KAI HING METAL PRODUCTS FACTORY CO LTD v. THE INCORPORATED OWNERS OF SUNDERLAND ESTATE AND ANOTHER

LDBM 339/2010

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 339 OF 2010

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BETWEEN

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JUDGMENT

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Introduction

1.  Two neighbours had disputes against each other.  It then led to a number of proceedings in Land Tribunal.  By the present proceedings, the Applicant sought, inter alia, for various declaratory and injunctive reliefs against the Owners Corporation and the Management Company.

Background

2.  Sunderland Estate (“the Estate”) is a residential development in Kowloon Tong completed in about 1982.  It comprises of 116 houses and 30 apartments at 5 buildings.

3.  There are 146 private car parking spaces allocated to the owners at the Estate.  These car parking spaces are all located at the ground floor, usually adjacent to the house or building entrance.

4.  From an unknown date, users of the car parking spaces have been “double-parking” there, normally one car in front of the other.  As such, parts of the driveway are “encroached”. Indeed, over 2/3 of the owners of the car parking spaces are doing the same.

5.  As to the Applicant herein, it also parked 2 cars, but in a different way from others.  It was because its car parking space no. 73 (“CP73”) was situated at a corner of the driveway which allowed her an extra “fan-shape” space.  The Applicant parked its 2 cars in such a way for over 15 years from about 1996.

6.  It appears that things went well until, from about July 2009, the Applicant decided to park one more car, making it a total of 3 cars at or near her CP73.  Such parking was found to be causing obstruction to pedestrian access to the building entrance.  The owner of the apartment above that of the Applicant, Happy Enough Limited (“Happy Enough”), later lodged a complaint to the Respondents.  Despite the exchange of quite some correspondence, apparently, the parties could not resolve the disputes.

7.  On 17 September 2010, Happy Enough Limited commenced LDBM 249/2010 against the Respondents herein.  Briefly, it sought an injunction to direct the Respondents to take action against the Applicant herein for the parking of the 3 cars.

8.  Ultimately, LDBM 249/2010 was settled by mediation.  The terms of settlement included the construction of certain steel railing (“the Railing”) on or before 16 November 2010 at the “fan-shape” space near CP73.  By so doing, it therefore allowed some 4 feet pedestrian access to the building entrance.  However, the Applicant could no longer park her car there.

9.  Therefore, on 23 December 2010, the Applicant commenced the present proceedings.  It asked for an injunction against the Respondents to remove the Railing as well as to take actions against all owners who double-parked so that the driveway was encroached.

10.  Though parties had also tried mediation, it did not help them on this occasion.  They went before me for 2 days of trial in September 2011.  The Applicant was represented by Mr. Mike Lui of Counsel when Mr. Paul Leung of Counsel acted for both Respondents.  With no objection from Mr. Leung, I allowed Mr. Lui’s summons to add various declarations sought against the Respondents in the beginning of the trial.

Judgment

11.  Having heard from both learned Counsel, I reserved my decision to be delivered later.  Now, upon consideration of all the evidence authorities and submission, I have decided not to make any order in relation to the application, save to direct the Respondents to remove the Railing.  My reasons appear in below.

Reasons

12.  Three witnesses stepped into the witness box, Mrs. Leung, Dr. Chan and Ms. Wong. Mrs. Leung is a director of the Applicant. Dr. Chan is the secretary of the 1^st Respondent and Ms. Wong, the manager of the 2^nd Respondent.  In my view, on balance, the evidence of the Respondents is preferred to than that of the Applicant.

(a)  Dr. Chan went before this Court because the vice chairman of the 1^st Respondent was not available.  After explanation, Dr Chan carefully considered the witness statement having prepared by the vice chairman and modified them so that she could dispose the facts she had knowledge of.  Her evidence was straightforward and determined.  She did have personal knowledge about the events and she even went so far to the extent of admitting that she had been parking her two cars in the same way as the Applicant did, i.e. one in the car parking space and another, in a nearby fan-shape space.

(b)  Ms. Wong joined the 2^nd Respondent in mid-November 2010.  Though she was not working at the Estate, she had constant contacts with staff therein.  It appears to me that, at all times, the 2^nd Respondent took a neutral stance towards the “dispute” between the Applicant and Happy Enough, and I find the evidence of Ms. Wong reliable.

(c)  On the other hand, with respect, perhaps, without going to the extent of lying to the Court, the evidence of Mrs. Leung is less reliable.  I can understand her grievances. The Railing was constructed suddenly and without any reference to the Applicant, when she had parked a car there for over 15 years.  Further, the Applicant also had another dispute with Happy Enough over certain space between their apartments.  On 22 June 2011, Happy Enough issued LDBM 202/2011 against the Respondents to ask them to take actions against the Applicant again.  It might have caused her to lose some of the neutrality and memory of her evidence, especially in relation to how she parked her cars after the complaint by Happy Enough.  In this respect, I agree with the following analysis of Mr. Leung in his Closing Submissions.

“23. Mrs. Leung testified that there had been dripping of water or loose paint from the ceiling above CP73 since 2009. In our submission, that piece of evidence must be tested against the admission that since July 2009 (until 21.10.2010), she had her 3 sedans parked at or near CP73. Logic would tell you that if there had indeed been dripping since 2009, Mrs. Leung would not have parked her 3 sedans there, especially with one that was brand spanking new.

24…

29. Her [Dr. Chan’s] evidence that even after the commencement of the present proceedings, the Applicant has been parking its 3 cars alternatively at the driveway or the hourly parking spaces (forming part for the common areas) without paying any parking fee, was unchallenged in XXN.  Strictly speaking, there was no XXN of her by Mr. Lui, counsel for the Applicant.”

I should further add that, logic also tells that, the Applicant prayed, among others, for removal of the Railing and what exactly does it want, if not a restoration of the way it parked its car in the fan-shape space?

13.  Hence, as a matter of fact findings, I say the followings.

(a)  Since acquisition of the apartment and CP73, the Applicant parked 2 cars in the Estate, one in CP73 and the other, the fan-shape common area next to it.

(b)  Such practice continued for over 15 years.  Both Respondents as well as the residents in the Estate did not object to it.

(c)  However, as from July 2009, the Applicant started parking 3 cars.  In order to do so, the Applicant had to “squeeze” them into the available spaces, thereby congesting and sometimes even blocking the pedestrian access to the building entrance.

(d)  The neighbors, including Happy Enough, tolerated the same at first and only took alternative routes, if necessary.  Nevertheless, the relationship between the Applicant and Happy Enough got worse as they had the said dispute over certain space between their apartments as well as the fact that Ms. Fung of Happy Enough was said to be tripped over near CP73 by its “triple parking”.

(e)  In August 2010, Ms. Fung formally lodged a complaint to the 2^nd Respondent.  Parties started corresponding with one another and discussed the matter.  The Applicant did not concede and change the triple parking.

(f)  Although there was water dripping at CP73 in the meantime, it was minor problem only.

(g)  The patience of Happy Enough wore out and it commenced LDBM 249/2010 in September 2010.  There proceedings were ultimately settled by way of mediation.  Terms thereof included the construction of the Railing.

(h)  Mrs. Leung felt indignant and demanded for the removal of the Railing.  As long as it was not done, she would refuse to park any car in CP73 at all.  She simply continued to park along the driveway in front of CP73 or in the nearby can parking spaces at the Estate.

(i)  She went further by issuing the present proceedings in December 2010.

(j)  She did so, not for the purpose of justice, but her own right only.  She was consciously using it as her bargaining chip to try to get back the “space”.

14.  With the above findings, it largely resolves the present proceedings.  The Applicant is asking for declarations and injunctive reliefs.  This Court has a wide discretion over the matter.  It is trite law that the Court will not assist a party seeking equitable relief unless he comes with clean hands.  In the present case,

(a)  the Applicant “double-parked” for more than 15 years,

(b)  it “triple-parked” for about 1.5 years, and

(c)  it instituted the present proceedings for its own benefit only, and even at the expense of others.

I therefore do not consider appropriate to give the relief sought by it, apart from one matter, namely, the removal of the Railing.

15.  In so ordering, I ask myself to bear in mind that the Railing was built at a common area whereby the Respondents were under the DMC to take care of.  It was also part of the settlement agreement in LDBM 249/2010.  However, as discussed,

(a)  the Applicant parked its car in such a way for over 15 years,

(b)  some owners in the Estate are still parking in such a way, including Dr. Chan,

(c)  although the Applicant might be at fault because of the start of the triple-parking, she should have been consulted/informed before her “right” is to be affected.  But for the settlement in LDBM 249/2010, I am sure that the Applicant would defend for her case in the event that the Respondents were to take legal action as directed by the Court, if so decided.  Whatever the outcome would be, the Applicant had at least a chance to present its argument and to be heard.

16.  To wrap up the whole of the matter, I should add the followings.

(a)  The defence of agency raised by the 2^nd Respondent is rejected.  The long and short is that, the 2^nd Respondent is an independent party under the DMC and BMO.  It can be held liable in both tort and contract, jointly and/or severally with the owners’ corporation in different situations.

(b)  Both Counsel agreed the Judgment dated 16 August 2010 of Mr. Recorder Yuen, SC, in HCA 1582/2007, in particular paragraph 65 thereof.  I concur and say further that it is not necessary for me to resolve the parking issue in the present case, as in any event, the Applicant has not come with clean hands.

(c)  I am aware of the fact that, by the present judgment, the position of the parties is to be put back to their original position.  Nonetheless, I sincerely hope that both the Applicant and Happy Enough as well as all concerned would sit together calmly and sort out the problems they are facing.  After all, they have been neighbours living one over/under another for so many years.  In the event that they could not resolve the problems themselves, the matter(s) will have to be litigated again.

(Submissions on the exact order to be made and costs)

Conclusion

17.  To conclude, I make the following orders.

(a)  The Respondents do within 21 days remove the Railing immediately next to Car Parking Space No. 73 on Ground Floor, Sunderland Estate, No. 1 Hereford, Kowloon.

(b)  Each party bears its own costs.

On 26 and 27 October 2011:

On18 October 2011: