Latangan Co Ltd v. Chu Yip Sing
Read the full judgment text of DCCJ 3373/2008 on BabelCite. This District Court judgment was delivered on 15 March 2011.
1. The dispute arose out of the use of a car parking space in Chevalier Garden, No.2 Hang Shun Street, Shatin, New Territories (“ the Estate ”). Chu , the Defendant, is the registered owner of the car parking space in question. The Manager of the Estate, the Plaintiff, commenced this action against Chu for injunctive relief and damages. Chu resists the claim and puts forward a counterclaim.
Cites 2 cases
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DCCJ 3373/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 3373 OF 2008 ____________
Coram: His Hon Judge Leung in court Date of hearing: 21-22 December 2010 Date of judgment: 15 March 2011 J U D G M E N T 1.The dispute arose out of the use of a car parking space in Chevalier Garden, No.2 Hang Shun Street, Shatin, New Territories (“the Estate”). Chu, the Defendant, is the registered owner of the car parking space in question. The Manager of the Estate, the Plaintiff, commenced this action against Chu for injunctive relief and damages. Chu resists the claim and puts forward a counterclaim. Undisputed background 2.The Estate has various car park areas for residents and visitors. By an Assignment dated 23 June 1989, Chu became the registered owner of car parking space no.6 on the Ground Parking Area No.10 (“CPS No.6”). 3.In 2008, the Manager complained that a truck (‘the 1st Truck”) was parked at CPS No.6 that protruded beyond the front boundary of the parking space. Chu’s brother, Chu Yip Yau (“the Brother”), was responsible for the parking of the 1st Truck there. The Manager impounded the truck pursuant to the car park regulations. After negotiation between the solicitors for the parties and intervention by the police, the 1st Truck was released in the presence of the Brother, Chu’s then solicitors and the police. The impounding and detention charges prescribed by the car park regulations were not paid. 4.The 1st Truck was released close to midnight of 30 May 2008. Yet on 1 June 2008, another truck of similar size (“the 2nd Truck”) was found parked at CPS No.6. The Brother was again responsible for the parking of the 2nd Truck there. Again, the 2nd Truck was impounded. As at the date of trial, the 2nd Truck remained impounded at CPS No.6. The issues 5.Based on various provisions of the deed of mutual covenants (“DMC”) and car park regulations governing the Estate, the Manager claims for an injunction compelling Chu, as the owner of CPS No.6, to cause the removal of the 2nd Truck from his parking space; an injunction restraining Chu from further similar breach; and unpaid impounding and detention charges in respect of the 2 trucks. 6.In defence, Chu contends that the car park regulations are not duly made or implemented in accordance with the DMC and thus not binding on any owner. Further, CPS No.6 had been used to park the 1st Truck for over 18 years without objection or interruption from the Manager or the Incorporated Owners of the Estate. He avers that the parking of the 1st Truck or the 2nd Truck at his parking space would not seriously affect the use of the common areas by the other owners; and the Manager had not requested or demanded him to remove the 2nd Truck or to pay the charges. 7.Chu complains that instead, the impounding of the 2nd Truck by the Manager amounted to obstruction or trespass to his parking space. By way of counterclaim, he seeks an injunction compelling the Manager to release the 2nd Truck and claims damages for the Manager’s trespass and wrongful interference with Chu’s use and enjoyment of his parking space. 8.Broadly, there are the following issues:
The DMC and the car park regulations 9.Chu took the Assignment of CPS No.6 expressly subject to the provisions of the Crown Lease that was deemed to have been issued under and by virtue of compliance with the Conditions of Sale under the New Grant No.11915 as well as the terms of the DMC. The New Grant 10.Clause 31(a) of the Special Conditions of the New Grant (“the Conditions”) specifies the various types of parking spaces to be provided in the Estate. Among them, car parking spaces designated for the residential flats shall not be used for any purpose other than for the parking of private motor vehicles belonging to the residents. The clause also specifies the provision of private motor vehicle parking spaces for visitors and parking spaces for goods vehicles in the Estate. The area and minimum headroom of the parking spaces for goods vehicles are also specified. 11.Clause 31(b) of the Conditions stipulates that the various types of car parking spaces shall be designated in accordance with the approved car park layout plan. The spaces indicated in such plan shall not be used for any purpose other than for the purposes set out in clause 31(a) above. In the approved car park layout plan in the present case, the relatively larger spaces for parking goods vehicles are identified by the letter “L”, signifying that they are for parking lorries. 12.In my view, the fair reading of the New Grant is that the parking spaces for private motor vehicles are distinguished from those for the goods vehicles. In the absence of prior written consent of the Director of Lands, the approved layout of the various types of car parking spaces and their use must be maintained. 13.CPS No.6 is designated as a private motor vehicle parking space and not for parking goods vehicle in the approved car park layout plan. I reject the contention of Chu that private motor vehicles in this context mean any vehicles so that his car parking space, or effectively any private motor vehicle parking spaces, could be used for parking trucks. 14.Compliance with the Conditions may be a matter between the Government and the owner. This also becomes a matter between each owner and the other owners by virtue of the DMC. The DMC 15.The following provisions in the DMC are relevant:
16.The above provisions, in particular clauses 5(a) and 6(a) of the 4th Schedule as well as clauses 22(a)(ii) and 22(d) prohibit the owners from:
17.During the trial, the following powers and functions provided by the DMC were referred to:
18.For the purpose of managing, regulating and controlling the use of the car park, the Manager has made and published various regulations. Actually pleaded is the following regulations called 車輛管制條例 (or literally Regulations for Vehicle Control):
19.Essentially, the above regulations provide that any vehicle that is parked other than in its designated parking space or parked outside the (white) boundary of the parking space and thus causing inconvenience or danger will be impounded. The vehicle owner or related person shall be liable to pay impounding charges (HK$320), towing charges (HK$350) or detention charges (HK$320 per day) before the vehicle will be released. 20.Various other sets of regulations are not specifically pleaded but also referred to during the trial. There are the 停車場守則 (literally Car Park Codes) in Chinese which contain, among others, the following provisions:
21.The combined effect of clauses (12) and (13) of this set of regulations is that any vehicle parked or occupying any area beyond the boundary of the car parking space will be treated as obstruction. The Manager has the authority to impound or to tow away the vehicle. The vehicle so impounded or towed away will be released only upon the payment of impounding or towing charges by the vehicle owner. Also in Chinese are the 訪客車輛/上落貨車輛守則 (literally Visitor Vehicle/Loading and Unloading of Goods Vehicle Regulations) that contains similar provisions (under clauses 4 and 5). 22.In the Conditions of Parking, in both English and Chinese, there are the following provisions:
23.Properly construed, clauses 12(a), 12(d) and 12(e) of the DMC (above) are sufficient wide to confer on the Manager the authority to make and to publish the above regulations for the purpose of discharge of its function and duty to manage and to control the use of the car park by the residents or visitors. 24.Chu contends that these regulations have not been duly made or implemented in accordance with the provisions of the DMC and therefore not binding on him. But the basis of his contention was not made out; and he has produced no evidence in support. No such case was put to his opponent’s witnesses either. I reject that contention. 25.The photographs produced depict the notices containing the above car park regulations at various conspicuous locations in the Estate. In court, Chu claimed to have paid no attention to them. As a matter of principle, whether Chu was actually aware of the contents of the notices is not determinative provided that they have been reasonably brought to his attention. As a matter of fact, his alleged ignorance of the notices is unbelievable in view of his actual residence in the Estate for, as he admitted in court, more than 10 years until 2004. In court, he also admitted having travelled in trucks into the Estate for parking while working as transportation worker for the Brother. I find that there is no question about the binding effect of the above car park regulations on the owners and the users of the car park. Whether Chu was in breach 26.The parking of the 1st Truck and then the 2nd Truck at CPS No.6, which is not designated for parking goods vehicles, contravenes the Conditions. This amounted to prima facie breach of clause 6(a) of the 4th Schedule (and clause 22(a)(ii)) of the DMC. 27.Regarding the effect of the parking of either of the trucks at CPS No.6, Tang gave evidence. So did Madam Lee, who is a resident of one of the flats on the Ground Floor of Block 8 of the Estate. 28.Madam Lee explained that her bedroom window is immediately above CPS No.6. She observed that a truck started to be parked at CPS No.6 since June 2007. After complaint, the truck was gone but another truck, presumably the 2nd Truck, was parked there. When parked at the CPS No.6 with its rear facing her bedroom window, the rear of the truck was less than a foot away from her window; and the roof of the rear compartment of the truck is almost as high as the bottom sill of her window. The photographs produced support that observation. 29.Madam Lee also recounted her experience of the consequence of the truck being parked there. Dust from the roof of the rear compartment of the truck had been blown into her bedroom through the window of her bedroom. Rubbish dropped from the above units onto the roof of the truck had been ricocheted into her bedroom through the window. Rain water had also bounced off the roof of the truck into her bedroom which had once caused power leakage. The experience effectively discouraged, if not prevented, Madam Lee from keeping the bedroom window open, if the truck was parked at CPS No.6. Letters of complaint from the owner of her flat in 2007 and 2008 were produced. 30.Tang described that the front of the truck (be it the 1st Truck or the 2nd Truck) protrudes beyond the front boundary of CPS No.6. The unchallenged evidence is that the 2nd Truck is 7 feet longer than the length of the parking space. The photographs produced show that when parked, a substantial part of the front of the truck, including its front wheels, exceeds the front boundary of the car parking space as marked by white paint on the ground. 31.The Manager has received complaints from the owner of the adjacent car parking space numbered 7 (“CPS No.7”) about the obstruction and inconvenience caused by the protruding truck parked at CPS No.6. This was said to have affected the use and the letting of his car parking space. Correspondence between the owner of CPS No.7 and the Manager in 2008 in this regard was produced. 32.I find the evidence in respect of the effect of the parking of the 1st Truck and the 2nd Truck at CPS No.6, including what is mentioned above, was not effectively challenged during the trial. I accept the evidence of Tang and Madam Lee in this regard. 33.In the circumstances, the part of the truck that protrudes beyond the front boundary of the parking space in fact encroaches upon and obstructed both the driveway and the common area, contrary to clause 22(d) of the DMC. The parking of the 2nd Truck at CPS No.6 has in fact caused annoyance to other owners or occupiers of the Estate, contrary to clause 5(a) of the 4th Schedule to the DMC. Likewise, the provisions of the Regulations for Vehicle Control, Car Park Codes and clause 9(b) of the Conditions of Parking referred to above were also infringed. 34.Chu claims that he is not the owner of the truck. Nor did he have any control over it. Hence it was argued on his behalf that he should not be held responsible. In my view, whether Chu is the owner of the truck or has control over it is immaterial so long as he has caused or permitted or suffered it to be parked there. 35.Chu claims that he was not aware of the parking of the trucks at his car parking space. He also denied knowledge about the impounding of either truck until much later. In my view, it matters not whether Chu was aware that the 1st or the 2nd Truck was actually parked there at a particular time. As long as the space being used for the parking of the trucks was permitted and in fact contemplated, Chu became responsible as the owner of the parking space once the space was so used. This is also the effect of clause 8 of the 4th Schedule to the DMC (above). 36.There is not suggestion that Chu’s consent to the Brother’s use of his parking space has ever been revoked. The reality is in fact quite the contrary. Chu never owns any motor vehicle. The family members contributed towards the acquisition of the parking space; and the same was registered in his name for use by the transportation business of the Brother. Chu confirmed that in court. It bears all the hallmarks of a family arrangement. 37.As Miss Cheung submitted, Chu assumed the attitude of ignorance and indifference in the matter. He would go so far as suggesting the same in respect of the accuracy of his statement. The point is that even assuming that Chu has ceased to have any interest or concern about the Brother’s use of the parking space, his responsibility remains, so long as he chose to remain as the owner of it. 38.Had Chu ever considered that the Brother used his parking space, or used it in the manner, without his consent and thus getting him involved in the legal dispute, Chu could have joined the Brother as the third party to this action. Chu did not; and I do not find that surprising. The solicitors for Chu were in fact the same ones acting for the Brother in this episode from the outset. In court, Chu admitted that it was at all times the Brother, not him, who had the conduct of his defence. In my view, Chu and the Brother belong to the same front in this litigation. 39.The pleaded case of Chu is that the 1st Truck had been parked at CPS No.6 for over 18 years without objection or interruption by the Manager of the Incorporated Owners. But Tang gave evidence that Chu had once been provided with a goods vehicle parking space numbered L22; and the truck had been parked there at the request of the Manager. In court, Chu agreed that that had happened during the time when he worked as a transportation worker for the Brother and came along in the truck. 40.Tang added that it was in late December 2007 when the Incorporated Owners instructed the Manager to strictly enforce the DMC and the car park regulations. The Manager therefore requested that the 1st Truck be removed from the assigned goods vehicle parking space unless the owner was willing to rent the goods vehicle parking space. A few days later, in January 2008, the 1st Truck was seen being parked at CPS No.6. 41.The suggestion of waiver (or acquiescence) on the part of the Manager, not pleaded but made on behalf of Chu in court, would have afforded no valid defence to the enforcement action of the Manager. The Manager has the power and is under the statutory duty to enforce the obligations under the DMC on behalf of all the owners of the Estate. It has no authority, express or implied, to grant to any owner the right to act in breach of the DMC. Equity will not hold the owners or the Manager bound by acquiescence or waiver to allow something that they could not have allowed by express grant: see The Incorporated Owners of Hoi Luen Industrial Centre & Anor v Ohashi Chemical Industries (HK) Limited, CACV 3/1995. 42.It was also suggested that other trucks were also parked at non-goods vehicle parking spaces in the Estate. Tang admitted that in court; but he explained that the locations of those parking spaces were peculiar. For instance, in those private motor vehicle parking spaces, goods vehicles were actually parked in such a way that their fronts could still be kept behind the front boundary of the spaces. The rear of the goods vehicles, though protruding beyond the rear boundary of the spaces, caused no obstruction to anyone because it was the hillside. 43.In any event, the existence of other similar breach does not mean that the Incorporated Owners or the Manager was selective in the enforcement or they are targeting a particular owner. In the worst case, the owners are entitled to compel the Incorporated Owners and the Manager to act accordingly. 44.My conclusion is that Chu was in breach of the DMC. The relief Injunction to remove the 2nd Truck 45.First and foremost, the Manager asks for the removal of 2nd Truck from CPS No.6. It was argued on behalf of Chu that it was not the Brother who refused to remove the truck but the Manager which demanded the payment of the various charges that prevented the Brother from removing the truck. In view of the above findings, there is no question about the Manager’s authority to make the various car park regulations including those prescribing the charges or the binding effect of the regulations on the Brother. 46.So long as the owner of a parking space has caused or permitted his space to be used by the owner or user of the vehicle, it became the responsibility of the parking space owner vis-à-vis the other owners and the Manager to ensure that the parking regulations are complied with. If the failure or refusal of the vehicle owner or user to do so, including the discharge of the liability to pay the various prescribed charges, leads to the breach on the part of owner of the parking space, that only means a right of recourse by him for an indemnity against the vehicle owner or user. 47.The Manager is entitled to the injunction for the truck to be removed from CPS No.6. As the truck is still impounded, it could be removed only upon its release by the Manager. In view of the car park regulations, release of the truck hinges upon the settlement of those unpaid charges by the Brother. However, the current prayer for the injunction and payment of the outstanding charges does not reflect the interrelationship between the two. As the Manager is content with an injunction for the removal of the truck from CPS No.6 without specifying any condition precedent, I am prepared to make the order as prayed for but at same time specify that the Manager shall release the same so as to enable Chu to comply with the injunction. The unpaid charges and damages 48.The various car park regulations impose contractual liability to pay the charges on the owners or users of the vehicles parked in the car park. Apparently the Brother but not Chu are bound by these regulations. The only exception appears in the Regulations for Vehicle Control (above) which also apply to related persons (or “有關人仕”). Nevertheless Miss Cheung accepted, and I think rightly, that there is a lack of clarity among these regulations in respect of whether the mere owner of the car parking space also attracts the liability to pay those charges primarily incurred as a result of the owner or user of the vehicle parked there. 49.Could the owner of the parking space be liable to pay damages on the basis that the unpaid charges are the loss and damage suffered by the Manager? In principle, the answer should be yes. But the claim on that basis is unclear from the pleading. Among the provisions of the DMC referred to during the trial, clause 8 of the 4th Schedule (above) seems to be relevant. Yet it only refers to the owner’s liability to pay “the costs charges and expenses incurred in repairing or making good any loss or damage caused by the act”. It is questionable whether this could be construed to cover the unpaid charges in question that the vehicle owner or user has to pay. No submission was made to suggest otherwise. 50.Miss Cheung had instruction not to press on with the claim against Chu for the unpaid charges. I also make no award in respect of the claim for damages, without prejudice to the right of the Manager or the Incorporated Owners against the Brother for those charges. Injunction against further breach 51.Due to the dispute, the Brother has lodged complaints to various bodies and brought collateral proceedings against the Manager and the Incorporated Owners of the Estate. Chu maintained his stance (and apparently the stance of the Brother as well) that the trucks may be parked in his parking space as of right, so long as this does not cause obstruction. In view of the history of the present case and my observation about the attitude of Chu and the Brother, I am not convinced by the alleged willingness of Chu or the Brother to co-operate. In my view, the Manager is entitled to an injunction to restrain further similar breach on the part of Chu. Counterclaim 52.The counterclaim is based on the alleged trespass and wrongful interference with Chu’s use and enjoyment of his parking space as a result of the impounding of the 2nd Truck. As found above, the Manager did what it was empowered by the DMC to do. It was the Brother who dictated the predicament of Chu. I see no valid basis for Chu to come round to claim that the obstruction caused by the 2nd Truck occupying the parking space persisted because of the Manager’s enforcement of the DMC and the regulations in execution of its duty. Otherwise, as Miss Cheung pointed out, Chu (or the Brother) would effectively be entitled to benefit from his own wrong. 53.The injunctive relief being claimed is equitable in nature; and Chu’s right of claim for such relief is impaired in the circumstances where he cannot be considered as coming to the court with clean hands. The claim for damages is un-particularised. Nor is there evidence in support. In court, Chu admitted that the parking space had never been let. In view of the above findings, there is no factual basis for believing that the parking space had or would have been used other than by the Brother. Order 54.I give the following orders:
55.I make a nisi order that Chu shall pay the Manager’s costs of this action, including any costs reserved. Costs shall be taxed, if not agreed, with certificate for counsel. In the absence of application to vary in 14 days, the nisi costs order shall become absolute.
Miss Janine CHEUNG instructed by Messrs S H Chan & Co for the Plaintiff Mr Jerry JIM of Messrs Raymond Chan, Kenneth Yuen & Co for the Defendant | |||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 3373/2008