FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. SUN WAI CHUN

FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. SUN WAI CHUN

Court found as a fact five unauthorised alterations occurred; kitchen wall W7 was a structural wall whose removal constituted a structural alteration; all five alterations breached Paragraph 4(b) of the Second Schedule and W7 additionally breached Paragraph 7(a) and Rule B4 of the Estate Rules; Estate Rules were...

Source-derived case information.

Citation
FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. SUN WAI CHUN
Parties
Plaintiff (manager Under Deed of Mutual Covenant): Fairview Park Property Management Ltd.; Defendant (owner of House 43, First Street, Section G, Fairview Park): Sun Wai Chun
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
9 February 1999
Case Number
HCA5782/1994
Procedural Posture
Property Dispute / Enforcement of Deed of Mutual Covenant Seeking Mandatory Injunction / Judgment at Trial (court of First Instance)
Outcome
Judgment for Plaintiff. Mandatory injunction granted ordering reinstatement of Walls W7, W11a, W11b, W12a and W12b; Plaintiff entitled to enter premises to carry out reinstatement if Defendant fails; Defendant to indemnify Plaintiff for costs and expenses of reinstatement; costs awarded to Plaintiff (gross sums).
Legal Topics
Deed of Mutual Covenant, Restrictive Covenants, Mandatory Injunction, Estate Management, Ultra Vires, Acquiescence, Delay, Costs Assessment
Source Language
en
Property Law Contract Law Equity (injunctions) Civil Procedure Deed of Mutual Covenant Restrictive Covenants Mandatory Injunction Estate Management +4 more

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Parties

Fairview Park Property Management Ltd.

Plaintiff (manager Under Deed of Mutual Covenant)

Sun Wai Chun

Defendant (owner of House 43, First Street, Section G, Fairview Park)

Procedural Posture

Property Dispute / Enforcement of Deed of Mutual Covenant Seeking Mandatory Injunction / Judgment at Trial (court of First Instance)

Legal Issues

  1. 1 Whether the specified alterations occurred
  2. 2 Whether any of the alterations were structural
  3. 3 Whether the alterations breached the Deed of Mutual Covenant and/or Estate Rules

Ratio Decidendi

Court found as a fact five unauthorised alterations occurred; kitchen wall W7 was a structural wall whose removal constituted a structural alteration; all five alterations breached Paragraph 4(b) of the Second Schedule and W7 additionally breached Paragraph 7(a) and Rule B4 of the Estate Rules; Estate Rules were intra vires the Deed; equitable considerations (no acquiescence, no unreasonable delay, structural weakening and plot ratio impact) warranted granting a mandatory injunction ordering reinstatement and permitting the Manager to enter and reinstate at Defendant's expense if Defendant failed to comply; costs awarded to Plaintiff (gross sums assessed).

Court Disposition

Judgment for Plaintiff. Mandatory injunction granted ordering reinstatement of Walls W7, W11a, W11b, W12a and W12b; Plaintiff entitled to enter premises to carry out reinstatement if Defendant fails; Defendant to indemnify Plaintiff for costs and expenses of reinstatement; costs awarded to Plaintiff (gross sums).

Orders

  • Mandatory injunction to take effect 35 days from handing down of judgment requiring reinstatement of Walls W7, W11a, W11b, W12a and W12b to the satisfaction of the Plaintiff
  • If Defendant fails to restore the five alterations within 35 days, Defendant is restrained from hindering the Plaintiff, its servants, agents, contractors or workmen from entering the House to carry out reinstatement and Plaintiff may do the works at Defendant's expense