Shing Properties Ltd v. Chan Ka Po Natasha and Others

HCMP 1850/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1850 OF 2013

(ON AN INTENDED APPEAL FROM DCCJ 2274/2010)

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JUDGMENT

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Hon Cheung CJHC (giving the judgment of the court):

1.This is the plaintiff’s application for leave to appeal from the judgment of Deputy District Judge S Lo dated 21 March 2013. The dispute centred on the correct location of car parking space CP6 on the ground floor of Shan Shing Building, Nos 18 and 20 Village Road, Hong Kong.

2.Apart from its claim on nuisance, the plaintiff’s case hinges on the undisputed fact that the distance between the “green wall” of the lift lobby and the external wall of the building facing Village Road is 9 inches shorter than it should be according to the approved plan.  The plaintiff’s main contention is that this difference of 9 inches demonstrates that the green wall, which forms one boundary of CP6 and defines where the “pink line”, the opposite boundary line of CP6, should be, is wrongly located.  The plaintiff therefore argues that like the green wall, the pink line should be 9 inches further away from the external wall of the building facing Village Road than it is.  This discrepancy, according to the plaintiff, has substantially affected the enjoyment of its car parking space CP5 lying perpendicular to CP6.

3.In our view, this is too simplistic an approach to take.  The burden is on the plaintiff to establish that the pink line is wrongly drawn as contended.  Grant the difference of 9 inches described above, but it does not necessarily mean that the green wall (and therefore the pink line) are wrongly located vìs‑a‑vìs the approved plan.  The difference of 9 inches might, for instance, be due to the wrong positioning of the external wall of the building facing Village Road.  The expert evidence has not touched on this possibility and there have not been any relevant measurements.  And one must also bear in mind that one is here concerned with a mere discrepancy of 9 inches.  In fact, the trial judge made a similar point when he pointed out that there was no measurement of the distance between the green wall and the rear external wall of the building.  In other words, he was saying that the green wall might have been correctly built by reference to its distance from the rear wall, and what had gone wrong was the construction of the external wall facing Village Road.

4.The burden is squarely on the plaintiff to prove a case of deviation of the pink line from the approved plan.  On the evidence, it has failed to do so.  The plaintiff cannot hide behind the scope of the expert directions.  It has the burden to prove its case by adequate and sufficient evidence, expert or otherwise.  That burden entails the plaintiff seeking all necessary expert directions to facilitate the production of relevant expert evidence at trial.

5.That leaves the claim of nuisance against the 1^st and 2^nd defendants based on the fact that their former vehicle was longer than the length of CP6 (15 feet), thereby, so it is alleged, affecting substantially the enjoyment of the plaintiff of CP5.

6.In this regard, the judge has made a finding of fact on the evidence and material adduced before him (including the various brochures that the plaintiff’s counsel placed before the court in final submission as evidence of the types of small vehicles available on the market).  The judge found that given the positioning of CP5 vìs‑a‑vìs the neighbouring car parking spaces, short of redrawing the pink line in the way the plaintiff asked for (which he rejected – in our view correctly), there was simply no way one could park any vehicle, even a small vehicle of the type suggested by the plaintiff’s counsel, into CP5, regardless of the small protrusion beyond the pink line by the 1^st and 2^nd defendants’ vehicle when it was parked at CP6.  This was fatal to the plaintiff’s claim.

7.In our view, it is impossible to challenge the judge’s finding of primary fact.  It is not “plainly wrong”.  Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336.

8.For these reasons, we consider that the application for leave to appeal is totally without merit.  It is dismissed.  We further make an order, pursuant to Order 59, rule 2A(8), that the plaintiff may not request our determination to be reconsidered at an oral hearing inter partes.

Mr Damian Wong and Mr Matthew Ho, instructed by Tsang, Chan & Wong, for the plaintiff