Fairview Park Property Management Ltd v Fu Chung Fu

CourtHigh Court (Hong Kong)
Judgement NumberHCA2864/2006
Subject MatterCivil Action
HCA001623A/2005 FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. FU CHUNG FU

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

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J U D G M E N T

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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...

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