LEUNG WING IM v. YU TIE QIANG

HCA3939/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.3939 OF 1998

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J U D G M E N T

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1. Mr Leung Wing-im, the Plaintiff, is at his late seventies. He is the owner of No.8 Upper Kai Yuen Lane, G/F. He has been the owner since the original development of the property of Block A since 1970.

2. The Defendant, Mr Yu Tie-qiang, has been the owner of No.2, 5/F since 1987. When he purchased his property, he understood that his predecessor had been parking his car in front of the building on the right-of-way. There had been two other cars parked in the same right-of-way, making a total of three cars.

3. In this action, Mr Leung sued Mr Yu for parking his car on the common part of the building. The Statement of Claim was quite incomprehensible, one can only deduce from the evidence and all the papers before the Court that Mr Leung is complaining that Mr Yu was in breach of the Deed of Mutual Covenant dated 8 April 1970. It was provided in Clause 9(e) that :

"9. Each party hereto covenant with the other of them as follows:

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(e) Not to place anything 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."

4. In this case, there is no dispute of facts between the parties. Mr Leung agreed that between 1970 and 1987, he has not raised any objection to the predecessor of Mr Yu for parking his car at the same lot on the right-of-way. Between 1987 and 1994 when Mr Yu became, for the first time, the chairman of the Incorporated Owners, Mr Leung had not raised any objection to Mr Yu's aforesaid parking of his car on the right-of-way. Between 1994 and 1998, shortly before the writ was issued, Mr Leung had not raised any objection to Mr Yu either until he complained to the District Office shortly before the writ was issued in March 1998. In other words, no complaint has been laid by Mr Leung for the whole 28 years period and for 11 years since Mr Yu has become the owner of his flat.

5. Mr Yu said that the reason Mr Leung suddenly in 1998 raised his objection was because of an incident in 1997 concerning a television and video set erected by Mr Leung at the entrance hallway opposite to his entrance before the staircase. Apart from occupying a common part of the building, Mr Leung used to play on the video obscene video tape which his upper storey neighbour Madam Lee described as Category IV or V material. Mr Leung apparently did not dispute such publication and he only said that what other people considered to be obscene, he considered them to be works of art. The playing of the video in the public part has attracted workers and bystanders to watch, thereby obstructing Madam Lee's free and unhindered access to her premises on the upper floor. This case however is not concerned with the content of the video.

6. Mr Yu testified that he has obtained verbal confirmation from Mr Leung that the Incorporated Owners could remove his television and video set whilst he was away in Shenzhen. In fact, Mr Leung used to live in Shenzhen and he only occupied a bed space in his own flat whilst the rest was rented out to his tenant. Thereafter Mr Leung complained that he had lost 30 tapes. (There is no claim for these tapes in the Statement of Claim but Mr Leung just raised his claim therefor in his statements. In order to avoid any further litigation, I would just like to add that I believe Mr Yu and his witness, Mr Sze, another owner and committee member, who was also present at the aforesaid removal. Mr Leung's claim therefor, if any, must be dismissed.)

7. Upon perusal of all the documents before me including statements made by various witnesses who testified before the Court, I come to the firm conclusion that Mr Leung's inaction for all these 11 years and 28 years vis-à-vis Mr Yu and his predecessor must be considered as having waived his right under the Deed of Mutual Covenant or otherwise estopped from enforcing this right.

8. Further, Mr Yu produced a minute of the Incorporated Owners dated 2 April 1995 by which it was resolved that all occupation of the car parking space on the right-of-way by the present owners would be connived by the Incorporated Owners until the present owners moved out of the flat. The parking lot would be repossessed by the Incorporated Owners when the owner sold his flat and moved out and no new owner would be allowed to occupy such parking lot. In fact, in October 1997, when the owner of the two other cars moved out, the two lots were recovered and new owners were not allowed to park on such lots. This was announced in the General Meeting of the Incorporated Owners in November 1997. No other owners have raised any objection thereto.

9. Accordingly, Mr Leung's action must be dismissed with an order nisi of costs against the Plaintiff, to be taxed if not agreed.