GOODYEAR PROPERTY MANAGEMENT LTD AND ANOTHER v. CHEUNG YUET AND ANOTHER

GOODYEAR PROPERTY MANAGEMENT LTD AND ANOTHER v. CHEUNG YUET AND ANOTHER

The court held that the plaintiffs had not acquiesced in the particular types of alterations complained of; prior toleration of balconies did not entitle occupants to erect enclosed rooms, toilet and kitchen extensions of a different character that caused nuisance and interfered with common parts; there was no fatal delay or unconscionable conduct by plaintiffs; plaintiffs had locus standi; injunction was the appropriate remedy. Mandatory relief was granted requiring demolition and restoration to pre-1977 condition.

Citation
GOODYEAR PROPERTY MANAGEMENT LTD AND ANOTHER v. CHEUNG YUET AND ANOTHER
Parties
1st Plaintiff: GOODYEAR PROPERTY MANAGEMENT LIMITED; 2nd Plaintiff: THE INCORPORATED OWNERS OF ORIENTAL GARDENS; 1st Defendant: CHEUNG YUET; 2nd Defendant: CHONG YAN KAM
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
12 January 1979
Case Number
HCMP777/1977
Procedural Posture
Miscellaneous Proceedings (high Court) / Judgment on the Merits (12 January 1979)
Outcome
Judgment for the Second Plaintiffs; mandatory injunction granted
Legal Topics
Deed of Mutual Covenant, Mandatory Injunction, Acquiescence, Waiver and Estoppel, Locus Standi, Alteration of Common Parts, Delay and Laches, Remedies Specific Performance/demolition Vs Damages
Source Language
EN
Property Law Equity Civil Procedure Tort Nuisance Building Regulation Deed of Mutual Covenant Mandatory Injunction Acquiescence +5 more

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Parties

GOODYEAR PROPERTY MANAGEMENT LIMITED

1st Plaintiff

THE INCORPORATED OWNERS OF ORIENTAL GARDENS

2nd Plaintiff

CHEUNG YUET

1st Defendant

CHONG YAN KAM

2nd Defendant

Procedural Posture

Miscellaneous Proceedings (high Court) / Judgment on the Merits (12 January 1979)

Legal Issues

  1. 1 Whether prior acquiescence in one kind of breach (unauthorised balconies) precludes enforcement against a different kind of breach (enclosed balconies, room, toilet and kitchen extensions)
  2. 2 Whether the cumulative effect of prior unauthorised works altered the character of the estate so as to render covenants unenforceable
  3. 3 Whether delay or laches by the management precludes injunctive relief or requires damages instead

Ratio Decidendi

The court held that the plaintiffs had not acquiesced in the particular types of alterations complained of; prior toleration of balconies did not entitle occupants to erect enclosed rooms, toilet and kitchen extensions of a different character that caused nuisance and interfered with common parts; there was no fatal delay or unconscionable conduct by plaintiffs; plaintiffs had locus standi; injunction was the appropriate remedy. Mandatory relief was granted requiring demolition and restoration to pre-1977 condition.

Court Disposition

Judgment for the Second Plaintiffs; mandatory injunction granted

Orders

  • Judgment for the Second Plaintiffs against both Defendants with costs to the Second Plaintiffs
  • Defendants must demolish structures erected in summer 1977 and restore their respective flats to the state existing prior to the 1977 alterations and extensions