INCORPORATED OWNERS OF WAH KIN MANSION v. HONG KONG GROUTING CO LTD AND ANOTHER

LDBM 74 OF 2002

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 74 OF 2002

_______________

_______________

________________

J U D G M E N T

_________________

1. The subject-matter is a section of the rear lane between two buildings. It is not in dispute that the Respondents have been using that section of rear lane to park their vehicles for quite some time. Mr. Yau, counsel for the Applicant, made his position clear that despite what is pleaded in the Application the applicant is now not seeking recovery of possession of any part of the rear lane but merely seeking an injunction and damages.

2. The Respondents are strangers to the DMC and the cause of action against them lies in trespass. Initially I had some reservation about the jurisdiction of the Lands Tribunal in this matter of trespass. Parties did not raise the question of jurisdiction and on the other hand it is trite law that jurisdiction cannot be conferred on this Tribunal by consent. In these circumstances it is incumbent upon me to deal with the jurisdiction point.

3. Until quite recently, it had long been the practice of this Tribunal to decline jurisdiction in similar cases as this one. In 九龍漆咸道27號A業主立案法團 V 李先生或非法佔用人( LDBM 481 of 2000 (Review)), an owners incorporation sought to evict squatters on the roof top which was the common area. H H Judge Chow dismissed the claim on the ground that this Tribunal had no jurisdiction. This decision was reversed on appeal.

4. As can be seen clearly from the judgment of H H Judge Chow in the review, there was only one issue before him, namely, whether section 34I of the Building Management Ordinance applied to the squatters. If one looks at the legislative history of the Building Management Ordinance and its present context, one can see clearly that this ordinance was intended to tackle the problems associated with building management. One of its objects was to regulate the rights among owners within the building and those entities closely related to the management of the building. Another object of the ordinance was to enable disputes in building management to be resolved expeditiously, utilising the informal and simple procedure of this Tribunal. Indeed section 45 restricted the right to commence proceedings in this Tribunal to certain categories of persons. These persons are either owners or those closely related to building management of a building. For instance squatters do not fall within any of these categories and are thereby precluded from commencing proceedings in this Tribunal. All these must have been in the mind of the learned Judge in九龍漆咸道27號A業主立案法團 V 李先生或非法佔用人(LDBM 481 of 2000 (Review)) when he ruled that the term "Any person" in section 34I should not be interpreted literally as to include squatters. The learned judge also pointed out the absurdity if the term "Any person" was to be interpreted literally. Section34C provides in effect that section34I applies only to a building which has a DMC. That being the case section 34I would have applied to squatters when the building has a DMC but would not have so applied if the building has no DMC. There is no logical reason why the legislature intended to treat these two kind of buildings so differently. This is the absurdity pointed out by H H Judge Chow and on which the Court of Appeal expressed no view when disagreeing with the learned judge.

5. The Court of Appeal when overturning the decision of H H Judge Chow adopted the literal approach in interpreting the term "Any person" and gave only one reason and it was for the same reason that the Court of Appeal disagreed with H H Judge Chow. Cheung J. A. delivering the judgment of the court said if H H Judge Chow was right, that would mean the an owners incorporation would have been left without recourse against squatters. It is quite difficult to see how the Court of Appeal could have come to such a view on H H Judge Chow's ruling. H H Judge Chow said nothing of the sort. On the contrary he said the owners incorporation in the case could have sued, albeit in other courts, the squatters on some other legal basis than section 34I (para 5.7). The scenario which Cheung J A mentioned, namely that the owners would have been left with no recourse against squatters if section 34I did not apply to them, was not quite real. The reason for the Court of Appeal to disagree with H H Judge Chow was not quite apparent or easily understood. Be that as it may, the ruling of the Court of Appeal is quite clear that section 34I applied to squatters or strangers to the building or to the DMC in all cases. This decision of Court of Appeal is binding on this Tribunal and it is not for this Tribunal to question the reason given by the Court of Appeal. This Tribunal can only analyse the reasons behind the decision in so far as to see it the decision can be distinguished from the instant case. My conclusion is that it cannot be so distinguished. The inevitable result is that section 34I applied to the Respondents and this Tribunal has jurisdiction in the dispute between the parties in this case.

6. Mr.Vrijmoed, counsel for the Respondents quite rightly pointed out that one of the main issues is whether that the section of the rear lane in fact lies within the boundary of the lot of land of which the owners of the building owned an undivided share. The Applicant called a surveyor who gave an expert opinion on the boundary line. He explained how he arrived at his opinion, describing the maps, drawings, plans in the public record and the use he made of them. In particular he took into consideration of the location of the building in question and the history of development of the neighbourhood. Without calling any evidence, Mr. Vrijmoed suggested in effect that the lot of land in question is bounded by the building line so that no part of the rear lane which the Respondents had used for parking lied within the land owned by the owners. He criticised the expert for not producing copies of some of sketches and plans he had worked with. I agree that it would be better if those plans were available to the defence. However Mr. Vrijimoed declined my invitation and made no application for the production of these documents. Looking at the evidence before me, I am satisfied that the expert is an honest and reliable witness. I accept his evidence and find that the section of rear lane in dispute lies within the land owned by the owners of Wan Kin Building.

7. The Respondents claimed that they have been in adverse possession of the rear lane including that section of the rear lane owned by the owners of Wah Kin Building. They counter-claim for declaration of their title to the rear lane. Irrespective of the merits, the counter-claim must be dismissed for want of jurisdiction. This Tribunal has no jurisdiction to make such determination and declaration of title.

8. However when adverse possession is raised in the defence, it is convenient, if not strictly necessary to deal with it. The Respondents called evidence that they had been using the rear lane to park their vehicles continuously for over 20 years before the present proceedings were taken out. To ensue they could convert the rear lane to their exclusive use for parking vehicles, they bored holes on the ground which housed metal bars with locks to prevent access of other vehicles. I am satisfied that such practice was indeed carried out and effectively carried out by them for 20 years notwithstanding the criticism by the Applicant's counsel that they failed to produce title documents of vehicles they owned during this period. The rear lane is always subject to pedestrians' right of way. Taking that into account, I am satisfied that the Respondents were in factual possession and had the requisite intent to do so during this period as to merit a finding of adverse possession. However, I am bound by the authority of The Incorporated Owners of Man Hong Apartments V Kwong Yuk Ching and anr (C ACV498/2000). Mr. Vrijmoed sought to distinguish it on the ground that the Respondents here were not bound by the DMC. I do not accept this argument. In the case of The Incorporated Owners of Man Hong Apartments, the Court of Appeal clearly stated that as the negative covenants in the DMC ran with the land, the covenants would bind any one except purchaser for value without notice. The Respondents were therefore bound even if they had acquired a squattors' title. Another argument by Mr. Vrijmoed was that S34I did not apply to the Respondents. The Court of Appeal in both cases that I have referred to earlier was of the contrary view. That being the case the defence of the Respondent failed.

9. Mr. Vrijmoed indicated that should I find against the Respondents injunction orders are not necessary because they would abide by my ruling. This falls short of undertaking necessary to take the place of injunction order. Looking at all material before me I do not see any reasons why I should not grant the injunctions asked for by the Applicant. I hereby grant the injunction restraining the Respondents from converting to their own use the part of rear lane in question.

10. Mr. Yau, counsel for the Applicant, also asked for damages and or mesne profits for the period the Respondents admitted they had been using the rear lane. The evidence he called is of no value, if admissible at all. His attention was drawn to that at the hearing. He submitted if I were not satisfied with the evidence as to damages, I should give an order for assessment of damages. I told him my view in order to invite further argument of his suggestion. He did not address the difficulty and query I asked him to deal with but merely repeating it was within my jurisdiction to make an order for damages to be assessed in case I were to find the evidence unsatisfactory . I am still of the view that no such order for damages should be given. There had been no previous order or directions to split the trial into two parts. It is wholly unsatisfactory that I should give the Applicant a second bite of the cherry when the evidence adduced failed to prove what the amount of damages or mesne profits should be. I refuse to make order for damages to be assessed. Incidentally, if I were to make such order, it would be tantamount to allowing the Applicant to reopen its case. I order no damages /mesne profits.

11. I now also made an order nisi for costs in favour of the Applicant to be taxed if not agreed. The order nisi be made absolute in 6 weeks.