Wong Sui Fung and Another v. Yip Siu Keung

LDBM000248D/2000

LDBM 248/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 248 of 2000

_________________

 

BETWEEN
	WONG SUI FUNG and SHAM PUI KUEN	Applicants
	AND
	YIP SIU KEUNG	Respondent

_________________

Coram: Deputy Judge WONG, Presiding Officer, Lands Tribunal

Date of Hearing: 31 December 2001

Date of Decision: 31 January 2002

_____________________

DECISION

_____________________

Introduction

1. There are two applications made by the Applicants by way of two summonses dated 5 December 2001 and 17 December 2001 respectively. The first application is for an order that the Respondent be ordered to pay to the Applicants all such costs of this action with certificate for Counsel, instead of just half of the Applicants' costs as stipulated in my costs order nisi on 22 November 2001. The other application is for a review of my Judgment dated 22 November 2001 on the ground that I erred in law in refusing to grant the mandatory injunction in respect of Structures II, IV and V because proof of damage or inconvenience is not necessary in enforcing negative covenants.

2. At the hearing of the two applications, the Respondent raised various other matters in relation to my Judgment such as I had failed to consider the equitable principles of unfairness, acquiescence or clean hands, which are in fact the subject matters of an appeal lodged by the Respondent on 13 December 2001. As I have told the Respondent at the hearing, I will not deal with those matters that are unrelated to the Applicants' applications.

Negative covenants

3. The covenants that the Applicants sought to enforce are contained in Clauses 11(a), 11(d), 11(g) and 11(n) of the Deed of Mutual Covenant ("the DMC"), which read as follows:-

"11.Each Owner hereby covenants with each and every of the other Owners as follows:-

(a) Not to make any structural alterations to the walls or structure or facade of his House which may damage any other House or cause any inconvenience to the other occupiers and not to make any alterations to any installation of facilities likely to affect the supply of water, electricity or gas.

(d) Not to use or permit or suffer his House to be used for any illegal or immoral purpose nor to cause or permit or suffer to be done any act or thing in any such house which may be contrary to any relevant Ordinance, Regulation or by law or to the Conditions or which may be or become a nuisance or annoyance to or cause damage to other Owners and occupiers of the Estate.

(g) Not to alter the appearance and the colour of the exterior or the facade of any House without the consent in writing of the Manager.

(n) Not to build erect or install on or upon the garden areas or other open spaces of his House any structure building or fixture except only those for recreational purposes and which does not contravene the provisions of the Conditions or any legislation."

4. I have no qualms that these Clauses in the DMC are negative covenants.

Whether proof of damage or inconvenience necessary

5. It was in fact the Applicants' case as pleaded in the Amended Notice of Application that by reason of the Respondent's breach of the DMC, the Applicants had suffered considerable inconvenience. The Respondent denied these allegations and put the Applicants to strict proof thereof. Apart from those particulars of inconvenience pleaded in the Amended Notice of Application, the Applicants had tried to adduce evidence on other inconvenience at the trial, but they were objected to by the Respondent and Mr. Lok, on behalf of the Applicants, conceded that he would not rely on those inconvenience not pleaded and the inconvenience pleaded would suffice. Mr. Lok, however, did not submit at the trial that it was not necessary to prove damage or inconvenience for the grant of an injunction in respect of negative covenants.

6. For the present applications, Mr. Lok submits that generally, where express negative covenants are concerned, proof of damage or inconvenience is unnecessary, and in such a case, generally the court has no discretion to exercise and it will grant the injunction because all that it has to do is to say by way of injunction that the thing must not be done. In support of this contention, Mr. Lok refers me to paragraph 904 of Halsbury's Laws of England, Vol. 24, which contains the following passage:-

"Where parties to an agreement contract, with their eyes open, that a particular thing is not to be done, proof of damage is generally not necessary in order to entitle the plaintiff to a perpetual injunction to restrain a breach. The principle applies not only to a breach by the original covenantor, but also to a breach by an assignee with notice of the convenant; but in cases where there is no privity of contract the court is probably bound to exercise its judicial discretion with regard to granting an injunction. If the construction of the contract is clear and the breach is clear, the mere circumstance of the breach affords sufficient ground for the injunction. In such a case the court has no discretion to exercise. All that it has to do is to say by way of injunction that the thing must not be done. The injunction does nothing more than give the sanction of the process of the court to that which is already the contract between the parties. In effect it is the specific performance by the court of that negative bargain which the parties made with their eyes open."

7. Mr. Lok also submits that the court will not take into consideration the question of the balance of convenience unless the circumstances of the case are very special, but there are no special circumstances in this case. He relies on the passage in paragraph 905 of Halsbury's Laws of England, Vol. 24, to support this contention. The passage reads as follows :-

"The fact that the breach has not occasioned the plaintiff any loss or that the act complained of has effected an improvement of his property, is no defence; nor does the fact that the breach has been committed in connection with a matter of great public importance or that compliance with the covenant would involve inconvenience to the public, make any difference. The court will not take into consideration the question of the balance of convenience unless the circumstances of the case are very special."

8. Mr. Lok further submits that the same principles will apply where mandatory injunctions are sought and he relies on the passage in paragraph 909 of Halsbury's Laws of England, Vol. 24, which reads as follows:-

"Where the injunction asked for is a mandatory injunction to enforce a negative contract, principles similar to those previously discussed apply, and the main point is whether or not the contract has been broken. In such cases a mandatory injunction will usually be granted, even though no damage or injury is shown, although in special circumstances the court may refuse the mandatory injunction and award damages instead."

9. Mr. Lok also relies on the cases of Mass Transit Railway Corp. v. Wong Ming Tak Mercedes & Anor. [1997] 4 HKC 396 and Doherty v. Allman (1878) 3 App Cas 709, which essentially apply the same principles as aforesaid.

10. From the authorities cited by Mr. Lok, it is clear to me that what Mr. Lok submits are just the general principles applicable in general situations. It does not mean that the court can never consider whether there is any damage or inconvenience supporting the grant of an injunction or not in respect of negative covenants. The cases referred to, like Mass Transit Railway Corp. v. Wong Ming Tak Mercedes & Anor., supra. and Doherty v. Allman, supra. mainly concern with prohibitory injunctions. For mandatory injunctions, the court always has a wider discretion and should exercise that discretion with more care. In Sharp v. Harrison [1922] 1 Ch. 502, it was held that:-

"Where a defendant commits a breach of a negative legal covenant after warning, the plaintiff is "speaking generally" entitled to a mandatory injunction without proving damage. But if the defendant proves that no damage has been occasioned and offers undertakings that will effectually prevent any future damage by the continuing breach, and the granting of a mandatory injunction would inflict damage on the defendant out of all proportion to the relief given to the plaintiff, the Court ought to refuse it."

11. The facts of the Sharp's case are as follows:-

"The plaintiff's and defendant's houses were separated by a narrow passage belonging to the plaintiff from whom the defendant had purchased her house with two second floor windows overlooking the passage. In defiance of a covenant in her conveyance and notwithstanding the plaintiff's repeated warnings the defendant in converting her house into flats opened a frosted window in the first-floor flat overlooking the passage and immediately opposite the plaintiff's lavatory. The plaintiff claimed a mandatory injunction and damages. Five months after the writ the defendant let the flat on a five years' lease to a tenant, who was not made a party to the action. The plaintiff attempted but failed to prove that his house would be depreciated in value. The defendant, on the other hand, besides proving that no depreciation whatever would be caused, offered at the trial to give any undertakings necessary to prevent the acquisition of an easement, to keep the window frosted, and, subject to her tenant's consent, to fasten up the lower part, and merely keep an internal fanlight at the top. The plaintiff, however, declined to make a new bargain at the trial and pressed for a mandatory injunction."

12. In refusing to grant the mandatory injunction sought by the plaintiff in the Sharp's case, Astbury J. said the following at page 515:-

"Prima facie, where a defendant commits a breach of a negative covenant with his eyes open, and after notice, the Court will grant a mandatory order, but there is, and must be, some limitation to this practice. Supposing that this defendant had taken a brick out of her south wall, and had put in an iron ventilator, that would have been a direct breach of this covenant, as far as breach is concerned, as direct as the particular breach in the present case; but it is idle to suppose that any Court would listen to an action claming a mandatory injunction if those had been the facts. The reason is this, that if there is really no damage of any sort or kind suffered by a plaintiff by reason of the breach of a negative covenant of this character, and if the granting of a mandatory order would inflict damage upon the defendant out of all proportion to the relief which the plaintiff ought to obtain, the Court will, in my opinion, and ought, in my judgment, to refuse it."

13. Astbury J. had in fact examined a number of authorities, including Doherty v. Allman, supra., before reaching the above conclusion. I agree with Astbury J. and adopt his reasoning. I think in cases where mandatory injunctions are sought I have a wider discretion than in cases where prohibitory injunctions are sought. I am therefore of the view that I can and in fact should consider whether there is any damage or inconvenience caused to the Applicants by reason of the Respondent's breach of the DMC before the mandatory injunction is granted or refused.

14. I have already found that there is no actual or threatened injury caused to the Applicants' rights by Structures II, IV and V. From the evidence, it is clear that Structures II, IV and V are substantial structures and the cost of removing them will be high. The granting of mandatory injunction would inflict damage upon the Respondent out of all proportion to the relief sought by the Applicants when they have suffered no damage or inconvenience themselves. Applying the Sharp's case, I am of the view that I ought to refuse the grant of mandatory injunction in respect of Structure II, IV and V.

15. By reason of the matters aforesaid, I do not agree with Mr. Lok that I should vary my Judgment as suggested. The application for review should therefore be dismissed.

Whether the Applicants should be awarded the full costs

16. Mr. Lok submits that even if I were not with him on the review, I should nonetheless award the full costs to the Applicants because all the points they have taken were correct in law and that costs should follow the event. Although the Respondent has not applied to vary the costs order nisi, he submits that the costs should be apportioned according to the number of structures for which the Applicants have succeeded or failed in claiming injunction.

17. I agree with neither Mr. Lok nor the Respondent. Costs should not be awarded to a party simply because the law points taken were correct, but whether the issues were ruled in favour of the party or not. Also, costs should not be awarded in proportion to the number of structures succeeded, but on the time spent in relation to the structures.

18. Although the Applicants succeeded in most of the issues in this case, they also lost on some issues. In fact, most of the issues and time spent at the trial were in relation to Structure III. I estimate that the time spent on the issues won by the Applicants is roughly about three quarters of the total time spent for the trial, whereas the time spent on the issues won by the Respondent is roughly one quarter of the total time. The Applicants are therefore entitled to claim three quarters of the costs whereas the Respondent is entitled to claim one quarter of the costs. After deducting the quarter costs of the Respondent from the three quarters costs of the Applicants, the Applicants are entitled to half of the costs. This is just a rough apportionment of the costs in accordance with the time spent on the issues. It is always within the discretion of the court in awarding costs as it sees fit and I consider it just and appropriate in the circumstances of this case to award just half of the costs to the Applicants.

19. In the circumstances, I also see no reason to vary my costs order nisi as suggested.

Certificate for Counsel

20. The Applicants have also asked for a certificate for Counsel in the Summons dated 5 December 2001. I agree that it is a suitable case for counsel to attend the trial because of the various difficult issues involved. It is, however, not necessary for me to state in my costs order nisi that the costs awarded to the Applicants includes a certificate for Counsel. Section 12(2) of the Lands Tribunal Ordinance, Cap. 17 stipulates that Order 62 of the Rules of the High Court (Cap. 4 sub. Leg.) shall apply to the award, taxation and recovery of costs in the Tribunal. As the trial was conducted in open court, the Applicants do not require a certificate for Counsel to recover Counsel's fees. Nevertheless, for the avoidance of doubt, I would specify in the costs order absolute that the Applicants shall have a certificate for Counsel.

Orders

21. In view of my decisions aforesaid, I make the following orders:-

(1) The Applicants' application for review by way of summons dated 17 December 2001 be dismissed with costs order nisi that the Applicants shall pay the Respondent his costs of this application, to be taxed, if not agreed. If there is no further application in relation to costs within 14 days from the date hereof, the costs order shall become absolute.

(2) The Applicants' application for varying the costs order nisi on 22 November 2001 by way of summons dated 5 December 2001 be dismissed with costs order nisi that the Applicants shall pay the Respondent his costs of this application, to be taxed, if not agreed. If there is no further application in relation to costs within 14 days from the date hereof, the costs order shall become absolute.

(3) The costs order nisi on 22 November 2001 be made absolute as from the date hereof and the costs shall include a certificate for Counsel.

 

	Deputy Judge WONG
	Presiding Officer
	Lands Tribunal

Representation:

Mr. Alex LOK, Counsel instructed by M/S Fok & Johnson, for the Applicants.

Dr. YIP Siu-keung, the Respondent, in person.

LDBM000248/2000

LDBM 248/2000

IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. LDBM 248 OF 2000 _________________

BETWEEN

	WONG SUI FUNG AND SHAM PUI KUEN	APPLICANTS
	AND
	YIP SIU KEUNG	RESPONDENT

           

Coram : Deputy Judge WONG, Presiding Officer, Lands Tribunal

Dates of Hearing :	3, 4, 5 September 2001, 6 October 2001 and 20 October 2001
Date of Judgment :	22 November 2001

_________________

J U D G M E N T

___________________

The Claim

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

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

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

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

(1)	A window on the ground floor of House E was converted to become a door (“Structure I”);
(2)	New boundary walls were erected between points T and U and between points U and V shown on the Plan (“Structure II”);
(3)	The original fences along the common boundary of House D and House E between points P and Q shown on the Plan were modified by extending the original fence boundary and by increasing the height thereof from 90cm to over 2.24 meter (“Structure III”);
(4)	The original fences along the boundary between House E and Government Land between points Q and R shown on the Plan were modified by increasing the height thereof from 90cm to 2.24 meter (“Structure IV”); and
(5)	The original fences along the boundary between points R and S and between points S and T shown on the Plan were modified by increasing the height thereof from 90cm to 1.70 meter (“Structure V”).

5. The Applicants also contend that:-

(1)	The above acts were in breach of Clauses 11(a), 11(d), 11(g) and 11(n) of the Deed of Mutual Covenant of the Estate (“the DMC”);
(2)	Structure I altered the appearance of House E;
(3)	Structures II, III, IV, and V were erected in contravention of the Buildings Ordinance, Cap. 123, and the Respondent has been advised by the Building Authority to demolish the same; and
(4)	Structure IV constitutes an encroachment on Government land.

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

“11.

Each Owner hereby covenants with each and every of the Owners as follows:- (a)    Not to make any structural alterations to the walls or structure or facade of his House which may damage any other House or cause any inconvenience to the other occupiers and not to make any alterations to any installation of facilities likely to affect the supply of water, electricity or gas. (d) Not to use or permit or suffer his House to be used for any illegal or immoral purpose nor to cause or permit or suffer to be done any act or thing in any such House which may be contrary to any relevant Ordinance, Regulation or by law or to the Conditions or which may be or become a nuisance or annoyance to or cause damage to other Owners and occupiers of the Estate. (g) Not to alter the appearance and the colour of the exterior or the facade of any House without the consent in writing of the Manager. (n) Not to build erect or install on or upon the garden areas or other open spaces of his House any structure building or fixture except only those for recreational purposes and which does not contravene the provisions of the Conditions or any legislation.”

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

(1)	Structures II, III, IV and V have created a number of security blind spots, in that certain areas have become out of sight to the patrolling security guards on the Estate, enabling intruders to use those areas as hiding places.
(2)	Structures II, III, IV, and V have caused uneven land subsidence, in particular:- (i)                the subsidence caused by Structure III has caused the fresh water supply pipe to House D to burst causing leakage; (ii)              the gate attached to the original fence at point P shown on the Plan was unable to close due to the displacement of the lock by 4cm as a result of soil settlement; and (iii)            the land adjacent to Structure III has become undulated causing water logged patches to form after rain.
(3)	The erection of Structure III has caused the width of the passage along the side of House D to become less than 85cm in width at certain points making it difficult to access for the purpose of cleaning and maintenance.

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

The Defence

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

(1)	Structure I does not constitute alteration of the “appearance and the colour of the exterior or the facade” of House E within the meaning of Clause 11(g) of the DMC.
(2)	If there was a Manager at the material time, the Respondent would have obtained his consent in writing for the work concerning Structure I.
(3)	The original fences of Structure III, IV and V were built by the Respondent’s immediate predecessor in title.  The Applicants and the owners committee have consented to or otherwise approved the erection of the original fences.
(4)	Boundary walls or fences of various heights have been erected by other owners of the Estate around their respective houses.  No action was against these owners.
(5)	The works concerning Structures I, II, III and IV were not “Structure” within the meaning of section 41(3) of the Buildings Ordinance and they were therefore exempted from the requirement of approval from the Building Authority.
(6)	Structure IV was inspected by the staff of the Lands Department after it was built and the staff made no further complaint.
(7)	The Respondent denies that Structures II, III, IV and V have created a number of security blind sports enabling intruders to use those areas as hiding places.
(8)	The Respondent does not admit that there was uneven land subsidence caused by Structure III and the Applicants are put to strict proof.
(9)	The Respondent has no idea which fresh water supply pipe was referred to by the Applicant, but the Respondent alleges that in the course of the demolition of the original boundary fence and rebuilding of Structure III, the Respondent’s contractor discovered a leakage from an underground pipe belonging to House D.  The Applicants were notified but no action was taken.
(10)	The Respondent denies that the gate attached to the original fence at point P shown on the Plan was unable to close due to the displacement of the lock by 4cm as a result of soil settlement.
(11)	The Respondent does not know the exact location of water collection, but alleges that as a result of failure on the part of the Applicants or other occupants of House D to maintain a plastic water pipe at around point P shown on the Plan, there was constantly water gathering along the boundary fence between House D and House E.
(12)	Structure III was built by the Respondent on his own land and hence the Applicants have no cause for complaining the difficulty in making access to the passage along the side of House D.

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

(1)	By virtue of Clause 4(u) of the DMC, the Applicants have to be appointed by resolution passed pursuant to Clause 17 of the DMC in an owners meeting before they are entitled to sue in these proceedings.
(2)	The Applicants have many illegal Structures in House D and hence they do not come with “clean lands”.
(3)	There are many other fence walls on the Estate including the Applicants’ house.  Thus, the Applicants must have acquiesced the erection of fence walls.
(4)	The Applicants have breached the DMC in not paying the management fees.  If the Applicants do not respect the DMC, they cannot claim pursuant to the DMC.

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

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

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

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

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

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

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

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

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

Change of window to door (Structure I)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Encroachment on Government Land

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

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

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

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

Breach of the DMC

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

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

Inconvenience to the Applicants

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

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

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

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

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

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

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

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

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

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

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

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

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

Other grounds of defence

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

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

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

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

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

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

Conclusion

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

(1)	The Applicants’ claim in relation to Structure I fails, as the Respondent has not breached Clauses 11(a) & 11(g) of the DMC.
(2)	Structure II, III, IV and V are “buildings” within the definition in section 2 of the Buildings Ordinance.
(3)	The construction of Structures II, III, IV and V are “building works” within the definition in section 2 of the Buildings Ordinance.
(4)	The construction of Structures II, III, IV and V requires prior approval from the Building Authority pursuant to section 14(1) of the Buildings Ordinance.
(5)	The Respondent has breached section 14(1) of the Buildings Ordinance by carrying out the construction of Structures II, III, IV and V without obtaining prior approval from the Building Authority.
(6)	As a result of the breach of section 14(1) of the Buildings Ordinance, the Respondent has also breached Clauses 11(d) and 11(n) of the DMC.
(7)	However, as the Applicants have only proved that there is actual or threatened injury to their rights caused by Structure III, but not Structures II, IV and V, the Applicants are entitled to claim injunction only in relation to Structure III, but not Structures II, IV and V.

Orders

64. I therefore grant the following orders:-

1.	A mandatory injunction requiring the Respondent, his servants and/or agents to reinstate the original fences along the common boundary between points P and Q shown on the Plan.
2.	An injunction to restrain the Respondent, his agents and/or servants, after the reinstatement, from modifying the original fences along the common boundary between points P and Q shown on the Plan.

Costs

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

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

Deputy Judge WONG Presiding Officer Lands Tribunal

Mr. Alex LOK, Counsel instructed by M/S Fok & Johnson, for the Applicants.

Dr. YIP Siu-keung, the Respondent, appearing in person.

LDBM000248B/2000

LDBM 248/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 248 of 2000

_______________

Between
	Wong Sui Fung & Sham Pui Kuen	Applicants
	AND
	Yip Siu Keung	Respondent

_______________

Coram: H. H. Judge Chow, Presiding Officer of the Lands Tribunal

Date of Decision: 12 January 2001

 

_____________

Decision

_____________

 

1. On 1.11.2000 upon the Applicant's application, I made various orders/directions relating to the conduct of the trial of this case. One of the Applicant's applications on that day was to strike out a sentence in Para. 5(d) of the Notice of Opposition. The application was adjourned to 17.11.2000. Upon dismissing the strike out application on 27.11.2000, I made an order nisi, to be made absolute in 14 days' time.

2. On 5th December, 2000 the Respondent's Solicitors, Hastings & Co., delivered by hand to my clerk a letter the contents of which are as follows :-

"We refer to the order nisi made on costs by Mr. Justice Chow on 22nd November 2000.

We are instructed to contest the order. Please proceed to fix a hearing date and let us have the notice thereof as soon as possible."

3. A copy of this letter was not sent to the applicants' Solicitors.

4. On 6.12.2000, the Assistant Registrar of the Lands Tribunal sent to the parties a Notice of Hearing in the following terms :-

"There proceedings have been set down for hearing before the Lands Tribunal at Court No. 2, 1st Floor, Lands Tribunal Building, 38 Gascoigne Road, Kowloon on 2 January 2001 at 9:30 a.m."

5. On 11th December 2000, the Applicants' Solicitors, Fok & Johnson, faxed a letter to the Registrar of the Lands Tribunal, stating,

"We refer to the Notice of Hearing dated 6th December 2000, whereby these proceedings have been set down for hearing on 2nd January 2001 at 9:30 a.m. at Court No. 2 of the Lands Tribunal.

We write to draw your attention to the Order of His Honourable Judge Chow dated 1st November 2000 which gave directions as to the course of the action, including the filing and exchange of the List of Documents, expert evident report, and witness statements. Please be advised that we are now in the stage of inspection of documents, and the directions as to the filing and exchange of expert evident report and witness statements will not be completed before the date of the hearing.

In the circumstances, we respectfully request the Tribunal to postpone the hearing to a date to be fixed."

6. On 12.12.2000, the Assistant Registrar of the Lands Tribunal faxed to Messrs. Hastings & Co. a note that Messrs. Fok & Johnson requested the Tribunal to postpone the hearing date on 2.1.2001, and enquired Messrs Hastings & Co. if it had any objection to their request.

7. On 14.12.2000, the Assistant Registrar of the Tribunal faxed to Messrs. Fok & Johnson a note dated 5th December, 2000 from Messrs Hastings & Co. for their information.

8. On 18.12.2000, Messrs. Fok & Johnson wrote to Messrs. Hastings & Co., stating the following matters :-

"We refer to the hearing fixed on 2nd January 2001 which were set down upon your application to the Lands Tribunal by your letter dated 5th December 2000.

The hearing has been fixed for 1 hour. We regret to note that you applied to obtain the said hearing date without any consultation with us although under the practice direction you should have consulted us to obtain the hearing date, if you consider the hearing to last more than half an hour.

In the circumstances, please let us know by return before the close of business today whether you will proceed to adjourn the hearing to a date to be fixed, failing which we shall apply to the Court to vacate the said hearing and claim against your client for such costs unnecessary incurred thereof."

9. On 18.12.2000, by way of a letter faxed to the Lands Tribunal and to Messrs. Fok & Johnson, Messrs. Hastings & Co. stated that there was no ground to postpone the hearing date on 2.1.2001.

10. On 19.12.2000, Messrs Fok & Johnson took out a summons returnable on 22.12.2000 to vacate the hearing date on 2.1.2001.

11. On 22.12.2000, Miss Courbet, solicitor for the Applicants, informed the Tribunal that before taking out the summons on 19.12.2000, her firm (Messrs. Fok & Johnson) had left 2 messages by telephone to Hastings & Co., but there was no reply from Messrs. Hastings & Co. to these messages. She was not able to attend the hearing on 2.1.2001 because she would be away from Hong Kong on that day.

12. On 22.12.2000, the hearing on 2.1.2001 was refixed to 5.1.2001 to suit the convenience of Miss Courbet.

13. The reason for Messrs. Fok & Johnson to apply for vacating the hearing date is that Miss Courbet would not be available on 2.1.2001. That cannot be a good ground for vacating the hearing date. If Miss Courbet is not able or unwilling to cancel her trip outside Hong Kong, another solicitor from Messrs. Fok & Johnson could attend the hearing on 2.1.2001 in her place. Messrs Fok and Johnson did not disclose this reason in their letter dated 18.12.2000 to Messrs. Hastings & Co., in which they only accused Hastings & Co. of being in breach of practice direction for not having consulted them before they applied to have the hearing date. They did not say that they were unable to attend the Tribunal on the hearing day. Thus it is correct for Hasting & Co. to say in their letter dated 18.12.2000 that there was no ground to vacate the hearing day.

14. The hearing date on 2.1.2001 was unnecessarily vacated. The Respondent had to attend the hearing on 22.12.2000 on the application of the Applicants to vacate the hearing date.

15. Based on the matters above-said, the Applicants have to bear the Respondent's costs in respect of the summons heard on 22.12.2000, to be taxed, if not agreed, and I so order.

 

 

 

Representation:

The Applicants: Represented by M/S Fok & Johnson, Solicitors

The Respondent: Represented by M/S Hastings & Co., Solicitors

LDBM000248A/2000

LDBM 248/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 248 of 2000

_______________

Between
	Wong Sui Fung & Sham Pui Kuen	Applicant
	AND
	Yip Siu Keung	Respondent

_______________

Coram: H. H. Judge Chow, Presiding Officer of the Lands Tribunal

Date of Decision: 12 January 2001

 

_____________

Decision

_____________

 

1. On 1.11.2000, the Applicants applied to strike out the sentence "It was built at the time when the Applicant was the Chairman of the owners' committee of the Estate" contained in Paragraph 5(d) of the Notice of Opposition. Upon dismissing the application on 22.11.2000, I imposed the following orders nisi as to costs :-

(1) The Respondent is to pay the Applicant's costs for preparation of the submission for the hearing on 17.11.2000. Subject to that the Applicant is to pay the Respondent the costs of the strike out application.

(2) The Respondent is to pay the Applicant the costs for the adjournment granted on 1.11.2000 for the purpose of amending Para. 5(d) of the Notice of Opposition.

2. The Respondent contested the order nisi, submitting that the order absolute on costs should be made to the effect that the Applicants were to pay the Respondent the costs for the adjournment, the preparation of the submission and the strike out application.

The adjournment

3. During the hearing of the strike out application on 1.11.2000, the Respondent's Counsel, Miss Chan, admitted that there was a mistake in the above-said sentence in Paragraph 5(d) of the Notice of Opposition in that the words "the Applicant" should read as "the Applicant's husband". I then granted an application made by Miss Chan for the hearing to be adjourned to 17.11.2000, in order to allow the Respondent to amend the said Paragraph 5(d), with costs reserved. If not for the adjournment applied for by the Respondent, the hearing of the strike out application would have been completed on 1.11.2000. It is the Respondent who asked for the adjournment, causing the hearing be continued on another occasion; it must logically follow that he must pay the costs for the adjournment.

The preparation of the written submission by the Applicant

4. When granting the application for adjournment to 17.11.2000, I made an order that the Respondent was to serve and file the proposed amended Paragraph 5(d) in 7 days' time. But the Respondent only filed and served the amended paragraph 5(d) on 16.11.2000, 8 days after the expiry of the 7 days' time granted by me. By the time the Applicant received the proposed amended Paragraph 5(d), in the afternoon on 16.11.2000, the Applicant had already filed in her written submission.

5. On 17.11.2000, the Applicant did not pursue the strike out application. Mr. Law Chiu Yuen, a consultant of the Respondent's Solicitors, submitted in his affirmation that "since the Applicants did not pursue the strike out application, and it is clear from the Court's decision that in any event, the Court would have dismissed the application had it been pursued by the Applicants, there is no reason why the Respondent should be ordered to bear the Applicants' costs for preparation of their written submission. As stated above, the written submission solely dealt with the striking out matter but nothing else."

6. Miss Courbet, the solicitor for the Applicants, submitted that they never received the amendment (before the filing of the written submission) and so thought that the hearing had to proceed. By the time they received the amended Notice of Opposition, she had already prepared the written submission. The Respondent did not serve the amended Notice of Opposition on time, and the Applicant had to prepare for the hearing on 17.11.2000.

7. Her submission is correct. The issue is not whether the written submission referred to the amendment, and therefore bearing no relevance to the hearing, as submitted by the Respondent's Counsel. The written submission, of course, would not refer to the amendment because by the time it was completed, the Applicants' solicitor had not received the amended Notice of Opposition. The issue is, had the Respondent compiled with the order made on 1.11.2000, or alternatively served the amended Notice of Opposition on the Applicants long before 17.11.2000, then Miss Courbet would not have to waste time in preparing for the written submission for the strike out application.

8. There is absolutely no merit in the Respondent's argument. I therefore make the order nisi absolute, and I further order that the Respondent is to bear the Applicants' costs for the hearing on 5th Jan., 2001, to be taxed, if not agreed.

 

 

 

Representation:

The Applicants: Represented by M/S Fok & Johnson, Solicitors

The Respondent: Represented by M/S Hastings & Co., Solicitors

LDBM000248/2000

LDBM 248/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Lands Tribunal Application No. LDBM 248 of 2000

_______________

Between
	Wong Sui Fung and Sham Pui Kuen	Applicants
	AND
	Yip Siu Keung	Respondent

_______________

Coram: H.H. Judge Chow, Presiding Officer, Lands Tribunal

Date of Decision: 22 November 2000

 

_____________

DECISION

_____________

 

1. As pleaded in the Notice of Application, the Applicant is and was the registered owner of House D of Greenland Villas erected on Sha Tin Town Lot No. 195 situated at Nos. 8-12 Ma Yeung Path, Shatin, N.T. ("the Estate"), whereas the Respondent is and was the registered owner of House E of the Estate.

2. On 24.10.2000 the Applicant Wong Sui Fung ("the Applicant") took out an inter-partes summons under Order 19, Rule 18(1)(b) of the Rules of High Court and Rules 11 and 12 of the Lands Tribunal Rules for various applications. Item 5 of the summons is an application in the following terms :-

'The words "It was built at the time when the Applicant was the chairman of the owner's committee of the Estate" contained in Paragraph 5(d) of the Respondent's Notice of Opposition filed herein be struck out as they are scandalous, frivolous and vexatious.'

3. O. 18, r.19 provides as follows :-

"19.-(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that -

(a) ............

(b) it is scandalous, frivolous or vexatious; or

(c) ............

(d) ............

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be."

4. Paragraph 5(d) of the Notice of Opposition reads :-

"The original fences referred to in sub-paragraphs (c), (d) and (e) of paragraph 4 were built by the Respondent's immediate predecessor in title. It was built at the time when the Applicant was the chairman of the owner's Committee of the Estate. The original fence between point P and point Q was built as a result of the agreement between the Applicant and the Respondent's immediate predecessor in title and the Applicant contributed to half of the construction cost of this original fence"

(Underline provided)

5. In Sub-paragraphs (c), (d) and (e) of Paragraph 4 of the Notice of Application, the Applicant alleged that certain parts of the original fences along the boundaries of House D and House E had been modified by the Respondent in breach of the Deed of Mutual Covenant of the Estate.

6. The strike out application was heard on 1.11.2000. Both parties advanced their arguments, in the course of which the Respondent's Counsel admitted that there was a mistake in the pleading in that the words "the Applicant" should read as "the Applicant's husband".

7. I then granted an application made by the Respondent's Counsel for the hearing to be adjourned to 17.11.2000, in order to allow the Respondent to amend Para. 5(d), with costs reserved. I also ordered that the Respondent was to serve and file the proposed amended Para. 5(d) in 7 days' time. But the Respondent only filed and served the amended Para. 5(d) on 16.11.2000. By the time the Applicant received the proposed amended Para. 5(d), she had already filed in her submissions.

8. On 17.11.2000, whilst maintaining that the proposed amendments to Para. 5(d) are not relevant to the pleadings, the Applicant's legal representative (Mdm. Courbet) would not pursue the strike out application any further, but she asked for costs incurred in taking out the strike out application.

9. In her submissions, Mdm. Courbet's referred to the further and better particulars provided by the Respondent in respect of the sentence ("the Sentence") to be struck out. On 28.9.2000, the Applicant requested the Respondent to provide the following further and better particulars in respect of the Sentence :-

(a) the exact date or period during which the said original fence was built; and

(b) the time during which the Applicant was alleged to be the chairman of the owner's committee of the Estate.

10. On 4.10.2000, the Respondent provided the following particulars :-

(1) The exact date or period when the fence was built is unknown to and could not be traced by the Respondent since the same was built well before the Respondent came into possession of his own premises in December 1999.

(2) The husband of the Applicant, Mr. LI Ka-chun, had claimed himself to be the chairman of the owner's committee of the Estate for a long time before the incorporation of the owners of the Estate on 17th July 2000. Therefore it in the said Mr. LI who is the one who knows the hast.

11. I do not accept such submission. In Para. 5(d) the Respondent was pleading the time when the original fences were built, by referring to the occurrence of an event, namely, when the Applicant was the chairman of the owner's committee of the Estate. The fact that Respondent did not know the exact date or period as to when the original fences were built is no bar for him to plead such a time by referring to an occurrence of event.

12. The fact that he did not know when the Applicant was the chairman does not preclude him from pleading this piece of fact. In fact he did indirectly refer to such a time by referring to the building of the original fences.

13. Mdm. Courbet contended that the matters relating to the original fences had no bearing whatsoever in this case because the wrongs complained of were the modifications of the original fences. But that would be a matter of irrelevancy. She submitted that to include the Sentence in the pleading is scandalous, frivolous and vexatious, when the Respondent had no knowledge when the original wall was built or when the Applicant was chairman of the owner's committee, and these matters had no bearing to the case.

14. The issue here is whether the Sentence is scandalous, frivolous and vexatious. The Shorter Oxford English Dictionary provides the meanings of these key words :-

Scandalous:	"Of the nature of a scandal; grossly disgraceful, outrageous, shameful; improper."
Frivolous:	"(of a claim, charge, etc.) having no reasonable grounds."
Vexatious :	"Of an action: instituted without sufficient grounds for winning purely to cause trouble or annoyance to the defendant."

15. In Stroud's Judicial Dictionary (5th edition), at P.2339, it is stated that 'A pleading is "scandalous" (R.S.C., Ord. 19, r. 27, now Ord. 18, r. 19) which alleges anything unbecoming the dignity of the court to hear, or is contrary to good manners, or which creates a crime immaterial to the issue. But the statement of a scandalous fact that is material to the issue is not a scandalous pleading.'

16. It is very clear that according to the definitions set out herein before the Sentence itself is not scandalous, frivolous or vexatious. The inclusion of the Sentence in the Notice of Opposition is also not scandalous, frivolous or vexatious. Therefore r.19(1)(b) does not apply here.

17. The test for r. 19(1)(b) does not include "irrelevancy". If "irrelevancy" is the test, the legislation could have clearly evinced its intention by including such a word in the rule. Take for instance the provisions of 0.41, r. 6 which provide that "The Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive". The Legislature clearly intends that the element of irrelevancy has to be considered. But the word "irrelevant" is absent in O.18 r.19. Therefore "irrelevancy" is not the test under O.18 r.19.

18. Para. 5 refers to who built the original fences, when the original fences were built and the circumstances the original fences came to be built. Therefore the Sentence forms part and partial of the whole paragraph. The Applicant singled out this sentence and asked it to be struck out. In the circumstances, even if the Sentence infringes O.18 r.19, I would not exercise my discretion to order it to be struck out.

19. By reasons of the above-said matters, I dismiss the Applicant's application.

20. I make the following orders nisi as to costs, to be made absolute in 14 days' time :

(1) The Respondent is to pay the Applicant's costs for preparation of the submission for the hearing on 17.11.2000. Subject to that the Applicant is to pay the Respondent the costs for the strike out application.

(2) The Respondent is to pay the Applicant the costs for the adjournment granted on 1.11.2000 for the purpose of amending Para. 5(d) of the Notice of Opposition.

 

 

 

Representation:

Applicant: Represented by M/S Fok & Johnson, Solicitors.

Respondent: Represented by M/S Hastings & Co, Solicitors.