THE INCORPORATED OWNERS OF NING FUNG COURT v. HO MEI TAK

LDBM 110/2009

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. 110 of 2009

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JUDGMENT

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Background

1.  The Applicant is the owners’ corporation of Ning Fung Court, 99 Lei Muk Road, Kwai Chung, New Territories, Hong Kong (“the Estate”).  The Respondent is the owner of Flat 3, 40^th Floor, Block B (also known as Long Fung House) of the Estate (“Unit 4003”).  In or about July 2008, the Respondent used a limited company known as City Jet Trading Limited to purchase the adjoining unit, i.e. Flat 4, 40^th Floor of Long Fung House (Unit 4004).  After purchasing Unit 4004, the Respondent carried out renovation at Unit 4004 which was completed in September 2008.

2.  The Applicant’s case is that since about September 2008, the Respondent has installed a surveillance system and a wall-lamp at the corridor outside Unit 4003 without the Applicant’s consent.  Although part of the surveillance system and the wall-lamp were removed in or about March 2009, there are damages and scratch marks on the walls and ceiling of the corridor caused by the installation and removal of part of the surveillance system and the wall-lamp.  The remaining part of the surveillance system still causes obstruction of the walls and ceiling of the corridor, which are common parts of the Estate.

3.  The Applicant contends that the Respondent’s aforesaid acts were breaches of the Estate’s deed of mutual covenants (“the DMC”) and the Building Management Ordinance, Cap.344 (“the BMO”).  The Applicant relies on Section I Clause 2(b), Section II Clauses 5(b), 5(c)(7), (12) & (13), paragraph 4 of the Third Schedule, and paragraphs 10 and 16 of the Fourth Schedule in the DMC, as well as sections 16, 18(1) & (2) and 34I of the BMO, to lay its claims against the Respondent.  In essence, the Respondent is not allowed to occupy or damage the common parts of the Estate and the Applicant is entitled to take action against the Respondent for such breaches under these provisions.

4.  The Applicant also contends that such acts constituted trespass onto the common parts of the Estate, and that the encroachment of the common parts constituted a nuisance, annoyance and/or inconvenience to and unreasonably interfered with the use and enjoyment of the owners or occupier or of the Estate and the Applicant.

5.  The Applicant has confirmed at the trial that it abandons all its claims mentioned in the Notice of Application save and except the injunction requiring the Respondent (i) to be restrained from placing or continuing to place the remaining part of the surveillance system or anything or object on the ceiling and the walls at the corridor outside Unit 4003 and (ii) to remove the remaining part of the surveillance system and rectify the damage and scratch marks on the walls and ceilings of the corridor outside Unit 4003 and to reinstate the corridor to its original state and condition, and costs.

6.  The Applicant has also confirmed at the trial that the remaining part of the surveillance system required to be removed consists of a CCTV camera installed at the ceiling outside Unit 4003 and the connection pipes coloured yellow on Photo 1 annexed to the Notice of Application, but it does not include the part installed at the metal gate of Unit 4003.

7.  The Respondent has raised various defences in her Amended Notice of Opposition and also counterclaims against the Applicant for (i) a declaration that the Applicant is in breach of Section II Clause 5(c)(31) of the DMC and (ii) a declaration that the Applicant has failed to ensure the provisions of the DMC are performed and observed by all the individual owners of the Estate.  There is no dispute that the Respondent did install and remove the surveillance system as mentioned by the Applicant, save that the Respondent contends that there had been another CCTV camera installed outside Unit 4003 since October 2005 which was replaced by the present surveillance system.  Nevertheless, the Respondent concedes at the trial that the installation of the surveillance system amounts to prima facie breach of the DMC.  The Respondent simply contends that the injunction sought by the Applicant should not be granted by the Tribunal.

8.  The Respondent confirms that there are only 3 issues for the Tribunal to decide in this case, namely:-

(1)     Whether, as a matter of construction, the Applicant had breached Section II Clause 5(c)(31) of the DMC by procuring, inviting and permitting commercial activities in the Estate’s open area? (“Issue 1”);

(2)     Whether in the light of the equitable doctrines of “he who seeks equity must do equity” and “clean hands”, it is just and equitable, taking into account of all the circumstances, to exercise the Tribunal’s discretion in equity to grant mandatory injunctive relief in favour of the Applicant? (“Issue 2”); and

(3)     Whether the Applicant had failed to ensure that the provisions of the DMC are performed and observed by all the individual owners of the Estate? (“Issue 3”).

9.  Issues 1 and 3 are concerned with the Respondent’s counterclaim for declaratory reliefs, whereas Issue 2 is concerned with the Applicant’s remaining claim for injunctive relief.  The Respondent submits that Issue 1 and Issue 2 are related to each other and the outcome of Issue 2 will depend on the outcome of Issue 1, but Issue 3 stands on its own.

10.  In view of the concessions made by the parties, it is not necessary for me to deal with any other issues apart from the aforesaid 3 issues, and I shall deal with them below.

Issue 1

11.  Section II Clause 5(c)(31) of the DMC reads as follows:-

“Without in any way limiting the generality of the foregoing, the Manager shall have the following powers functions and obligations, namely:-

…

…

(31) To prevent any person other than residents and occupiers of the buildings in the Estate and their bona fide guests and visitors from using the open spaces within the Estate or any part or parts thereof and to prevent the said open spaces from being used for any purpose other than recreational purpose.”

12.  There is no dispute that the word “Manager” in Section II Clause 5(c)(31) of the DMC includes the Applicant as defined in Section II Clause 5(a)(2) of the DMC.  The Applicant admits that it did invite commercial clients (including PCCW and Citibank) to use the open spaces of the Estate for displaying counters so as to enable their respective marketing sales personnel to promote business sales there.  The Respondent contends that such acts are in breach of Section II Clause 5(c)(31) of the DMC as they are not for recreational purpose.  The Applicant on the other hand avers that this clause creates a power for the Applicant to use the open spaces within the Estate rather than imposing a restriction on the Applicant, and that this clause restricts the use of the residents and occupiers of the Estate and their bona fide guests and visitors but not the Manager.  Apart from these two construction points, the Applicant confirms that it will not rely on any other matters to challenge whether there was any breach of Section II Clause 5(c)(31).  Thus, I will only consider the construction points raised by the parties, and not the other points raised by the Applicant in the course of submission, such as the promotional or marketing activities were not frequent and benefited all individual owners, the scale of the promotion or marketing was minimal and the money generated from the promotional or marketing activities would be used to upgrade the facilities of the Estate.

13.  In Grande Properties Management Ltd v. Sun Wah Ornament Manufactory Ltd (2006) 9 HKCFAR 462, Chan PJ stated clearly the principles in interpreting a deed of mutual covenant as follows:-

“The rights and obligations of the owners and the manager of a multi-storey building are usually defined and governed by a deed of mutual covenant in respect of the building. This deed is a contract which runs so as to bind all owners and their assignees and the manager. Some of these rights and obligations are modified by the Building Management Ordinance (Cap.344) (the Ordinance). The provisions of the deed and the Ordinance are usually aimed at facilitating the management of the building by reducing conflicts among co-owners on the one hand and preventing abuse by the manager and the majority owner on the other. It is fair to say that most disputes are resolved by a purposive construction and common sense application of the relevant provisions of the deed and the Ordinance.”

14.  Thus, the DMC should be interpreted as a contract and the disputes between the parties should be resolved by a purposive construction and common sense application of the relevant provisions of the DMC and the BMO (see also Incorporated Owners of Summit Court v. Full Surplus Investment Ltd [2007] 3 HKLRD 351).  In construing a contract, the starting point is that words in a contract shall be given their ordinary and natural meanings (see paragraph 12-051 of Chitty on Contracts, 30^th ed.), and the words should be interpreted in their grammatical and ordinary sense in context, except to the extent that some modification is necessary in order to avoid absurdity, inconsistency or repugnancy (see paragraph 5.01 of Lewison: The Interpretation of Contracts, 4^th ed.).  Where a proposed construction would produce an unfair result, the court will require clear words to support the construction in question (see paragraph 7.17 of Lewison, supra.).  The fact that a particular construction leads to a very unreasonable result must be a relevant consideration.  The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear (per Lord Reid in L. Schuler A.G. v. Wickman Machine Tool Sales Ltd [1974] A.C. 235).

15.  Applying the above principles to the interpretation of Section II Clause 5(c)(31) of the DMC, I am of the view that the Applicant’s construction cannot stand at all.  The opening words of Clause 5(c) state clearly that “the Manager shall have the following powers … and obligations”.  It is clear to me that the Applicant has not only the power, but the obligation to prevent the open spaces of the Estate from being used for any purpose other than recreational purpose. It is difficult to see how the Applicant could just omit the word “obligations” in its interpretation.

16.  Nevertheless, the Applicant argues that Clause 5(c)(31) deals with two parts: firstly the Manager is to prevent any persons other than residents, occupiers and bona fide guests and visitors to use the open spaces, and secondly, the open spaces should only be used for recreational purpose when being used.  The Applicant submits that it is logical and natural to interpret the second part “when being used” to refer to those groups of persons in the first part, i.e. the residents, occupiers, bona fide guests and visitors.  Taking the two parts together, the Applicant submits that the Manager has to prevent the open spaces from being used for any purpose other than recreational purpose when used by residents, occupiers, bona fide guests and visitors, and it does not in any way restrict how the Manager should use the open space, nor any of its purpose.

17.  The Applicant’s interpretation has a fundamental flaw in that it takes out the words “residents and occupiers of the buildings in the Estate and their bona fide guests and visitors” in the first part of Clause 5(c)(31) to form a group of persons and apply this group of persons to the second part of the same clause, when the group of persons referred to in the first part should actually be “any person other than residents and occupiers of the buildings in the Estate and their bona fide guests and visitors”.  The “residents and occupiers of the buildings in the Estate and their bona fide guests and visitors” are the exceptions to the group of persons in the first part of the clause.  There is no reason to use these exceptions to form a group of persons and apply it to the second part of the clause.  If the second part of the clause has the intention to refer to the same group of persons as in the first part, this group should be “any person other than residents and occupiers of the buildings in the Estate and their bona fide guests and visitors”.  It would be absurd for the second part of the clause to refer to a different group of persons when there are no clear wordings to that effect.

18.  On the other hand, it would also be absurd to add the words “any person other than residents and occupiers of the buildings in the Estate and their bona fide guests and visitors” to the second part of the clause, as this group of persons should be prevented from using the open spaces altogether under the first part of the clause and there is no point to make another qualification in the second part of the clause to say that they cannot use the open spaces for non-recreational purpose.  I think the omission in stating any group of persons in the second part of the clause is intentional, and it intends to cover everyone, including the Manager and the Applicant.  It would be absurd if the Manager or the Applicant can use the open spaces for non-recreational purpose when all the other people including individual owners cannot.  If the Applicant’s interpretation were correct, it would just create a situation where the Manager could use the open spaces for non-recreational purpose when the owners themselves are restricted to do so.  It is simply unfair and illogical, as it would defeat the purpose of the clause in reserving the open spaces for recreational purpose.

19.  Thus, I am of the view that the second part of Clause 5(c)(31) should be interpreted to mean that the Manager and the Applicant shall have the power and obligation to prevent the open spaces of the Estate from being used by anyone, including the Manager and the Applicant, for any purpose other than recreational purpose.  This is the most reasonable interpretation of the clause.

20.  As the Applicant did allow commercial activities to be conducted at the open spaces as admitted, and their purposes cannot be regarded as recreational at all, the Applicant is clearly in breach of Clause 5(c)(31) of the DMC.  The answer to Issue 1 must therefore be in the affirmative, and the Respondent is entitled to the first declaratory relief counterclaimed.

Issue 2

21.  The Respondent contends that (i) by reason of the Applicant’s breach of Clause 5(c)(31) of the DMC, the equitable doctrines of “he who seeks equity must do equity” and “clean hands” dictate that the Applicant should not be granted any injunctive relief, and (ii) the circumstances of this case are such that it is not just, fair, necessary and equitable to grant a mandatory injunction against the Respondent.

22.  In relation to the equitable doctrines of “he who seeks equity must do equity” and “clean hands”, the Respondent asks the Tribunal to consider the authorities in Litvinoff v. Kent (1918) 34 TLR 298, paragraph 5-15 of Snell’s Equity, 31 ed., PC Fortune Co Ltd v. Incorporated Owners of Kwong Fu Building [2009] 5 HKLRD 787 and Lo Shiu Chun v. Ho Sau Chun, DCCJ 5191 of 1978.  In essence, these authorities just confirm the established principles that the court will not assist a party seeking equitable relief unless he himself proved that he was acting fairly and honestly, and that the claimant not only must be prepared now to do what is right and fair, but also must show that his past record in the transaction is clean.

23.  As to whether a mandatory injunction should be granted, the Respondent relies on the authorities in The Incorporated Owners of Hoi Luen Industrial Centre v. Ohashi Chemical Industries (Hong Kong) Ltd [1995] 2 HKC 11, Incorporated Owners of Dragon View v. Nalpak Ltd [1989] 1 HKC 549 and Charrington v. Simons & Co Ltd [1970] 1 WLR 725 to submit that the court would not grant injunctive relief where it is unjust and inequitable to do so.

24.  I have no qualms about the principles laid down in these cases.  It is just a matter of how one should apply these principles to the present case.  The Respondent’s contention that the Applicant does not come with clean hands or does not do equity itself is based on the Applicant’s breach of Clause 5(c)(31) of the DMC as aforesaid.  The Respondent also submits that there are 5 aggravating factors that I should take into account in refusing the Applicant’s claim for injunctive relief.  I shall deal with them in turn below.

25.  First of all, I do not consider that the Respondent is entitled to rely on the Applicant’s breach of Clause 5(c)(31) of the DMC to say that it does not come with clean hands or does not do equity itself, as I do not find that the Applicant’s breach has an immediate and necessary relation to the Respondent’s own breach of the DMC.  As said in page 5 of Spry: The Principles of Equitable Remedies, 7^th ed.:-

‘it is often found that a statement that has been extrapolated from an equity judgment, and is then construed out of its context, gives rise to confusion and to attempts to misapply it. An example is found in the use of the maxim, he who comes to equity must approach the court with clean hands. This is doubtless a maxim which is both striking and succinct and which may be found to be of value for many explanatory or justificatory purposes. But when its content is examined it is seen that it is of little or no use in assisting a court to decide whether, if specific performance is sought, relief should in the particular circumstances be refused. So it has been established that even a plaintiff who has been guilty of fraud, which is hardly consistent with clean hands, may under some circumstances obtain equitable relief, such as where, for example, the fraud has been waived by the other party and there is no additional consideration that renders the grant of that relief unjust. Again, it has been laid down that the absence of clean hands, is of no account “unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for”. When such exceptions or qualifications are examined it becomes clear that the maxim that predicates a requirement of clean hands does not set out a rule that is either precise or capable of satisfactory operation.’

26.  The Respondent’s case is that she had to install the surveillance system because the Applicant had invited commercial clients using the open spaces of the Estate and allowed those sales personnel to enter into each block of the Estate for promoting sale to individual flat owners, and the ringing of the door bell at Unit 4003 by the sales personnel had caused grave disturbance to the Respondent.  However, I accept the Applicant’s evidence that it did not allow the sales personnel to enter the buildings of the Estate to promote sales.  It had only allowed the sales personnel to promote sales at the open spaces.  Thus, the intrusion of the sales personnel into the building is a completely separate matter from the Applicant’s breach of Clause 5(c)(31) of the DMC.  There is no proof that the Applicant is in breach of the DMC in allowing the sales personnel to enter the building, and in fact the Respondent does not rely on such breach.  The breach relied on by the Respondent is only concerned with the use of the open spaces for non-recreational purpose.  Thus, I do not find that there is any immediate or necessary link between the Applicant’s breach and the Respondent’s breach.  The Respondent’s need, if any, in installing the surveillance system was at most caused by the unauthorized activities on the part of the sales personnel, which is totally unrelated to the Applicant’s breach of Clause 5(c)(31) of the DMC.

27.  The Respondent seeks to rely on the PC Fortune case, supra, to say that even when there is no proximate correlation between the two breaches, the court can still apply the equitable doctrines.  First of all, I do not think that the PC Fortune case has established such a general principle as suggested by the Respondent.  The facts of that case are not the same as our present case.  In applying the equitable principles, the court has to look at all the circumstances of the case.  In refusing to grant the injunction in the PC Fortune case, the court must be confined with the consideration of the facts in that case.  In any event, I am not bound by the decision there.  In fact, I do not think that it is reasonable to suggest that once the Applicant has committed any breach of the DMC, it is barred from enforcing any other provisions of the DMC even when such enforcement is not related to the Applicant’s own breach at all.  If this suggestion were correct, it would mean that once an owners’ corporation has done something wrong in breaching the DMC in the past, it would no longer be able to enforce the DMC in future.  This clearly cannot be right.

28.  The 5 aggravating factors referred to by the Respondent will not enhance the Respondent’s case any further.  The 1^st factor relied on by the Respondent is that the Applicant’s breach of Clause 5(c)(31) of the DMC exacerbated security problems in the Estate.  The Respondent submits that common sense dictates that the sales personnel would have every reason to enter into the buildings for the purpose of promoting or marketing the services.  I do not share this view.  When the sales personnel have a proper channel to promote sales at the open spaces, it should be less likely that they would need to go into the buildings to promote sales.  Even when there were instances where the sales personnel did go into the buildings, the Applicant should not be responsible for such intrusion.  As said, I accepted that the Applicant did not permit such activities inside the buildings.  Even when there had been instances where the sales personnel had entered the buildings, I do not consider that the Applicant had failed its duty to manage the Estate.  The Respondent is only required to carry out its duty reasonably.  It cannot guarantee that the buildings would be 100% free of intruders.

29.  The 2^nd factor is that the Applicant’s breach of the DMC was willful.  No doubt, the Applicant’s breach was willful, but it does not mean anything.  As said, this breach has no immediate or necessary relation with the Respondent’s breach.  Thus, whether the Applicant’s breach is willful or not is not relevant.

30.  The 3^rd factor is that the Applicant is alleged to be a law enforcer, and its concern is to harass or embarrass the Respondent.  So the present action is not bona fide.  On this point, I accept the Applicant’s evidence that it had received complaints from other owners about the installation of the surveillance system, and hence it took actions against the Respondent.  I do not accept that the Applicant was trying to harass or embarrass the Respondent at all, as there is absolutely no credible evidence to support the Respondent’s contention that she was being singled out or targeted.  The Applicant is under a duty to enforce the DMC, and hence I do not think that it has any choice but to take action against the Respondent.  Thus, I do not accept the Respondent’s contention in this regard.

31.  The 4^th factor is that the Applicant had ample opportunities to rectify its breach.  Again, this is neither here nor there. As aforesaid, the Applicant’s breach cannot be regarded as related to the Respondent’s breach.

32.  The 5^th factor is that the Applicant’s claim is to disturb the Respondent’s self-help mechanism.  I think this is a totally groundless allegation.  The Respondent is entitled to self-help mechanism only within the boundary of what she is permitted to do.  She is not entitled to encroach on the common parts of the Estate.  The Applicant in enforcing the DMC provisions against her is just to perform its duty.  It cannot be regarded as oppressive or abuse of powers at all.

33.  Thus, I do not find that the Respondent can rely on the equitable doctrines of “he who seeks equity must do equity” and “clean hands” to ask this Tribunal to refuse the granting of the injunction.

34.  As to the Respondent’s contention that it is not just or equitable to grant the mandatory injunction to remove the surveillance system, the Respondent relies on 8 grounds to support her contention.  The 1^st ground is that the CCTV camera was installed almost 5 years ago and there was delay on the part of the Applicant in taking action.  I accept the Respondent’s evidence that there was a CCTV camera installed in October 2005.  However, this camera has nothing to do with the present action.  The Applicant’s claim is against the present CCTV camera which was installed only in about September 2008.  Even assuming that the Applicant was aware of the old CCTV camera and did not take action concerning the old camera, it does not mean that the Respondent can install a new CCTV camera and a new surveillance system outside Unit 4003.  They were two separate installations.  The omission in taking action against the old camera cannot be regarded as delay in taking action against the new installation of surveillance system.  There was in fact no delay in taking action against the new system at all.

35.  The 2^nd ground is that the CCTV did not cause any harm, nuisance or damage to any person.  In this regard, I agree that the issue of privacy infringement cannot be regarded as of any importance.  The camera is only facing public corridor.  There should not be any privacy issues in relation to a public corridor.  However, even if there is no harm, nuisance or damage done to any person, there are obviously harm and damage done to the common parts of the Estate, as the ceilings and the walls had been occupied and damaged by the installation and removal of the surveillance system.  The damage to property would also justify the Applicant to pursue with the present claim.

36.  The 3^rd ground is that the CCTV camera is serving some useful and legitimate purposes, as it was a self-help response to the security problems in the Estate, which was exacerbated by the salesmen’s marketing and promotion activities.  I do not accept the Respondent’s contention in this regard at all.  The Respondent might have her own problems in handling her emotion or reaction to the situation when people pressed the door bell, but it would not give her a right to violate the covenant laid down in the DMC.  She cannot adopt such so-called self-help mechanism that is encroaching onto the common parts of the Estate and is a breach of the DMC.

37.  The 4^th ground is that the Applicant has acquiesced the CCTV camera since 2006.  The Respondent alleges that a Mr Cheung of the Applicant admitted to him that the Applicant knew about the CCTV camera as early as 2006 but decided not to do anything.  Even assuming that there was acquiescence concerning the old camera, there is clearly no acquiescence concerning the new surveillance system.  The Respondent cannot treat the two installations as the same and cannot bring forward the acquiescence to the new installation.

38.  The 5^th ground is that the present action is driven by personal hatred and hostility arising from the structural wall dispute and the Applicant has singled out the Respondent.  The Respondent relies on the “big posters” posted up at the Estate and her husband’s experience in attending the Applicant’s meetings.  I do not accept that the Respondent’s allegation in this regard is supported by any credible evidence.  It is merely the Respondent or her husband’s own speculations.  The so-called “big posters” were just minutes of the Applicant’s meetings, and the Respondent’s husband was questioned about the structural alterations made in the Respondent’s flats.  I do not see how these can infer that the Applicant or its members has “personal hatred and hostility” towards the Respondent.  From the evidence, it is clear to me that the Applicant is just carrying out its duty in enforcing the DMC when complaints were received from owners regarding the installation of the surveillance system.  I do not find any “personal hatred and hostility” involved at all.

39.  The 6^th ground is that the Respondent’s breach or non-compliance is de minimis.  The Respondent relies on the New Zealand case of Tot Toys Ltd v. Mitchell (t/a Stanton Manufacturing), 25 IPR 337 to submit that the breach or non-compliance regarding the CCTV camera is merely de minimis, as it occupies a very tiny part on the ceiling and the wall outside Unit 4003.  I do not accept that the CCTV camera and the connection pipes can be considered as tiny.  They are very obvious and occupy a significant part of the area outside Unit 4003.  I do not think that the de minimis rule can apply in the present case.

40.  The 7^th ground is that the injunction sought is mandatory in nature and by its nature it is more intrusive than a negative injunction and shall not be granted without any good cause.  I do not think that there is no good cause to grant the injunction sought by the Applicant, as it is clearly an encroachment of the common parts of the Estate and a breach of the DMC.  The removal of the CCTV camera and the connection pipes is not difficult and would not cause a lot of money.  It should not be difficult or expensive even for the replacement of the damaged tiles with similar tiles.  I do not see how this could be intrusive to the Respondent.

41.  The 8^th ground is that the Respondent has already made substantial reparation of the scratch marks on the corridor and ceiling, and there is no reason to ask the Respondent to install new tiles.  Thus, the Respondent submits that a mandatory injunction is neither necessary nor fair in the circumstances (see Charrington v. Simon & Co Ltd, supra).  I do not agree that the Respondent has done substantial reparation works.  First of all, the CCTV camera and the connection pipes are still there.  The holes in the damaged tiles as shown in the photographs are not really covered up properly and there is no reason to ask the Applicant to accept tiles with holes even when they are covered up.  The Applicant is not asking the Respondent to replace the tiles with exactly the same type of tiles but just similar ones.  As the tiles are not of very special design, I do not think that the Respondent would have difficulty in finding similar tiles to replace the damaged ones.

42.  In the circumstances, I do not find any of the aforesaid grounds mentioned by the Respondent could amount to justification in refusing the grant of the injunction sought by the Applicant.  On the contrary, I am of the view that it is just and equitable to grant the injunction.  Thus, on Issue 2, my finding is in favour of the Applicant.

43.  The Respondent submits an alternative proposal in relation to Issue 2.  It is suggested that the injunction be granted subject to the condition that the Applicant shall undertake to cease all wrongdoings under the DMC (specifically Section II Clause 5(c)(31)).  As aforesaid, the Applicant’s breach and the Respondent’s breach are two separate matters and hence there is no need to link them together in the way suggested by the Respondent.

Issue 3

44.  The Respondent alleges that the Applicant has failed or still fails to enforce the due observance and performance by all owners of the covenants terms and conditions of the DMC as requested under Section II Clause 5(c)(25) and the particulars given are as follows:-

“(a)     allowing toys, shoes, cabinet placed and kept in the corridors outside individual flat owners. (Photo a(1), a(2) and a (3))

(b)     allowing wooden ladders fixed at external window access of the Residential Blocks. (Photo b)

(c)     allowing storage box and motor cycle cubic, accessories and articles placed and kept in the common area of the parking area. (Photo c(1) and c(2))

(d)     allowing projection of tiles at the aperture provided for installation of air-conditioning unit which may lead to falling object from height. (Photo d)

(e)     allowing individual flat owners to connect the water tubes or pipes from air-conditioners water outlets to cut injure damage or interfere with water sewer drains water-course conduits pipes. (Photo d and e)

(f)     allowing lighting of candle outside the individual flat which may lead to fire and endanger life and property. (Photo f)

(g)     allowing individual flat owners to install censer for burning joss sticks at the common wall of corridor outside the flat. (Photo g(1), g(2) and g(3))

(i)     allowing clothing or laundry hung outside the individual flats. (Photo e)”

45. The Applicant contends that it has no particular knowledge about the incidence alleged in paragraphs (a), (c), (f), (g) and (i) above.  The wooden ladder alleged in paragraph (b) above was used by the workers of a cleaning company to access the flat roof on the first floor to carry out cleaning work.  It was removed after the work was completed.  The tiles alleged in paragraph (d) are actually water collection trays commonly used to collect water underneath air-conditioners.  The Applicant denies that it deliberately allows owners to connect water drainage tube to the common drainage pipe and the Applicant did not have any previous knowledge of the same.  The car parks on the Lower Ground Levels 1, 2 and 3 of the Estate are private property wholly owned by The Link Properties Limited.  It is the Applicant’s policy that obstruction of any common areas, in particular by fixtures, will not be allowed.

46. The Respondent did not produce much evidence to substantiate these allegations save by relying on some photographs.  However, I accept the Applicant’s evidence that most of these matters were not within its knowledge before the Respondent raised these matters to it, and when it has the notice of the these matters, it has taken appropriate steps to follow up these matters.  The Applicant’s duty is not an absolute one.  As long as it has taken reasonable steps to deal with these matters, it would not be in breach of its obligations under the DMC.  As the Respondent did not produce much evidence in respect of these matters, it is not possible for me to say that the Applicant was indeed in breach of its duties under the DMC.  As the Respondent bears the burden in proving these matters, I am not satisfied that she has discharged this burden.  In any event, the declaration requested by the Respondent in this regard is in very wide term and not specific at all.  It is not right for any court to make a declaration in such wide term.  I am therefore of the view that the Respondent has failed to establish the matters relating to Issue 3 and this issue must be answered in the negative.

Conclusion

47. By reasons aforesaid, the Respondent succeeds in claiming the first relief in her counterclaim, but fails in the second, and the Applicant succeeds in claiming the injunction as aforesaid.  As both parties succeed in only parts of the claims and counterclaims respectively, I think there should be no order as to costs in respect of the proceedings.

48. I therefore grant the following orders:-

(1)    The Respondent do by herself or her servant, agents, tenants, sub-tenants, licensees or any of them or otherwise howsoever be restrained from placing or continuing to place the surveillance system or any other object on the ceiling and the walls outside Unit 4003.

(2)    The Respondent do within one month from the date of this order remove the CCTV camera and the connection pipes installed outside Unit 4003, rectify the damage and scratch marks on the ceiling and the walls outside Unit 4003 caused by the Respondent’s installation and removal of the surveillance system and reinstate the damaged parts of the ceiling and the walls to its original state and condition, including replacing the damaged tiles with similar tiles.

(3)    A declaration that the Applicant is in breach of Section II Clause 5(c)(31) of the DMC by inviting commercial clients to display promotion counter in the open spaces of the Estate.

(4)    Save as aforesaid, the other reliefs claimed by the Applicant in its application and the Respondent in her counterclaim be dismissed.

(5)    Costs order nisi: there be no order as to costs.  If the parties do not make any application for costs within 14 days from the date of this order, the costs order nisi shall become absolute.