陳永堅 AND OTHERS v. 華翠豪園業主立案法團

LDBM 279/2017

[2018] HKLdT 90

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 279 OF 2017

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J U D G M E N T

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1.  This is the 1^st, 2^nd, 5^th to 10^th, and 13^th to 15^th applicants’ (collectively referred to as “the Applicants”) application for an injunction in the following terms:

“An injunction to restrain the Respondent from prohibiting the Applicants and their licensees from parking their registered licensed vehicles in their respective car-parking spaces in Covent Garden, namely: Nos 16, 17, 34, 44, 53, 54, 65, 75, 77 on Basement 1 and Nos 98, 124, 125, 129, 161, 164 on Basement 2, irrespective of whether they are a resident or an occupier of any residential units of Covent Garden.”

2.  The Applicants’ counsel, Mr Chok, confirmed the Applicants do not seek any declaratory relief.

3.  By way of consent summons dated 16July 2018, the 3^rd, 4^th, 11^th and 12^th applicants discontinued the action against the respondent.

4.  There are no factual disputes between the parties and no oral evidence was given at the trial. The parties agreed that the dispute is one of law only, namely the proper interpretation of the Special Conditions attached to the Government Grant.

BACKGROUND

5.  I set out the undisputed salient facts of the case below.

6.  The Applicants are owners of various car parking spaces in Covent Garden. Covent Garden consists of 2 blocks with a total of 176 car parking spaces. The car parking spaces are located in the basement level of the estate.

7.  The Applicants’ respective ownership of car parking spaces is set out below:

Applicant	Car parking space	Date of purchase (date of assignment)
1st applicant	No 65:  Basement 1	30/9/2015
2nd applicant	Nos 54, 75, 77: Basement 1 No 124: Basement 2	21/3/2017 (No 54) 28/11/2016 (Nos 75, 77, 124)
5th applicant	No 164: Basement 2	10/10/2015
6th applicant	No 161: Basement 2	10/10/2015
7th applicant	No 53: Basement 1	30/9/2015
8th applicant	No 44: Basement 1	30/9/2015
9th applicant	No 34: Basement 1	30/9/2015
10th applicant	Nos 16 and 17: Basement 1	15/10/2015
13th applicant	No 98: Basement 2	30/9/2015
14th applicant	No 129: Basement 2	30/9/2015
15th applicant	No 125: Basement 2	10/10/2015

8.  The Applicants are not residents, tenants, licensees, or visitors of any residential units of the estate. Furthermore, they do not hold any beneficial interest in any residential unit of the estate. In summary, at all material times, the Applicants were merely owners of their respective car-parking space(s).

9.  It is not dispute the management company of the estate, Hong Yip Service Company Ltd (“Hong Yip”) refused to allow the Applicants to park their cars in their respective car parking spaces. It was also revealed that as early as 21 October 2014, Hong Yip had issued a notice to all owners of residential units reminding them clause 5.3.1 of the deed of mutual covenant (“the DMC”) only permits the residents and their visitors to use the car parking spaces.

10.  Mr Chok, for the Applicants, does not dispute clause 5.3.1 of the DMC (“Clause 5.3.1”) prohibits non-residents or those whom are not visitors of the residents from using the car park. However, the Applicants contend the DMC is in breach of the Special Conditions of the Government Grant by omitting to allow “occupiers” of the building to use the car parking spaces.

11.  The Applicants filed their Notice of Application against the respondent on 28 December 2017. The Notice of Application was subsequently amended by the Applicants’ solicitors on 13 July 2018. The precise relief sought was not made clear in the Notice of Application but Mr Chok confirmed on the first day of trial the Applicants sought an injunctive relief. Mr Chok further clarified that arguments relating to the Basic Law are now abandoned.

ISSUES

12.  Mr Chok and counsel for the respondent, Ms Wong, have identified 3 issues to be dealt with. Though the issues as identified by them are some of the matters I should consider, I am of the view the real issues of this case are as follows:

1)   Is Clause 5.3.1 in contravention of clause 16(c) of the Special Conditions of the Government Grant (“Clause 16(c) of the Special Conditions”)?

a)   Does Clause 16(c) of the Special Conditions mandate the car parking spaces be used by “residents or occupiers of the building” and their bona fide visitors?

b)   If so:

(i)   what is the meaning of “occupiers” of the building as set out in the Special Conditions?

(ii)   Is the omission of “occupiers” from Clause 5.3.1 in contravention of the Government Grant?

2)   Is the respondent or Hong Yip entitled to refuse the Applicants and/or their licensees from parking in the Applicants’ respective car parking spaces?

DOES CLAUSE 16(C) OF THE SPECIAL CONDITIONS MANDATE CAR PARKING SPACES BE USED BY RESIDENTS, OCCUPIERS OR VISITORS?

13.  Though the whole of clause 16 of the Special Conditions relates to car parking spaces, the relevant sub-clause for the purpose of this case is Clause 16(c) of the Special Conditions, which reads as follows:

“Each space or carport provided under sub-clauses (a) and (b) of this Special Condition shall occupy an area of 5.0 metres x 2.5 metres with a minimum headroom of 2.4 metres and shall not be used for any purpose other than for the parking of licensed private motor vehicles belonging to the residents or occupiers of the building or buildings erected or to be erected on the lot and their bona fide visitors, and in particular the said spaces or carports shall not be used for the storage of motor vehicles not currently licensed under the Road Traffic Ordinance.”

14.  Clauses 16(a), (b), and part of (d) of the Special Conditions are set out below for reference:  

“(a) Spaces or carports or both shall be provided within the lot to the satisfaction of the Director for the parking of licensed private motor vehicles at the rate of not less than one space or carport per private residential unit in the building or buildings to be erected on the lot.

(b) In addition to the spaces provided in the sub-clause (d) of this Special Condition, spaces or car ports or both shall be provided within the lot to the satisfaction of the Director at the rate of one space per ten residential units or part thereof for the sole purpose of parking of licensed private motor vehicles belonging to the visitors of the building or buildings to be erected on the lot. Such spaces shall be non-assignable except in accordance with Special Condition No. (13)(a)(vii) hereof.

(d) The spaces and/or carports to be provided pursuant to the sub-clauses (a) and (b) of this Special Conditions may be accommodated in vehicle carparking building or building separate from and not forming an integral part of any private residential building or buildings to be erected on the lot. Any carport provided in accordance with this sub-clause will be taken into account for the purpose of calculating the total gross floor area and total site coverage referred to in the Special Condition No. (5)(c) and (d) hereof . . .”

15.  I also set out Clause 5.3.1 of the DMC which states:

“The Car Parking Spaces shall only be used for parking licensed private motor vehicles registered under the Road Traffic Ordinance and belonging to the residents of the Buildings or their bona fide visitors or invitees and no structure or partitioning shall be erected thereon and no goods or any other things whatsoever may be placed or stored thereon without the prior written consent of the Manager.”

16.  I have considered the submissions of counsel and the authorities cited. I shall only deal with the salient points raised.

17.  In short, the Applicants argue Clause 16(c) of the Special Conditions “governs the dimension and the user” of the car parking spaces of Covent Garden and the said clause expressly allows “the residents or occupiers of the building or buildings erected or to be erected on the lot and their bona fide visitors” to use the car parking spaces. Mr Chok submitted the Applicants by virtue of having exclusive use and possession over their respective car parking spaces, are “occupiers of the building”. Hence Clause 16(c) of the Special Conditions allow the Applicants to use the car parking spaces. However, Clause 5.3.1 has omitted “occupiers of the building” as a class of persons allowed to use the car parking spaces and has therefore prohibited the Applicants’ use of the car parking spaces. This prohibition is contrary to Clause 16(c) of the Special Conditions and therefore the DMC is in contravention of the Special Conditions.

18.  I am unable to accept the Applicants’ argument.

19.  On a proper reading of Clause 16(c) of the Special Conditions, the clause does not confer the right on specific classes of persons (residents, occupiers and bona fide visitors) to use the car park, and does not mandate the residents, occupiers, and bona fide visitors be conferred with the right to use the car park. Rather, Clause 16(c) of the Special Conditions is a prohibition clause prohibiting the use of the car parking spaces by persons outside the specified classes of persons. Though the difference is subtle, the distinction is important.

20.  If Clause 16(c) of the Special Conditions expressly stipulates that residents, occupiers and bona fide visitors must be allowed to use the car park, the denial of the right to use the car park of those persons will no doubt be a breach of the Government Grant. In such circumstances, the Applicants’ argument would stand.

21.  However, Clause 16(c) of the Special Conditions merely prohibits persons who are not residents, occupiers or bona fide visitors from using the car park. The clause itself does not dictate the restricted classes of person be limited only to those outside these 3 classes of persons. Furthermore, there is no clause in the Government Grant that limits the restricted classes of person from using the car parking spaces only to those falling outside the 3 classes of persons listed. If the co-owners agreed to restrict further classes of persons, there is nothing in the Government Grant that prohibits this. This means, that if more persons were restricted from using the car parking spaces than envisaged by the Government Grant, so long as the persons prohibited include those set out in the Special Conditions, there cannot be said to be any contravention. There would only be a contravention if those persons excluded in the Special Conditions were allowed to use the car parking spaces.

22.  Whether the group of excluded persons can be enlarged or not will depend on the agreement between the co-owners of the building. The Government Grant is a contract as between the government and the first owner of the land and is only meant to set out the conditions of the use of the land. The Government Grant is not meant to set out in minute detail the matters relating to management of Covent Garden. Matters relating to management of a building between co-owners are done by regulated by the DMC.

23.  As can be seen in Clause 13 of the Special Conditions, it was envisaged by the Government Grant that the co-owners of the building would enter into a DMC to be approved by the Director of Lands. If the co-owners agree to restrict the group of persons permitted to use the car parking spaces, as long as such restriction is in line with the Special Conditions and the restriction on users of the car parking spaces encompasses those prohibited by Clause 16(c) of the Special Conditions, I see no reason and no authority to the contrary as to why the co-owners should not be allowed to do so.

24.  I further note the DMC has been approved by the Director of Lands and there is no evidence that there has been any objection from the Director on Clause 5.3.1 or any concerns raised that such clause breaches the Special Conditions.

25.  For reasons given above, I am of the view that on a proper reading of the Special Conditions, even if assuming for the sake of argument the Applicants were considered “occupiers of the building” as per the Special Conditions (which I do not for reasons set out in the section below), Clause 5.3.1 does not contravene Clause 16(c) of the Special Conditions.

26.  For sake of completeness I shall set out my reasons on why I do not accept the Applicants fall within the definition of “occupiers of the building” of the Special Conditions.

WHETHER THE APPLICANTS ARE “OCCUPIERS OF THE BUILDING” AS PER CLAUSE 16(C) OF THE SPECIAL CONDITIONS

27.  Mr Chok conducted a detailed analysis on the interpretation of “occupier of the building” in the context of the Special Conditions. He analysed the meaning of “occupier” using various tort related authorities and submitted “occupier” refers to those whom have sufficient degree of control of the premises.  With reference to the Buildings Ordinance (Cap 123), the Buildings Management Ordinance (Cap 344), and to other clauses in the Special Conditions, Mr Chok argued the word “building” or the phrase “buildings erected or to be erected on the lot” includes car parking spaces. I do not intend to set out his arguments in full. Suffice to say, I do not accept his arguments.

28.  I reject Mr Chok’s approach in interpreting the phrase “occupiers of the building” by taking apart all words and giving an abstract definition, void of context, to each word then adding the sums of the parts to reach a conclusion.

29.  The phrase “occupiers of the building” cannot be looked in isolation. The persons described in Clause 16(c) of the Special Conditions are “the residents or occupiers of the building or buildings erected or to be erected on the lot and their bona fide visitors”. This description must be referring to the following persons:

1)   Residents of the building or buildings erected or to be erected on the lot;

2)   Occupiers of the building or buildings erected or to be erected on the lot; and

3)   The bona fide visitors of the residents or occupiers of the building or buildings erected or to be erected on the lot.

30.  The word “building” must have one meaning consistent throughout Clause 16(c) of the Special Conditions. It would be absurd to suggest that the word “building” in the phrase “the residents or occupiers of the building or buildings erected or to be erected on the lot and their bona fide visitors” has multiple meanings depending on context. Hence, if one accepts that when referring to the residents of the building, “building” is a reference to the residential units and not the car park, one cannot turn around to say that when interpreting the “occupiers of the building”, the reference to the “building” can now include the car parking spaces.

31.  If the Applicants’ interpretation of the meaning “occupiers of the building” is adopted, “the residents of the building or buildings erected or to be erected on the lot” must mean the residents of the building including the residents of the car parking spaces are included. No doubt such an interpretation leads to the absurd conclusion that one may reside in their car parking space.

32.  The fallacy of the Applicants’ argument is that to include the reference to car parking spaces in the interpretation of Clause 16(c) of the Special Conditions, the word “building” must either have more than one meaning in the same sentence or, if one singular meaning of “building” is adopted, the definition or meaning of the word “building” as proposed by the Applicants’ would lead to an absurd result when reading the sentence as a whole. Hence the Applicants’ argument is fundamentally flawed and cannot be correct.

33.  This of course then begs the question: to whom is the reference “occupiers of the building” meant to refer to if not persons such as the Applicants?  The answer can be found in Clauses 10(a) and (b) of the Special Conditions[1] where the said clauses permit the provision of watchmen’s or caretakers’ office accommodation and quarters. If such quarters are erected and used, persons staying in such quarters would naturally become the “occupiers of the building” as they would not be classified as residents, or their visitors. I believe that in that context, the reference to “occupiers of the building” was drafted into Clause 16(c) of the Special Conditions to cover persons such as those whom may be in occupation of an accommodation unit which is not classified as a residential unit.

34.  In the course of the trial hearing, counsel argued whether, in interpreting the Clause 16(c) of the Special Conditions, the tribunal should have regard to the letter dated 3 January 2017 from the District Lands Office which states, inter alia:

“In a nutshell, it is the intention of the Government that the car parking spaces on the Lot shall only be used by the residents of the residential units of [sic] building on the Lot and their visitors.”

35.  The Applicants disputed the admissibility of such letter, despite having been the ones to disclosed it and having annexed it to their Notice of Application. After hearing arguments from both sides, I ruled the letter to be admissible.

36.  As for the weight of the letter, I have not felt the need to rely on the same in arriving at my conclusion on whether the reference to “occupiers of the building” in Clause 16(c) of the Special Conditions meant to encompass the Applicants. I am of the view that the proper reading of Clause 16(c) of the Special Conditions would lead to the conclusion that the said clause does not seek to include persons whom do not occupy any residential or accommodation units in the permitted users of the car parking spaces.

37.  Hence I am of the view the true meaning of “occupiers of the building” refers to those in occupation of the residential units or accommodation units of Covent Garden, and not a reference to persons such as the Applicants.

IS THE RESPONDENT OR HONG YIP ENTITLED TO REFUSE THE APPLICANTS AND/OR THEIR LICENSEES FROM PARKING IN THE APPLICANTS’ RESPECTIVE CAR PARKING SPACES?

38.  By reason of the matters set out above, I find Clause 5.3.1 is not in contravention of Clause 16(c) of the Special Conditions of the Government Grant.

39.  The question posed by the Applicants is therefore answered as follows:

In so far as the Applicants and/or their licensees are not residents, or visitors of the residents, or the invitees of the Building, the respondent and Hong Yip are entitled to enforce the DMC provisions against them.

40.  Hence, if the Applicants later become residents, visitors of the residents of the building, or the invitees of the residents of the building, they should be allowed to use the car parking spaces. The same is also true of their licensees. If their licensees are either the residents of the building, or visitors of the residents of the building, or the invitees of the residents of the building, they should be allowed to use the car parking spaces.

SUMMARY

41.  By reason of the matters set out herein, I dismiss the Applicants’ application with costs. I make a costs order nisi that the Applicants do pay the respondent’s costs of this action to be taxed if not agreed on the District Court scale, with certificate for Counsel. Unless any party applies to vary the costs order within 14 days hereof, the costs order shall become an order absolute.