NG JESS v. WILMES LAI SHIM

NG JESS v. WILMES LAI SHIM

Tribunal found the majority of alleged breaches of Clause 14(a) were not established on the evidence (Allegations A-D and E) because no damage or interference was proven; however the breaking up of the external wall beneath the G/F window constituted conversion of a common external part and breached Clause 26(a);...

Source-derived case information.

Citation
NG JESS v. WILMES LAI SHIM
Parties
Applicant in LDBM 266/2013; Respondent in LDBM 280/2013: WILMES LAI SHIM; Respondent in LDBM 266/2013; Applicant in LDBM 280/2013: NG JESS
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
3 December 2014
Case Number
LDBM280/2013
Procedural Posture
Building Management Application (lands Tribunal) / Judgment Delivered 3 December 2014
Outcome
Mandatory injunctions refused; no order made in LDBM 266/2013 and LDBM 280/2013; costs directions made as below.
Legal Topics
Breach of Deed of Mutual Covenant, Common Parts Vs Exclusive Use, Mandatory Injunction Discretion, Boundary/assignment Interpretation, Costs Orders
Source Language
en
Building Management Property Law Contract (deed of Mutual Covenant) Civil Remedies (injunctions) Land/boundary Surveying Breach of Deed of Mutual Covenant Common Parts Vs Exclusive Use Mandatory Injunction Discretion +2 more

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Parties

WILMES LAI SHIM

Applicant in LDBM 266/2013; Respondent in LDBM 280/2013

NG JESS

Respondent in LDBM 266/2013; Applicant in LDBM 280/2013

Procedural Posture

Building Management Application (lands Tribunal) / Judgment Delivered 3 December 2014

Legal Issues

  1. 1 Whether structural alterations by G/F owner breached Clauses 7, 14(a) and 26(a) of the DMC
  2. 2 Whether parapet walls, external walls and fences are common parts or within G/F assigned area
  3. 3 Whether glass structures on roof interfered with other owners' right of access to antenna (Clause 7/18(d)/27)

Ratio Decidendi

Tribunal found the majority of alleged breaches of Clause 14(a) were not established on the evidence (Allegations A-D and E) because no damage or interference was proven; however the breaking up of the external wall beneath the G/F window constituted conversion of a common external part and breached Clause 26(a); the Glass Structures on the roof were structural alterations that interfered with another owner's right of access to the antenna and breached Clause 7; despite proven breaches the Tribunal refused mandatory injunctions as disproportionate and not justified because damages or inconvenience were not shown to be grave and reinstatement costs would be disproportionate.

Court Disposition

Mandatory injunctions refused; no order made in LDBM 266/2013 and LDBM 280/2013; costs directions made as below.

Orders

  • No order is made for LDBM 266/2013 and LDBM 280/2013
  • In LDBM 266/2013 there shall be no order as to costs except that the applicant shall bear the costs incurred by the respondent in the engagement of Mr Fok, to be taxed if not agreed at District Court scale