GREAT SOURCE ENTERPRISE LTD v. LAM KA ON ALLAN AND ANOTHER

GREAT SOURCE ENTERPRISE LTD v. LAM KA ON ALLAN AND ANOTHER

The canopies were building works carried out without required approvals and without the manager's written consent, thereby breaching the Buildings Ordinance and specified Clauses of the Conditions and the Deed of Mutual Covenant; the canopies caused nuisance and interference with the Applicant's enjoyment; on the facts the balance of convenience favors a mandatory injunction to remove and reinstate and a prohibitory injunction to prevent re-erection, and a clear declaratory judgment of the specific breaches is appropriate to prevent future disputes.

Citation
GREAT SOURCE ENTERPRISE LTD v. LAM KA ON ALLAN AND ANOTHER
Parties
Applicant: GREAT SOURCE ENTERPRISE LIMITED; Respondent: LAM KA ON ALLAN; Respondent: LAI LAI SUN ELISA
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
23 June 2003
Case Number
LDBM193/2002
Procedural Posture
Building Management Application / Judgment Following Trial and Hearing
Outcome
Declaration granted; mandatory injunction and prohibitory injunction granted; costs ordered nisi in favour of Applicant
Legal Topics
Unauthorized Structures, Restrictive Covenants (deed of Mutual Covenant), Declaratory Relief, Mandatory Injunction, Prohibitory Injunction, Private Nuisance
Source Language
EN
Property Law Building Regulation Law Contract Law Equity (injunctive Relief) Unauthorized Structures Restrictive Covenants (deed of Mutual Covenant) Declaratory Relief Mandatory Injunction +2 more

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Parties

GREAT SOURCE ENTERPRISE LIMITED

Applicant

LAM KA ON ALLAN

Respondent

LAI LAI SUN ELISA

Respondent

Procedural Posture

Building Management Application / Judgment Following Trial and Hearing

Legal Issues

  1. 1 Whether the erection of canopies constituted building works requiring prior approval under the Buildings Ordinance
  2. 2 Whether the canopies breached specific provisions of the Deed of Mutual Covenant (4th Schedule Clauses 1,2,5,6,16,17,30) and the Conditions (General Clause 16(a)(i); Special Clauses 9,12(a),12(f))
  3. 3 Whether the Applicant suffered nuisance or interference with enjoyment of the premises

Ratio Decidendi

The canopies were building works carried out without required approvals and without the manager's written consent, thereby breaching the Buildings Ordinance and specified Clauses of the Conditions and the Deed of Mutual Covenant; the canopies caused nuisance and interference with the Applicant's enjoyment; on the facts the balance of convenience favors a mandatory injunction to remove and reinstate and a prohibitory injunction to prevent re-erection, and a clear declaratory judgment of the specific breaches is appropriate to prevent future disputes.

Court Disposition

Declaration granted; mandatory injunction and prohibitory injunction granted; costs ordered nisi in favour of Applicant

Orders

  • Declaration that the erection of the three canopies at Unit B, 5/F, Block 2 (Skylodge 2), No. 8 Yin Ping Road, Dynasty Heights breached Section 14(1) of the Buildings Ordinance and Clauses 1,2,5,6,16,17 and 30 of the 4th Schedule of the Deed of Mutual Covenant and Clause 16(a)(i) of the General Conditions and...
  • Mandatory injunction ordering the Respondents to dismantle and remove the Canopies and reinstate the external wall and floor slab to their original condition and to permit inspection by the Applicant and its Authorized Person upon reinstatement