THE INCORPORATED OWNERS OF KING\'S COURT, CONSORT RISE v. JOHN JOSEPH GUNNING

THE INCORPORATED OWNERS OF KING\'S COURT, CONSORT RISE v. JOHN JOSEPH GUNNING

The Tribunal exercised its discretion to grant an injunction ordering John Joseph Gunning to reinstate his flat (except the drainpipes) by 4 July 2008 because his alterations were more serious and the interests of the majority of owners favored enforcement; declarations and injunctions against the IO, management committee members and other owners were refused because the alleged breaches were being rectified or could be regularised, tolerance by the IO did not constitute failure of duty in the circumstances, and a declaration would serve no useful purpose; costs ordered to be borne by each party (order nisi to be made absolute in six weeks).

Citation
THE INCORPORATED OWNERS OF KING\'S COURT, CONSORT RISE v. JOHN JOSEPH GUNNING
Parties
Applicant (ldbm 104/2004); 1st Respondent (ldbm 118/2005): The Incorporated Owners of King's Court, Consort Rise; Respondent (ldbm 104/2004); Applicant (ldbm 118/2005): John Joseph Gunning; 2nd Respondent (ldbm 118/2005): Tai Ming Ming; 3rd Respondent (ldbm 118/2005): Law Yiu Tung; 4th Respondent (ldbm 118/2005): Cheng Chau Thomas; 5th Respondent (ldbm 118/2005): Andrew Cheung; 6th Respondent (ldbm 118/2005): Michael Wong
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
4 December 2007
Case Number
LDBM104/2004
Procedural Posture
Building Management Applications (lands Tribunal) / Judgment (heard 28 Sep & 2 4 Oct 2007; Judgment Handed Down 4 Dec 2007)
Outcome
Application allowed in part against John Joseph Gunning; all other applications refused.
Legal Topics
Deed of Mutual Covenant, Injunction, Declaration, Unauthorised Building Works, Duties of Owners Incorporation, Costs
Source Language
EN
Property Law Building Management Equity Civil Procedure Deed of Mutual Covenant Injunction Declaration Unauthorised Building Works +2 more

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Parties

The Incorporated Owners of King's Court, Consort Rise

Applicant (ldbm 104/2004); 1st Respondent (ldbm 118/2005)

John Joseph Gunning

Respondent (ldbm 104/2004); Applicant (ldbm 118/2005)

Tai Ming Ming

2nd Respondent (ldbm 118/2005)

Law Yiu Tung

3rd Respondent (ldbm 118/2005)

Cheng Chau Thomas

4th Respondent (ldbm 118/2005)

Andrew Cheung

5th Respondent (ldbm 118/2005)

Michael Wong

6th Respondent (ldbm 118/2005)

Procedural Posture

Building Management Applications (lands Tribunal) / Judgment (heard 28 Sep & 2 4 Oct 2007; Judgment Handed Down 4 Dec 2007)

Legal Issues

  1. 1 Whether the owners incorporation failed to discharge its duty under the Deed of Mutual Covenant and the Building Management Ordinance
  2. 2 Whether injunctions should issue to compel removal or reinstatement of unauthorised building works
  3. 3 Whether equitable defences (acquiescence, estoppel, unfairness) bar relief

Ratio Decidendi

The Tribunal exercised its discretion to grant an injunction ordering John Joseph Gunning to reinstate his flat (except the drainpipes) by 4 July 2008 because his alterations were more serious and the interests of the majority of owners favored enforcement; declarations and injunctions against the IO, management committee members and other owners were refused because the alleged breaches were being rectified or could be regularised, tolerance by the IO did not constitute failure of duty in the circumstances, and a declaration would serve no useful purpose; costs ordered to be borne by each party (order nisi to be made absolute in six weeks).

Court Disposition

Application allowed in part against John Joseph Gunning; all other applications refused.

Orders

  • Injunction ordering John Joseph Gunning to reinstate his flat as pleaded except for the drainpipes by 4 July 2008
  • All other applications for relief refused