RADFORD PORTFOLIO MANAGEMENT LTD v. THE SECRETARY FOR JUSTICE

HCMP 2297/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2297 OF 2008

----------------------

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

Introduction

1.  This Originating Summons raises a short but important point on the correct interpretation of a special condition attaching to the Government Lease relating to a residential block of flats in Pokfulam.

2.  The building concerned is known as The Royalton, 118 Pok Fu Lam Road, Hong Kong.  I will refer to it as “the property”, which is the designation given to it in the Originating Summons.  The Plaintiff, a limited company, is the owner of a Flat at the property together with a designated parking space which has been allocated the number 33.  The property comprises 30 flats, each with its designated car parking space.  These parking spaces are numbered 1 to 33 with the numbers 4, 14 and 24 omitted from the series.

3.  What had happened is that 19 owners of the various flats decided to install in their parking spaces a car-stacking device which provides for two cars to be parked in the parking space, one above the other.  These are familiar enough devices in multi-storey carparks in Hong Kong and can be seen, for example, in the various photographs at pages 25 and 26 of the exhibits bundle.  Once the Lands Department got to know of this, it wrote to the owners of these parking spaces and told them to remove the stacking devices because, according to the Lands Department, they were in breach of the conditions of their leases which only provide for one parking space for each flat and by introducing the stacking devices they had created two parking spaces.  Having received these letters, 18 of the 19 owners removed the “offending” apparatus.  The Plaintiff has stood firm and refuses to remove its device.  It has brought this summons seeking, amongst others, a declaration that by parking a motor vehicle on a stacking device, it would not be in breach of any of the conditions of its lease.  The Defendant is the Secretary for Justice who represents the Director of Lands.

The conditions of the Lease

4.  The property stands on Rural Building Lot No. 1114 and held under a Government Lease which is subject to Conditions of Exchange No. 12323.  The property was built on this land and comprises 30 residential flats.  Special Condition 13(g) specifies that 30 is the maximum number of residential units that can be provided within the building [Exhibits Bundle/004].

5.  Special Condition 15(a), which is what this dispute is all about, in its material terms says this:

“Space shall be provided within the lot to the satisfaction of the Director (of Lands) for the parking of private motor vehicles belonging to the residents of the building or buildings erected or to be erected on the lot and their bona fide visitors at the rate of not more than one space for each private residential unit provided on the lot.” [ExhB/005]

For the sake of completeness, 15(a) also provides that:

“a plan approved by the Building Authority indicating the layout of the parking spaces or car ports or both to be provided within the lot in accordance with Special Condition No. (15) hereof …… shall be registered by the Grantee by memorial in the Land Registry. …… The parking spaces or car ports or both indicated on the said approved plan shall not be used for any purpose other than the purposes set out in Special Condition No. (15) hereof.  The Grantee shall maintain the parking spaces or car ports or both in accordance with the said approved plan and shall not alter the layout except with the prior written consent of the Director.” [ExhB/005]

6.  And so, this is what the developer has built in compliance with the Government Lease and this is what has been conveyed to each purchaser of a flat which, as purchaser, he takes subject to these Conditions of Exchange.

The Stacking Device

7.  As is plain from the photographs that I have referred to in the exhibits bundle the stacking device is positioned within the curtillage of the designated parking spaces.  The device can accommodate two cars.  In order to do so, the top level is lowered to the ground onto which a car can be driven.  This is then mechanically raised, leaving free the ground below for another car to be parked underneath the now raised upper level. [See for example photo 4, at page 25 exhibits bundle]

8.  There is no doubt, therefore, that by using the stacking device, it is possible to park two cars in the space.

9.  It is from this that the argument has proceeded.

What does Condition 15(a) mean?

10.  Mr Jeremy Chan, who appears for the Defendant, submits that the language of the condition could not be more plain.  What has been provided, and what is permitted is one space per residential unit.  By placing a stacking device, what one now has are two spaces which is in breach of the condition.

11.  When I first read Mr Chan’s skeleton argument and considered the wording of Condition 15(a), it seemed to me that the point was unanswerable until, that is, I heard from Mr McCoy SC, on behalf of the Plaintiff.

12.  His argument proceeds in this way.  He says that the space provided, one space per flat, is not a two dimensional area.  What has been allocated and conveyed is a cubic area which is three dimensional.  It is not the ground only (in two dimensions), but the air-space above it up to the ceiling.  In such circumstances, submits Mr McCoy, the Plaintiff and indeed all the owners of these parking spaces, is able to use all of that cubic area for the “parking of private motor vehicles”.  One designated cubic space per residential unit does not mean one private motor car per residential unit.  If that is what the Director of Lands had wished it to mean, he ought to have used different language to make that clear.  There is nothing in the wording of Condition 15(a) which prevents an owner from maximising the capacity of his parking space by the use of this type of stacking device.

13.  In this case, and I do not think this can change the argument, the Plaintiff is content to offer conditions to the parking of a motor car on the stacking device.  It is willing to submit to a condition that it will only park one motor car on the stacking device at any one time.  What is envisaged is that the car will be driven onto the device and then the platform will be raised.  The resulting void below will be left unoccupied and not subjected to any other use.  The reasoning behind this restricted use is that a car parked in this way is at less risk of being stolen and of suffering damage from cars parked in the space next to it when their doors are opened.

14.  Mr Chan’s response to this is that Condition 15(a) restricts the owner of the designated space to just “one space” within the area allocated to him.  The introduction of the stacking device provides, with this model of device, two spaces.  The fact that the plaintiff is willing to submit to a condition that it will only park one motor car at a time cannot avoid the physical evidence that there will be a second space in the void below the raised platform in breach of the agreed term of “one space for each residential unit”.

Conclusion

15.  There really are limits to the extent of the argument and those limits have now been reached.  It seems to me that even though Mr McCoy must be right that what has been sold to the Plaintiff is a three dimensional cubic space, this description of “space” which is the “space … provided within the lot … for the parking of private motor vehicles” does not admit of a construction that the owner can then create, in this case by mechanical device, additional spaces within his space, to park as many vehicles as his mechanical device will accommodate up to the ceiling above.  That construction ignores the numeric restriction of “not more than one space for each private residential unit”.  It seems to me that this “one space” which clearly is a three dimensional cubic space is all that the owner is entitled to.  The introduction of the stacking device has produced two three dimensional spaces when only one (three dimensional) space is permitted.  And so, notwithstanding Mr McCoy’s beguiling argument, I am in no doubt that Mr Chan’s interpretation must be correct.

16.  I expect that Condition 15(a) was drafted well before mechanical stacking devices were brought into Hong Kong and that anyone reading this condition when it was first drafted would have, almost certainly, concluded that “one space for each residential unit” simply meant that an individual flat owner could only park one car in his parking space at any one time.  In the event, the language has, in my judgment at all events, survived the advent of the mechanical car stacking device and with this very useful piece of mechanical invention, Mr McCoy’s highly persuasive submissions.

17.  Mr Chan has pointed out the serious consequences of Mr McCoy’s argument succeeding, where this condition is fairly commonplace in Hong Kong Government Leases.  In the event this summons has had to be decided purely as a matter of construction whatever the consequences might have been had the Plaintiff succeeded.

18.  Accordingly, the Originating Summons must stand dismissed with costs.  Insofar as it is necessary, I am also prepared to make the declaration that follows from its dismissal, as appears in paragraph 18 of the affirmation of Chiu Lee Lee, which is asked for by the Defendant.