Acquiesence a defence to an action for breach?

In Hysan Property Management Ltd v Pearl Global Ltd ([2012] HKEC 1175, CFI) the plaintiffs were the owners and managers of a development comprising a row of townhouses. They alleged that the defendant, the owner of one of the houses, had made alterations to the house in breach of the DMC. The court found that some of these allegations were substantiated. The defendants argued that the plaintiffs had acquiesced in the works because they had been informed of them in advance in writing and had failed to object. They also sought to rely on the fact that there were other examples of unlawful alterations affecting other houses. These attempts to rely on waiver and acquiescence failed on the facts; the managers had objected. The managers gave an undertaking to remedy the existing breaches of covenant (rendering an injunction unnecessary). In any event, the plaintiffs could not waive a breach of the DMC since section 16 of the Building Management Ordinance imposes a statutory duty to enforce the DMC.

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