Ernest C Y Ng and Nicole Chui, instructed by Squire Patton Boggs, successfully defended China Mobile Hong Kong (“China Mobile”) against claims of trespass, breach of s.34I Building Management Ordinance (“BMO”), nuisance and breach of the New Grant and DMC. The plaintiffs’ claim was dismissed in its entirety.
Antennae and equipment had been installed by China Mobile on the inner parapet walls and walls enclosing the staircase of the main roof pursuant to licence agreements between China Mobile and the owner of the 2/F and main roof of the building (“2/F Owner”).
Trespass and breach of s.34I BMO
The plaintiffs (owners of the G/F premises) claimed damages and/or mesne profits by reason of s.34I BMO, alleging that China Mobile had installed equipment on the common parts of the building without consent of all the owners.
During trial, the scope of the plaintiffs’ claim was narrowed: (i) in response to the limitation defence, the plaintiffs conceded they would only claim damages and/or mesne profits on or after 10 February 2011; and (ii) it was the 1st plaintiff’s evidence that the 2/F Owner also permitted CSL to install and maintain antennae equipment on the main roof at the same time and that certain claimed items did not belong to China Mobile.
The Court held that (i) the inner parapet walls and (ii) walls enclosing the staircase of the main roof were not common parts. A reasonable person reading the assignment and the DMC would have understood them to mean the 2/F Owner had been granted exclusive use, occupation or enjoyment of the entire roof, including those two parts. Therefore, in relation to the antennae and equipment that were identified as belonging to China Mobile, there was no trespass on the common parts of the building.
Nuisance
The plaintiffs claimed damages for alleged nuisance caused by China Mobile’s equipment, including the tainting of the appearance of the building, the posing of danger, health and hygiene problems, security concerns, dust, cracks and vibration of the building caused by frequent attendance by technicians who installed, maintained and removed the antennae and equipment, health hazards from radio frequency and complaints from other residents.
The Court held that: (i) the plaintiffs failed to prove that the relevant nuisance could be associated with China Mobile; and/or (ii) that the relevant alleged acts constituted actionable nuisance.
Breach of New Grant and DMC
As to the height restriction in special condition 5(a) of the New Grant, the plaintiffs failed to prove that it was the antennae belonging to China Mobile and not CSL that was in breach of the restriction.
There was no basis for the plaintiffs to claim that the 2/F Owner was in breach of clauses 8 and 12 of the DMC (i.e. parties shall not cause/allow their unit to be used in a way which may create nuisance and parts of the building sold for domestic accommodation shall be used for that purpose only). The Court held that while the DMC designated a domestic purpose for “one unit on each floor”, there was no such designation for the “main roof”.
The judgment can be found here.