Civil Action2005

FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. FU CHUNG FU

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CACV141/1984FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. WONG SHU HO
CACV271/1998FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. SUN WAI CHUN
CACV61/1999FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. SUN WAI CHUN
CACV75/1987FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. LEE YUEN YAU
HCA2864/2006FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. FU CHUNG FU
HCA5782/1994FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. SUN WAI CHUN
HCA844/2007FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. CHAN CHAK PANG LAWRENCE AND ANOTHER

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60391-EN-2008-03-10

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HCA 1623/2005 &
HCA 2864/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NOS. 1623 OF 2005 AND 2864 OF 2006

____________

BETWEEN
	FAIRVIEW PARK PROPERTY MANAGEMENT LIMITED	Plaintiff
	and
	FU CHUNG FU	Defendant

____________

(Consolidated pursuant to the Order of Mr Registrar C. Chan dated 13 July 2007)

Before: Mr Recorder A Chan, SC in Court

Date of Hearing: 3 & 5 March 2008

Date of Judgment: 10 March 2008

______________

J U D G M E N T

______________

1. The Plaintiff in these actions is the manager of a well-known property development in Yuen Long called Fairview Park. There are more than 5,000 houses at Fairview Park. In October 2004, the Defendant became the owner of one of those houses, House No.55 (“the House”).

2. In these actions, the Plaintiff claims against the Defendant for injunctive relief (the other reliefs are not pursued) in respect of a number of structures which have been added to the House after it was acquired by the Defendant. These structures will for convenience be referred to as “Unauthorized Structures” and they are:

	(i)	A glass structure at the rear garden. It looks like an oversized greenhouse from the photographs;
	(ii)	A “block fence” at the front garden. The photographs show that it is like a boundary wall which encases the front door to the House. In all probability, that “fence” was made of concrete or bricks;
	(iii)	A block fence at the rear garden. Like the one at the front garden, it appears to be a boundary wall which encases the back door to the House;
	(iv)	A common plot fence. It looks like a boundary wall which separates the House from the adjacent House No.57;
	(v)	A fixed type canopy at the front garden. It appears from the photographs that this canopy is made of a metal structure with glass panels.

3. In action No.2864/06 (“the Second Action”), the Plaintiff also complained about a removable tent which was erected at the rear garden of the House. The photographs show that it had a simple structure consisted of four poles (probably made of metal) and a fabric top, the kind which one may see in a garden providing a shade for the users. However, it is common ground that the tent has been removed.

4. It is common that for a property development which involves multiple ownership there would be in place a Deed of Mutual Covenant (“DMC”) which governs the rights and obligations of the owners. Fairview Park is no exception. There is such a DMC. In addition, there are Estate Rules made by the Plaintiff pursuant to the power vested in it under the DMC. In these two documents, there are a number of provisions governing the alterations or additions to the houses at Fairview Park.

5. The Plaintiff’s case is that the Unauthorized Structures are impermissible under various provisions of the DMC and the Estate Rules:

Under the DMC

Clause 5

“Each Owner shall at all times hereafter be bound and shall observe and perform the covenants provisions and restrictions set out in the Second Schedule hereto.”

Clause 4(a) of the Second Schedule

“Not to make any alteration or additions to any Unit or to any building on the sub-section of which he is the Owner whereby the roofed over area thereof is increased beyond the roofed over area thereof at the date of the Occupation Permit (including a Temporary Occupation Permit) or a letter from the Building Authority or such competent authority permitting the occupation of such Unit or building.”

Clause 4(b) of the Second Schedule

“Not to make any alterations or additions to the exterior of any Unit or any building or to any walls and fences without the approval in writing of the Company.”

Clause 8(d) of the Second Schedule

“Not to place, install, erect or affix any sunshades, canopies or awnings except with the prior written approval of the Manager.”

Clause 8(j) of the Second Schedule

“…… No hut shed caravan house on wheels or other chattels adapted used or intended for use as a sleeping apartment nor any show booths, hoardings or advertising stations or other temporary erections shall be erected made placed or used or allowed to remain on any Unit or any sub-section or any part thereof.”

Clause 8(l) of the Second Schedule

“Not to use the unpaved part of the unbuilt area for any purpose except as a garden.”

Clause 8(n) of the Second Schedule

“Not to use any part of the unbuilt area of any sub-section for the purpose of storage, or drying goods.”

The Estate Rules

Rule I(1) of Chapter A

“To maintain the low density building environment required by the Land Grant.

No house owner is permitted in any part of his property to :

(1) construct glass houses or other enclosed structures.”

Rule II(2) of Chapter B

“Usage of Unbuilt Area of House Units

…… No glass houses, combination houses, caravans, show booths, hoardings, advertising stations or other temporary erections, except those permitted in Chapter C, shall be erected, placed or allowed to remain on any unbuilt area or on parking spaces.”

Rule IV(1) of Chapter C

“Fence, Garden Gate and Rolling Shutter

Fences, gates and rolling shutters must comply with the following specifications :

……

1.2 Fences shall not be higher than 2M and shall have 60% open space evenly distributed between 1M and 2M level.”

6. Two witnesses were called by the Plaintiff. Their evidence is not really challenged (the second witness was not even cross-examined). According to the Plaintiff’s evidence, the glass structure was discovered in December 2004 and actions were taken by its staff to persuade the Defendant to rectify the breaches of the DMC and the Estate Rules but to no avail. It appears from the documentary record that the Plaintiff wrote to the Defendant about the two block fences and the common plot fence on 17 January 2005. When the Plaintiff’s persuasions went nowhere, on 22 August 2005 action No.1623/05 was instituted in respect of the aforesaid Unauthorized Structures.

7. In October 2005, the Plaintiff discovered the canopy and the tent. Again, when persuasions did not work, the Second Action was instituted.

8. The Defendant has elected not to adduce any evidence. Despite the fact that he has indicated his dispute as to the existence of the Unauthorized Structures, given the lack of contrary evidence I have no hesitation in accepting the Plaintiff’s evidence that they do exist.

9. As regards the breaches of the DMC and the Estate Rules, it seems to me that this is an open and shut case. Plainly, the glass structure is not permitted under Clause 4(a) (I infer that the garden was not a roofed over area at the date of the Occupation Permit); Clause 8(l); Clause 8(n) (the photographs show that various items were stored inside the glass structure); Rule I(1); and Rule II(2). The fences (including the common plot fence) are not in compliance with Rule IV(1) (the block fences are clearly in excess of 2m in height and none of the fences has any open space). Finally, the canopy infringes Clauses 4(a) and 8(d).

10. The Defence filed by the Defendant was subjected to a striking out application by the Plaintiff and the outcome was that much of that pleading was struck out as sustainable in law. Such parts of the Defence which remain standing do not amount to much. Looking at that Defence (the Defence of the Second Action contains no proper defence) and the witness statements of the D, one can see that two defences are advanced:

	(i)	The relevant terms of the DMC and/or the Estate Rules which prohibit the erection of unauthorized structures hinder the Defendant’s private enjoyment of the House in respect of which the Defendant has the exclusive right to possession, hold, use, occupy and enjoy; and
	(ii)	There are other owners in Fairview Park who are committing the same or similar breaches, and it would be unfair or unjust for Plaintiff to target only the Defendant.

11. It appears that the Defendant believes that he has the right to do as he pleases with the House so long as his action does not endanger anyone or constitutes any nuisance to his neighbours. Whilst I understand the sentiment, it must be understood that in buying a house in a collective development like Fairview Park, the Defendant has agreed to give up some of such rights. There are good reasons for maintaining some degree of uniformity in the development and therefore the owners’ right to make alterations or additions to their houses is curtailed. It should be said that the Defendant was fully aware of the position when he purchased the House. The Assignment of his House was subject to the DMC and he has covenanted to observe the terms and conditions thereof. It was said in Sun Wai Chun v Fairview Park Property Management Ltd, FAMV No.1/00, unrep., that:

“Deeds of mutual covenants are common in Hong Kong. Each owner subscribes to it and is bound by it. The benefit and burden of the covenants run with the land.”

12. I am unable to see any merits in the first defence and it is rejected. As regards the second defence, it is made clear in the Defendant’s Final Submissions that he is advancing a defence based on the acquiescence on the part of the Plaintiff by reason of the similar breaches which exist in Fairview Park.

13. In his evidence under cross-examination, Mr Lam (the Plaintiff’s first witness) agreed that there are many breaches of the DMC in terms of unauthorized structures in Fairview Park. However, Mr Lam explained the procedure adopted by the Plaintiff in enforcing the DMC and the Estate Rules. Once an unauthorized structure is discovered, the Plaintiff’s staff will take photographs of it and compile a report. A letter will then be written to the owner requiring remedial action. When all persuasions failed, the Plaintiff will have to resort to litigation. Due to limited resources, the Plaintiff adopts a priority system to assist in deciding on the cases to take to court.

14. Mr Lam’s evidence is not contradicted. There is no reason for me to doubt his evidence and I accept the same. The fact that there are many unauthorized structures in Fairview Park is, in my view, (a) a poor reflection of the owners in terms of their compliance with their legal obligations and (b) a consequence of the limited resources of the Plaintiff. In the premises, I do not see how it can be said that the Plaintiff has acquiesced on any breach of the DMC or the Estate Rules. Accordingly, the second defence is also rejected.

15. In the premises, there is no defence to these actions and I give judgment to the Plaintiff accordingly. As for the Counterclaims in these actions, they are based upon the allegation that these actions are ill-justified. By reason of the analysis above, such allegation must be rejected and I dismiss the Counterclaims.

16. Looking at the appropriate relief, I am prepared to grant (a) a mandatory injunction for the removal or demolition of the Unauthorized Structures and the restoration or reinstatement of the fences which shall comply with the Estate Rules and (b) a negative injunction to restrain the Defendant from committing similar breaches in the future. However, as I have made clear to Mr Lee who appears for the Plaintiff, the injunctions must be properly and precisely formulated with adequate information. Paragraphs (1) and (2) of the Prayers of the Statements of Claim do not meet such requirements. The Plaintiff should submit a proper draft Order for my approval.

17. I decline to make any order in respect of the tent for two reasons. Firstly, I have some reservation as to whether the tent constituted a “temporary erection” which infringed Clause 8(j) and/or Rule II(2). Applying the ejusdem generis rule of interpretation, a tent is nothing like “glass houses, combination houses, caravans, show booths, hoardings or advertising stations”. Secondly, I do not believe that it is necessary to grant a negative injunction in respect of the tent. It has been removed and I do not see a real risk that, given the result of these actions, the Defendant will infringe the DMC or the Estate Rules again.

18. Finally, I make an order nisi that the costs of these actions as well as the Counterclaims be to the Plaintiff to be taxed if not agreed. Such order is to become absolute 14 days from today in the absence of any application for variation.

(Anthony Chan, SC)
Recorder of the Court of First Instance
of the High Court

Mr Lee Yee Hung, instructed by Messrs Huen Wong & Co., for the Plaintiff

Mr Fu Chung Fu, Defendant in person

54300-EN-2006-09-25

FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. FU CHUNG FU

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HCA 1623/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1623 OF 2005

______________________

BETWEEN

	FAIRVIEW PARK PROPERTY MANAGEMENT LIMITED	Plaintiff
	And
	FU CHUNG FU	Defendant

______________________

Coram : Before Master J. Wong in Chambers

Date of Hearing: 8 September 2006

Date of Judgment: 25 September 2006

_______________

D E C I S I O N

_______________

Application

1. This is an application by the Plaintiff against the Defendant for striking out of certain parts of the Defence and the whole of the Counterclaim herein. The Plaintiff relies on Order 18 rules 19(1)(a) and (c) of the Rules of the High Court (“RHC”) as well as the inherent jurisdiction of this Court. The relevant rules state that:

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

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) ……

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) ……

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

Background

2. The Plaintiff was and is the manager of a low-rise residential estate, Fairview Park (“the Estate”), in Yuen Long, New Territories, consisting of about 5,000 houses with gardens.

3. The Defendant was and is the registered owner of House No. 55 in the 5^th Street of the Estate. He acquired the same on 4 October 2004.

4. The Plaintiff told this Court that, despite repeated demands and requests, the Defendant had failed and/or refused to rectify breaches in the Deed of Mutual Covenant (“DMC”) and Estate Rules of the Estate by:-

“ (a) Erecting a glass structure at rear garden;

(b) Erecting a block fence without minimum open space at front garden;

(c) Erecting a block fence without minimum open space at rear garden; and

(d) Enclosing the common plot fence without minimum open space.”
(paragraph 17 of the Statement of Claim herein)

5. On 22 August 2005, the present proceedings were commenced. The Defendant filed his Defence and Counterclaim on 3 October 2005. So far, the parties have moved into the discovery stage. On 5 June 2006, the Plaintiff issued the present application for striking out.

6. The substantive argument of the matter was heard by me on 8 September 2006. Mr. Thomas T.H. Kwan of Counsel represented for the Plaintiff while the Defendant acted in person. Having heard from the parties, I reserved my decision to be delivered. I now do so.

Ruling

7. Upon considering the evidence authorities and submissions from the parties, I have come to the conclusion that certain parts of the Defence and Counterclaim complained by the Plaintiff are to be struck out, particulars are marked in red as per the Schedule attached hereto.

The Law

8. Mr. Kwan referred me to paragraphs 18/19/3 to 18/19/6 and 18/19/9 of the Hong Kong Civil Procedures 2006 to lay down his foundation for striking out. In this respect, I heard nothing from the Defendant to argue otherwise. For the present purpose, I attempt to sum up the relevant rules as follows:

(a) It is only in plain and obvious cases that this Court should exercise its summary power to strike out.

(b) Questions of law can be determined in strike out application.

(c) The mere fact that the case is weak and not likely to succeed is no ground for striking it out.

(d) The burden of proof lies on the one who seeks for the striking out.

(e) This Court may consider allowing amendment on the pleading if improvement can be made.

Reasons

9. Applying the above principles to the present case, the Plaintiff has satisfied me that the following parts of the Defence and Counterclaim are to be struck out.

(a) The Plaintiff sought to strike out the following parts from paragraph 2 of the Defence that:

“(2) ……The accusation for building a glass structure in the defendant’s garden is overtly sensitive and does not observe the rule of English law. The gist of the legislation is the concern of endangering lives of the public and the creation of nuisance to others, which is not occurring in this case ……The accusation is seriously infringing the defendant’s absolute right of enjoyment and rights as a free citizen stipulated in the conventional Basic Law and Bills of Right ……”

(b) Mr. Kwan complained that “overtly sensitive” was not a ground of Defence. Further, the Defendant did not specify clearly what exactly he meant by “… the rule of English law”, “The gist of the legislation …” and “… the conventional Basic Law and Bills of Rights”. Mr. Kwan also told me that he had attempted to conduct research on the possible legislation or authorities relied by the Defendant, but in vain. Hence, he concluded that a striking out application, rather than one asking for particulars, would be appropriate to cure the defects of the Defence which was prejudicing, embarrassing and delaying a fair trial. I agree with Mr. Kwan and indeed, the Defendant confirmed that he did not seriously oppose the striking out of these parts of the Defence because he could not improve his pleadings any further.

(c) The Plaintiff further applied to strike out a substantial part of paragraph 3 as well as the whole of paragraphs 4, 5, 7, 8, 10, 11, 13 and 14 of the Defence. In relation to these, I classify them into 3 categories.

(1) A portion of paragraph 3 and the whole of paragraphs 5, 7, 10 and 13 are to be struck out. The long and short of these paragraphs maybe summarized as:

(i) The DMC and Estate Rules were tailor-made solely for the Plaintiff and not satisfactory to the Defendant and the owners of other houses in the Estate.
(ii) The DMC and Estate Rules were and are unfair and unreasonable.
(iii) The DMC and Estate Rules are seriously out-dated.

During the hearing when I discussed these parts of the Defence with the Defendant, he maintained the view that he should be allowed to pursue them as they were indeed his major defences. However, they have to go away because such defences are unsustainable in law. In short, the Defendant asked this Court to strike down, give no effect or re-write the DMC and Estate Rules for him. However, he has no legal basis to trigger such jurisdiction of the Court. I have checked a number of possible legislation for the Defendant. Nonetheless, the Control of Exemption Clauses Ordinance (Cap. 71) cannot help the Defendant because we are not talking about exemption clauses. Neither is the Unconscionable Contracts Ordinance (Cap. 458) able to assist him since the DMC and Estate Rules are not contract for sale of goods or supply of services made after 20 October 1995. Finally, the Building Management Ordinance (Cap. 344) does not advance his case because Part VIA of the Ordinance only regulates the deed of mutual covenants in a limited extent and the Seventh/Eighth Schedule thereto do not purport to regulate the structures built by the Defendant in the present case.

(2) Regarding the following clauses contained in paragraphs 4, 8, 11 and 14, they are struck out for the same reasons as per paragraphs 9(b) and (c) hereinabove as well as those stated in paragraph 9(d) below.

“… The domination violate the defendant’s conventional human rights and interest …”
“… and other owners in the same Estate”
“… feels unfair and …”

(3) As to the remaining parts in paragraphs 4, 8, 11 and 14, they are to be retained for the reason that they indeed are part and parcel of the Counterclaim of the Defendant. In short, once the major defences are struck out, the Defendant will be left with a denial of the Plaintiff’s claim only. Nonetheless, the Plaintiff still has to prove the same on balance before the trial judge. Should it fail to achieve the same, there is no reason why the Defendant cannot pursue his counterclaim even though the same is weak and is unlikely to succeed.

(d) For the reasons as aforesaid, I am not prepared to strike out the Counterclaim herein except the reference of:

“… and other owners in the same Estate …”

in paragraph (4) of the prayer. I do not consider that the Defendant has any locus or legal capacity to sue for damages, if any, for and on behalf of other house owners of the Estate.

Costs

10. I have not heard from the parties in relation to the question of costs. However, there appears no reason why costs should not follow the event. The Plaintiff has substantially succeeded in its application and Mr. Kwan’s assistance is useful to me. In the circumstances, there will be an order nisi that costs of the application, including costs reserved on 16 June 2006 and Certificate for Counsel on 8 September 2006, are borne by Defendant to the Plaintiff, on party-and-party scale, to be taxed if not agreed, in any event. Such costs order nisi will become absolute upon expiry of 14 days from today.

(Jack Wong)
Master

Mr. T.H. Kwan instructed by Messrs. Kwan & Chow for Plaintiff

Defendant, appearing in person