to solicitors Messrs Cheung & Liu (“C&L”) for preparation of their witness statements: -

(1)  R2 said that it should have been CPS who gave instructions to C&L to draft the witness statements, and R1 and R2 were then asked to confirm the contents. R2 said that she did not even recall meeting C&L before signing her witness statement;

(2)  CPS initially claimed not to recall if he saw the lawyers alone or with 2B Mr. Chan and Jason, but later insisted that he gave instructions alone;

(3)  2B Mr. Chan and Jason both claimed that they met the lawyers alone to give instructions for the witness statement, and they did not communicate with each other or CPS before doing so.

48.  Even if CPS, 2B Mr. Chan and Jason Chan met with lawyers alone and did not discuss with each other, Ms Chong points out that this is exactly what happened in Ho Sing Yin. Thus no weight should be placed on any of their evidence.

49.  A solicitors preparing a witness statement has a duty to do so responsibly to ensure that the actual evidence of that witness is properly recorded, so that witness has his own evidence put before the Court. It is unacceptable for solicitors to produce identical witness statements. Substantial material parts of the witness statements of the Respondents are the same. It appears that the fault primarily rests with the solicitors. I am conscious that C&L have not been heard. This may be the result of a failure to appreciate what is required when taking the evidence for a witness statement. It does not appear that there was any deliberate effort on the part of the witnesses to collude or put anything but the truth before the Tribunal. The solicitors have done the witnesses, and their clients, a disservice. They risk having the evidence ruled out or rejected. I shall not reject the evidence in toto. It is a question of weight. I caution myself against accepting evidence set out in the said witness statements, that is not otherwise independently corroborated or addressed directly by the witnesses in the witness box. I place particular weight on the cross-examination of those witnesses.

50.  Further, the IO says that no weight should be placed on the evidence of the following witnesses: -

(1)  R1, who did not attend the Tribunal to give evidence and hence was not cross-examined;

(2)  R2, who had significant difficulty recalling the events that took place, including the fact that she even made her witness statement in the first place during examination-in-chief. Despite the filing of her witness statement, she admitted during cross-examination to have almost no personal knowledge of the material events as CPS was the one who handled them;

(3)  2B Mr. Chan, who similarly had trouble recalling events that took place. He could not even remember the issue of the Two Flat Roofs or the resolution of legal action being taken being discussed at the 17 February 2023 MC meeting, which was part of his witness statement, where he was apparently able to give many details about the meeting. He claimed that he was able to remember the details when he made the witness statement in August 2024, but only had a vague recollection at trial in April 2025. This is inconceivable to the IO. Similarly, 2B Mr. Chan only latterly remembered “bits and pieces” at trial about the 15 April 2023 EGM.

51.  The IO says that R3 has no independent account of events that took place. Despite the fact that he adopted the contents of Lin’s witness statement as his evidence, he was unfamiliar with the same. For instance, when he was asked to explain whether “scaffolding work” in §45 of Lin’s witness statement referred to that carried out on the Two Flat Roofs on 13 March 2023 or to that carried out in the entire Building, he was unable to answer and said “you’d better ask [Lin]”. There were other instances when he told counsel for the IO to ask Lin about what happened instead. I consider that to be an honest response to matters he was not able to answer himself, rather than making up a response.

52.  The IO says that Lin had the tendency to package her testimony to make herself appear more cooperative and reasonable, even when what she said is clearly inconsistent with contemporaneous correspondence or R3’s own court documents. I found Lin to be quite straight forward. Her account was entirely plausible.

53.  The IO invites the Tribunal to accept the IO’s version of events instead.

R1’s witness statement

54.  R1 did not attend the trial. On the first day of trial, R1’s witness statement was ruled admissible hearsay evidence. Ms Liu submits that as far as the weight of R1’s witness statement is concerned, the main facts stated in R1’s witness statement which are within R1’s knowledge are :-

(1)  R1 asked R2 to sign the R3 tenancy agreement dated 13 July 2022 (“R3 Tenancy Agreement”) on R1’s behalf;

(2)  R1 has authorised CPS to deal with all matters in relation to the Property on his behalf since renting the Property to R3;

(3)  R1 did not attend any meeting of the owners of the Building and did not receive any material letter from the IO or the Manager;

(4)  R1 signed the R3 “waiver of rent agreement” (“Waiver of Rent Agreement”) prepared by CPS on around 1 March 2023;

(5)  R1 signed an authorisation letter (“Authorisation Letter”) confirming CPS’s capacity to deal with all matters in relation to the Property on his behalf on 28 March 2023.

55.  R1 & 2 submit that R1’s witness statement should be given full weight for the following reasons :-

(1)  R1 is a 107-year old elderly man who is suffering from heart disease and severe hearing impairment. It would not have been reasonable and practicable for R1 to have to attend the Tribunal to give evidence at trial and any reasonable person would not have expected him to do so. However, the IO insisted that if he did not attend his witness statement must be excluded.

(2)  The documents exhibited to R1’s witness statement were made contemporaneously with the occurrence or existence of the matters stated. There is no evidence that R1 has any motive to conceal or misrepresent matters. Nor that the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

(3)  The evidence adduced by R1 is consistent with the accounts given by other witnesses. In particular:-

(i)  R1’s evidence that he has authorised CPS to deal with all matters in relation to the Property on his behalf was confirmed by R2, CPS and 2B Mr. Chan. R3 and Lin also confirmed that CPS has been the authorised representative of R1 and R2 in relation to the Property since they rented the Property.

(ii)  R1’s evidence that he did not receive any letter from the IO or the Manager at all material times is consistent with CPS’s evidence that if letters were sent to flat 2A addressed to R1 and R2, R3 would inform Ms. Chik who would then tell CPS and CPS would handle them on behalf of R1 and R2 and Madam Wu’s evidence that the IO did not send letters to the residential address of R1 and R2 as she claimed that the IO did not have such information.

(iii)  R2 confirmed that upon R1’s request she signed the Tenancy Agreement on behalf of herself and R1. R2 and CPS also confirmed that R1 signed the Waiver of Rent Agreement on behalf of R1 and R2. The same Tenancy Agreement and Waiver of Rent Agreement were also produced by Lin.

56.  I accept the evidence of R1 contained in his witness statement. I have considered whether the repetition between witness statements coupled with the fact R1 was not cross-examined entirely undermines his evidence. It does not. The material matters are supported by other documentary evidence. The more controversial point is whether 2B Mr Chan or CPS had authority to act on behalf of R1 and R2 in respect of the Property. It was clearly CPS who had been given the task and responsibility for acting on their behalf. He lived near R1 and had handled the leasing of the Property and matters arising for them. It was his son Jason who came to assist him to resolve the issues raised by the IO, not some other family member. Further, having observed both 2B Mr Chan who was vague and hesitant and CPS, who was on the ball and able to engage to respond to questions, it is entirely plausible that R1 and R2 would rely on CPS to take responsibility for their Property.

Witnesses called by R1 & R2

57.  In respect of R1 and R2’s witnesses, Ms Lui asks the Tribunal to take account of the elderly witnesses’ age and health conditions. R2, who is 79 years old, was ill on the day she give evidence. While 2B Mr. Chan is 75 years old and had health issues recently, so it would be fair to give certain leeway to them. Although these elderly witnesses might not be able to recall everything they are said to be honest witnesses who made fair concessions to questions put to them.

58.  Given the present circumstances in assessing veracity I caution myself against reliance on consistency between written witness statement of the Respondents’ witnesses. I place particular importance on the evidence given under cross-examination and the contemporaneous documents.

R2’s evidence

59.  At trial R2 confirmed that she delegated all matters related to the Property to CPS. She was not personally involved in the communications between the parties. R2 was a poor witness in that it would not be safe to rely simply on her evidence where not supported by other evidence. Initially she appeared highly suspicious of the entire proceedings, not willing to admit anything, even her own witness statement. She did then answer questions and the answers appeared honest, but she had very little knowledge that could usefully add to other evidence. I do not rely on her evidence.

2B Mr Chan’s evidence

60.  2B Mr Chan’s live evidence material points included that:-

(1)  He denied that the IO communicated with him or that he helped in liaising with the IO about the renovation works or water leakage incident at the Property in around 2020. It was CPS who handled those matters.

(2)  During the 18 January 2023 MC meeting he was only asked about matters relating to Flat 2B. He denied that he promised to contact R1 & R2.

(3)  When put that he was made aware of the need for the Contractor to use both the flat roofs of Flat 2A and Flat 2B for the renovation works, he said he was only aware that the flat roofs of Flat 2B were required.

(4)  He did not contact R1 & R2 after he knew that the Contractor was trying to contract them nor did he make arrangements for Lin to contact the Contractor on or around 1 February 2023.

(5)  The items stored on the flat roofs of Flat 2B were a high ladder and some items for the stationery shop, and they were not removed before scaffolding was erected on the Flat 2B flat roofs. The scaffolding workers told him that as long as the items could be moved aside to make enough space, it would suffice.

(6)  The water proofing works at Flat 2B has only been carried out on one side, and not on the other side. He has chased up the IO chairman but could not get an answer.

61.  2B Mr Chan fared only marginally better than R2. He was vague and unable to answer questions. I accept that he had not been responsible for the Property and that he was telling the truth on matters relating to his own property. Save in respect of his own property, I do not rely on his evidence unless it is otherwise supported.

CPS’s evidence

62.  Material parts of the live evidence of CPS are inter alia that:-

(1)  He does not live in the Building.

(2)  It was R1 & R2, not 2B Chan, who asked him to help with the 2020 renovation works of the Property. He denied that 2B Mr Chan helped with communicating with the IO.

(3)  He did not receive the letter from the Management Company to R1 & R2 dated 4 February 2023 until 17 March 2023.

(4)  At the 17 February 2023 MC meeting he presented himself as the authorised person of R1 & R2. He agreed that R3 requested compensation from R1 & R2. He denied saying that the IO needed to obtain an order for the Court for entry to the Flat Roofs.

(5)  The Respondents’ counter-proposal and comments in response to the draft undertaking provided by the IO on 17 March 2023 were suggestions to the Contractor, but they were not pre-requisites for the Respondents to allow access to the Two Flat Roofs, as the Respondents had already given consent for entry.

(6)  At the 17 March 2023 meeting at the Property, there was no mention of the requirement of site clearance. The Contractor said that as long as the items were put aside providing enough space for the works, it would suffice. The Contractor mentioned that they would assist in dismantling the canopies. There was no mention of removing the House Structure.

(7)  His understanding was of the requirement for all the items on the Two Flat Roofs to be cleared only applied when the water proofing works of the flat roofs were carried out. Before the 15 April 2023 EGM , he did not have any idea as to how he could cooperate with the works. At that meeting, Madam Wu told him that site clearance means that everything had to be cleared with not a single item left behind. It was the first time he heard such a requirement from the IO.

63.  I readily accept and rely on the evidence of CPS, as more particularly addressed below. He appeared earnest and sincere. He had worked tirelessly to resolve the issues that have given rise to these proceeding. His evidence was duly tested under cross-examination. His credibility was not undermined. His account was inherently plausible and was not contradicted in a material way by other evidence.

Jason’s evidence

64.  Material points in the live evidence of Jason include:-

(1)  The draft undertaking prepared by the IO was presented on 17 March 2023 when R1, R2 and R3 had already been allowing the IO to enter the Two Flat Roofs. The counter-proposals from the Respondents were suggestions made by the Respondents to the Contractor and not a pre-requisite for the Contractor to access the Two Flat Roofs. He disagreed with the suggestion that the requests made by the Respondents in the counter-proposals were unreasonable. He also added that those requirements reflected the promises made by the Contractor.

(2)  Jason’s understanding was that even without the draft undertakings prepared by the IO, the Contractor could gain entry to the Two Flat Roofs and commence the renovation Works.

(3)  On 29 March 2023 the items on the Flat Roofs were moved aside, and the Contractor told him that as long as the items were put aside there would be no problem, and the Contractor was waiting for the notification from the IO to commence works.

65.  I found Jason to be a credible witness. He gave evidence in a straightforward manner. He was cross-examined on the details and his evidence stood up to scrutiny. His account was consistent with the documentary evidence and was entirely plausible. I accept his evidence also for the reasons addressed below.

R3’s evidence

66.  Mr Lam referred to the following material parts of R3’s live evidence:-

(1)  At the 2 February 2023 meeting held at the Property the Contractor only asked him to move aside the items on the Two Flat Roofs for the scaffolding works. The Contractor also promised to set up an overhead safety net, and that the Contractor would carry out works on one of the Two Flat Roofs first and followed by the other.

(2)  He confirmed that at the material times, he had agreed for the Contractor’s workers to enter the Two Flat Roofs to carry out works.

(3)  Lin’s letter to the IO on 8 March 2023 was not sent because R3 would not allow the Contractor’s workers to access the Flat Roofs, rather it was because R3 wanted to ask for a timetable for the works in order to facilitate the access for the renovation works.

(4)  Before the Contractor’s workers commenced works on 13 March 2023, he moved aside the items on the Two Flat Roofs, and the workers had no issue with that.

(5)  The scaffolding works were carried out on 13 March 2023. He saw the workers erect the scaffolding in the morning, and the workers sawed off the bottom part of the scaffolding at noon.

67.  R3 gave evidence naturally in a fair manner. In general, I accept his evidence for the reasons discussed below.

Lin’s evidence

68.  The live evidence of Lin contained inter alia the following material matters:-

(1)  The Canopies on the Two Flat Roofs were installed by R1 & R2 after their family moved into the Property.

(2)  At the 2 February 2023 the Contractor told her that the items placed at the Two Flat Roofs could remain at the original place, and they would be put aside if it was required. The Contractor did not request the removal of the Canopies and House Structure on the Two Flat Roofs.

(3)  She wrote to the IO on 8 March 2023 because she wanted to know the dates and times for which the Contractor’s workers would carry out renovation works at the Two Flat Roofs.

(4)  On 13 March 2023 some of the workers climbed into the Two Flat Roofs through the scaffolding and some of the workers entered through the main door of the Property. She thought the workers went to the Flat Roofs on 13 March 2023 on or about 7 March 2023 she had asked Ms Yau of the Management Company about when the workers would come.

(5)  On 13 March 2023 and 15 March 2023 the Contractor did not tell her that R3 was being uncooperative.

(6)  During March to September 2023, there were some periods of time in each month where the workers would go to the Property to carry out works.

(7)  She said that the structure erected by the Contractor’s workers on 13 March 2023 was a scaffold.

(8)  The IO undertaking provided to the Respondents on 17 March 2023, was given to them after the scaffolding works had commenced, and the works could be completed even if the IO undertaking was not signed by the parties. During the 17 March 2023 meeting she told the Contractor that the Respondents would make a reply after reading the contents of the draft undertakings carefully, and the Respondents did not say that they disagreed with the contents.

(9)  She considered that the counter-proposals made by the Respondents and the requests were reasonable, as they represented the promises made by the Contractor during the meeting with the Contractor on 2 February 2023.

(10)  She believed that the first time that CPS knew that the Two Flat Roofs had to be borrowed for the renovation works was on 14 February 2023.

(11)  After Jason sent the counter-proposals to the IO on 22 March 2023, R3 did not receive a reply from the IO.

69.  Overall, I found Lin to be a credible witness. She was uncertain on some matters, particulars of which are addressed below, but I found her to be an honest witness.

ISSUE 1: DID R1 AND R2 AND/OR R3 BREACH THE DMC AND/OR BMO

Issue 1(a): Whether R1 and R2 and/or R3 refused the IO entry to the Two Flat Roofs?

70.  Madam Wu confirmed that R1 and R2 have all along allowed the IO and the Contractor to enter the Two Flat Roofs. Ms Liu submits hence, R1 and R2 clearly did not refuse the IO’s entry to the Two Flat Roofs. However, they made detailed submissions on all issues. R3 also denies refusing entry and access to the Two Flat Roofs to erect scaffolding for the Works.

71.  The Respondents’ case is that contrary to the IO’s allegation that the Respondents unreasonably refused entry, it was in fact the IO which unreasonably refused to arrange for the Contractor to enter the Two Flat Roofs to carry out the Works. Any delay was caused by the IO.

72.  The IO alleges that during the 18 January 2023 MC meeting, 2B Mr. Chan promised to assist the IO to inform R1 and R2 of the need to erect scaffolding on the Two Flat Roofs. Madam Wu’s evidence is that he said that he might only be able to contact his family members after the Lunar New Year. 2B Mr. Chan was a MC member at the time. His witness statement claims he was “very tired and did not pay much attention to what was said in the meeting”. The IO considers this highly dubious as he claimed that he only agreed to become a MC member to have the quorum met and did not usually attend MC meetings, so the 18 January 2023 meeting must have been a memorable event for him. However, he says that he did not recall the issue of borrowing the 2/F flat roofs (including his own) being discussed. The IO considers 2B Mr. Chan’s evidence on what was said in the meeting should carry no weight.

73.  The IO submits hence, R1 and R2 “should have known” about the Contractors’ need to use the Two Flat Roofs since mid or late January 2023. Madam Wu’s evidence is said to accord with common sense. When the issue of borrowing the 2/F flat roofs was discussed during the meeting, the MC would obviously ask 2B Mr. Chan directly as he was a family member of the R1 and R2 and it makes sense that would agree to help liaise with them, which he denies.

74.  Whereas, the minutes of the 18 January 2023 MC meeting state that the Contractor will contact the owners of the flat roofs on the 2/F, namely the Property and Flat 2B, to arrange scaffolding installation.. The minutes did not state that the IO requested 2B Mr. Chan to liaise with R1 and R2 in relation to the scaffolding arrangement and he agreed. The IO did not at that point take further steps to give the Respondents notice, but still relies upon the 18 January 2023 MC meeting. The IO cannot possibly simply rely on 2B Mr Chan’s attendance at the MC Meeting to discharge its duty under the DMC to give reasonable notice to another owner. That would be irresponsible in the extreme, given the IO merely suggests that R1 and R2 “should have known” that the Contractor needed to enter the Property and erect scaffolding at the Two Flat Roofs. I find that at that point the IO simply left it to the Contractor to contact the owners of the Property. The minutes accord with the reality and stated the true position.

Whether R1 & R2 have allowed entry since gaining knowledge of the IO’s need to enter the Two Flat Roofs

Knowledge of R1 and R2

75.  CPS is R1’s youngest son who lives close to R1. In light of R1’s and R2’s age and medical conditions, they have authorised CPS to deal with all matters relating to the Property on their behalves. Since renting the Property to R3, communications between CPS, on behalf of R1 and R2, and R3 were via the estate agent Ms. Chik.

76.  Madam Wu never attended the Property but was the only witness for the IO, so the IO relies upon contemporaneous documents that come from the Contractor as independent sources of evidence. Where there are conflicts between the evidence of the Respondents and the letters of the Contractor, the IO invites the Tribunal to accept the latter.

77.  On 1 February 2023, Foreman Shawn Li (“Shawn”) visited Flat 2B and obtained agreement from 2B Mr. Chan to use the 2B flat roofs without issue. Shawn asked 2B Mr. Chan for the telephone number of the tenant of the Property, but he refused to give it. That afternoon, Shawn received a call from Lin, and a meeting was arranged at the Property the next day.

78.  On 2 February 2023, there was a meeting at the Property between Shawn, Mr. Chan the scaffolding supervisor of the Contractor, Mr. Yu of the Manager and Lin.

79.  The IO’s account of what took place during the meeting comes from a letter of the Contractor dated 4 February 2023. The Contractor provided explanations regarding the requirements for the Works. Towards the end of the meeting, Lin said that she needed to discuss with R3, and also R1 and R2, before she could agree with allowing the Contractor to enter the Two Flat Roofs.

80.  Madam Wu gave evidence at trial that the requirement to clear the Two Flat Roofs was made plain during this meeting. However, Madam Wu was not at that meeting and did not go to the Two Flat Roofs at any time.

81.  On 3 February 2023, the Project Manager Leo Lee (“Leo”) followed up with Lin by telephone, but Lin still needed to consult R1 and R2. On 4 February 2023, the Manager issued a letter to R1 and R2, informing them that the Works were expected to take place on 20-24 February 2023 and requested them to provide the date on which the Two Flat Roofs could be available for installing scaffolding, by 17 February 2023. R1 and R2 were told that failure to respond promptly may delay the Works and result in additional costs or losses, which the IO reserved the right to claim against them.

82.  The Manager’s letter dated 4 February 2023 to inform R1 and R2 of the IO when the IO needed to use the Two Flat Roofs was not received by R1, R2 or CPS until Mr. Yu served it on CPS on 17 March 2023. Lin said that on 14 February 2023 CPS told her he had no detailed information about the renovation project and she therefore gave CPS a copy of the renovation project schedule. She confirmed that CPS did not know of the IO’s need to use the Two Flat Roofs prior to being informed by her. The IO replies that even if true, it cannot be the fault of the IO, who correctly sent the letter to the Property. It is incumbent on R1 and R2 to make proper arrangements to collect letters addressed to them sent to the Property.

83.  I accept that it was only on 14 February 2023 that for the first time R1 and R2 knew of the IO’s need to enter the Two Flat Roofs to carry out the Works. Had they known prior to 14 February 2023 that the Two Flat Roofs had to be used CPS would not have asked Lin about it on that day. Given the Manager was requesting an available date, one would expect the IO to follow up when no reply was received to this letter.

84.  There were discussions between the Respondents, including on 14 February 2023 between CPS, Ms. Chik, R3 and Lin. §17 of Lin’s witness statement states that she claimed that R3 and she “agreed that the works must be carried out… and [they] hoped that they can be carried out smoothly”. The IO says that this is inconsistent with the WhatsApp message sent by Lin to Ms. Chik on 16 February 2023, where Lin complained about the Works and said that “it would have been better if the work had started after our contract ended”. However, it was agreed at trial that this was not a request, but merely a statement. Yet the IO still says that §17 of Lin’s witness statement was drafted with hindsight to make Lin appear more cooperative and reasonable. The IO’s case is that it is clear that at the time, R3 and Lin had not agreed to the IO’s entry into the Two Flat Roofs nor to scaffolding works being carried out.

Whether the Respondents allowed the IO to use the Two Flat Roofs from 17 February 2023

85.  The 17 February 2023 MC meeting was attended by 2B Mr. Chan and CPS. The minutes record, inter alia, that the commencement date of the Works has been delayed due to issues with R1, R2 and R3, and the IO may seek compensation from R1 and R2 for additional project costs. Also CPS, whom the MC recorded to be the owner of the Property, claimed that he was willing to cooperate with the IO but the tenant refused to do so and requested compensation of HK$300,000 odd. The IO stated that he was responsible for resolving issues with his tenant. R1 and R2’s case is that since gaining knowledge on 14 February 2023 that the IO would need to erect scaffolding on the Two Flat Roofs, they have all along allowed the IO’s entry to carry out the Works. This is shown in the 17 February 2023 MC meeting minutes which recorded that CPS stated that he is willing to cooperate with the IO for the repair works.

86.  Madam Wu agreed that the works could not be commenced on 6 February 2023 in any event and the estimated commencement dates were tentatively adjourned to 20 to 24 February 2023, not because of the refusal of any of the Respondents, but due to the suggestion or plan of the Contractor. On 17 February 2023, CPS had already told the IO that R1 and R2 were willing to allow the IO to enter the Two Flat Roofs to carry out scaffolding work. I accept that CPS had informed the IO before the Contractor’s proposed dates for commencement of the Works from 20 to 24 February 2023 that R1 and R2 allowed entry.

Whether R1 and R2 have taken reasonable steps to facilitate the IO’s entry to the Two Flat Roofs and procure R3’s agreement

87.  The IO claims to have suffered loss and damages because the scaffolding team of the Contractor could not enter the Two Flat Roofs to carry out scaffolding work on or before the IO imposed deadline of 27 March 2023. While R1 and R2’ case is that they have never refused the IO’s entry to the Two Flat Roofs and have all along facilitated the works at the Two Flat Roofs by taking different steps to procure R3 to cooperate.

88.  The R3 Tenancy Agreement period was for a 2-year fixed term. Under Clause 8, R3 shall peacefully hold and enjoy the Property during the term without any interruption by R1 and R2 provided that he paid the rent and observed and performed the terms contained in the Tenancy Agreement. Madam Wu agreed that during the tenancy period, R1 and R2 had no power to enter the Property by force.

89.  If R3 was unwilling to allow the IO’s entry, the most efficient way to facilitate the IO’s entry was to negotiate with R3 to allow entry, instead of exercising the owners’ right of re-entry, which would likely be far more time-consuming. Suing for possession might take months. In the case of forfeiture, other than for non-payment of rent or for insolvency, the landlord must comply with the notice provisions of section 58 of the Conveyancing and Property Ordinance, Cap. 219 (“CPO”). Section 58 of CPO provides that a right of re-entry or forfeiture shall not be enforceable unless the landlord serves notice on the tenant. This notice must specify the breach complained of and, if the breach is capable of remedy, require the tenant to remedy it. The time within which the breach is to be remedied may be stated but that time must be reasonable — if it is not, the landlord will not be entitled to re-enter. If the tenant fails to remedy a remediable breach and to make reasonable monetary compensation to the landlords’ satisfaction within a reasonable time of service of the notice, the landlords can proceed to enforce the forfeiture: see Tenancy Law in Hong Kong, 6^th Edition, Chapter 12, p.2.

90.  For forfeiture, the landlord must re-enter the premises, either physically or symbolically. The usual manner of re-entry is symbolic, that is, to sue for possession. It is possible for the landlord, instead of suing for possession, actually to re-enter or to resort to self-help. There are risks in re-entering without an order for possession: see Tenancy Law in Hong Kong, Chapter 12, p.3.

Steps taken by R1 and R2 prior to 13 March 2023

91.  On 15 February 2023, CPS proposed to R3 and Lin via Ms. Chik that rent could be reduced by HK$3,000 per month to compensate for their inconvenience. On 16 February 2023 R3 rejected CPS’s offer of rent reduction.

92.  CPS attended the 17 February 2023 MC meeting to see if there were other possible ways of dealing with the matter. He asked if a scaffolding could be erected bypassing the Two Flat Roofs. As the Contractor said it would not be possible to do so, CPS urgently instructed their solicitors C&L to send a letter to R3 dated 23 February 2023, copied to the Manager, which the IO and Lin confirmed they had received. It stated, inter alia, that:-

(1)  R3 was requested to immediately liaise with the Manager for the date and time of entry for the Works, providing the contact of Ms. Yau to R3.

(2)  R1 and R2 had no right to refuse or delay legitimate and necessary entry by the Manager. R1 and R2 would claim against R3 for full indemnity together with legal costs incurred if R1 and R2 were held to be liable owing to R3’s inaction or delay.

93.  On 20 February 2023, CPS proposed to R3 via Ms. Chik to waive R3’s rent during the whole maintenance period and 1 month after completion of the Works, in return for R3’s cooperation with the IO. On 23 February 2023, C&L issued a demand letter to R3, requesting him to cooperate with the IO immediately. R3, however, did not respond.

94.  On 24 February 2023, the IO’s solicitors Messrs Cheung & Yip (“C&Y”) issued a demand letter to R1 and R2, requesting them to allow the Contractor to enter the Two Flat Roofs within 7 days (namely on or before 3 March 2023). On 1 March 2023, a detailed timetable of the works was posted in the lift lobby of the Building.

95.  Between 1-2 March 2023, arrangements were made between R1, R2 and R3 for R3’s rent to be waived during the whole maintenance period and 1 month after the Works were completed. On 1 March 2023, Lin via Ms. Chik informed CPS that R3 agreed to the proposed waiver of rent and would allow the Contractor to enter the Two Flat Roofs for erecting scaffolding. The WhatsApp message from R3 to CPS via Ms. Chik stated, inter alia, that he agreed to the abatement of rent proposal and that upon confirmation, they would take the initiative to cooperate with the repair and management company to make arrangements, to avoid other unnecessary loss and nuisance.

96.  On the same day, CPS via Ms. Chik replied to Lin that R1 and R2 agreed to waive the rent as proposed. R1 on behalf of himself and R2 signed the Waiver of Rent Agreement on 2 March 2023. R3 signed it on 3 March 2023. As R3 said he would take the initiative to contact the Manager and the Contractor and cooperate with them, R1 and R2 expected R3 to directly communicate with the IO to make relevant arrangements.

97.  The IO accepts that on 3 and 4 March 2023, various WhatsApp messages were exchanged namely: -

(1)  Mr. Ching Hon Wai (“Hon”) on behalf of R1 and R3 told Madam Wu that an agreement may have been reached between R1, R2 and R3;

(2)  2B Mr. Chan told Madam Wu that an agreement has been reached between R1, R2 and R3, and R3 would cooperate with the Contractor. Madam Wu replied by asking for a proper written reply and undertaking to be provided by R1 and R2.

(3)  In the WhatsApp group of the IO and the Manager, Madam Wu again requested a proper written reply and undertaking be provided by R1 and R2.

The IO’s response to notification from R1 and R2 on 3 and 4 March 2023

98.  On 3 March 2023, Hon, a member of the MC, had effectively informed the MC that the scaffolding work could be arranged. R3 had signed the Waiver of Rent Agreement. 2B Mr. Chan also directly informed Madam Wu that R1 and R2 had reached an agreement with R3 and asked Madam Wu to inform the Contractor to contact R3. However, Madam Wu on 3 and 4 March 2023 WhatsApp messaged, inter alia, that:-

(1) “Such a bitch, on the same day saying cannot find the landlord…The tenant said he had engaged a lawyer, why say so many things having engaged a lawyer, everything can be through lawyers…”

(2) “7 days have passed, solicitors for the Incorporated Owners still have not formally received a reply from 2A landlord/ tenant undertaking to cooperate with the works and as to the information of the responsible person or authorized person (if any). Because our lawyer has not received clear reply further action will be taken…”

(3) “Normal work on 7 March, will erect truss out scaffold from 3^rd floor, to commence work from 4.5^th floor. Reserve right to claim against 2A for costs difference for redoing or delay”

(4) “Ask 2A landlord to reply our solicitors and provide written undertaking. Reply should be reached before commencement of work and worshiping at 11:00 on 7 March, must immediately arrange for changing the scaffolding plan.”

(5) “To committee and Hang Way: Flat 2A has entered judicial proceedings, the contractor only perform works on the 2^nd floor in accordance with written instructions, *everyone please pay attention, hand everything to the solicitors for the IO to deal with Flat 2A, do not individually give oral undertaking*, let the lawyer record, this is about litigation details which must not be missed, follow the legal procedure…Next Tuesday 7/3/23, in accordance with the plan to erect scaffolding from the 3^rd floor…”

99.  Madam Wu disregarded what Hon and 2B Mr. Chan told her and the IO. Despite R1 and R2 asking Madam Wu to contact R3 as agreement had been reached, Madam Wu said as no clear reply had been received by C&Y, further action would be taken against the Respondents, and the IO would arrange for erection of truss-out scaffold from 3/F, instead of arranging for erection of scaffolding at the Two Flat Roofs. Madam Wu admitted in cross-examination that if the Respondents consented to the Contractor’s entry to the Two Flat Roofs to erect scaffolding, no truss-out scaffold from the 3/F would be needed. In my view the Respondents had undoubtedly consented. There was no need to change to the alternative plan to erect the platform, instead of scaffolding from the Two Flat Roofs to the top of the Building, according to the original plan.

100.  Despite consent, Madam Wu’s WhatsApp messages show that, perversely, the IO instead gave instructions to the Contractor to erect truss-out scaffold from 3/F starting from 7 March 2023, and the Contractor was only to perform works on 2/F in accordance with the written instructions of the IO.

101.  Madam Wu also added additional hurdles of requiring R1 and R2 to write to C&Y and to provide a written undertaking to the IO, when the Respondents had already told the IO that the Contractor could enter the Two Flat Roofs to carry out the Works. All the while 2B Mr. Chan was not required to give such written undertaking to the IO for the same scaffolding work carried out at 2B flat roofs.

102.  On 4 March 2023, CPS also personally contacted Madam Wu. The WhatsApp record shows that:-

(1)  CPS told Madam Wu that R3 was willing to cooperate with the Works and he had already asked R3 to contact the Manager proactively. CPS asked Madam Wu to advise how he could cooperate with the IO.

(2)  As CPS learnt from 2B Mr. Chan and Hon that Madam Wu required a written undertaking, CPS sent a draft undertaking to Madam Wu which R3 was willing to sign and asked if Madam Wu was fine with that undertaking.

(3)  In response, Madam Wu said “Mr. Chan, a legal action had been commenced, it should be handled by legal representative of each party. The content of the undertaking letter is not clear…Our members will stop negotiating with you, case will be transferred to the lawyers”.

103.  No legal action had been commenced. On 6 March 2023, CPS told Madam Wu that C&L asked for the content of the undertaking letter, but Madam Wu did not provide CPS with the content the IO requested. She required that all communications should be via lawyers. On 6 March 2023, CPS instructed C&L to issue a letter to C&Y, pursuant to the IO’s request that written reply had to be made to the IO’s solicitors. However, neither the IO nor C&Y replied from 6 to 21 March 2023.

104.  Ms Liu submits that it was the IO which unreasonably refused to communicate with the Respondents and to make arrangements for the Contractor to enter the Two Flat Roofs to erect scaffolding, given that R1 and R2 had already informed IO that R3 consented to the IO’s entry to the Two Flat Roofs to carry out scaffolding work. I accept that submission.

105.  I find the above account of the Respondents’ proved. Undoubtedly on 3 and 4 March 2023, CPS, 2B Mr. Chan and Hon on behalf of R1 and R2, notified the IO that agreement had been reached and that the IO could contact R3 to arrange for entry. That notwithstanding, the IO ignored the agreement and demanded that all communications must be via lawyers and the Respondents had to provide a written undertaking. As a result, on 6 March 2023, CPS instructed C&L to issue a letter C&Y reiterating that consensus had been reached and R3 was willing to allow the IO and the Manager to enter the Property to carry out the Works. The IO was asked to provide a timetable specifying the date(s) of entry to the Two Flat Roofs and cleaning arrangement for R3 for the avoidance of doubt in the future. On a proper reading of the letter, the timetable and cleaning arrangement were sought, not as preconditions to the IO’s entry, but so that entry arrangements could be carried out in a smooth manner.

106.  The IO considers the Respondents criticisms of Madam Wu for her responses unfounded because she had reason to doubt the sincerity of the Respondents’ agreement in light of the background. Further, the Two Flat Roofs were not yet cleared on 4 March 2023, as confirmed by Shawn. Up until 4 March 2023, the IO had been approached by 2B Mr. Chan, CPS and Hon, all of whom claim to represent the owners of the Property. Yet the tenant had not personally confirmed his stance, which the IO previously understood as being against works being carried out at the Two Flat Roofs. The IO asserts that it was understandable that the IO needed certainty and clarity in the form of a written reply and undertaking as to the Respondents’ positions. In my view it was not.

107.  The criticism is well founded. The IO has a duty to carry out the necessary works. R1 and R2, the owners and R3, the tenant had agreed that the IO and Contractor could have access to erect scaffolding and carry out the Works. Yet Madam Wu’s response was that the IO would not communicate with the Respondents, all communications must be through lawyers. Further, she would not accept their consent and introduced additional requirements, namely a written undertaking. When really the IO could and should have got on with the Works by giving instructions to the Contractor to do so. Despite C&L requesting the timetable of entry and the arrangements for clean-up to be provided the IO did not simply provide those particulars. Madam Wu said this led the IO to draft a more detailed undertaking as to the arrangements to be put in place and for a meeting to be held on 17 March 2023.

108.  The IO continues that on 6 March 2023 scaffolding works at other locations in the Building commenced. C&Y issued a demand letter to R3 (copied to R1 and R2), requesting him to contact the Manager on or before 9 March 2023 to confirm the date and time of entry.

109.  The fact that R1 and R2 had allowed entry and taken steps in facilitating entry was actually recognised by the IO in C&Y’s letter to R3 dated 6 March 2023 which stated, inter alia, that despite “repeated demands and requests of your landlord … you have failed to and/or refused to take necessary action”. R3 was given final notice to contact the IO or Ms. Yau of the management company to confirm the date and time of entry.

110.  CPS also urged Lin to find a lawyer to issue a letter of authorisation pursuant to the IO’s request on 7 and 8 March 2023. On 8 March 2023, Lin wrote to the IO, requesting details of the Works, such as the date, time and personnel who would enter the Property. In my view R3 was acting within his rights and was entitled to notice of when the Contractor would access the Property.

Actual entry on 13 March 2023

111.  On 13 March 2023, workers from the Contractor entered the Two Flat Roofs. The nature of the works then carried out are in dispute.

112.  It is Madam Wu’s evidence that: -

(1)  The Contractor entered the Two Flat Roofs to erect a platform on 3/F to create a base for actual scaffolding for the Works from 3/F to the top of the Building and to install mandatory safety gear, following the alternative plan;

(2)  The structure built was “temporary scaffolding works”, “like having a high ladder” for the workers to climb onto to erect the platform on 3/F. The structure could be built despite the fact that the Canopies, the House Structures and the Clutter remained on the Two Flat Roofs;

(3)  The scaffolding from the Two Flat Roofs to the top of the Building following the original plan could not be carried out because (i) there was no consent between the parties as to how the Canopies, the House Structures and the Clutter on the Two Flat Roofs were to be dealt with; and (ii) scaffolding could not be erected as the Two Flat Roofs were still not cleared.

113.  The Respondents version of events is that on 13 March 2023, Lin told CPS that the Contractor entered the Two Flat Roofs and started erecting scaffolding. Lin said she consented to the workers carrying out work there. Madam Wu said the Contractor accessed the Two Flat Roofs to carry out temporary works by knocking on the front door of the Property and gained entry from the domestic helper of R3. No complaint was made by R3 or Lin to the Manager.

114.  The IO submits that the Tribunal should reject R3’s case of what happened on 13 March 2023 because: -

(1)  R3’s NOO states that scaffolding works on the Two Flat Roofs were carried out a few times per week about one month starting from 13 March 2023, so until mid-April;

(2)  Yet in §45 of Lin’s witness statement, she claimed that scaffolding works were carried out in March 2023 until May 2023. Both are inherently impossible as the scaffolding team left the Building on 27 March 2023;

(3)  During cross-examination, R3 seemed entirely confused about this. His evidence was that he saw workers on the Two Flat Roofs and assumed they were carrying out works. Lin went further and claimed that there were workers carrying out scaffolding works in April, May, June and July 2023. It was put to them that the workers were there to clean up materials that might have fallen onto the Two Flat Roofs;

(4)  This illustrates the unreliability of the Respondents’ witnesses’ evidence about the nature of works that were being carried out;

(5)  Lin claimed that she was perfectly happy for the workers to come in and carry out works on 13 March 2023, as she had called Ms. Yau of the Manager on 7 or 8 March 2023 to ask her to arrange for workers to come as soon as possible. The IO says this is inconsistent with §14 of R3’s NOO, which states that Lin immediately lodged a complaint with the Manager on 13 March 2023 when the workers allegedly climbed into the Property.

115.  In any event, the Respondents point is that this shows that R3 cooperated and allowed the Contractor entry to carry out the Works at the Two Flat Roofs.

116.  Also on 13 March 2023 via WhatsApp, CPS urged Lin to communicate with the IO and be tolerant, and undertook to refund the rent of March to R3 after confirming that R3 had cooperated. On 15 March 2023 CPS confirmed with Lin that she had allowed the Contractor to carry out the Works at the Two Flat Roofs and cooperated with them.

117.  In fact, Madam Wu confirmed that R3 on 13 and 15 March 2023 consented to the workers carrying out the so-called “temporary” work on the Two Flat Roofs.

118.  In my view under Issue 1(a), the nature of the scaffold and the works actually carried out on 13 March 2023 is beside the point. The evidence clearly shows that the Respondents had allowed entry and did not try to interfere with the type of works that the IO required be done by the Contractor. The IO needs to show that notwithstanding that the Respondents consented to access to carry out works, and in fact allowed entry, the Contractor could not carry out the works and that was caused by acts or omissions of the Respondents. There was no real dispute but that the Respondents had allowed entry and I so find. That should dispose of Issue I(a), but the IO has further points.

Whether the IO failed to inform the Contractor to erect scaffolding at the Two Flat Roofs on 13 March 2023

119.  Madam Wu agreed that on 4 March 2023, the IO had already given instructions to the Contractor that the Works would be carried out on 3/F, and truss-out scaffold would be erected from the 4.5 floor, namely the alternative plan was to be implemented, not the original plan.

120.  When put to Madam Wu that the reason for not erecting scaffolding from the Two Flat Roofs to the top of the Building on 13 March 2023 was that the IO did not inform the Contractor that the Respondents consented to it, Ms Liu says that Madam Wu quibbled:

“the point is that the site could not be handed over for the works. It is not the matter whether somebody gained the knowledge or not, or whether someone could step inside, or whether someone gave consent or not”.

121.  The Respondents’ explanation is that the Contractor did not erect scaffolding from the Two Flat Roofs to the top of the Building on 13 March 2023 because the IO gave instructions to the Contractor that truss-out scaffold should be erected from 3/F and work should be commenced from 4.5 floor, as stated by Madam Wu in her 4 March 2023 WhatsApp. As the Contractor would only carry out works on 2/F in accordance with the written instructions of the IO, the Contractor did not erect scaffolding from the Two Flat Roofs to the top of the Building on 13 March 2023. The IO did not give any change of written instructions to the Contractor and the IO did not inform the Contractor that the Respondents consented to carrying out the Works, so the alternative plan was implemented. This was confirmed by Leo during the 15 April 2023 EGM. On 13 March 2023 the Contractor thought that R3 did not consent to the erection of scaffolding from the Two Flat Roofs because the Contractor did not receive any formal notification from the IO, or the Manager, that R3 consented to it. Leo did not say that the Contractor could not erect scaffolding because of the state of the Two Flat Roofs, so they had to follow the alternative plan. I accept that explanation of what occurred. As far as the Contractor was concerned, the issue was not roof clearance rather, the IO had not instructed the Contractor to implement the original plan.

Steps taken after 15 March 2023

122.  Notwithstanding that R3 had allowed the Contractor to carry out the Works, on 16 March 2023, the Manager alleged that R3 had not fully cooperated and asked R1 and R2 to attend a meeting at the Property on 17 March 2023. CPS was shocked and took Jason along to the meeting.

123.  The 17 March 2023 meeting at the Property was attended by the Project Manager Leo, Foreman Shawn, Mr. Yu of the Manager, CPS, Jason and Lin. A detailed timetable of the Works was provided to the Respondents. Mr Yu requested the Respondents to sign an undertaking drafted by the IO in Chinese (“the IO undertaking”), but none of the Respondents signed it. Lin had concerns about the IO undertaking, which she raised with Shawn, Leo and Mr. Yu and made various requests. In response, Shawn and Leo did not promise right away but said they would consider her requests. According to the oral evidence of Madam Wu, the Contractor’s representative said that in order to show courtesy and the Contractor would carry out the requests of the Respondents, if the IO would pay additional fees.

124.  R1 and R2 stress that CPS and Jason did not make any request. This was confirmed by Lin. R1 and R2 were not living in the Property and therefore would not be affected by the terms of the IO undertaking. During re-examination, Madam Wu claimed that the Respondents were once again reminded that all items on the Two Flat Roofs had to be cleared, but of course she was not at the meeting.

125.  On 20 March 2023 the Manager by letter informed R1 and R2, that the scaffolding team would leave on 27 March 2023. This letter also stated that R1 and R2 had not reached a consensus with the IO or provided cooperation in the scaffolding work to remove the items and canopy erected on the flat roofs.

126.  On 21 March 2023, Lin sent the revised draft undertaking incorporating her requests to Jason. Jason persuaded Lin to water down her requests with the aim of facilitating consensus being reached between the IO and R3. After Jason revised the draft accordingly, he sent the revised draft undertaking to Mr. Yu and Shawn, and asked them to notify him if the IO amended any terms. R3 acknowledged that Jason was trying his best to be the middleman between the IO and R3. The IO did not respond to the Respondents, but, it turns out that the IO was not satisfied with the proposed amendments.

127.  I find that the IO undertaking was only provided after the Contractor’s workers commenced works at the Two Flat Roofs on 13 March 2023. During the 17 March 2023 meeting, the Respondents commented on some of the terms in the draft undertaking and the Contractor’s representative did state that they would consider the requests of the Respondents. Madam Wu says that the Contractor’s representative said that in order to show courtesy. Whatever the reason, the Respondents quite reasonably understood that their requests would be considered.

128.  The Respondents’ counter-proposals on the IO undertaking, included terms such as adding the Contractor as an additional party, for the Contractor to provide necessary safety and hygiene measures, and to carry out water proofing works on the Flat Roofs one by one, which R3 claims was in accordance with the promise made by the Contractor to the R3 on 2 February 2023. R3 submits that these additional terms are reasonable for the Contractor to accept, but in any event, neither the Contractor nor the IO responded to these counter-proposals directly to the Respondents. There was no invitation from the IO to R3 to attend any of the MC meetings, or meetings with the Consultant or Contractor to discuss the matter. The IO did not even attempt to communicate with R3 directly to resolve the matter.

129.  The IO’s case is that the revised undertaking sent by Jason to Mr. Yu was not accepted by the IO for good reason: -

(1)  Requiring the Contractor to be a party to the undertaking was unreasonable, when no such agreement was required to be signed between the Contractor and other owners and tenants of the Building, and was not feasible;

(2)  The additional clauses added were unreasonable, in particular:

(a)  Clauses 1 and 7 (requiring 3 working days’ advance notice and obtaining R3’s written consent prior to entrance, which R3 would reply to within 3 working days): There had already been extensive discussion of the timetable for the works. The scaffolding team was scheduled to leave in 5 days. The additional requirements were onerous;

(b)  Clauses 1 and 9 (requiring compensation for damaged items): There was no legal basis for the clauses: IO of Potek House §§40-41;

(c)  Clauses 3 and 4 (requesting additional safety measures and cleaning services): The Contractor should not be required to provide safety guarantees above those required under Hong Kong law or additional cleaning services only for the Respondents. The IO says there is no evidence to support Lin’s claim that these were offered by the Contractor;

(d)  Clause 6 (the schedule for carrying out waterproofing works): Madam Wu said that carrying out waterproofing works on the Two Flat Roofs one after the other would incur extra costs;

(e)  Clause 8 (the Respondents being permitted to continue using the Two Flat Roofs during the construction period whether on working or non-working days): It was not feasible and unreasonable to allow them to keep using the Two Flat Roofs, for example letting R3 and Lin’s child run around on the Two Flat Roofs, yet to agree to pay compensation for accidents occurring.

Whether the IO complicated the matter by requesting the Respondents sign a written undertaking

130.  R1 and R2 maintain that the IO’s 17 March 2023 request that the Respondents sign the IO undertaking was unnecessary and complicated the matter. This came after the IO and the Contractor had actually gained entry to the Two Flat Roofs to carry out work on 13 March 2023. R3 and Lin sought to revise the IO’s undertaking so that everyone would be happy with the agreement.

131.  Madam Wu claimed that one of the reasons for issuing the IO’s undertaking was because the IO did not know the identity of the owners and the tenant of the Property. However, it was later revealed that the MC keeps a record of who the owners in the Building are, therefore the IO knew the identity of the owners of Flat 2A. Further, C&Y’s letter to R3 dated 6 March 2023, was addressed to “LORHO DIVY”, namely R3 and stated at §2 that “we are given to understand that pursuant to a Lease dated 13^th July 2022 signed by Chan Yee Sheung and Chan Lai Kuen and you, in which you are the tenant of the Property”. R1 and R2 assert this show that what Madam Wu said was a lie.

132.  Ms Chong replies that whilst the MC kept a record of who the owners of the Building were, she was not asked whether she actually checked. There is no reason to doubt that she initially did not know who the registered owners of the Property were. This is supported by the contemporaneous minutes of the MC meeting on 17 February 2023, where apparently the MC thought CPS was the owner of the Property, describing him as “2A Mr. Chan”.

133.  Ms Liu emphasised that R1 and R2 never requested any amendment. Jason even tried to persuade Lin to water down her requests. They were acting as the middlemen to facilitate agreement being reached between the IO and R3. After Jason sent the revised draft undertaking to Mr. Yu and Shawn, and explicitly asked them to notify him if the IO amended any term, there was no reply on the amendments.

134.  I accept that the IO unduly complicated matters by requiring the IO undertaking be signed. First, it was introduced at a late stage, after entry had been allowed, so put progress back to the stage of negotiating terms of entry. Secondly, the IO failed to negotiate or even engage on the written terms. It is hardly surprising that when Lin and R3 were presented with a detailed written legal document they would need to read it, be concerned about the terms and seek to amend or introduce new terms to meet their interests. Particularly when there were terms that had been discussed with, and R3 thought agreed or proposed by, the Contractor but that did not appear in the IO’s undertaking. The IO was entitled to find the amended terms unacceptable, but R3 should have been told immediately that they were not acceptable to the IO. The IO undertaking not only complicated the matter, it caused unnecessary delay.

Whether the Respondents allowed entry on or before 27 March 2023

135.  On 22 March 2023, C&Y sent a demand letter to C&L, enclosing a detailed schedule of the Works, requesting entry by the Contractor on or before 27 March 2023 (“22 March Letter”) and finally replied to C&L’s letter dated 6 March 2023. C&Y listed “cooperation required for the project” and requested the Respondents to reply and hand over the Two Flat Roofs on or before 27 March 2023.

136.  Madam Wu and a MC member Wai. on 24 March 2023 suddenly issued a letter to all owners of the Building, in their own names but purporting as committee members to report progress, publicising the requests made by R3, condemning the Respondents and calling for an EGM to institute legal proceedings against the Respondents (“the Madam Wu and Wai Letter”). The Madam Wu and Wai Letter, inter alia, stated:-

(1) “In relation to building repair, someone obstructs our progress, we as committee members report progress…We strongly object that the IO to undertake such unreasonable demands to 2A... The IO will not and definitely should not undertake”.

(2) “WHAT BIG POWER THEY HAVE! Who dares to represent the small landlords of the building, to represent the company, to provide special services to 2A?”

(3) “We will hold an owner’s meeting to pass a resolution to act, to reserve the right to claim relevant persons of 2A ALL LEGAL COSTS AND LOSS. Miss Wai/Miss Wu”.

137.  After the Madam Wu and Wai Letter Jason even contacted the Wan Chai District Office on behalf of R1 and R2 for assistance. With the help of staff of the Wan Chai District Office Mr Lee, Wai called Jason but said the IO would not communicate with him or CPS and that all communications should only be made via lawyers.

138.  R1 and R2 submit that the IO’s refusal to communicate with the Respondents, in spite of the fact that Jason told the IO that the revised draft undertaking was subject to amendment by the IO, was unreasonable. In my view the IO ought to have promptly replied to the Respondents on the IO undertaking, even if it was to reject the amendments in toto and communicated directly.

139.  As R1 and R2 were under enormous pressure, especially after the Madam Wu and Wai Letter issued to all owners of the Building condemning the Respondents, CPS on behalf of R1 and R2 sent a termination of tenancy notice to R3 on 24 March 2023.

140.  On 25 March 2023, the Manager sent a letter to R1 and R2, enclosing a letter from the Contractor dated 24 March 2023, stating that the scaffolding team would leave the Building after 27 March 2023, reserving the right to claim compensation for losses against them.

141.  The IO says the claim that CPS decided to terminate R3’s tenancy due to pressure from the Madam Wu and Wai Letter condemning them is inconsistent with the wording of CPS’s letter dated 24 March 2023. CPS’s letter stated “after discussions with the tenant [occupier], no consensus was reached to allow the contractor to enter the flat for the work”. During cross-examination, CPS admitted that he terminated R3’s tenancy due to the fact that no agreement was reached between R1 and R2 and R3. CPS is said to have backtracked by claiming that the termination of the tenancy was due to pressure from the Madam Wu and Wai Letter.

142.  I accept that CPS felt under enormous pressure. He was going to great lengths to try to reconcile all interests. He was responding to every demand made by the IO through Madam Wu, the Manager and by solicitors. He was acting sincerely. He was trying to address R3’s concerns on behalf of R1 and R3, including giving rent concessions. Conduct was that of an exemplary landlord. Despite the IO, the landlord and tenant relationship had not broken down until it was felt necessary to terminate the tenancy. I have no doubt but that the Madam Wu and Wai Letter was a contributing factor that finally precipitated the termination notice.

143.  Even then Jason and CPS still tried to resolve the matter in the interests of the IO, while satisfying R3’s requirements, to the financial detriment of R1 and R2. Although a termination notice was sent to R3, Jason suggested trying one more time to resolve the matter with R3 in a timely manner. On 26 March 2023, Jason proposed to Lin that R1 and R2 could satisfy some of her requests, removing them from the draft undertaking. They were able to come to a comprehensive agreement satisfying the IO requirements.

144.  On the same day, CPS by letter to C&Y replied to the 22 March Letter (“CPS’s 26 March Letter”), inter alia, that:-

“I [the owner of Flat A on the 2nd floor of Fu Kar Building] reached a final agreement with the occupier on 26 March, concerning the cooperation required for the project as mentioned in the letter from Cheung & Yip. I am fully willing to cooperate and permit the contractor to enter the flat to carry out the work. The tenant [occupier] has also agreed to allow the contractor to enter the necessary areas of the flat for the work…”.

145.  At around 1am on 27 March 2023, Jason informed Mr. Yu of the Manager by WhatsApp that R3 agreed to cooperate with the IO and that they had reached an agreement with R3. In the morning of 27 March 2023, CPS on behalf of R1 and R2 signed an agreement with R3 (“27 March Agreement”), which stated, inter alia, that:-

(1)  The Landlord shall set waterproofing and fireproofing cloth to cover the flat roof for the kitchen side;

(2)  The Landlord shall provide a safe indoor space for all items on the flat roof and store them in good condition. The Landlord shall bear the transportation expenses as quoted by the third party;

(3)  The Landlord shall provide to the Tenant a rent-free period covering the whole repair period and for one month after completion of works.

146.  R3 also signed an undertaking to allow the Contractor to enter the Two Flat Roofs to carry out the Works (“R3’s Undertaking”).

147.  R3’s Undertaking and the 27 March Agreement were written in Chinese and signed by R3 after his wife Lin explained their content to R3 and confirmed he understood and agreed to the terms.

148.  Pursuant to the C&Y deadline stipulated in the 22 March Letter, Jason delivered R3’s Undertaking, CPS’s 26 March Letter and the 27 March Agreement by hand to C&Y before noon on 27 March 2023. C&Y acknowledged receipt of the said documents. Jason also copied the said documents to the IO and the Manager via WhatsApp to Mr. Yu. Further still, 2B Mr. Chan also put the said documents into the mailbox of the IO and the Manager on the same day.

149.  The IO acknowledged that in the daytime of 27 March 2023, CPS sent a letter enclosing a handwritten Chinese undertaking by R3 to C&Y, stating that R1, R2 and R3 all agreed for the Contractor to enter the Property.

150.  In the morning of 27 March 2023, CPS also saw that the items on the Two Flat Roofs were moved aside to provide sufficient space for erecting scaffolding.

151.  The Respondents’ stance was said to be frustrating and confusing for the IO, when C&Y had just received a letter from CPS on 26 March 2023 confirming that R3 was unwilling to cooperate, hence he would terminate the Tenancy Agreement with R3, and suddenly being told something entirely different at 1am that night. In my view it would have been clear to the IO that R1 and R2 continued trying to resolve the matter and that they had finally done so. The IO had demanded entry “on” or before 27 March 2023, which it maintained was an important date, because the scaffolding team would leave the Building and additional fees would start to be incurred. There was no need for any delay. The Respondents had provided exactly what the IO sought. The IO had confirmation in writing that would obviate the need to wait for vacant possession of Flat 2A after termination of the tenancy. The IO had multiple confirmations that the Works could proceed.

152.  As the IO said that the scaffolding team would be leaving on 27 March 2023, after delivering the said documents to the IO, R1 and R2 expected the IO to forthwith arrange for scaffolding workers to enter the Two Flat Roofs that day. However, no reply was received from the IO or the Manager. Neither did the Contractor contact CPS, Jason, R3 or Lin on that day.

153.  Madam Wu admitted during cross-examination that the IO made no arrangements for the Contractor to enter the Two Flat Roofs on 27 March 2023. She said this was because the site was simply not ready, nothing had changed, not a single item had been cleared.

154.  The IO now adds that while R1 and R2 claimed that they tried to satisfy R3’s requests themselves one can only wonder how sincere R1 and R2’s agreement with R3 was, as R1 and R2 in fact did not carry out the terms, whether on 27 March 2023 or after. For instance, R1 and R2 did not set waterproofing and fireproofing cloth to cover the Two Flat Roofs on the kitchen side. Also, they did not provide any indoor storage for all items on the Two Flat Roofs and bear the transportation expenses.

155.  I find that there was no lack of sincerity on the Respondents’ part. In particular, CPS and Jason, on behalf of R1 and R2, were genuinely trying to satisfy the IO. R3 and Lin also agreed to access. R1 and R2 agreed rent rebates, that were in fact honoured. Referring to subsequent events to excuse the IO’s lack of response on 27 March 2023 really is grasping at straws. It cannot explain the IO’s failure to instruct the Contractor to get on with the Works.

156.  The IO had requested the Respondents reply and hand over the Two Flat Roofs on or before 27 March 2023. They had provided documents confirming agreement before noon on 27 March 2023. I find that the Respondents had complied with the IO’s then demands. The items had been moved aside such that there was that there was sufficient space for erecting scaffolding on that day.

Failure to arrange for entry on 27 March 2023

157.  In spite of receiving the said documents on 27 March 2023, and despite that the scaffolding team would be leaving the Building that day according to the IO, it chose not to arrange for the scaffolding team to enter the Two Flat Roofs to erect scaffolding on that day.

158.  Madam Wu says that the Contractor was informed that the IO had received the said documents from the Respondents on 27 March 2023, but that was not in her witness statement. Madam Wu claimed that the Contractor could not erect scaffolding on the Two Flat Roofs on 27 March because all the Clutter was still there. Although, neither the IO nor the Contractor even entered the Two Flat Roofs to inspect the condition of the Two Flat Roofs on that day.

159.  The Respondents allege that as an excuse for not arranging for the workers to enter the Two Flat Roofs on 27 March 2023, the next day the Manager issued a letter requesting R1 and R2 to provide an Authorisation Letter showing that CPS was authorised by them to issue CPS’s 26 March Letter. Yet at all material times, CPS had negotiated with the IO on behalf of R1 and R2 and attended the 17 February 2023 MC meeting on their behalf. From 17 February to 27 March 2023, the IO had never challenged CPS’s authorisation. Suddenly R1 and R2 had to prove they had authorised CPS to deal with the matters. Ms Liu submits that the IO was then trying to put the blame on R1 and R2 for not providing a written authorisation, although the IO did not raise this at trial.

160.  Further, by letter from the Manager to C&L dated 14 April 2023, the IO challenged the legal validity of R3’s Undertaking on the basis they could not confirm whether R3 was capable of writing in Chinese. At all times Lin, R3’s wife, negotiated with the IO on his behalf, and the IO clearly knew that Lin spoke and wrote in Chinese. The IO had never disputed that Lin was R3’s authorised representative. The 17 March 2023 the IO undertaking was drafted by the IO in Chinese. The Respondents consider that the IO attempted to use this as another excuse for its failure to arrange entry on 27 March 2023. I maintain my view that the IO should have given the Contractor instructions to get on with erecting the scaffolding, rather than engage in such unnecessary diversions. If not a disingenuous excuse for the IO’s own failure, alternatively the unduly pedantic approach displays incompetence.

161.  R3’s case is that the IO’s requests to R3 regarding the access to the Two Flat Roofs were unreasonable. Further, R3 alleges that the IO had imposed additional requirements on R3 for the scaffolding works as the IO and/or the Contractor had a financial interest in the additional works arising from the alleged delay to the works. I reject the allegation that additional requests were made of R3 because of any financial interest of either or any suggestion of collusion between the IO and Contractor, for lack of evidence.

Delay

162.  The IO’s case rests on the assertion that R3, along with R1 and R2, unreasonably refused access to the Two Flat Roofs, thereby causing delays and financial losses to the IO. However, Mr Lam submits that the evidence demonstrates that R3 acted reasonably, cooperatively, and in good faith throughout the relevant period. Conversely, the IO’s conduct, marked by unclear communication, unreasonable demands, and a prematurely litigious approach, was the primary cause of any delays in the renovation works.

163.  R3 explained that there was no urgency, given that the Consultant and the Contractor were engaged by the IO in March 2021 and December 2022 respectively. They had ample time to familiarise themselves with the physical condition of the flat roofs on the 2/F of the Building and to coordinate with the IO for access. However, the Contractor did not request the IO to contact the owners on 2/F for access to the flat roofs until January/February 2023. This late notice means that the Respondents were required to fulfill the IO's requests for roof access immediately, leaving no time for the Respondents to make arrangement for the Contractor to access the Two Flat Roofs. While R3 blames the Consultant and Contractor, I find responsibility for giving notice to the Respondents lies with the IO pursuant to the DMC.

164.  Mr Lam also submits that if the IO and/or the Contractor had been unable to arrange access to the Two Flat Roofs with the Respondents, the IO could have taken alternative actions such as postponed the Works, modified the construction method, actively coordinated with the Respondents to secure access, and/or applied for an extension of time to comply with the notices. However, the IO chose to shift the burden of the delay caused by the IO to the Respondents by requiring the latter to allow access to the Two Flat Roofs with unreasonably short notice.

165.  Further, when time was said to be of the essence during the relevant periods, the IO failed to respond to the correspondence from the Respondents. The Respondents’ case is that any the delay caused to the works was caused by the IO.

Litigious approach of the IO

166.  Ms Liu also objects to the IO’s approach. As early as 17 February 2023, even before the Contractor commenced the Works in the Building, the IO and the MC had already decided to commence legal proceedings against the Respondents. Notwithstanding that CPS told the MC that R1 and R2 were willing to allow the Contractor to carry out scaffolding work at the Two Flat Roofs, the 17 February 2023 MC meeting minutes recorded “After discussion, it was decided to take legal action against the occupier and owner of Flat 2A, and to file a lawsuit with the Lands Tribunal”.

167.  When Madam Wu was asked whether the IO obtained the Tenancy Agreement from R1 and R2 on the pretext that the IO would only take action against R3 but ended up suing R1 and R2 as well, Madam Wu said the procedures required the IO to do such a thing. If the place was a private property the IO could not just point the finger to the tenant only but needed to sue the owners as well.

168.  R1 and R2 assert that it is now clear that IO commenced legal proceedings against R1 and R2 because from the start on 17 February 2023 the IO had already decided to do so as a matter of “procedure”, but not because R1 and R2 have breached the DMC and/or BMO.

169.  The IO does not accept the criticism, replying that Madam Wu’s explanation of whether the MC had decided to institute legal proceedings against the Respondents on 17 February 2023 was reasonable, and in any event is immaterial as no proceedings were in fact commenced until May 2023. I do not consider the IO’s approach reasonable, nor that it is immaterial. Even though the proceedings were not actually commenced until May 2023 the decision to treat the matter as litigious informed the approach of the IO, as well as the conduct of Madam Wu. Notwithstanding that the NOA was filed on 19 May 2023, well before then Madam Wu was telling both those on the IO and Manager side, as well as the Respondents, otherwise. For example, on 3 and 4 March 2023 Madam Wu’s WhatsApp includes “To committee and Hang Way: Flat 2A has entered judicial proceedings … let the lawyer record, this is about litigation details which must not be missed, follow the legal procedure…”. While her WhatsApp to CPS claimed that “a legal action had been commenced. It should be handled by legal representatives of each party”.

170.  I accept that the IO’s litigious approach exacerbated the dispute. Mr Lam points out that the decision to pursue legal action against R3, resolved as early as 17 February 2023, was made without any direct communication with R3 or attempts to resolve the matter amicably. The IO’s failure to respond to R3’s counter-proposals, and its dismissal of R3’s Undertaking signed on 27 March 2023 as legally invalid, reflect a refusal to engage constructively. Moreover, the IO’s public notices and communications, such as the 17 February 2023 notice and the 24 March 2023 letter, contained misleading information and personal attacks against R3 and Lin, creating undue pressure and hostility.

171.  Mr Lam explains that R3 and his family needed a safe and hygienic living environment during the period of the renovation works. R3 also needed to discuss with R1 & R2 some remedy or measures under the Tenancy Agreement, and the arrangements and cooperative actions for the Works. However, despite little communication with the R3, at the 17 February 2023 MC meeting, the IO decided to take legal action against the Respondents. The IO’s solicitors letter to R3 dated 6 March 2023 stated that they had standing instructions to commence legal proceedings against R3. The IO took a litigious approach towards the Respondents, instead of attempting to resolve the matter amicably.

172.  Furthermore, Mr Lam submits that the IO’s directive for R3 to communicate solely through solicitors was inefficient in resolving the dispute, unnecessarily antagonistic and created hostility and distrust among the parties, further complicating cooperation. In my view delay was undoubtedly in part caused by the IO’s unreasonable refusal to communicate directly with the Respondents. It was a matter for the IO whether it would incur the expense of instructing solicitors, but requiring that the Respondents also do so was unreasonable. The IO should have been prepared to communicate with the Respondents directly, at least before proceedings were instituted or to accept the Respondents direct commutations with the IO solicitors, without them having to incur the expense of instructing solicitor themselves.

173.  In my view the IO’s confrontational stance and refusal to communicate or accept consents and assurances, both oral and in writing, directly from owners was disruptive, and is contrary to the IO’s duty to all owners, to ensure that the Works were carried out.

174.  Madam Wu may have been under the mistaken impression that she had the moral high ground. She displayed an unfortunate combination of officious incompetence. Her misguided conduct aggravated issues that could have been resolved had the IO and MC given timely and proper consideration to preparation in advance of any works. A more measured approach would also have allowed issues to be resolved as and when they arose during the Works. The IO’s failure to do so derailed progress, causing delay and unnecessary expense. In addition to undue anxiety and an emotional toll on the individuals involved.

Issue 1(a) determination

175.  R1 and R2 submit that they have all along cooperated, allowed the IO’s entry to carry out the Works at the Two Flat Roofs and taken various reasonable steps to facilitate the IO’s entry. R3 submits that the IO has failed to prove on the balance of probabilities that R3 unreasonably refused access to the Two Flat Roofs or caused any delay in the Works. As a matter of fact, the Contractor had already gained actual entry and carried out works at the Two Flat Roofs on 13 March 2023.

176.  I find that before 27 March 2023, the final date imposed by the IO, the Respondents had each agreed that the IO and the Contractor could have access to the Two Flat Roofs to carry out the Works. The Respondents had allowed entry and the Contractor had actually gained entry and carried out works on 13 March 2023.

177.  In answer to Issue 1(a) R1, R2 and R3 did not refuse the IO’s entry to the Two Flat Roofs. There was no unreasonable refusal. Subject to the Issues 1(b) and 1(c), the Respondents were not in breach of Clause 3(d) or (e), nor Clause 4 of the DMC. Neither were they in breach of section 40(1) of the BMO in refusing entry. In terms of Issue 1, I find that the Respondents did not breach the DMC or the BMO which resulted in delay in the IO’s entry to the Two Flat Roofs to carry out the repair in this regard.

Issue 1(b): Did the Canopies, Metal Fences and House Structure obstruct the Contractor from erecting scaffolding at the Two Flat Roofs? If so did the Respondents delay in removing them?

178.  Madam Wu admitted that the Metal Fences did not obstruct scaffolding at the Two Flat Roofs. Thus, the Structures in question are the Canopies and the House Structure.

Whether obstruction caused by the Structures

Flat 2B not required to remove similar structures

179.  The two flat roofs of flat 2B were also utilised to erect scaffolding. The number of bamboo poles and positioning of the scaffolding proposed by the Contractor were the same for the Two Flat Roofs as for the 2B flat roofs. Madam Wu agreed that the works and the procedures involved for the Two Flat Roofs and 2B flat roofs were the same.

180.  Prior to the carrying out of the Works, the 2B flat roofs had similar metal fences as the Metal Fences, and a house structure which was attached to the external wall, just as the House Structure was. According to 2B Mr. Chan, the 2B house structure was of more or less the same size as that of the House Structure. 2B flat roofs had 2 canvas sheets similar to the Two Flat Roofs Canopies.

181.  The IO confirmed that the scaffolding team had completed scaffolding work at all parts of the Building except the Two Flat Roofs and the 2A-4A Walls, on 27 March 2023. Thus, scaffolding work at 2B flat roofs was completed by 27 March 2023.

182.  The IO’s treatment of the Respondents and the Property was in stark contrast to its treatment of 2B Mr. Chan and the 2B flat roofs. The IO did not require he remove the canvas sheets, house structure and metal fences from the 2B flat roofs before the erection of scaffolding at the 2B flat roofs. 2B metal fences were only removed in September 2023 at the time as the Metal Fences were removed, months after the scaffolding work at 2B flat roofs was completed. The IO did not request 2B Mr. Chan to remove the house structure of 2B flat roofs as Madam Wu claimed that the Contractor informed the IO that it would not affect the scaffolding work at 2B flat roofs. The canvas sheets of the 2B flat roofs were removed by the Contractor’s workers on 2B Mr. Chan’s behalf when they erected scaffolding at the 2B flat roofs.

183.  R1 and R2 submit that this must mean that, contrary to what the IO alleges, the Structures would not have obstructed the erection of scaffolding at the Two Flat Roofs.

184.  I find that it was not necessary to remove the 2B flat roofs house structure or metal fences before the scaffolding was erected. Whereas the canvas sheets were moved by the Contractor’s workers. The Respondents say that this evidence supports the their case. 2B Mr Chan is not an expert who may opine on whether the Structures and the house structure on 2B flat roofs were the same. However, he was able to give evidence based on what he could see and knew. There was no evidence to contradict him. While not conclusive, I accept this as some evidence from which it may be inferred that it was not necessary to remove the House Structure.

185.  The Respondents having allowed entry to the Two Flat Roofs, the burden is on the IO to show that the Respondents were in breach of duty by failing to remove the Structures. There was no evidence from the Contractor that it required that the House Structures be removed before it could erect scaffolding. Bamboo scaffold workers are skilled and adept at erecting scaffolding around a vast variety of structures. The absence of any express complaint directly from the Contractor supports the Respondents’ case. The IO has not adduced any direct evidence that it was not possible to erect scaffolding and carry out the Works according to the original plan because of the House Structure. The IO relies on the assertion of Madam Wu. I do infer from, inter alia, the presence of the house structure also attached to the external wall on 2B flat roofs that was of similar size to the House Structure but was not an obstruction, that the Contractor could also have erected similar scaffolding from the Two Flat Roofs, notwithstanding the presence of the House Structure.

Documentary evidence that no removal was required

186.  The Respondents also refer to documentary evidence in support. The 18 January 2023 MC meeting minutes, at which Shawn and Leo of the Contractor were present, only mentioned that the Contractor would contact the owners of 2/F to arrange for erection of scaffolding. The Structures were not mentioned at all. Madam Wu admitted it was only mentioned that the Two Flat Roofs had to be handed over in a proper state.

187.  The Contractor’s letter to the IO dated 3 February 2023, stated that they planned to commence the Works from 20 to 24 February 2023, would need to utilise the Two Flat Roofs to erect scaffolding and asked the IO to obtain the consent from the owners of the Property. The Contractor did not mention there was any need to remove the Structures before the erection of scaffolding. Apparently, the Contractor thought the IO was responsible for obtaining consent of the owners or occupiers.

188.  The Contractor’s letter to the IO dated 4 February 2023, informed the IO that during the meeting between R3, Lin, Shawn and the scaffolding supervisor Mr. Chan at the Property on 2 February 2023, the Contractor “provided detailed explanations regarding the requirements for the project, including the scope of impact, the size of bamboo poles for scaffolding, the placement of bamboo poles, the spacing between each pole, the workers’ access route…, a construction period of 1-2 weeks…, and that workers will not re-enter the flat roof once the scaffolding is completed until the next phase…”.

189.  I note that the Contractor’s account of detailed requirements did not include any requirement to remove the Structures. There was no mention of the Structures. At that point the Contractor undoubtedly knew of the presence of the Structures and Clutter on the Two Flat Roofs. If the Contractor required their removal or any further steps to be taken it would have immediately told the IO what was required and that it had to be done so that there was no obstruction to erecting scaffolding or delay in commencing the Works.

190.  Lin also confirmed that on 2 February 2023 the Contractor did not request they remove the House Structure or the Canopies.

191.  The IO’s letter dated 4 February 2023 to R1 and R2 asked them to specify the dates available for scaffolding installation on the Two Flat Roofs, but did not ask them to remove any of the Structures.

192.  Further, the 17 February 2023 MC meeting minutes, a meeting attended by the representatives of the Contractor, did not mention that the Structures had to be removed. Madam Wu agreed that during that meeting, Shawn and Leo did not mention that the House Structure or the Canopies had to be removed.

193.  C&Y’s letter to R1 and R2 dated 24 February 2023, merely urged R1 and R2 to allow the IO to enter the Property for inspection and/or repairs within 7 days, but did not request R1 and R2 to remove any of the Structures. C&Y’s letter to R3 dated 6 March 2023 asked R3 to liaise and confirm the date and time of entry. Again, nothing about the Structures was mentioned.

194.  The 15 April 2023 EGM minutes, even after the relationship between the IO and the Respondents became tense, make no mention of the Structures. The IO did not allege that the Respondents refused to cooperate because they did not remove the Structures.

195.  After the EGM, in C&Y’s letter to C&L dated 21 April 2023, the IO requested the payment of HK$55,000 and the clearance of the items placed on the Two Flat Roofs for the arrangement of re-entry to carry out scaffolding work, but there was no request to remove any of the Structures.

196.  I place weight on the contemporaneous documentary evidence. I accept the submissions of the Respondents. If removal of the Structures was required before the erection of scaffolding at the Two Flat Roofs, the IO would surely have requested the Respondents to do so in the said meetings and letters. Yet, nothing about the Structures was mentioned at all. The Respondents submit that the reason for the silence must be that the Structure did not, and would not have, obstructed the erection of scaffolding at the Two Flat Roofs. I have to agree.

Erection of scaffolding on 13 March 2023

197.  On 13 March 2023, workers entered the Two Flat Roofs and carried out work. The IO claimed that the Contractor’s original plan to erect scaffolding from 2/F to the top of the Building by using the ground of the Two Flat Roofs as the base could not proceed as the Respondents had not consented to it and that the Two Flat Roofs were full of clutter and UBWs, so the Contractor could not have erected scaffolding there in any event. The IO said that on 13 March 2023 the Contractor had to follow the alternative plan to erect a platform on 3/F by using angle brackets, scaffolding and other materials to create a base for the actual scaffolding for works from 3/F to the top of the Building, and the Contractor only accessed the Two Flat Roofs in order to install safety gear and to erect the said platform.

198.  Madam Wu agreed that in order to erect the platform, the Contractor’s workers had to climb from the Two Flat Roofs to 3/F and that the said platform was successfully erected on 13 March 2023. When asked whether in order to climb from the Two Flat Roofs to 3/F the Contractor would need to erect scaffolding from the Two Flat Roofs to 3/F, Madam Wu at first conceded that notwithstanding that the scaffolding erected was for temporary purpose, it should be regarded as some form of scaffolding. Ms Liu says however, Madam Wu later evasively argued that it was not scaffolding, but ladder, for letting others climb over.

199.  The Respondents reject the suggestion that professional construction knowledge is required to distinguish between scaffolding and a ladder. They rely on photographs taken by Lin on 13 March 2023 to contradict Madam Wu’s account. One photograph shows scaffolding was erected from the rear flat roof of 2A to 4/F. It was not a “ladder”, as alleged by Madam Wu. The photographs show that what was erected were scaffolds but not ladders. The photographs show that workers had brought bamboo poles onto the Two Flat Roofs. The Respondents say the reason they took bamboo poles to the Property was to erect scaffolding. The erection of scaffolding, as opposed to ladders, was witnessed by R3 and Lin, who said that the workers later sawed off the bamboo poles halfway.

200.  Ms Liu submits logically speaking, if the Structures obstructed the erection of scaffolding at 2A-4A Walls or from the Two Flat Roofs to the top of the Building, they would have obstructed the erection of scaffolding from the Two Flat Roofs to 3/F on 13 March 2023 as well. However, the platform on 3/F was successfully erected. This means that the Structures in fact would not obstruct the erection of scaffolding at the Two Flat Roofs.

201.  Ms Chong replies that the Respondents seem to be saying that they see a structure built with bamboo poles and assume that it must be scaffolding of the type that can go from the Two Flat Roofs to the top of the Building. Their assertions that if the temporary structure could be built, scaffolding to the top of the Building could also be built, are baseless conjecture. Even on R1and R2’s case, CPS, 2B Mr. Chan and Jason all confirmed that during the 15 April 2023 EGM, Leo had clarified that the works carried out on 13 March 2023 were temporary protection works to facilitate the erection of scaffolding bypassing the Two Flat Roofs. Unless R1 and R2 are suggesting that Leo lied, the IO does not see why this is disputed.

202.  The IO also disputes as baseless the Respondents challenge to the nature of the structure built on 13 March 2023 because:

(1)  None of the Respondents’ witnesses have any professional background in construction. When cross-examined about her claim that the scaffolding works were completed on 24 March 2023, Lin stated “I am not a professional”;

(2)  It was put to CPS that it was clarified during the 15 April 2023 EGM that there were no scaffolding works carried out on 13 March 2023 and CPS admitted that he was not familiar with the works.

(3)  Madam Wu further gave evidence that during the 15 April 2023 EGM, Leo confirmed that scaffolding works could not be carried out as the Canopies, House Structure and Clutter had not been removed.

203.  I am satisfied that scaffolding was erected on 13 March 2023, not merely a ladder. The IO’s instruction to the Contractor was to follow the alternative plan to erect the platform. The IO had changed from the original plan and did not instruct the Contractor that it could and should, revert to the original plan. The Respondents had allowed access and did not seek to dictate or prevent any works of the Contractor. The question is whether the Structures would have prevented the original plan scaffolding being erected in any event.

204.  The DMC is the source of the powers, duties and obligations of the parties. The Respondents are bound to allow the IO to enter upon parts of the building to carry out works. Construing the DMC in light of the authorities, the entry granted must allow the purpose for the entry to be achieved. In granting access unrestricted access should be given, otherwise the object of granting access would be meaningless.

205.  The burden is on the IO to establish that the Contractor could not erect scaffolding and carry out the Works. The IO has not adduced any direct evidence from the Contractor that it was not possible to proceed with the original plan. There is no factual evidence from the Contractor, nor expert, evidence to establish the IO’s assertion that the nature of the scaffolding works carried out on 13 March 2023 is materially different from that required under the original plan. Nor such evidence that while the Structures did not impede that alternative plan work, scaffolding could not be erected to the top of the Building. A reasonable inference to draw from the scaffolding erected on 13 March 2023 is that the House Structure did not obstruct and prevent erection of scaffolding, including to the top of the Building. The IO has failed to establish that the House Structures prevented the erection of scaffolding.

206.  On 19 May 2023, these proceedings commenced. There is no dispute that the House Structure was only removed from the Two Flat Roofs between 12-18 December 2023, while the Canopies were also removed in December 2023. The IO’s case is that the Contractor was finally able to commence scaffolding works at the Two Flat Roofs on 20 December 2023, after all the Canopies, House Structure and Clutter were removed. In May 2024, the additional scaffolding works were completed.

The House Structure

207.  Further support for the Respondents’ case that the House Structure did not have to be removed before erecting scaffolding is the absence of any mention in the IO’s undertaking given to CPS and Jason on 17 March 2023 and the 22 March Letter. Nothing about the House Structure was mentioned in the 17 March 2023 meeting.

208.  Madam Wu agreed that prior to 27 March 2023, being the day on which the scaffolding team would be leaving, there had been no mention of any need to remove the House Structure to R1 and R2 in writing. I find that there was no material mention in writing of the need to remove the House Structure by the IO or the Contractor in the letters and meetings prior to 27 March 2023. The first letter in which the IO requested the House Structure to be removed was the Manager’s letter dated 27 March 2023, received by Jason on behalf of R1 and R2 on 28 March 2023. The 27 March 2023 letter stated, inter alia, that: -

“Upon the consultancy company's review of the plans approved by the Buildings Department, it has been confirmed that the building work located on your flat roof facing the rear lane…is unauthorized building work…

Therefore, we request that you dismantle the unauthorized building work and restore it to its original state according to the approved plans by 25 May 2023 [Thursday], to facilitate the upcoming flat roof waterproofing work by the contractor…”

209.  I accept Ms Liu’s submission that the wording of the said letter, and the date before which R1 and R2 were requested to dismantle the House Structure, being 2 months after the date on which the IO said the scaffolding team would leave the Building, show that the reasons for the removal of the House Structure was because it was confirmed it was UBWs and to facilitate the waterproofing work, but not because the House Structure would obstruct the scaffolding work.

210.  When Madam Wu was questioned on whether the removal of the House Structure was only to facilitate the waterproofing work she insisted that the removal of the House Structure was required for both the scaffolding stage and waterproofing stage as “scaffolding itself is scaffolding”.

211.  The Respondents say that during the 29 March 2023 meeting at the Property Shawn advised Jason and Lin that the House Structure should be demolished at a later stage (stage of waterproofing work) to avoid affecting the effectiveness of the waterproofing layer and causing leakage to the Two Flat Roofs during demolition. Madam Wu did not agree that the Contractor had suggested to R1 and R2 that the House Structure could be removed at a later stage, because she said the Contractor did not give such written or oral notification to the IO. The documents actually support the Respondents’ case.

212.  Thus, CPS by letter dated 30 March 2023 reported to the Manager as follows:-

“I [the owner] am willing to cooperate with the project to dismantle the UBWs…the contractor suggested that the UBWs should be removed before the waterproofing work is conducted to avoid affecting the effectiveness of the flat roof's waterproofing layer and causing potential leakage issues. Therefore, I would like to apply to schedule the removal of the UBWs during the period between the dismantling of the scaffolding and the commencement of the waterproofing work, to ensure the structural integrity and safety of the building. Your company may also consult the contractor appointed by the IO for verification. If needed, we are still willing to cooperate.”

213.  Madam Wu claimed that verification was sought and the Contractor said it did not make such statement to Jason. When pointed out this was not in her witness statement, Madam Wu claimed that she did not specifically pay attention to the letters dated 27 March 2023 from the Manager and dated 30 March 2023 from CPS, because she did not deal with these two letters. R1 and R2 submit that Madam Wu’s account was contradictory to and inconsistent with her witness statement.

214.  The Manager’s letter to R1 and R2 dated 1 April 2023, actually stated that “we acknowledge receipt of your notification dated 30 March 2023, regarding the handling of additional building works on the flat roof and the metal fence on the wall during the building repair works”. Contrary to Madam Wu’s claim, the IO actually acknowledged CPS’s application to dismantle the House Structure at the waterproofing stage and did not object to CPS’s application.

215.  Madam Wu agreed that after those letters, the next letter the IO or the Manager sent to R1 and R2 in relation to the House Structure was dated 5 December 2023. R1 and R2 were then requested to complete the removal of the House Structure on or before 20 December 2023 “to facilitate the Contractor’s waterproofing work on the flat roof”. R1 and R2 had the House Structure removed between 12 and 18 December 2023, completed on 19 December 2023. R1 and R2 submit that as the removal of the House Structure to facilitate waterproofing work was completed on or before 20 December 2023 as requested by the IO, there was no delay in removing the House Structure.

216.  I find that the said correspondence and documentary evidence also establishes that the House Structure did not prevent, obstruct or cause delay to erecting scaffolding at the Two Flat Roofs.

The Canopies

217.  The Respondents maintain that the Canopies were not an obstacle to entry or scaffolding works because it had all along been the common understanding between the IO the Respondent that they would be removed by the Contractor on behalf of the Respondents during the erection of scaffolding. The common understanding is evidenced by the following.

218.  On 13 March 2023, as seen in the photographs taken by Lin, one of the Canopies was removed by the workers for the erection of the so called temporary scaffolding and was later reinstalled. Although the other 4 Canopies were not removed on that day, they were removable. Madam Wu acknowledged that one of the Canopies was removed and reinstalled that day.

219.  Clause 2 of the17 March 2023 the IO undertaking, drafted by the IO, provided that the Respondents shall “allow the Contractor to remove the temporary structures on the external walls, including awnings…, which are unnecessary to be reinstalled after completion”.

220.  CPS, Jason and Lin confirmed that during the meeting on 17 March 2023 with Shawn, Leo and Mr. Yu, they said the Contractor would remove the Canopies on behalf of Flat 2A when they carried out the scaffolding work at the Two Flat Roofs.

221.  Further, the C&Y 22 March Letter, item (ii) under “cooperation required for the project”, stated that “the Contractor has agreed to remove five additional structures currently on the external wall of Fu Kar Building on behalf of your client”.

222.  Madam Wu did not deny there was a common understanding that the Contractor would remove the Canopies on behalf of R1 and R2 during scaffolding work, but merely said that “during the scaffolding work, the Contractor was not held responsible for these 5 Canopies. It was only that the Contractor would like to have the work done, so they offered their service to dismantle the Canopies”. Madam Wu’s own account is that on 6 December 2023, when formal scaffolding work was carried out at the Two Flat Roofs, the Contractor was in fact the one who dismantled the Canopies.

223.  The Respondents submit that, it is clear that they did not delay in removing the Canopies. The Canopies did not obstruct the Contractor from erecting scaffolding as all along the common understanding was that the Contractor would remove the Canopies on behalf of R1 and R2 in the course of the scaffolding work.

224.  I find that the Contractor had agreed to remove the Canopies when it was going to erect the scaffolding. This was agreed by the IO. The Respondents were not in breach of the DMC or the BMO by reason of the Canopies.

Issue 1(b) determination

225.  The Respondents submit that by reason of the above, the IO has failed to prove on a balance of probabilities that the Structures obstructed the erection of scaffolding at the Two Flat Roofs, and that R1 and R2 had delayed in removing them.

226.  If any structure on the Flat Roofs delayed the Works, R3 reminds the Tribunal that these Structures belonged to R1 & R2 and they are responsible for the removal of these structures. Therefore, had there been any delay to the works, it was caused by R1 and R2.

227.  In answer to Issue 1(b), I find that the Canopy, House Structure, and indeed the Metal Fences, did not obstruct the Contractor from erecting scaffolding from the Two Flat Roofs. There was no delay in removing them.

Issue 1(c): Did the Clutter obstruct the Contractor from erecting scaffolding at the Two Flat Roofs

Clutter items

228.  Lin testified that as at 2 February 2023, there was a barbeque kit, a treadmill, 5 to 6 chairs, a retractable umbrella, some toys, a tricycle and a washing machine, which were the belongings of R3’s family, on the Two Flat Roofs, referred to as the Clutter. R3 said there was no bicycle.

229.  Madam Wu agreed that R1 and R2 had no power to clear the Clutter as it belonged to R3 and Lin.

230.  The dispute between the parties is that the IO claimed that the Two Flat Roofs had to be cleared, meaning that all items had to be removed, for scaffolding to be erected at the Two Flat Roofs. Whereas the Respondents’ claim that the Contractor only required that they put items aside to provide sufficient space for the Contractor to erect scaffolding.

231.  Madam Wu repeatedly mentioned that it was not for her to comment on whether all items had to be removed but it was for the Contractor to tell. However, the Contractor did not give evidence.

Clutter on 2B flat roofs

232.  2B Mr. Chan said that he was not required by the IO or the Contractor to remove his furniture or his belongings at the two 2B flat roofs before or during scaffolding work there. 2B Mr Chan said there were several chairs, 1 or 2 ladder(s) and some miscellaneous goods, including goods of his shop in a few carton boxes (around 42cm x 27cm x 34cm each) on 2B flat roofs, and the Contractor did not ask him to clear his flat roofs, but just asked him to move the items aside. Scaffolding work was carried out at the 2B flat roofs despite his belongings being left there. Madam Wu claimed that there was only one high ladder and stationery goods, but there was no other furniture on 2B flat roofs before the erection of scaffolding there, and that before the handover of the site, 2B Mr. Chan had already cleared it all. I prefer 2B Mr Chan’s account of his own belongings on the 2B flat roofs and what occurred, to that of Madam Wu.

233.  The Respondents repeat that as the scaffolding works carried out were the same at the Two Flat Roofs and the 2B flat roofs, there was no reason to differentiate in their treatment. The fact that scaffolding at 2B flat roofs could be erected without the need to clear all the items on 2B flat roofs necessarily means that the non-clearance of the Two Flat Roofs would not obstruct the erection of scaffolding there. I accept that this shows that such movable miscellaneous items should not prevent scaffolding being erected according to the original plan. The items or Clutter could be moved out of the way to elsewhere on the Two Flat Roofs, and were no reason to hold up erecting scaffolding.

Documentary evidence that complete removal was not required

234.  The 18 January 2023 MC meeting minutes, attended by Shawn and Leo , say nothing about removal of Clutter. It was mentioned that the Two Flat Roofs had to be handed over in a proper state.

235.  The Contractor’s letter to the IO dated 3 February 2023 did not mention any need to remove all items on the Two Flat Roofs before the erection of scaffolding. The Contractor’s letter to the IO dated 4 February 2023, reported things discussed during the meeting between R3, Lin and Shawn at the Property on 2 February 2023, but mentions nothing about removal of the Clutter.

236.  R3 and Lin’s evidence is that on 2 February 2023 Shawn and the scaffolding supervisor Mr. Chan, told them that there was no need to remove all the items in the open space, there was enough space for the scaffolding work and that they would only have to put the items aside. Both Madam Wu’s witness statement and the IO’s NOA, make no mentioned of the Contractor or Mr. Yu requesting R3 or Lin to remove all the items on the Two Flat Roofs during the 2 February 2023 meeting.

237.  The IO’s letter dated 4 February 2023 to R1 and R2 does not requested them to ask R3 to clear everything on the Two Flat Roofs.

238.  Further, the 17 February 2023 MC meeting minutes, attended by the Contractor, mention nothing about a need to remove all items on the Two Flat Roofs. Madam Wu agreed that during the meeting, Shawn and Leo did not mention any need to clear the Two Flat Roofs.

239.  Likewise C&Y’s letter to R1 and R2 dated 24 February 2023, did not request R1 and R2 to ask R3 to remove all items on the Two Flat Roofs. In C&Y’s letter to R3 dated 6 March 2023, R3 was asked to liaise and confirm the date and time of entry, but R3 was not asked to remove all items on the Two Flat Roofs.

240.  R1 & R2 submit that the reason for not mentioning the need to clear the Two Flat Roofs in the said meetings and letters was because there was no need to do so, and that scaffolding could be erected as long as the items were placed aside.

241.  During re-examination, Madam Wu claimed that R1 and R2 were first told of a need to clear the Two Flat Roofs during the meeting on 17 March 2023 at the Property. However, Madam Wu’s assertion is not supported by the Contractor’s letter to the IO dated 25 March 2023 reporting on that meeting. Nothing about a request to remove all items was mentioned. To the contrary, CPS, Jason and Lin confirmed that on 17 March 2023, the Contractor told them that as long as the items were placed aside so that it caused no obstruction to its work, then it would suffice. I accept their evidence

242.  The IO also says that during the meeting on 29 March 2023, Shawn, Jason and Lin at the Property, Shawn observed that the Respondents had not removed the furniture and clutter on the Two Flat Roofs. Jason and Lin said that the Clutter could only be cleared by 31 March 2023.

Clearance optional and for the purpose of personal and property safety

243.  The Respondents also refer to documents drafted by the IO making it apparent that the clearance of everything on the Two Flat Roofs at the stage of erection of scaffolding was not necessary and merely optional.

244.  Clause 1 of the IO’s undertaking of 17 March 2023 states:-

“Provided that the Contractor [and/or subcontractor] notifies at least three days in advance, Flat 2A shall, for the property and personal safety, remove all furniture and other things on the front and rear flat roofs during the following specific periods. Otherwise, any theft shall be borne by Flat 2A itself.

i) 1-2 weeks from the date of admission;

ii) 2-3 weeks to remove all items [depending on the progress, and the exact time to be notified]; and

iii) 2-4 weeks before completion until completion [depending on the progress, and the exact time to be notified]”.

245.  Further, the C&Y 22 March Letter to C&L, item (i) under “cooperation required for the project” stated :-

“Remove/protect all furniture and other things on the front and rear flat roofs of the Flat…

As the Contractor needs to store maintenance materials to support the works, in order to protect the property and personal safety of your client and its tenant, our client will notify your client at least three days in advance through “Mailbox: 2A Mailbox of Fu Kar Building, 222 Johnston Road, Wan Chai, Hong Kong” [especially in the following three periods (1)-(3)] to remove/protect all furniture and other things on the front and rear flat roofs of the Flat. Otherwise, any damage or theft thereof shall be borne by your client and its tenant.

(1) 1-2 weeks from the date of admission;

(2) 2-3 weeks to remove all items [depending on the progress, and the exact time to be notified]; and

(3) 2-4 weeks before completion until completion [depending on progress, and the exact time to be notified]

** Note: During the period (3), all items on the flat roofs of the Flat must be emptied to facilitate waterproofing work for the flat roofs**.”

246.  The Respondents submit the above 2 documents make it obvious that it was not necessary to remove all items on the Two Flat Roofs before the erection of scaffolding, stage 1. It was only necessary to clear all items at the stage of waterproofing work, stage 3. At the erection of scaffolding stage, first the Respondents could choose either to remove or protect the items on the Two Flat Roofs, upon the Contractor or the IO notifying them 3 days in advance. Secondly, even if the Respondents did not remove or protect the items on the Two Flat Roofs, it would not obstruct the erection of scaffolding. The Contractor could still carry out scaffolding work at the Two Flat Roofs. The purpose for asking the Respondents to remove or protect the items was for the protection of personal and property safety. If the items were not removed or protected, the Respondents shall be responsible for any damage or theft that might occur.

247.  I accept that the said documents are consistent with the Respondents’ position that they were told by the Contractor that they did not have to remove everything on the Two Flat Roofs but would only have to put them aside.

248.  When put to Madam Wu that protection would suffice, she asserted that “the removal is a must and for the protection part, if the items caused no obstruction of the works it’s at our own discretion. The objective is that we will deal with this matter at our own discretion”. Ms Liu submits thus, it is plain that the IO at its own “discretion” decided that everything on the Two Flat Roofs must be removed, when in fact putting aside the items on the Two Flat Roofs would not cause any obstruction to the erection of scaffolding there.

249.  I find that the IO has not established that the items or Clutter caused obstruction to erecting scaffolding. Whether the IO has a discretion to order owners or occupiers to completely clear their property, when it is not necessary for the Contractor to carry out the Works, is a matter of construction of the DMC and addressed below.

Actual scaffolding erected on 13 March 2023 in spite of presence of Clutter

250.  Madam Wu said that on 13 March 2023 when the Contractor gained entry the Two Flat Roofs were full of Clutter. She agreed that on that day a platform was successfully erected on 3/F and, at first, agreed that some form of scaffolding, as opposed to ladders, was erected from the Two Flat Roofs to 3/F. I have found that it was scaffolding.

251.  The evidence of R3 and Lin was that on 13 March 2023 they moved all items aside so the Contractor could have enough space to set up the scaffolding. R3 also said that the workers even helped him to push the things aside. Not much time was needed to move the items aside. On both 13 and 15 March 2023, the Contractor did not tell Lin that there was insufficient space for the works or she needed to remove everything on the Two Flat Roofs.

252.  It must not be forgotten that Madam Wu never went to the Two Flat Roofs and has no first-hand knowledge. Yet Madam Wu claimed that as the furniture was placed near the external wall, the bamboo sticks could not be pulled up, and that the erection of the safety net could not be done because of limited space.

253.  The Respondents reply that the scaffolding only took up a limited space. The total area of the Two Flat Roofs was 600 square feet. The Contractor’s Quotation states that the Two Flat Roofs were of 55 square meters. The diagram in the Contractor’s letter to the IO dated 3 February 2023, shows that only 20 bamboo poles/sticks and 16 bamboo poles/sticks (diameter of each bamboo pole was around 2 to 6 inches) would be required for the scaffolding work at the front flat roof and rear flat roof of Flat 2A respectively. The diagram shows that scaffolding only took up a small area of the Two Flat Roofs, considering the positioning of the scaffolding poles.

254.  The photographs taken by Lin on 13 March 2023, show that over 10 bamboos poles had been brought onto the Two Flat Roofs that day and, contrary to what Madam Wu said, some of the bamboo poles were “pulled up”. As such, the Respondents maintain that there is simply no basis for the IO’s assertion that the items placed on the Two Flat Roofs, after being moved aside, would obstruct the erection of scaffolding.

255.  R1 and R2 continue that logically if the furniture and miscellaneous items on the Two Flat Roofs obstructed the erection of scaffolding at 2A-4A Walls or from the Two Flat Roofs to the top of the Building, they would have obstructed the erection of scaffolding from the Two Flat Roofs to 3/F on 13 March 2023 as well. However, the platform on 3/F was successfully erected. This shows that the items on the Two Flat Roofs would not obstruct the erection of scaffolding and no complete clearance of the Two Flat Roofs was required.

256.  The net shed for protection, or safety net, would be installed well above the ground of the Two Flat Roofs, and hence items placed on the Two Flat Roofs would not obstruct the erection of such safety net.

257.  I find that the Clutter did not obstruct works carried out on 13 March 2023. I infer that it would not have obstructed the original plan scaffolding and the Works had the IO instructed the Contractor to proceed with that scaffolding and the Works.

Items moved aside on 27 March 2023

258.  On 27 March 2023, as the IO had said that the scaffolding team would be leaving, R3 and Lin moved all the things on the Two Flat Roofs aside. CPS also saw that the items were placed on a side in the morning of 27 March 2023. In spite of this, and that the 27 March Agreement and R3’s Undertaking had been given to the IO that day, neither the Contractor nor the Manager or the IO called R3 or Lin or knocked on Flat 2A’s door that day.

259.  Madam Wu said that from 27 March to 14 April 2023 CPS did not notify the IO that the Two Flat Roofs were ready because CPS knew that they were not ready. Whereas in fact, Jason on 27 March 2023 had already asked Mr. Yu to make arrangement to commence the formal scaffolding work.

260.  I accept the Respondents evidence that the items of Clutter were put aside. Madam Wu is in no position to say that the Clutter did in fact, or would have, obstructed the Works on that day. Despite being allowed entry neither the IO nor the Contractor even went to the Property.

The meeting on 29 March 2023

261.  The IO says that during the 29 March 2023 meeting at the Property Shawn observed that the Respondents had not removed the furniture and clutter on the Two Flat Roofs. Jason and Lin said that the Clutter could only be cleared by 31 March 2023. Whereas the Respondents say that the furniture on the Two Flat Roofs was already put aside. Jason confirmed that Shawn told Lin that she would only have to put the miscellaneous items on a side at the Two Flat Roofs, and there would not be any problem as long as the workers’ way was not blocked. Lin also recalled that Shawn told her that there was sufficient room for the Contractor to carry out the scaffolding work.

262.  Both Jason and Lin disputed the account of the conversations in the letter from the Contractor to the IO dated 30 March 2023 during the meeting on 29 March 2023. They simply could not understand why such accounts were reported in the letter.

263.  The IO replies therefore it must be the Respondents’ case that Shawn had lied, the IO asks what reason does Shawn have to lie? Further, Jason and Lin gave different evidence about what was said on the day during cross-examination. Jason and Lin both claim that items on the Two Flat Roofs had already been pushed aside. However, according to Jason, Lin did not ask if there was already sufficient space, hence he was unclear if there was sufficient space for scaffolding works. Ms Chong says that this does not accord with common sense. If items were already pushed aside, Jason and Lin would surely have confirmed with Shawn that there was sufficient space for the scaffolding works. Yet according to Jason, neither asked this crucial question. Jason’s evidence is inconsistent with that of Lin, who claimed that she did ask Shawn to confirm if there was sufficient space and Shawn allegedly did so confirm.

264.  The IO says that the Tribunal should thus accept the IO and Shawn’s evidence as to what was said during the 29 March 2023 meeting. The Two Flat Roofs were not yet ready as of 29 March 2023.

265.  The Respondents contend that the said 30 March 2023 letter from the Contractor did not state that all items had to be removed before erection of scaffolding could be done. The letter stated, inter alia, that:-

(1)  The Contractor found that the furniture and miscellaneous items on the Two Flat Roofs had not yet been removed;

(2)  Given that the items had not been cleared at the time of the inspection, the Contractor would first report the situation to the IO before the scaffolding workers could confirm the schedule of scaffolding work; and

(3)  Due to tight manpower and the time required for scheduling, the Contractor asked the IO to notify them of the required dates for the additional scaffolding work as soon as possible.

266.  The Respondents’ submit that it is apparent from the 30 March 2023 letter that it was the IO, instead of the Contractor, who was requesting everything on the Two Flat Roofs to be cleared. This is consistent with Madam Wu’s WhatsApp message on 4 March 2023 emphasising that the Contractor would only carry out works at the Two Flat Roofs in accordance with written instructions of the IO. Notwithstanding that the Contractor did not require everything on the Two Flat Roofs to be cleared, and no obstruction to the erection of scaffolding would be caused as long as the items were put aside, the IO did not give written instructions to the Contractor to erect scaffolding at 2A-4A Walls until December 2023.

267.  Again, I prefer the direct evidence of the witnesses who were actually present at the meeting. Lin lived in the Property and would be familiar with the items, where they were normally placed and know if they had moved them. While Jason did not hear Lin getting Shawn’s confirmation that there was sufficient space, it is likely she did so. The difference does not undermine the witnesses’ credibility. It suggests that Jason was an honest witness, not simply saying what was best for the Respondents’ case. The Contractor’s letter did not state that it required that all items be removed from the Two Flat Roofs before scaffolding could be erected.

First notice that the IO required complete clearance 15 April EGM

268.  On 1 April 2023, the Manager issued a letter to R1 and R2, stating that the Contractor was scheduled to re-enter the Property on 17 April 2023 and requesting them to pay additional costs of HK$55,000.

269.  The IO says that throughout April 2023, there was no attempt by the Respondent to clear the Canopies, House Structure and Clutter from the Two Flat Roofs, as seen from photographs of the back flat roof of the Property on 11 April 2023. According to the IO it is impossible for scaffolding to be erected, unless the Respondents are suggesting that the scaffolding can somehow puncture through the Canopies, House Structure and Clutter items.

270.  At the 15 April 2023 EGM, where Madam Wu, CPS, 2B Mr. Chan and Jason were present, it was resolved that legal action be commenced against the Respondents. The IO maintains that the Respondents evidence as to what was said during the EGM should not be accepted and invites the Tribunal to accept the IO’s evidence instead. During cross-examination, Madam Wu said: -

(1)  CPS claimed that he did not know the definition of “clearing the site”, whether it meant that the site had to be “dustless”;

(2)  Mr. Yu of the Manager explained that there was no definition in the DMC, it depended on the requirements of the works and safety requirements of the Contractor. CPS agreed Mr Yu said that there was a need to “clear the site”;

(3)  Many other owners present at the meeting also implored CPS to cooperate; CPS eventually agreed to completely clear the Two Flat Roofs.

271.  At the EGM, Madam Wu for the first time said she thought the Respondents did not cooperate because R3 did not clear everything on the Two Flat Roofs. Despite Mr. Yu clarifying that in the DMC there was no requirement of clearance, and under these circumstances it would be like borrowing a way of access for the sake of renovation work, and that CPS and Jason had told the IO that the items were already placed aside, Madam Wu still insisted that the site had to be cleared, with not a single item left behind.

272.  In light of Madam Wu’s request CPS on 18 April 2023 wrote to the Manager Mr. Yu (copied to the IO) saying, inter alia, that although he did not agree with the definition of “clearing off” and the IO’s request, in order to cooperate with the Works, they were willing to lend a reasonable working place or space on the Two Flat Roofs. 3 days before the commencement of work they would request the tenant to remove their belongings on the Two Flat Roofs such that the contractor can commence the work.

273.  The IO thought it appeared that there was at least consensus between the IO and R1 and R2 for all the Clutter to be cleared from the Two Flat Roofs at this point, but this was still not done.

274.  C&Y on 21 April 2023 informed C&L, inter alia, that the Contractor would enter the Property on 28 April 2023 to erect scaffolding and requested they clear all items from the Two Flat Roofs. On 24 April 2023, C&L replied to C&Y, allegedly backtracking from CPS’s letter dated 18 April 2023, again disputing the need to completely clear all Clutter from the Two Flat Roofs. C&L’s letter re-iterated that the Respondents allowed the Contractor to enter the Two Flat Roofs to carry out works on 28 April 2023 and that “if your contractor has any questions about the area of site clearance, please contact our client and the tenant who will arrive at the site for understanding”. No reply was received from the IO.

275.  Madam Wu explained that as the Respondents failed to pay the HK$55,000 on or before 24 April and failed to completely clear the Two Flat Roofs by 28 April, the IO did not arrange for the Contractor to enter the Two Flat Roofs on 28 April 2023.

276.  CPS admitted that he did not request R3 to clear items from the Two Flat Roofs by 28 April 2023. The reason he did not ask R3 to clear everything was that from C&Y’s letter dated 21 April 2023 “it seemed that we had to make a payment of certain amount before any further decision could be made”. That letter made the payment of HK$55,000 re-entry fee on or before 24 April 2023 a precondition to the IO’s arrangement for the Contractor to erect scaffolding on the Two Flat Roofs on 28 April 2023. If the Respondents paid HK$55,000, the Contractor would inspect whether or not the Two Flat Roofs were cleared at 9 a.m. on the reappointment date and would leave the site if they found out the site was not cleared. Ms Liu submits that as R1 and R2 did not pay the HK$55,000 requested, the IO did not even arrange for the Contractor to enter the Two Flat Roofs on 28 April 2023 and the issue of whether the Two Flat Roofs were cleared was irrelevant. Madam Wu’s account that the IO did not make arrangements for re-entry on 28 April had nothing to do with the payment of HK$55,000 was contradicted by the content of C&Y’s letter dated 21 April 2023. I find that the 21 April 2023 C&Y letter made the payment a precondition.

The 13 May 2023 Video

277.  Lin sent Jason a video she took on 13 May 2023 showing that workers entered the Two Flat Roofs for cleaning works. It shows that items were not completely removed from the Two Flat Roofs but they were put aside. Lin says that when she asked the workers if there was sufficient space for the workers to erect scaffolding at the Two Flat Roofs, they answered that there was sufficient space and that “setting up scaffolding can be adjusted as needed”. Therefore the items on the Two Flat Roofs did not obstruct the erection of scaffolding.

278.  Between September and December 2023, the Two Flat Roofs were not cleared. Lin confirmed in her witness statement that Jason only asked her to remove all furniture from the Two Flat Roofs on 4 December 2023, and she did so on 5 December 2023.

279.  The IO’s case is that the Contractor was finally able to commence scaffolding works at the Two Flat Roofs on 20 December 2023, after all the Canopies, House Structure and Clutter were removed. In May 2024, the additional scaffolding works were completed.

Issue 1(c) determination

280.  Ms Liu submits that it is apparent that no obstruction would be caused to the erection of scaffolding as long as items or Clutter on the Two Flat Roofs were moved aside to provide sufficient space for the workers to carry out work. Complete clearance of everything on the Two Flat Roofs was not required. There was also no delay on the part of R1 and R2 to request R3 to clear everything, even if there was such a need.

281.  In any event, Ms Liu points out that as Madam Wu has confirmed, R1 and R2 had no power to clear the furniture and miscellaneous items on the Two Flat Roofs, as those were the belongings of R3’s family.

282.  Ms Liu relies upon Clause 3(e) of the DMC merely stating that the Manager has full right and privilege at all reasonable times on notice to enter each part of the Building to carry out repair or maintenance work, and section 40(1) of the BMO also only provided that a member of the MC may on reasonable notice to the owner or occupier enter a flat at any reasonable time for the purpose of inspecting, maintaining and repairing any common parts. Ms Liu submits that the DMC and section 40(1) of the BMO did not impose a positive duty on the owners, R1 and R2 here to request their tenant, R3 to remove his belongings which were beyond the control of R1 and R2 for the purpose of facilitating the carrying out of the maintenance works. In my view R1 and R1 were obliged to allow entry and not to obstruct access. They were responsible for the Structures. R3 was responsible for his personal items or the Clutter.

283.  Ms Lui seeks to distinguish this case from the situation in the IO of Potek House. In that case the DMC contained a provision which stated: “…each Owner shall take all possible steps to prevent his tenants, occupiers and licensees from doing any act,…which in any way interferes with or affects or which is likely to interfere with or affect…the management and maintenance of the Building” (see §34(1)(d) and §47 of the IO of Potek House). However, in the present case, there is no such clause or clause to similar effect. What R1 and R2 were required to do was simply to allow the IO to enter the Two Flat Roofs to carry out scaffolding work. They were not required to take all possible steps to prevent R3 from doing anything which may obstruct the erection of scaffolding, such as requesting R3 to remove all his belongings from the Two Flat Roofs, if there was really such a need. Therefore, R1 and R2 would not have breached the DMC and section 40(1) of the BMO by not requesting R3 to remove everything from the Two Flat Roofs.

284.  Mr Lam submits firstly, the IO’s failure to provide clear and timely communication regarding the requirements for accessing the Two Flat Roofs significantly undermined its position. Madam Wu’s evidence revealed that no specific requests to remove any items on the Two Flat Roofs were communicated to R3 prior to or during key interactions, including the meeting on 2 February 2023 and subsequent correspondence. This is confirmed by the absence of such requirements in the IO’s letters. The sudden escalation of demands, such as the requirement to clear all items, only emerged later. This inconsistency and lack of clarity placed R3 in a difficult position, unable to comply with shifting and poorly articulated expectations.

285.  Secondly, Mr Lam asserts that the IO’s requests were unreasonable. The evidence of R3, Lin, and 2B Chan consistently demonstrated that the Contractor had indicated, as early as 2 February 2023, that moving items aside on the Two Flat Roofs would suffice for scaffolding works. This was proved by the successful commencement of scaffolding works on 13 March 2023, despite the presence of items, which did not impede the workers. The IO’s subsequent insistence on complete clearance, including the removal of Structures similar to those permitted on Flat 2B, appears arbitrary and unsupported by the Contractor’s operational needs.

Whether the IO has a discretion to require all items be removed from the Two Flat Roofs

286.  The IO purported to exercise a discretion to demand that everything on the Two Flat Roofs be removed. Madam Wu sought to distinguish between items the Contractor required be removed or cleared, from those in respect of which, the IO exercised a discretion. I find that the Contractor did not require that the Two Flat Roofs be completely cleared of all items, or the Clutter, before scaffolding could be erected.

287.  In my view the IO has failed to properly read or construe the DMC. The IO started to use the term “site” instead of “roofs” and “clear site” without defining what that means. If the IO was purporting to adopt terms commonly used in the construction industry, it should have sorted out for itself what it meant, checked the source of the power and whether that was in accordance with the terms of the DMC. The IO then ought to have expressly relayed its meaning and requirement to the Respondents. If the IO’s “clear site” meant that there is to be nothing at all on the Flat Roofs and entry is restricted to authorised personal only, regardless of the Contractor’s requirements, the IO has misunderstood its power and rights under the DMC.

288.  Applying IO of Potek House to the present facts, I find that the Respondents were not required to clear all items from the Two Flat Roofs or completely clear the site as alleged. Placing the items aside on the Two Flat Roofs to provide sufficient space for the workers to erect scaffolding is consistent with the IO of Potek House §42 requirement that unrestricted access should be given such that no chattel or objects would block the Contractor’s access to the common facilities pending repair. The Contractor did not require complete clearance of the Two Flat Roofs. The Clutter did not block the workers’ access. The object of granting the access was not rendered meaningless by presence of the Clutter. On a proper construction of Clause 3 of the DMC the Respondents were bound to allow entry, and in granting access for the Works, it had to be unrestricted access. No Clutter or object should be present to block access to the common wall. The Respondents did not restrict that access. On the facts found the House Structure did not block access to the common wall. It was understood that the Contractor had agreed to remove the Canopies. The Canopies did not prevent the scaffolding being erected. While the Clutter items could simply be moved out of the way to elsewhere on the Two Flat Roofs.

289.  Upon a proper construction of Clause 3(d) of the DMC the Respondents were not required to clear all items in the present circumstances. The Contractor did not request the Clutter be entirely removed from the Two Flat Roofs. The IO did not have a discretion or power under the DMC to make such demand, if not required for the purpose of the Works. The express terms of the DMC Clause 3(d) include the right at all reasonable times on notice to enter for the purpose of carrying out any work necessary but “ensuring as little disturbance as possible” and making good any damage caused. The Respondents were bound to allow entry. However, the IO in exercising its right of entry must ensure that it causes as little disturbance as possible.

290.  Even construing the clause to include a requirement that unrestricted access must be allowed or to include an implied term that the Respondents must not block access, the Contractor had such access once the Clutter was moved aside. The IO had no right to cause further disturbance and require the Respondents remove all items from the Two Flat Roofs, whether to transport the items to storage elsewhere or even to place them inside Flat 2A, with the additional disturbance that would inevitably cause. The IO did not have the discretion claimed by Madam Wu. If the items caused no obstruction to the Works, the IO did not have a discretion to order their removal. The IO was not entitled to deal with the matter at their own discretion.

291.  On the facts unrestricted access was entry to allow the Contractor to erect scaffolding and carry out the Works. In exercising the right of entry the IO was bound to ensure as little disruption as possible. The IO has failed to prove that the Contractor required all items be entirely removed from the Two Flat Roofs and the House Structure be dismantled before it could erect scaffolding for the Works. The Respondents were not in breach of the DMC by reason of items, or the Clutter, remaining on the Two Flat Roofs.

Negative covenant

292.  If the Respondents were found to have caused delay to the renovation works and were in breach of the DMC or BMO, a further defence of R3 is that he is not required to compensate the IO as the duty to allow access is positive covenant under the CPO and not enforceable against a tenant. The DMC provides that the IO has various duties. The IO is required to maintain the Building and carry out works in accordance with the terms of the DMC. The IO has the right to enter the Property to carry out the works pursuant to clause 3 of the DMC. The Respondents are not to prevent that entry or obstruct the exercise of the IO and Managers rights and duties under the DMC. In my view that is a negative covenant. The owners, but also the tenant, is bound not to prevent entry or block access. R3, as well as R1 and R2, is bound to comply pursuant to the DMC.

Whether the IO has failed to give reasonable notice

293.  The Respondents took an additional separate issue, but it would fall under Issue 1(a). Namely, whether the IO gave reasonable notice in terms of the DMC. The Respondents submit that the IO’s notice given to erect scaffolding at the Two Flat Roofs was unreasonably short, given that the IO was saying that R1 and R2 not only had to allow entry but also had to remove the Canopies, and House Structure as well as clear everything on the Two Flat Roofs.

294.  Even if on 18 January 2023 2B Mr. Chan was requested to inform his family about the IO’s need to use the Two Flat Roofs after Chinese New Year, it would mean that R1 and R2 only had 2 months’ (before the deadline on 27 March 2023) to negotiate with R3 in order to procure him to allow entry, to remove the Canopies and House Structure and to give time to R3 to clear everything on the Two Flat Roofs. I consider any such message to be relayed by 2B Mr Chan could not possibly constitute reasonable notice in terms of the DMC to another owner.

295.  If the Respondents had been told that they had to remove the Structures, Madam Wu accepted that were R1 and R2 to engage their own contractor to remove the Canopies and House Structure, application for renovation would have to be lodged with the IO and the IO would need time to process and approve the application. R1 and R2 consider that such a short period of time was wholly inadequate for them to complete so many tasks. This especially unreasonable in light of the fact that the IO delayed for more than 4 years in selecting the Contractor for the Works after the deadline for completing the Building Work had passed. Any delay was self-inflicted.

296.  I accept that the IO had years to organise the works. The preparation should have included a program that allowed time for giving reasonable notice to the owners and occupiers of the flat roofs in the Building. There was no immediate urgency that would prevent the IO timetabling a period for reasonable notice to be given to the Respondents, before the Contractor was to commence the Works.

297.  Ms Liu points out that there was no evidence, even from Madam Wu, that the IO actually informed R1 and R2 of the need to remove the House Structure prior to the issuance of the Manager’s letter dated 27 March 2023, received by Jason on 28 March 2023. Therefore not only was there no reasonable notice, in fact no notice was given to remove the House Structure at all, before the IO deadline on 27 March 2023.

298.  Madam Wu also claimed that R1 and R2 were first told of the need to clear everything on the Two Flat Roofs during the meeting on 17 March 2023, which she did not attend, and is denied. Prior to 15 April 2023, the Respondent were all along told that it would suffice as long as the items on the Two Flat Roofs were moved aside. Even on the IO’s case, only 10 days’ notice was given to R1 and R2 to clear the Two Flat Roofs. The Respondents consider such notice was unreasonably short as R1 and R2 would need time to confer with R3, make arrangements to clear everything and to find a place for storage and to transport his furniture and miscellaneous items to that place.

299.  The Respondents allowed entry. What constitutes reasonable notice turns on what was required of the Respondents. Were they required to dismantle and remove the House Structure, they were not given reasonable notice to do so before 27 March 2023. The Respondents were not given reasonable notice to remove all items from the Two Flat roof or to entirely clear them of the Clutter. I find that in the circumstances reasonable notice as required under the DMC was not given by the IO to the Respondent.

Determination of Issue 1

300.  Ms Liu submits hence, R1 and R2 did not breach the DMC and/or section 40(1) of the BMO, and did not cause delay to the IO’s entry to the Two Flat Roofs for carrying out repair and renovation works to the Building. Further, the IO did not give reasonable notice pursuant to the requirement of the DMC and section 40(1) of the BMO. I so find.

301.  Mr Lam submits that R3 was not in breach of the DMC or BMO for the above reasons. The Respondents emphasise that the IO chose to take a litigious approach, and unreasonably refused to communicate with the Respondents and to arrange for the Contractor to erect scaffolding from the Two Flat Roofs, thus any delay loss and damage was entirely caused by the IO.

302.  I have accept on the oral and documentary evidence, that neither the Canopies nor the House Structure (or the Metal Fences) obstructed the erection of scaffolding at the Two Flat Roofs. The Clutter did not obstruct the workers from erecting scaffolding or the Works. Complete clearance of the Two Flat Roofs was not required. The items on the Two Flat Roofs were placed aside. That would suffice. In fact that had been done on 13 March 2023

303.  I find that any loss and damage was caused by the IO.

304.  In answer to Issue 1, I find that the Respondents have not breached the DMC and or the BMO, which resulted in delay in the IO’s entry to the Two Flat Roofs for carrying out repair and renovation works to the building, whether by reason of refusing entry, or the Canopies, House Structure or Clutter obstructing the Contractor from erecting scaffolding.

305.  The IO’s claim is dismissed.

306.  Lest I be wrong, I shall consider and determine the IO’s quantum claim.

Issue 2: If so, did such breach(es) cause the IO to have to pay additional costs for the repair and renovation works to the Building?

307.  The IO’s answer is yes. The IO’s NOA, seeks damages in the sum of HK$422,193 and provided a breakdown of the sum. That comprises HK$402,193 additional costs of the Contractor and HK$20,000 additional costs of the Consultant. The IO based the HK$402,193 additional costs on the Contractor’s Quotation dated 4 March 2024 (“Contractor’s Quotation”), and the HK$20,000 additional consultancy fee was based on the Consultant’s quotation dated 11 November 2023. The quotations for the additional costs were adduced.

308.  As of June 2024, the 1^st instalment of the fees payable to the Contractor in the sum of HK$282,403 and fees payable to CSL in the sum of HK$20,000 were paid on 18 April 2024.

R1 and R2 Quantum

309.  If liability were found against R1 and R2 they submit that the sum of loss and damages claimed by the IO are unreasonable and unjustified. Further, the IO has also failed to mitigate its loss.

310.  R1 and R2 submit that most of the additional works stated in the Contractor’s Quotation actually duplicate the works already covered under the Original Contract and therefore the additional costs were double-counted and unjustified.

311.  Mr Lam raises two main issues regarding the quantum of the claim. First, part of the amount claimed has yet to be incurred, and Madam Wu knows or ought to know that the claimed amount is inappropriate. However, the IO chose to proceed with the claim nonetheless. Secondly, it appears that the claim amount was exaggerated by the IO and/or the Contractor in 2024 solely for the purpose of the litigation, which is potentially fraudulent in nature. It is not appropriate to raise the issue of fraud obliquely. I reject any suggestion of a potentially fraudulent claim, for lack of evidence.

Loss & Damages Claimed Unjustified

312.  The Contractor’s Quotation calculation was based on the number specified in the contract on major repair, which was the original contract for the Works signed between IO and the Contractor in December 2022 (the “Original Contract”).

313.  The Original Contract was for the purpose of carrying out the Works to comply with the Building Order and Window Order. It necessarily covers repair and renovation works in relation to the whole Building. That includes 23 storeys with 44 residential units on 2/F to 23/F and 7 shops/offices on 1/F and 8 shops on G/F. It also covers works at the external wall of the Building including the 2A-4A Walls.

314.  The IO disputes the Respondents’ allegation that first, the additional works in the Contractor’s Quotation are duplicated with those under the Original Contract and hence unjustified. The Respondents try to draw comparison between the figures in the new Contractor’s Quotation and that in the Original Contract, but the Original Contract is not part of the evidence. There is no evidential basis for the Respondents to say that the expenses are excessive.

315.  The IO denies any double-counting of costs. Madam Wu testified that once works have to be redone after the original schedule, this would lead to additional costs being incurred.

316.  Ms Chong points out that the Respondents have adduced no evidence to show that the quantum for individual items sought by the IO is excessive or unreasonable.

(a)  Item 1: general measures

317.  R1 and R2 dispute the Contractor’s Quotation, item 1 (general measures) which was calculated on the basis of the unit price based on the number of contract days under the Original Contract times 70 days. Madam Wu agreed that the figures in the Contractor’s Quotation were calculated based on a delay of 70 days in the completion of the Works.

318.  Given that the additional works only involved 2A-4A Walls, but item 1 of the Original Contract covers the external wall of the whole Building with 23 storeys, R1 and R2 submit that the insurance fee, temporary water and electricity expenses and costs of clearing of waste and debris per day for works involving the external wall of only 2 storeys would be much less than that of the whole Building. Thus, the calculation of items 1.1, 1.3 and 1.4 based on the unit price under the Original Contract, times 70 days is unfair and excessive. The Original Contract is not in evidence. The Contractors Quotation evidences the sum claimed. I find that the Respondents have not adduced evidence to establish any item claimed is excessive or show how claimed items are unfair.

(b)  Item 2.1 : erecting of the work scaffolding and/workbench

319.  The Respondent’ dispute Item 2.1 (erecting of the safety construction scaffolding and/or workbench) in the Contractor’s Quotation which was calculated based on the scaffolding area required, times the unit price under the Original Contract.

320.  As the costs of erection of scaffolding at 2A-4A Walls were already included in the Original Contract, the material cost and at least part of the labour cost for the erection of such scaffolding quoted in the Contractor’s Quotation were doubted-calculated and should not be paid by the IO to the Contractor. In my view, for the same reasons, the Respondents have not proved any double calculation. The Original Contract is not in evidence and they have not adduced other evidence that the costs were incurred previously and should not be claimed in the Contractors Quotation.

(c)  Items 3C.2, 3, 4, 5, 7, 10, 11 and 12: chiseling, repairing and painting of external walls

321.  Items 3C.2, 3, 4, 5, 7, 10, 11 and 12, calculations in the Contractor’s Quotation were based on the total areas of the 2A-4A Walls. Hence, the Respondents say that the material cost and at least part of the labour cost incurred in such items were already covered in the Original Contract and should not be double-charged. The Respondents cannot rely on the Original Contract and have not otherwise established any double calculation or that the costs were not incurred by reason of previously charged works.

(d)  Items 3C.8, 13, and 14: relocation and reinstallation of air conditioning units and racks

322.  Under Items 3C.8, 13 and 14, the Contractor charged for the relocation and reinstallation of the 2 air conditioning units and racks of the Property. The Manager’s letter dated 6 June 2023 informed all owners of the Building that the Contractor provided the service of relocation and reinstallation of air conditioning units and racks for all units of the Building free of charge. The Respondents say there was simply no basis for the Contractor to provide items 3C.8, 13 and 14 to all other owners free of charge but only charge R1 and R2 for such items.

323.  The IO replies, on relocation and reinstallation of air-conditioning units and racks, that the Contractor only offered free dismantling, while installation would be at owners’ own expense after seeking approval from the Buildings Department. Further, the free service was only offered “currently” in June 2023. It is reasonable that such free service was no longer offered as the Contractor had to undertake additional works only for the 2A-4A Walls at a later stage. The Respondents have not shown that the Contractor did not and or was not entitled to include those costs in the additional works or that the IO is not liable for the sum.

(e)  Item 3C.9: replacement of window sealant

324.  Item 3C.9, the replacement of window sealant around the external wall windows, the Contractor’s Quotation calculation was based on the total length of the sealant used for the windows on 2A-4A Walls. The Respondents submit similarly, as the replacement of sealant for the windows on 2A-4A Walls was covered under the Original Contract, the material cost and part of the labour cost for such works quoted in the Contractor’s Quotation were double-charged. The Original Contract is not in evidence and the Respondents have not adduced their own evidence on quantum. For the same reasons I find that the Respondents have not established any double charging.

(f)  Item 6: replacement of ground drainage channels of 2A-4A Walls

325.  Items 6.1 and 6.2, the Contractor’s Quotation calculations were based on the “total length of the sewers with related vent pipes for the Building/number of units in the Building x 2 units”. The Respondent submits as the replacement of sewers with related vent pipes for 2A-4A Walls was already covered in the Original Contract, the material cost and part of the labour cost for items 6.1 and 6.2 quoted in the Contractor’s Quotation were double-charged. Again, for the same reasons the Respondents have not established any double charging.

(g)  Item 8.5: reinstallation of waterproofing for the Two Flat Roofs

326.  There are only 4 flat roofs in total in the Building, being the Two Flat Roofs and the 2B flat roofs. In the Contractor’s Quotation, item 8.5 (waterproofing work) was calculated by dividing the total area of the flat roofs of the building by 2 then multiplying the unit price under the Original Contract. The Respondents submit as the reinstallation of waterproofing for the Two Flat Roofs was already taken into account in the Original Contract, item 8.5 in the Contractor’s Quotation was double-charged. Again, the Respondents cannot rely on the Original Contract.

327.  More significantly, during cross-examination Madam Wu testified that in fact no waterproofing work was done on the Two Flat Roofs, despite this the IO is claiming HK$108,900 plus 10% against R1 and R2 for such work being done on the Two Flat Roofs. At first Madam Wu was unclear if the Contractor did not carry out waterproofing work on the Two Flat Roofs because the IO said there was no water leakage on the Two Flat Roofs. Madam Wu later revealed that the IO did not make payment to the Contractor in relation to the waterproofing work on the Two Flat Roofs as such work was not done, and therefore only 1 payment in the sum of HK$282,403 was paid to the Contractor. Madam Wu also agreed that the waterproofing work of the flat roofs is not mandatory under the building inspection scheme.

328.  Madam Wu further explained that after this case has been dealt with, probably a tender has to be made for carrying out the waterproofing work at the Two Flat Roofs and probably the tender would be awarded to the same company, namely the Contractor. She hoped that the same company would complete the same project, but after all this decision would be made upon discussions among the IO committee members. Ms Lui submits thus, it is apparent that the IO does not have any liability owed to the Contractor in respect of item 8.5 in the Contractor’s Quotation.

329.  Notwithstanding that the IO has no liability to the Contractor in respect of the HK$108,900 plus 10% for the waterproofing work, Madam Wu insisted that IO would still be claiming the same loss and damages or HK$422,193 from the Respondents. They consider this shows how unreasonable and unfair IO has been.

330.  R3 also relies upon the fact that it is not disputed that no waterproofing works have been carried out at the Two Flat Roofs. Therefore, the IO incurred no actual loss for such works. The IO only paid a sum of HK$282,403 to the Contractor on 15 April 2024, and a sum of HK$20,000 to the Consultant on 18 April 2024. Madam Wu’s oral evidence also confirmed that the IO has no liability to the Contractor for the waterproofing works.

331.  Mr Lam continues that the IO filed the Amended Notice of Application on 15 March 2024, realising that the IO only incurred or will incur a sum of HK$302,403. Yet still the IO claimed the amount of HK$422,193. For over a year the IO has not sought re-amendment of the claim amount and Madam Wu confirmed the IO would not.

332.  The IO replies that while the waterproofing works to be carried out at the Two Flat Roofs, have not yet been carried out, it has all along been expected by all parties that such waterproofing works would be carried out. 2B Mr. Chan confirmed during cross-examination that waterproofing works were done at the 2B flat roofs, but only on one side. Throughout the documents in these proceedings, references to waterproofing works can be seen. It is not the case that the IO has suddenly sprung additional and unexpected works on the Respondents, expecting they pay for them. Ms Chong submits that costs for the waterproofing works ought to be allowed, which would then be carried out as planned all along.

333.  Section 40(3) of the BMO provides that:

“Notwithstanding section 19(2), any costs incurred by the management committee in connexion with the exercise by it of the powers conferred by subsection (1)(a)(ii) or (b) shall be recoverable by the corporation as a civil debt from the owner of the flat in respect of which such costs were incurred. (Amended 27 of 1993 ss. 33 & 42)” (emphasis added)

334.  According to the quotation of the Contractor, item 8.5 of the works refers to “Reinstallation of waterproofing for flat roof areas”, which was not carried out, in a sum of HK$108,000 plus 10% for increase in labour wages. Mr Lam submits that this sum should be deducted from the claim amount. I find that the cost has not been incurred.

(h)  10% additional charge for the purported wage increase

335.  In addition to the abovementioned items, the Contractor also charged an additional 10% for wage increase in the amount of HK$36,563 in the Contractor’s Quotation. The Contractor’s Quotation was issued based on a purported delay of 70 days in the completion of the Works. The Respondents submit that charging an additional 10% for wage increase within such a short period of time is unreasonable. There is no evidential basis to refuse the 10% increase.

336.  R3 also relies on the fact that the Contractor’s Quotation dated 4 March 2024 referred to 2 the previous quotations, which Madam Wu said were issued for the purpose of negotiation in mediation, and refused to produce copies of the previous quotations by reason of “mediation privilege”, which R3 does not accept. Asked if the previous quotation amounts were much lower than the claim amount of 4 March 2024, Madam Wu said it was. R3 alleges that this is a case where the Contractor inflated the claim amount, and the IO should not support the Contractor for the amount. R3 has not adduced evidence to establish the Contractor inflated the amount. There may have been a reduction for the purpose of compromise or settlement at that time but which is no longer offered.

Issue 3: If so, did the IO mitigate its loss and how much damages are payable by R1, R2 and/or R3?

337.  R1 and R2 submit that if the IO did examine the figures quoted in the Contractor’s Quotation, the IO would have discovered that most items in the quotation were double-charged and unjustified and the IO would not have paid that much to the Contractor. By failing to do so, the IO has failed to mitigate its loss.

338.  The IO denies that it failed to mitigate its loss, asserting that the full sum of damages sought ought to be payable. The IO has refutes the challenge to the reasonableness of the quantum sought.

339.  The IO committee members possess no knowledge of the way in which the works should be done and whether the Contractor’s Quotation should be regarded as reasonable or not. What Madam Wu gave evidence that what she did know was that the amount was approved by the Consultant and therefore the amount should be regarded as reasonable.

340.  R1 and R2 reply that despite Madam Wu’s claim to possessed no such knowledge, she seemed to be an expert in explaining the basis for the additional costs charged. For example, she said “as the works had to be redone, the calculation will be different. This is called VO” and “ … when the works had to be re-done the rate would no longer be the original rate, and it would be two-fold and three-fold not to mention the existence of the loss and the damages costs?”.

341.  The relevant renovation works for 2/F to 4/F of the Building commenced in December 2023, but the Contractor only issued a quotation in March 2024. Madam Wu claimed that the fees for the works were not discussed before the works commenced and the IO would accept the fees as long as the quotation is approved by the Consultant. R3 submits that this is not sensible and unbelievable.

342.  R1 and R2 add that it seems that the IO would pay any amount quoted by the Contractor for the “additional works” to be done without considering whether or not the sum was reasonable.

343.  R1 and R2 point out that there is no documentary evidence that the Contractor’s Quotation was approved by the Consultant. Even if the Consultant really did so, it would not negate the IO’s duty to mitigate its loss by examining the figures stated in the Contractor’s Quotation. It would be obvious to a member of the IO or the MC, even with no construction knowledge, that the figures in the Contractor’s Quotation duplicated that in the Original Contract.

344.  Ms Chong submits that R1 and R2 have no basis to challenge Madam Wu’s evidence that the Consultant had duly approved the Contractor’s Quotation. It is unsurprising that Madam Wu did not adduce such evidence in her witness statement when this was never even disputed in R1and R2’s NOO or their witness statements.

345.  I find that waterproofing works have not been done at the Two Flat Roofs or in respect of the Property. The IO is not liable to the Contractor for that work. The IO cannot claim the sum for that work which has not been incurred. If, and when, such work is to be done the IO may get other quotations and may not even engage the Contractor to carry out that work. Although the Contractor would be Madam Wu’s preference.

346.  The Contractor has been paid HK$282,402 and the Consultant HK$20,000. The Respondents have not discharged the burden of showing that the IO has failed to mitigate its loss. Had I found any Respondent liable I would have allowed all sums claimed, save for the waterproofing work that has not been done.

Disposition

347.  For the reasons above, I dismiss the IO’s claim against each of the Respondents.

Costs

348.  I disallow the costs of translation of the documents that were ruled inadmissible at the start of the trial. I see no reason to depart from the usual order that costs follow the event. I make a costs order nisi that the IO do pay the costs of R1, R2 and R3 on the District Court scale with certificate for counsel for R1 and R2. Any party may apply to vary the costs order nisi within 14 days hereof, failing which the nisi order shall become absolute.