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華都大廈(高士威道)業主立案法團 v 譚建華所經營裕華皮鞋

Judgment Cited authorities 20 Cited in Precedent Map Related
Vincent
Judgment Date25 November 2021
Neutral Citation[2021] HKDC 1475
Year2021
Judgement NumberDCCJ2918/2020
Subject MatterCivil Action
CourtDistrict Court (Hong Kong)
DCCJ2918/2020 華都大廈(高士威道)業主立案法團 V. 譚建華所經營裕華皮鞋

DCCJ 2918/2020

[2021] HKDC 1475

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2918 OF 2020

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BETWEEN
華都大廈(高士威道)業主立案法團 Plaintiff

and
譚建華所經營裕華皮鞋 Defendant

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Coram: His Honour Judge H. Au-Yeung in Court

Dates of Trial: 27 September 2021 and 4 November 2021

Date of Judgment: 25 November 2021

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JUDGMENT

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BACKGROUND

1. These proceedings, which were transferred from the Lands Tribunal, were brought by the Incorporated Owners of Waldorf Mansion (“the Building”) against the defendant who has registered a business known as “裕華皮鞋” (“the Shoes Shop”) at a structure situated at the back lane right next to the Building (“the Structure”).

2. It is undisputed that the Structure currently comprises of 4 parts:

(1) Part 1 thereof is 3.6 ft deep/wide, 16 ft long and 11 ft in height (“Part 1”);

(2) Part 2 thereof is 3.9 ft deep/wide, 12.4 ft long and 7.2 ft in height (“Part 2”);

(3) Part 3 thereof is 3.9 ft deep/wide, 13 ft long and 7.2 ft in height (“Part 3”); and

(4) Part 4 thereof is 3 ft deep/wide, 6.1 ft long and 7.2 ft in height (“Part 4”).

3. The aforesaid 4 parts formed a continuous structure which led from one end of the back lane (meeting Tung Lo Wan Road) to the back door of the Building, with Part 1 being the closest to Tung Lo Wan Road and Part 4 being right next to the back door of the Building.

4. The Structure was bolted to the external wall of the Building.

5. It is undisputed that the Structure was originally used by the defendant’s father (“Mr Tam Senior”) to operate the Shoes Shop since the 1970s. At that time, Mr Tam Senior was only using Part 1 and Part 2, as Part 3 and Part 4 were not in existence yet.

6. In the period between around October 1976 and 2006/2007, Mr Tam Senior had paid 補助管理費 (“Subsidiary Management Fees”) (or management fees) to the Mutual Aid Committee or the Management Committee (“Management Committee”), as the case may be, of the Building.

7. In around 2006/2007, the Management Committee decided not to collect Subsidiary Management Fees / management fees from Mr Tam Senior anymore.

8. On 13 October 2008, the Management Committee issued a letter to Mr Tam Senior and demanded him to remove the Structure. Further demand letters were issued in 2011 and 2017. However, Mr Tam Senior had ignored all those demands.

9. On 6 November 2014, the Building Authority issued a Superseding Order to the plaintiff, under which the plaintiff was ordered to demolish, among other things, the Structure (“the Superseding Order”).

10. Mr Tam Senior eventually passed away in June 2017.

11. As the plaintiff had failed to comply with the Superseding Order, the Buildings Department issued a summons on 27 July 2018 against the plaintiff, which pleaded guilty thereto and was fined $6,000 on 22 November 2018.

12. By this action, the plaintiff seeks an injunction against the defendant to remove the Structure and to reinstate the external wall. The plaintiff also asks for damages caused by the defendant’s breach of the Deed of Mutual Covenant of the Building (“the DMC”) in the sum of $6,000.

13. In his Defence and Counterclaim, the defendant contends, among other things, that the plaintiff and the owners of the Building no longer have any right of action to recover the area occupied by the Structure and the external wall possessed by the defendant by reason of adverse possession. He asks for a declaration that the plaintiff’s title has been extinguished. Alternatively, defendant states that he has an easement over the external wall of the Building and that the plaintiff has by its conduct acquiesced and/or estopped from denying the conduct of the defendant and his father.

14. At the beginning of the trial, it was agreed by the parties that the issues which have to be dealt with by the court are as follows[1]:

(1) Whether the land and the external wall occupied by the defendant are common parts under the Building Management Ordinance (Cap.344, Laws of Hong Kong) (“BMO”) and the DMC;

(2) If so, whether the plaintiff is entitled to the relief sought;

(3) On the defendant’s claim of adverse possession:

(i) Whether the defendant and/or his father can adversely possess the external wall;

(ii) Whether the 3-dimensional space occupied by the Structure (“the Space”) is capable of being adversely possessed;

(iii) Whether the defendant and/or his father had continuous and exclusive possession of the land, the external wall and the Space for over 20 years since November 1973[2];

(iv) Whether the defendant and/or his father had the requisite animus possidendi during their continuous possession of the land, the external wall and the Space;

(v) Whether the defendant and/or his father had, pursuant to sections 7(2), 17 and 38A of the Limitation Ordinance, extinguished the title of the relevant owner of the Building over the particular part of the land, the external wall and the Space in question;

(vi) Whether the defendant can rely on his father’s act of adverse possession (if any) to resist the plaintiff’s claim and/or obtain relief upon his counterclaim;

(vii) As a matter of law, whether the defendant needs to obtain a grant of probate or administration in order to continuously possess the Structure on the land, the external wall and the Space;

(4) Whether the plaintiff has by its conduct or any act acquiesced and/or estopped from denying the conduct of the defendant. If so, what is the effect over the plaintiff’s reliefs;

(5) Is the defendant liable for damages in relation to the summons issued by the Building Department.

WHETHER THE LAND AND THE EXTERNAL WALL ARE COMMON PARTS OF THE BUILDING

15. It is undisputed that the land on which the Structure is situated is common part of the Building.

16. The only dispute under this issue concerns the external wall.

17. Mr Yeung for the plaintiff submitted that the starting point of consideration is the BMO. Mr Mak did not agree. In his written closing submissions, Mr Mak suggested that the BMO is not applicable to the DMC in the present case because:

“(1) The predecessor of the BMO, Multi-storey Buildings (Owners Incorporation) Ordinance (Cap.344) came into effect on 19 June 1970.

(2) The DMC was entered before Cap 344 was enacted.”[3]

18. He relied on the case of Donpower Trading Limited v Apexcom Limited [2010] 1 HKLRD 915, in which Cheung JA, when dealing with the newly enacted section 13A of the Conveyancing and Property Ordinance (Cap.219, Laws of Hong Kong), had the following to say:

“36. Unlike section 13(5) [of the Conveyancing and Property Ordinance] which provides that

‘(5) This section affects only the rights and obligations of the parties to a contract for the sale of land entered into after the commencement of the section.’

there is no similar provision in section 13A confining its application to agreement entered into after the commencement of the section. In my view the silence is not an indication that the new section has retrospective effect because the fundamental principle on statutory interpretation is that unless a contrary intention appears, an enactment is presumed not to be intended to have a retrospective operation : Bennion On Statutory Interpretation 5th Ed, page 315. The rationale is that Courts recognize the sanctity of accrued rights and obligations. If retrospective effect is given to new legislation it will impair those rights and obligations. Hence in Yew Bon Tew and Another v. Kenderaan Bas Mara [1983] A.C. 553, Lord Brightman in the Privy Council held at 558 that

‘Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past. There is, however, said to be an exception in the case of a statute which is purely procedural, because no person has a vested right in any particular course of procedure, but only a right to prosecute or defend a suit according to the rules for the conduct of an action for the time being prescribed.’”

(emphasis added)

19. The “prima facie rule of construction” quoted by Cheung JA is of course not absolute. It will not apply if “contrary intention appears”.

20. With greatest respect to Mr Mak, he had overlooked section 34C(1) of the BMO which has clearly expressed such “contrary intention”. This section is under Part VIA of the BMO which governs Deed of Mutual Covenant. It stipulates that:

“This Part, except where otherwise expressly provided, applies only to a building in respect of which a deed of mutual covenant is in force whether that deed came into force before or after the material date.” (emphasis added)

21. “Material date” has been defined in section 34D of the BMO as “the commencement of section 29 of the Multi-storey Buildings (Owners Incorporation) (Amendment) Ordinance 1993 (27 of 1993)”, which was 8 May 1993.

22. Section 34I (which is also found in Part VIA of the BMO) provides that:

“(1) No person may—

(a) convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners’ committee (if any);

(b) use or permit to be used the common parts of a building in such a manner as—

(i) unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; or

(ii) to cause a...

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