XCHRX WONG HING CHEONG AND ANOTHER v. WAH E INVESTMENT LTD. AND ANOTHER

DCCJ13999/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 13999 OF 2000

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Reasons for Decision

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This case concerned car parking spaces at the Ground Floor ("the parking area") of Jade Court Yau Yat Cheun, No. 12 Peony Road, Kowloon. The Plaintiffs own Car Parking Space No. 4 ("the Plaintiffs' space") in the parking area. The 1st Defendant owns Car Parking Space No. 3 ("the Defendant's space") at right angle immediately next to the Plaintiffs' space. The 2nd Defendant owns a private car bearing registration mark CV177 ("the Defendant's car") seen to be using the Defendant's space.

2. It is immediately apparent from photographs that the Defendant's space cannot accommodate the full length of the Defendant's car so that when the Defendant's car was parked at the Defendant's space one end of the Defendant's car would block vehicular access to or exit from the Plaintiffs' space. Thus it would seem an open and shut case against the Defendants. In fact, the Plaintiffs prayed in aid various clauses in the Deed of Mutual Covenant applicable to the parking area.

3. On 22 February 2001 the parties came before me on the Plaintiffs' summons dated 8th February 2001 for an injunction restraining the Defendants from parking at the Defendant's space vehicle that would block vehicular access to or exit from the Plaintiffs' space. The day before the hearing when I had first opportunity to study the case file, it occurred to me that the action ought to have been brought before the Lands Tribunal. I therefore instructed my clerk to verbally inform the parties by telephone that I had doubts over the jurisdiction of the District Court over this action.

4. On the day of the hearing, I pointed out to the parties that at least three judges of the High Court in separate cases had decided that the Lands Tribunal has exclusive jurisdiction over disputes that fall within the Tenth Schedule of the Building Management Ordinance, Cap. 344. The judges include Yam J who happens to be the President of the Lands Tribunal, myself sitting as a deputy high court judge and Mayo J who has, of course, become Justice of Appeal. Finlay J in another case, on the other hand, decided that the Lands Tribunal has no exclusive but concurrent jurisdiction.

5. In my view, the Plaintiffs' claim against the 1st Defendant based solely on the deed of mutual covenant which is clearly a dispute within the purview of the Building Management Ordinance, Cap. 344 should be a matter for the Lands Tribunal, not the District Court. I told the Plaintiffs' side that, quite apart from the fact that I saw no reason to depart from my own previous decision sitting as a deputy judge of the High Court, the preponderance of authorities is in favour of exclusive jurisdiction to the Land Tribunal.

6. In so far as the claim against the 2nd Defendant was based on nuisance, prima facie the District Court has jurisdiction. However, the claim could have been pleaded on the basis of encroachment upon a common area of the building to which the Plaintiffs have right of access and enjoyment in common with other owners of car parking spaces in the parking area; so framed, it seems that the case against the 2nd Defendant can be brought before the Lands Tribunal too. Where the whole case when suitably pleaded can be brought before one forum specially created to deal with such disputes, it is unwise, possibly an abuse of process, to structure the pleadings so as to latch the case on to a conventional court.

7. Besides, it is at least arguable that the owners incorporated of the building ought to be brought into the dispute because, after all, it is the responsibility of the owners incorporated to manage the common areas including the passageway in the parking area.

8. Those representing the Plaintiffs decided to heed the advice of the court. Not only did they withdraw the summons for injunction, they gave an undertaking to discontinue the action in the District Court with the view to starting afresh in the Lands Tribunal. It was at that juncture that those representing the Defendants asked for costs.

9. It is trite law that costs is a matter within the discretion of the court. The Plaintiffs decided to withdraw and discontinue after the court had pointed out the issues concerning the most suitable forum to deal with the dispute. The Defendants did not see, or if they saw they did not raise, the issues. I do not wish to be conceited. But had I not steered the Plaintiffs to the Lands Tribunal, the Defendants might have merrily gone along and wasted more costs until at some stage much later, perhaps only on appeal, when the problem of jurisdiction decides the case in the District Court. Hence it cannot be said that the Defendants before me on 22 February 2001 won the day. The Defendants were not, in my view, entitled to costs as if they had the event in their favour.

10. I have already mentioned to the parties that the Plaintiffs case is not without substantive merits. Moreover, as I also pointed out to the parties, the work done by each side for the District Court is not going to be wasted because they can be utilized in the Lands Tribunal litigation. The party who will succeed on substantive merits in the Lands Tribunal will be awarded costs in the normal course of events. Accordingly, I decided to make no order as to costs on condition that the Plaintiffs discontinue the action in the District Court.

11. Since then, those representing the Defendants have been agitating about the issue of costs again. They indicated that there would be an appeal and they wanted clarification as to whether the no order as to costs is meant for the withdrawal of the summons only. Hence I make it clear here what I thought was obvious at the time of the hearing that no order as to costs has been made in respect of the withdrawal of the summons and in respect of the discontinuance of the action.