SHING PROPERTIES LTD v. CHAN KA PO NATASHA AND OTHERS

DCCJ 2274 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2274 OF 2010

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J U D G M E N T

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Introduction

1. The dispute involves 2 car parking spaces located perpendicularly to each other on the Ground Floor, Shan Shing Building (“Building”), Nos 18 and 20 Village Road, Hong Kong.  The Building was completed in 1977about some 35 years ago.

2. The 2 car parking spaces concerned are the car parking space No 5 (“CP5”) and car parking space No 6 (“CP6”). 

3. The plaintiff (“P”) is the registered owner of CP5, whereas the 1^st defendant (“D1”) and the 2^nd defendant (“D2”) are the registered joint owners of CP6.  The 3^rd defendant (“D3”) is the Incorporated Owners of the Building incorporated on 6 November 1979.

4. Since P purchased CP5 together with Flat 6B of the Building from Sheenwick Investment Limited (“Sheenwick”) on 11 January 2008, P alleged that its vehicular access to CP5 has been blocked by CP6 and the vehicle parked thereat.

5. The Approved Plan is defined under para 17 of the Statement of Claim as the Drawing No.A1 approved by the Building Authority (“BA”) on 17 December 1976 and the Layout Plan (which followed the Approved Plan).  A copy of the Approved Plan is attached to the judgment as Annex-1.

6. Under the Statement of Claim, P seeks, inter alia, the following relief against D1 and D2:-

(a)  Damages for private nuisance[1];

(b)  an injunction restraining each of D1 and D2 from maintaining and/or using CP6 over the Extended Portion[2] and/or beyond the boundary delineated in the Approved Plan and the Layout Plan and/or park their vehicle outside and beyond the delineation of CP6 redrawn by the D3 with the front portion of such vehicle protruding beyond such delineation, or otherwise in a manner which would interfere substantially with and/or cause any blockage to P’s private use and enjoyment of CP5.

7. P further accuses D3 in breach of its duties as incorporated owners under the Building Management Ordinance (Cap 344) (“BMO”) to enforce the Deed of Mutual Covenants of the Building ("DMC").  Hence, P also seeks, inter alia, the following relief against D3 in the Statement of Claim:-

(a)  A mandatory injunction and/or an order of specific performance compelling it to take enforcement actions and/or legal proceedings against D1 and D2 for the enforcement of the obligations in the DMC against them and/or the exercise and performance of rights, powers, privileges and duties in relation to the common parts of the Building;

8. Further or alternatively, a mandatory injunction is sought against D3:-

(i)  to remove the part of the Green Wall[3] which is in contravention to the Approved Plan and the Layout Plan; and

(ii)  to redraw the delineation of CP6 (particularly the Pink Line, ie the front end of CP6) so that it would conform to the Approved Plan and the Layout Plan.

9. A copy of the plan[4] with actual measurements is attached to the judgment as Annex-2, on which the Green Wall and the Pink Line are marked for identification purpose.

P’s case

10. P has been unable to park its car at CP5 because the delineation of CP6 is in contravention with the Approved Plan and the Layout Plan, and the manner of the vehicle parked at CP6 has also obstructed P’s vehicular access to CP5.

11. P said that there is a discrepancy between the actual location of the Green Wall and the Pink Line, and their stipulated position under the Approved Plan and the Layout Plan, each by a margin of 9 inches.

12. D1 and D2 have protruded their vehicle outside the as-drawn delineation of CP6 into the common area of the Building.

13. On 24 January 2008, ie less than 2 weeks after P became the registered owner of CP5, P wrote to D1 and D2 complaining about the blockage and proposing 2 practical options to solve the problem.  The proposed options are: (1) a temporary change of parking spaces; and (2) a loan of a spare key of the car parked at CP6.

14. Since P did not receive any reply from D1 and D2, it wrote to them again on 15 February 2008, putting forward option (2) again and a further option, ie P’s director (Mr Allan Payne) would phone D1 and D2 whenever he needed to gain access to CP5.

15. On 19 March 2008, P wrote to D3 repeating the matters stated above and its proposals.  D3 passed the matter to the management company of the Building, ie Kong Shum Union Property Management Co Ltd (“Manager”) for further action.

16. After obtaining an expert report prepared by Mr Anthony Pong (“Mr Pong”) dated 6 September 2008 (“P’s 1^st Expert Report”), P instructed its solicitors to write to D1 and D2 as well as D3 on 6 October 2008 respectively, repeating its complaints and demanding D3 to take action to rectify the problem.

17. Mr Pong concluded in the P’s 1^st Expert Report that there are discrepancies between the existing layout and the Approved Plan in relation to the Green Wall and the Pink Line in that the actual location of each of them has deviated from their prescribed location by a margin of 9 inches towards Village Road.  Further, the actual length of CP6 was 5 inches more than the prescribed length under the Approved Plan.

18. Upon P’s request to investigate, the District Lands Office (“DLO”) conducted a site visit at CP5 and CP6, and thereafter wrote a letter to D1 and D2 on 26 August 2009, notifying them that the actual length of CP6 exceeded the prescribed length under the Approved Plan by 5 inches.

19. Upon receiving from D1 and D2 a copy of the said letter from the DLO, D3 redrew the delineation of CP6 by reducing its length by 5 inches in December 2009.

20. Mr Pong mainly adopted his findings in P’s 1^st Expert Report in another report dated 27 May 2011 (“P’s 2^nd Expert Report”).

21. Notwithstanding the said redrawing of CP6’s delineation, in a letter dated 9 November 2010 from the Buildings Department (“BD”) to D3, BD stated that the on-site dimension between the Green Wall and the external wall facing Village Road had some deviation from the dimension showing on the Approved Plan and that it may affect owners using their carparking spaces.  BD also suggested D3 to take steps to immediately remove the unauthorized works and reinstate the premises in accordance with the Approved Plan.

22. P’s claim against D1 and D2 is premised, inter alia, on the following grounds:

(a)  The covenants in the Crown Lease, as replaced by the Deed of Variation of 26 April 1972 (“Deed of Variation”), under which D1 and D2 covenanted to, inter alia, maintain CP6 in accordance with the Layout Plan[5];

(b)  The DMC, under which D1 and D2 covenanted, provides, inter alia, not to do anything in the common parts of the Building which may be a nuisance or annoyance to other occupiers and not to occupy the common parts of the Building to the exclusion of other owners[6];

(c)  Section 34I(1) of the BMO, under which D1 and D2 may not use the common parts of the Building in such a manner as (i) would unreasonably interfere with the use and enjoyment of those parts by other owners or (ii) to cause a nuisance or hazard to any other owners. Section 34I(2) further provides that if D1 and D2 contravenes section 34I(1), they will also be deemed to be in breach of an obligation under the DMC;

(d)  The respective duty of D1 and D2 under the tort of private nuisance not to interfere with P’s use and enjoyment of CP5.

23. In addition, P’s claim against D3 is premised, inter alia, on sections 14(1), 16 and 18(1)(c) of the BMO, under which D3 has a statutory duty to do all things reasonably necessary, including the passing of resolution and/or bringing of proceedings, for the enforcement of the DMC and the exercise of rights, powers and duties in relation to the common parts of the Building.

D1 and D2’s case

24. According to the Approved Plan and the Layout Plan registered in the Land Registry, the length of CP6 is 15 feet from the Green Wall.  D1 and D2 succeeded CP6 from their parents who had bought CP6 in 1988 (about 24 years ago).

25. Some 35 years ago, the predecessor in title of D1 and D2 acquired CP6 which has a length of 15 feet from the Green Wall.  All the occupants of the Building have been using (and renovating) the lift lobby and the Green Wall in their present form and position since 1977. The occupants of the Building have been acting on the common assumption that the Green Wall was erected at a proper position and likewise CP6 was in a proper position.

26. Unknown to the predecessor in title of D1 and D2, D3 and other occupiers of the Building, CP6 had been delineated in such a way that it has 5 inches (“the Previous Protrusion”) protruded to the driveway; hence the total length of CP6 is 15 feet and 5 inches from the Green Wall.  For the present purpose D1 and D2 said that the Previous Protrusion was a mistake and could be ignored.  Hence, prior to the D3’s finding of the Previous Protrusion, D1 and D2 contend that they could not be held liable for nuisance for lack of knowledge.

27. In December 2009, D3 redrew CP6 by reducing its length to 15 feet from the Green Wall.  Despite the redrawing of CP6, P still complains that the Green Wall together with CP6 should be moved back 9 inches towards the lifts.

28. The predecessor in title of D1 and D2 who was also the first purchaser entered into the DMC with the developer acquired CP6 in its form (as at December 2009 before the redrawing) from the developer.  The developer later assigned CP5 to P’s predecessor in title. The rule against derogation from grant prevents P and other owners (being the assigns or successors-in-title of the developer) from asking D1 and D2 to reduce CP6 by 9 inches from the Pink Line.

29. The developer was required to provide 1 car parking space for each 1500 sq ft gross floor area and 24 car parking spaces were designed and shown on the Layout Plan.

30. Prior to P’s commencement of this action, no occupier had ever complained that the Green Wall was not erected at a proper position and hence the location of CP6 too.  The predecessors-in-title of P prior to 2001 (if not prior to 2008) must have known the way CP6 had been used and enjoyed.  Yet there was no complaint.

31. The inference to be drawn is, when they acquired CP5, all the predecessors-in-title of P knew as a fact that by its very design and location, CP5 is inferior to other car parks and it is inaccessible by vehicles of normal size.  Hence they could not and they did not make any complaint against D1 and D2 or their parents about their use of CP6.  When each of CP6 and CP4 is parked with a vehicle, the gap between CP4 and CP6 which is only 64 incheswould not be enough for any vehicle of normal size to move in or out of CP5.

32. Even if the court orders D1 and D2 to reduce CP6 by 9 inches,  P would only have a space of 73 inchesto move in or out a car from CP5, which is still insufficient for the purpose.

33. After the redrawing of CP6 in 2009, the DLO confirmed by letter that CP6 in its current form follows the registered car park layout plan.

34. D1 and D2 contend that it is not the mere use of CP6 by them but the defective design and layoutof CP5, which resulted in no vehicle of normal dimensions being able to be parked into and out of it.

35. The Layout Plan and the occupation permit were issued on 5th January 1977.  The inference must be that BA was satisfied with the construction of the Green Wall and the layout of the car parking including CP5 and CP6.

36. The Green Wall has never been relocated since completion of Building.  No complaint has been received in relation to the Green Wall or CP6 until P’s complaint in 2008.

37. P’s predecessor in title, Sheenwick, was fully aware of the difficulties in using CP5.  Yet, no formal complaint was lodged to D3.  There wasacquiescence on the part of P’s predecessor in title.

38. It is now too late for P to complain about the location of the Green Wall.  All owners of the building including P are estopped under the doctrine of estoppel by convention from asserting that the Green Wall was not erected at a proper position.  P is also estopped from complaining the protrusion of CP6.

39. P as the assign or successor of the developer is bound by the consequence of the wrongs committed by the developer.  No one is entitled to rely on his own wrong.  The principle whichis laid down by the Court of Final Appeal in Kensland and Realty Ltd v Whale View Investment Ltd and Another[7] prevents P from relying on the clauses of the DMC.

40. D1 and D2 further contend that P is not entitled to the mandatory injunction sought on the following grounds:-

(a)  Acquiescence of P’s predecessors in title; 

(b)  Everybody in the Building has been enjoying the Building, the lift lobby and the car parks as they are for over 30 years without complaint;

(c)  Inaccessibility of CP5 is due to inherent defective design made by the developer.  The mandatory injunction sought could not cure such defect;

(d)  Any order to redraw CP6 without relocation of the Green Wall is unfair to D1 and D2 and in any event would be a derogation from grant;

(e)  Relocation of the Green Wall would require demolition of the newly furnished lift lobby; the time and costs involved would not be insubstantial; occupiers of the Building would have to put up inconvenience; the injunction sought would not result in any practical or significant benefit to P as CP5 would still be inaccessible by any vehicle of normal size;

(f)  The lift lobby is a fireman lift lobby and is part of the fire escape route.  The width of lift lobby is only 60 inches.  Reduction of 9 inches (15% of the current width) would undermine the fire safety of the Building;

(g)  If the Green Wall is to be relocated, it would be regarded as alteration work and require the approval of the BA.  In no way, the court could influence the BA (who is not a party of these proceedings) to give effect to the relocation of the Green Wall under the injunction sought.  If the BA does not approve the relocation of the Green Wall for whatever reasons, the injunction is meaningless.  Courts do not make futile orders.

D3’s case

41. Upon first receiving a complaint letter from P dated 19 March 2008, the committee members of D3 did meet and discuss about the matter.  It was resolved in the meeting that the said letter should be passed to the Manager for action.

42. The staff of the Manager had taken action by liaising with the owner of CP6 ie D1 and D2 and had reported the same to P by a letter dated 9 April 2008.  Thereafter, there were several correspondences between P’s solicitors and the Manager in relation to the matter.

43. D3 then instructed Lam & Partners Int’l Consultants Co to investigate into P’s complaint and was advised that no significant discrepancies were found after preliminary checking to the existing dimensions as stipulated in P’s solicitors’ and the BD’s letter to check for deviation.  It was believed by D3 that the orientation, location and size to all car parking spaces were strictly accordance to the record drawings of the BD’s records.  P’s solicitors were informed by letter accordingly.

44. After receiving a copy of letter dated 26 August 2009 sent from DLO concerning the discrepancy found in the delineation of CP6, D3 has promptly rectified the discrepancy by arranging the delineation of CP6 to be redrawn in December 2009, thus reducing the length of CP6 to 15 feet and in strict compliance with the said letter from DLO.

45. D3 through a letter from the Manager dated 17 December 2009 further demanded D1 and D2 to remove the metal bollard erected at CP6, which was eventually removed. 

46. On 21 July 2010, D3 further instructed the Manager to issue notice to all owners reminding them to park their vehicles within the marked boundary of their car-parking spaces.

47. On 7 May 2010, in reply to P’s complaint of the 9 inches discrepancy due to the relocation of the Green Wall, DLO replied to P’s solicitors in writing stating, inter alia, as follows:

“According to the inspection finding by this office, the subject car parking space (CP6) is being used for parking purpose in compliance of its registered use under the lease, and the layout of the subject car parking space follows the registered carpark layout plan. Please note that your concern on alleged deviation in dimensions relating to the wall of the lift lobby does not fall within the scope of the above lease conditions.” (emphasis added)

48. D3 instructed its own expert Mr Simon Chee (“Mr Chee”) who opined that the alleged discrepancy between the face of the Green wall facing car park area and the internal face of the external wall abutting Village Road should not immediately lead to non-compliance for the following reasons:-

(a)  The General Building Plan (“GBP”) used by P to identify the discrepancy is not the sole, ultimate reference whereby non-compliance shall be strictly ruled.  Its status as Approved Plan and not Record Plan is not supposed to provide final, accurate record of what had been constructed.

(b)  The Approved Plan should have included Structural Plan (“SP”) and Structural Drawings (“SD”) in conjunction with the site conditions.  It is found that the location of the Green Wall actually locates at the exact position as these structural drawings defined dimensionally.

(c)  The discrepancy was validated through the acquisition of the occupation permit and compliance to lease conditions.

(d)  The BD did not denote the existent discrepancy as non-compliance or unauthorized building works.

(e)  Observation on the physical characteristics of the Green wall including its construction in concrete, the adjacent structures and finishes shown that it was constructed at the same time when the Building was constructed.

49. The Green Wall was constructed by the developer at the same time of the Building, which was in its existing position since the first occupation of the Building in 1977.  It has never been moved or relocated as alleged by P.

50. The conformation of the existing delineation of CP6 with the Approved Plan and the Layout Plan is confirmed by DLO’s letter dated 7 May 2010 to P’s solicitors, D3 has no legal right or authority to redraw the delineation of CP6 as demanded by P.

51. If the Green Wall were to be relocated further away from Village Road by 9 inches as sought by P, not only would the width of the lift lobby be reduced thus causing nuisance and inconvenience to all other owners, the main access to the upper floors of the Building would be narrowed down by 9 inches, this would cause obstruction to the means of escape during fire or emergency, thus lead to breach of DMC or other legislations such as Fire Services (Fire Hazard Abatement) Regulation, Cap 95F.

Discussion and analysis

Whether there is any relocation of the Green Wall

52. Mr Pong expressed his conclusion in P’s 1^st Expert Report that by comparing his on-site measurements with the dimensions shown on the plan attached thereto, he maintained that the Green Wall was relocated without prior approval and consent of the BA.

53. Nevertheless, regarding the issue of relocation of the Green Wall, the solicitors acting for P had in fact made clear in their letter to D3’s solicitors dated 15 July 2011 that:

“…… We reiterate once again that it is never our client’s case that the Green Wall has once been constructed in the correct location but was subsequently relocated from its original position since Shan Shin Building was constructed in 1977.  The term “dislocation”, when used in the context of the pleadings and construed against the background, means that the Green Wall was constructed at a location in deviation from the correct position under the General Building Plan.”  (emphasis added)

54. In my judgment, P’s solicitors obviously took a totally different and contrary view with Mr Pong, his own expert.

55. Furthermore, Madam Ho Mei Soong, the Chairlady of D3, was called to testify at the trial, who adopted her 2 witness statements as her evidence-in-chief.  She was a veteran resident of the Building and a veteran committee member of D3.  She confirmed that the Green Wall has been sitting there for ages and there was no moving of the wall at the lift lobby or the Green Wall.  His evidence in this regard has not been challenged at the trial by Mr Wong, Counsel for P.

56. Mr Pong admitted that he was not told of the unchallenged factual evidence of Madam Ho that the Green Wall had been in its existing position since the Building was first occupied.  He was also not aware of the tests result on the degree of carbonation of the Green Wall but he sought to query the test results by the contrast of figures in the 3 core samples and attributed the same to bad quality of concrete.  He stood by his conclusion that the Green Wall had been relocated without approval even after he was told of the unchallenged evidence adduced by D3.  He insisted at the trial that there were alteration works made to the Green Wall.

57. In support of his view that the Green Wall had been moved or shifted from its original position (which must had been erected in accordance with the Layout Plan), Mr Pong strongly relies on the occupation permit issued by BD.  He claimed that prior to the occupation permit was issued, various processes (involving different persons) must have gone through; hence the wall as originally designed and shown on the Approved Plan and the Layout Plan must have been there.

58. In my view, Mr Pong simply assumednothing had gone wrong; there was no error; the world is perfect.  I consider that he has no basis to make such assumption, especially, when there is an obvious discrepancy of 9 inches in the Ground Floor of the Building.  No one including both experts in fact can give a satisfactory answer as to why the officer(s) of BD could not discover such obvious discrepancy when BD was going to issue the occupation permit in 1977.  It shows that Mr Pong’s assumption must be unsafe.  I think that he should revise his opinion in P’s 1^st Expert Report at the trial or he may at least clarify this in his examination in chief.  But Mr Pong decided to insist this erroneous opinion at the trial.  In my judgment, bearing in mind the overriding duty owed by the expert to the court, this conduct is most unbecoming and has put his overall credibility in question.  The only inference that can reasonably be drawn from Mr Pong’s conduct must be that he is a partisan expert facilitating his client’s case.  Accordingly, I have no doubt to reject the expert opinion of Mr Pong in this regard.

59. On the other hand, Mr Chee accepted that the issue whether the Green wall had been relocated could not be determined by looking solely at the test results on the carbonation of concrete. Mr Chee went on to explain that the difference in the figures shown in the 3 core samples of the concrete can be explained by the variance in their positions and their different degree of exposure to moisture and chemicals. For example the core sample C3 taken at the lower part of the Green Wall was at a position near to the spot where the exhaust pipe of the vehicle parked at CP6 would frequently discharge gas and chemical with higher carbon content, thus explaining why a high figure of carbonation was reported.  Mr Chee opined that the test results of the 3 core samples were in line with his other observations on the physical characteristics of the Green Wall and its construction, it reinforced his conclusion that the Green Wall was built at the same time of the Building. 

60. In my view, Mr Chee’s explanation in this regard is entirely logically and reasonable.  I accept his opinion and conclude that there is not just compelling factual but also expert evidence before the court that, contrary to the assertion of P and the opinion of Mr Pong, the Green Wall has never been relocated or altered as alleged or at all. I find that from beginning to end the Green Wall is there as it is now.

Whether there is any dislocation of the Green Wall

61. In describing the discrepancy of the Green Wall, P pleaded at the very outset that:-

“… the actual location of the Green Wall is closer to Village Road (in diminution of the length of [CP6] by 9 inches (225 mm) as compared with the location stipulated under the aforesaid plans …” (emphasis added)

62. According to the Approved Plan, the length from the outer surface of the wall abutting Village Road to the Green Wall is 52 feet 9 inches consisting of 4 sections of dimensions ie 1^st section being 4 inches, 2^nd section being 15 feet 5 inches, 3rd section being 22 feet and 4^th section being 15 feet.  However, before the redrawing of the delineation of CP6 in December 2009, the on-site measurements by Mr Pong as indicated in ‘Plan B’ of P’s 1^st Expert Report shows the following:

(a)  The distance from the outer surface of the wall abutting Village Road to the Green Wall is 52 feet only (ie 4 inches + 15 feet 6 inches + 20 feet 9 inches + 14 feet 10 inches + 7 inches) instead of 52 feet 9 inches;

(b)  The distance from the outer surface of the wall abutting Village Road to the Pink Line is 36 feet 7 inches (ie 4 inches + 15 feet 6 inches + 20 feet 9 inches);

(c)  The length of CP6 is 15 feet 5 inches (52 feet – 36 feet 7 inches).

63. After the redrawing of the delineation of CP6 and reduction of 5 inches in length of CP6, Mr Wong, Counsel for P, submitted that the following discrepancies can still be observed:-

(a)  The Green Wall was built closer to Village Road by 9 inches;

(b)  The Pink Line was drawn closer to Village Road by 9 inches.

64. It is not in dispute that in fact, there are discrepancies in at least 2 sections in this specified distance, ie a discrepancy of 1 inch in the 2^nd section, and another discrepancy of 10 inches in the 3rd section after the redrawing of the delineation of CP6. 

65. In my view, when comparing between the actual layout and the Approved Plan, there are discrepancies in at least 2 sections just between the short distance from the Green Wall to the external wall abutting Village Road, one can readily and reasonably doubt as to whether there will be some more discrepancies in other locations.

66. Turning to the methodology of measurement adopted by Mr Pong, he was simply adding up the 4 sections of measurement from the external wall abutting Village Road to the Green Wall. When being questioned about the methodology of his measurement, Mr Pong agreed that it is also acceptable for measurement to be made from the top (the rear boundary or the screen wall) down to the Green Wall but Mr Pong didn’t make it.  He added that there is a screen wall 6 feet from the boundary line, a structure holding back the soil, it is possible to take measurement from the end but it is an indirect way of making the measurement because the Building was not built on level ground.

67. When being asked whether he will still opine that the Green Wall is dislocated if he started the measurement from the rear end up to the Green Wall, Mr Pong said he could not answer because he could not tell the result without making that measurement.  He agreed that if the measurement shown that there is a difference of 9 inches in the full length of the Building, it would affect his findings.

68. Mr Wong, Counsel for P, submitted that the absence of such measurement was not due to over-sight by the experts since the scope of measurements taken by the experts is restricted by the order of the court.  Order 38 rule 36(1) of the RDC provides that:

“Except with the leave of the Court or where all parties agree, no expert evidence may be adduced at the trial or hearing of any cause or matter …”

69. Pursuant to an order of the court dated 31 January 2011, upon the joint application of the parties herein by way of a Consent Summons, it was ordered at para 7 (“Expert Direction”) that:

“Each party do have leave … [to] file and serve on each other their respective expert report(s) (if any) on the discrepancy between the actual locations of the Green Wall in the Car Park and the Pink Line of Car Parking Space No.6 and the prescribed locations of the Green Wall and the Pink Line as shown in the Approved Plan and the Lay-out Plan on the issue as to whether the actual locations have deviated from their prescribed locations towards Village Road, and if so, the exact deviations.” (emphasis added)

70. Mr Wong, Counsel for P, argued that the Expert Direction has narrowed down the scope of the experts’ evidence on discrepancy of the Green Wall (and Pink Line) to the issue of “whether the actual locations have deviations from their prescribed locations towards Village Road”.  With respect, I cannot accept Mr Wong’s argument.

71. First, it is the methodology of Mr Pong’s measurement rather than the scope of his measurements being challenged and in dispute.  Secondly, P’s 1^st Expert Report was prepared on 6 September 2008 which was made long time before the Expert Direction.  It was adduced as expert evidence pursuant to the Expert Direction; otherwise, it is not admissible under Order 38 rule 36(1) of the RDC.  Accordingly, Mr Wong’s submission that Mr Pong can only give opinion no wider than the issue prescribed in the Expert Direction must be wrong.  Concerning P’s 2^nd Expert Report made on 27 May 2011, Mr Pong mainly adopted his findings in P’s 1^st Expert Report, upon which P’s pleaded case is heavily relied.  In my view, P has the burden to prove his pleaded case, in particular para 17 of the Statement of Claim which states that:

“The current layout and/or boundary of Parking Space No.6 is inconsistent with Drawing No.A1 approved by the Building Authority (“BA”) on 17^th December 1976 (“the Approved Plan”) and the Lay-out Plan (which followed the Approved Plan)………”

72. I disagree that the methodology of measurement taken by the parties’ experts is restricted by the Expert Direction.  I am of the view that it shall not be the master who made the Expert Direction to adduce expert opinion to deal with the issue of methodology unless it is specifically raised and the master is requested by the parties to make a ruling on it.  In this case, the master simply made an order in terms of the Consent Summons filed. 

73. Bearing in mind that P is seeking various mandatory injunctions which will affect the interest of not just the owner of CP6 but also the other owners of the Building, P has the burden to satisfy the court that the methodology of measurement adopted by its expert is correct rather than shifting the burden of proof to the defendants who only agreed to enter into the Consent Summons concerning the Expert Direction. Furthermore, the defendants have never conceded that the methodology of measurement adopted by P’s expert is correct.  It is not a “must” for the defendants to adduce their own expert evidence. They can always choose to put P in strict proof of its case and challenge the evidence of P’s expert only. 

74. Mr Wong, Counsel for P, made a lengthy submission in relation to the demerit of Mr Chee’s opinion.  In view of the above, I consider that it is unnecessary for me to deal with Mr Wong’s submission in this regard.  I am further of the view that even though Mr Chee’s opinion does not have any merit, it does not mean that P has therefore discharged its burden of proof concerning the issue whether the Green Wall is dislocated. 

75. In any event, I accept Mr Chee’s opinion as a whole, in particular, the construction work started from the core part of the Building, i.e. the part of the building in the vicinity of the lift shafts where the cranes are erected.  In other words, if the location of the lift shafts is correct, it is very likely that the Green Wall which was built only 1.5m from the outer wall of the lift was also located correctly.

76. In my judgment, the conclusion that Mr Pong drawn from the narrow basis of a single reference by measuring from the external wall is obviously not reliable.  In the circumstances, the court cannot safely and plainly conclude that the Green Wall is dislocated based on Mr Pong’s opinion.  On balance of probability, I conclude that the Green Wall is not dislocated. 

Whether there are other reasons not to relocate the Green Wall

77. As P stated in its opening submission and repeated in its closing submission, P is primarily concerned with the re-drawing of the Pink Line.  As long as the Pink Line is redrawn by 9 inches closer to the lift lobby, it is not a major concern of P whether the Green Wall is to be relocated or not.

78. As discussed above, I am not satisfied that P has discharged its burden to prove that the Green Wall is dislocated.  Hence, it shall not be relocated.  However, I think that if I am wrong in this regard, I still have to consider if there are some other reasons as to whether the Green Wall shall be relocated by moving 9 inches towards the lift lobby.  The obvious consideration must be that the demolition and alteration works shall require the approval of the BA.  In no way, the court could influence the BA (who is not a party of these proceedings) to give effect to the relocation of the Green Wall.  If the BA does not approve the relocation of the Green Wall on the ground that the width of the lift lobby will be less than the minimum statutory requirement for the fire and safety regulations after reducing 9 inches, the injunction is meaningless.  The lift lobby is part of the fire escape route, the width of which is only 59 inches.  Reduction of 9 inches (15 % of the current width) would undermine the fire safety of the Building.  Both experts agreed that the Buildings Ordinance requires a minimum width of 1.5m (about 59 inches) presently but they have no idea as to the statutory minimum width at the time of issuance of the occupation permit in 1977.  No doubt, reducing the width of the lift lobby by 9 inches would contravene the Buildings Ordinance currently in force and would highly unlikely be approved by the BA.  Accordingly, I do not think that I shall make a futile order for relocation of the Green Wall on this sole reason.

79. Another reason is based on the Court of Appeal’s decision in Lung Po Kwan, Lee Karen Yuk Lan and Tam Kam Sheung, The Incorporated Owners of Y. Y. Mansion[8]. In the case of Lung Po Kwan, the Presiding Officer of the Lands Tribunal, Judge M Wong, found that there was no evidence as to who built the retaining wall or when exactly it was built.  The retaining wall is not shown on the approved plan and has been in existence at least since about 1968.  The Presiding Officer considered that based on the available evidence, it is more likely than not that the retaining wall was built by the developer.  He then granted the mandatory injunction and required the 2^nd respondent (the incorporated owners) to remove the retaining wall but refused to grant injunction restraining the 1^st respondent (owner of carpark 25) from obstructing the passageway.

80. The applicants (owner of carpark 27) and the 2^nd respondent appealed to the Court of Appeal against the decision of the Lands Tribunal. The Court of Appeal allowed the appeals by setting aside all the injunctions granted by the Lands Tribunal and granting an injunction restraining the 1^st respondent from obstructing the passageway to and from carpark 27.  Notwithstanding the aforesaid fact findings by the Presiding Officer, the Court of Appeal considered the key issue to be determined is whether the retaining wall and the blocked off portion of carpark 25 were “common parts” at the date of first assignment.  As the Court of Appeal found that the retaining wall which was in existence at the time of the 1^st assignment was plainly part of the common parts of the development, it was open to the 1^st respondent (owner of carpark 25) not to complete the purchase because of the defect in the title vis-à-vis her immediate predecessor-in-title but that did not happen, having accepted title, there is no alternative to her accepting that she has no title to the blocked off portion of carpark 25.

81. Coming back to our present factual scenario, the Green Wall, being not a structural wall by design, is nonetheless a wall stipulated on the Approved Plan to separate the lift lobby from the carpark on the ground floor of the Building.  The issue is whether the Green wall is common parts of the Building. Definition of “common parts” can be found in the BMO but not the DMC.

82. The relevant sections in the BMO shall be section 2 and section 34I which provide that:

“s2. "common parts" (公用部分) means-

(a) the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and (Amended 8 of 1993 s. 2)

(b) unless so specified or designated, those parts specified in Schedule 1; (Amended 5 of 2007 s. 40)

s34I. (1) No person may:-

…

(b)  use or permit to be used the common parts of a building in such a manner as-

(i)  unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; or

(ii)  …………..

(2)Any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building.”

83. The relevant clauses in the DMC of the Building concerning common parts shall be clauses 11(d) and (e) which provide that:

“Each party hereto covenants with the other of them as follows:-

…….

(c) Not to do anything in any part of parts of the said building in common use which may be a nuisance or annoyance to the other parties or the other occupier or occupiers of the said building.

(d)  Not to place any furniture or object in or affix anything to or to occupy to the exclusion of the other owners or occupiers of the said building any part or parts of the said building intended for common use and not to use such part or parts of the said building otherwise than for access to and from his flat.”[emphasis added]

84. As I find in the above that the Green Wall was constructed by the developer and has been in its existing position since the Building was built in 1977, I conclude that it must be the “common parts” of the Building and P’s application for injunction to remove the Green Wall must be dismissed by applying the rationale in Lung Po Kwan’s case.

Whether there is any discrepancy on the location of Pink Line

85. Mr Wong, Counsel for P, submitted that this issue is a distinct and separate issue from whether there is any discrepancy of the location of the Green Wall.  He also contended that the court’s decision on whether there is any discrepancy of the location of Pink Line is not dictated by the court’s decision on the location of the Green Wall. He further submitted that the 9” area blocked-off by the “dislocated” Green Wall has become a common part of the Building when the developer constructed the Green Wall as its present location in 1977.  As a result, the predecessor-in-title of D1 and D2, who was assigned CP6 in June 1977, had no title to the 9” area which had been blocked-off by the Green Wall. 

86. With respect, I cannot agree because Mr Wong made such submission clearly based on the court’s finding of the dislocation of the Green Wall, which I find contrary.  On the other hand, I accept the submissions made by Mr Hung, Counsel for D1 and D2 and Ms Cheng, Counsel for D3, that if the court cannot be satisfied that Mr Pong’s conclusion is correct and can be acted upon, it follows that P’s case which is fundamentally premised on the complaint that there is a deviation of the actual location of the Green Wall and that the Pink Line from its stipulated location on the Approved Plan cannot be substantiated, too.

87. It is undisputed that the length of CP6 was not mentioned in the plan annexed to the first assignment of CP6 dated 15 June 1977.  Nonetheless, the length of CP6 of 15 feet from the Green Wall was clearly stipulated in the Approved Plan, of which the developer must be fully aware.  According to both experts, the current standard size of car parking space is 5 m x 2.5 m (ie 16 feet 4.85 inches x 8 feet 2.425 inches) but the standard size in 1970s was 15 feet x 7.5 feet.  Hence, it can be readily inferred that the developer must intend to assign the title of CP6 with full length of 15 feet (rather than 14 feet 3 inches) to the first owner in the said first assignment; otherwise, the relevant government authorities would not approve the plan at that time. In my view, CP6 could not be encroaching on the common part (or driveway) as alleged by P if there is no dislocation of the Green Wall.  Accordingly, the 9 inches area of CP6 (now complained by P) is not common parts of the Building. The rationale in Lung Po Kwan’s case in relation to the granting of an injunction restraining the 1^st respondent (owner of carpark 25) from obstructing the passageway to and from carpark 27 by the Court of Appeal has no application in this case.  In my judgment, CP6 with full length of 15 feet has been assigned by the developer for the exclusive use occupation or enjoyment of D1 and D2 and their predecessors in title. As D1 and D2 are occupying CP6 without encroaching on any common part, P’s pleaded case premised on CP6 encroaching on common part must fail.

88. I also consider that there is another reason for refusing P’s claim for a mandatory injunction for redrawing the Pink Line by 9 inches closer to the lift lobby.  The reason is that such redrawing obviously needs the approval of DLO, especially the length of CP6 is clearly stipulated in the Approved Plan and the Layout Plan to be 15 feet.  After redrawing, its length will be reduced to 14 feet 3 inches.  According to DLO’s written reply dated 7 May 2010 to P’s solicitors, it was stated that CP6 is being used for parking purpose in compliance of its registered use under the lease, and the layout of the subject car parking space follows the registered carpark layout plan and P’s concern on alleged deviation in dimensions relating to the Green Wall does not fall within the scope of the lease conditions.

89. If the court is not prepared to grant injunction to relocate the Green Wall for whatever reason and considers that DLO (not being a party to these proceedings) is highly unlikely to agree to the proposed redrawing of the Pink Line, it follows that the court shall be extremely reluctant to exercise its discretion to grant this futile injunction; otherwise DLO who is not bound by the injunction sought by P may commence a fresh action against D3 for contravention of the Approved Plan and the Layout Plan as well as breach of the Deed of Variation.  As a result, the 2 issues of the relocation of the Green Wall and redrawing of Pink Line must be interrelated but not distinct and separate as submitted by Mr Wong, Counsel for P.

Is there any other option to apportion the discrepancy of 9 inches apart from redrawing CP6?

90. When being cross-examined by Mr Hung, Counsel for D1 and D2, Mr Pong accepted that there were Practice Notes issued to architects or authorised persons on the length and width of a car parking space and there should be similar provisions issued by the BD some 35 years ago.  Mr Pong did not accept that the design of CP5 is defective but agreed that it was undesirable.

91. When being asked about what variation can be made among the 4 sections of dimensions between the Green Wall and the outer surface of the wall abutting Village Road[9], Mr Pong agreed that the 3^rd section stipulated to have a length of 22 feet should be most flexible but there are other considerations.  He gave the opinion that the width of the Green Wall can be reduced provided it complied with all the relevant safety regulations.  He took the view that there is more than one option to apportion the discrepancy of 9 inches.

92. In my judgment, if there are some other options to apportion the discrepancy of 9 inches, there is no good reason why the court has to grant an injunction to redraw CP6.  Mr Hung, Counsel for D1 and D2, suggested that the discrepancy could have been cured by the authorised person hired by the developer lodging an amended Layout plan for BD’s approval.  I consider that it shall be better decided by BD, DLO or other relevant government authorities if the Approved Plan is indeed submitted for amendment due to such obvious discrepancy.  If the Practice Notes issued in 1977 on the minimum length of a car parking space is 15 feet, I tend to believe that BD, DLO or other relevant government authorities will unlikely amend the Approved Plan by reducing 9 inches from the length of CP6.  Nevertheless, I consider improper to express any further comment on this matter since I have certainly no power to interfere their decision.

Can any vehicle be access to CP5 if no redrawing of CP6?

93. As agreed by the parties, the current width of the access-way to CP5 is only 64 inches if no redrawing of CP6.  A copy of another plan[10] is attached to the judgment as Annex-3.

94. Mr Wong, Counsel for P, said in his closing submission that there are currently in the market a wide range of small-sized vehicles with width between 64 inches and 73 inches with extracts of specifications of the said vehicles attached to his closing submission. Such evidence was not adduced at the trial and no one informs the court that it has been agreed by all the parties.  It seems to me that Mr Wong is giving new evidence in his closing submission. 

95. Even if I assume that such evidence is not challenged by all the defendants, I find that the width of some vehicles mentioned does not include their 2 side-mirrors after having carefully read the extracts of specifications of the said vehicles produced.  In other words, if the width of the 2 side-mirrors of these vehicles is added or included, the total or actual width of these vehicles will be longer than the width specified in the extracts.  In any event, I am of the view that the smallest sized vehicle suggested by Mr Wong with width of 64 inches[11] is not practically able to access to CP5 which is also 64 inches in width since a reasonable distance, say at least 2 inches from each of the 2 side-mirrors of the vehicle should be allowed when parking in order to avoid any scratch with the vehicles parking in CP4 and CP6.

96. Furthermore, Mr Chee gave opinion at the trial that as an authorised person, he would bear in mind the need of a “Sweep Path” for a car to drive out from CP5 and turn to the driveway.  The “inner turning radius” requires 3 meters. By adding the width of a normal vehicle (2.5m is adopted for sweep path analysis), the minimum width of driveway for a car to drive out is 5.5 m (over 18 feet).  Nonetheless, the gap between CP6 and CP5 is just 64 inches.  Therefore, I accept the submission of Mr Hung, Counsel for D1 and D2 that the design of CP5 is defective rather than just undesirable as opined by Mr Pong.  Based on the evidence before me, I conclude that no vehicle can access to CP5. 

97. I think that it was the situation existed in 1977 and that at that time when the first purchaser of CP5 was once aware of its defective design, he shall consider refusing to complete the transaction or suing the developer for damages suffered.  Based on the evidence before me, no action at all has ever been taken by the first owner or his successor-in-title of CP5.  Hence,  whether there was any actionable nuisance or any breach of DMC, D1 and D2 shall not be guilty of substantially and unreasonably interfering with the use and enjoyment of CP5 by P by rendering P unable to drive its vehicle into and out of CP5.

98. In my judgment, any protrusion of the car by D1 and D2 beyond the boundary of CP6 or from the Pink Line will not affect the use and enjoyment of CP5 due to its defective design.  As a result, there could be no nuisance or interference as alleged or at all and P’s claim for damages for private nuisance must fail.

Whether D1 and D2 are lack of knowledge of the Previous Protrusion

99. For the sake of completeness, I think I shall consider this issue.  At law only a defendant interfere the enjoyment of the claimant with knowledge of nuisance would be held liable for nuisance[12]. Further, foreseeability is an essential element in determining liability of nuisance.  In Overseas Tankship (U.K.) Ltd. v The Miller Steamship Co. Pty.[13], Lord Reid said as follows:

“And although negligence may not be necessary, fault of some kind is almost always necessary and fault generally involves foreseeability, e.g., in cases like Sedleigh-Denfield v. O'Callaghan the fault is in failing to abate the nuisance of the existence of which the defender is or ought to be aware as likely to cause damage to his neighbour………….

So in the class of nuisance which includes this case foreseeability is an essential element in determining liability.”

100. I accept that prior to the commencement of these proceedings by P, no one including the previous owner of CP5 had ever made any complaint about the protrusion of the vehicle parking at CP6.  I believe that D1, D2 and their parents had been using CP6 as it was delineated by D3 or the Manager.  There is no reason why they should not trust what was delineated as CP6 by the developer or the Manager at that time.  Until late August 2009, D1 and D2 received the letter from DLO.  D3 or the Manager then rectified the delineation of CP6 by reducing its length by 5 inches in December 2009.  Afterwards, the DLO confirmed that CP6 in its current form follows the registered car park layout plan.  In the circumstances, I find that prior to late August 2009, D1 and D2 did not have the knowledge of the Previous Protrusion.  Hence, even if there was any interference with the use of CP5 during the period from January 2008 to December 2009, they could not be held liable for nuisance due to their lack of knowledge.

101. Besides, based on the evidence available, CP5 was left vacant, no car was parked there except a motor-cycle for a short period of time and miscellaneous articles were placed at the back of CP5 at all material times.  Thus, it could not be said that interference with the parking of car to CP5 is foreseeable by D1 and D2 when they park a car at CP6.

Conclusion

102. In the circumstances, I order that P’s claims against all the defendants be dismissed.

103. Since costs shall follow event, P has to pay costs of these proceedings to all the defendants.  However, regarding the costs reserved by the order made by Deputy Judge KH Hui (as he then was) on 30 May 2012, Mr Wong for P argued that since the adjournment was unrelated to any conduct on the part of P, P should not be liable for such costs regardless of the outcome of the present action. 

104. It was not disputed that D3 applied to adjourn the trial to a date to be fixed on 30 May 2012 (ie the first day trial before Deputy Judge KH Hui) on the ground that the Chairlady, a witness of D3, was unable to attend the court to give evidence due to her medical reason.  Mr Wong for P submitted that according to the record of proceedings kept by P’s solicitors[14], those acting for D3 did not provide any medical proof when making such application and that the Chairlady’s medical condition was only related to Deputy Judge KH Hui (as he then was) through oral submission of D3’s counsel.  

105. Mr Wong for P argued that the absence of the Chairlady alone would not necessitate the trial being adjourned, bearing in mind that a trial date is a ‘milestone date’ under Order 25 rule 3(8) of the RDC.

106. With respect, I disagree with Mr Wong’s submission.  I consider that P’s Counsel shall made the above submission and argument before Deputy Judge KH Hui (as he then was) at the trial on 30 May 2012 before the learned judge made the order of adjournment with costs reserved.  I think that the learned Judge should have already been satisfied with the seriousness of the Chairlady’s illness and the sufficiency of such evidence to support D3’s adjournment application before he granted the adjournment.  In my judgment, it is totally out of control of D3 when the Chairlady could not attend the trial to give evidence due to her medical reason. I am of the view that costs of the adjournment which is due to no one’s fault shall be costs in the cause.  In other words, it forms part and parcel of the litigation costs which the losing party shall take his own risk. 

107. I conclude that P shall pay costs of these proceedings including the costs reserved by the order made by Deputy Judge KH Hui (as he then was) on 30 May 2012 to all the defendants, to be taxed if not agreed, with certificate of one Counsel.  It is an order nisi which shall become absolute within 14 days unless any of the parties applies to vary it by way of a summons with supporting affidavit, if necessary.