SINO PARKING SERVICES LTD v. LAW WEI

DCCJ 4702/2021

[2022] HKDC 857

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4702 OF 2021

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BETWEEN

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DECISION

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Introduction

1.  Before me is the plaintiff’s summons for judgment and declaratory reliefs under Order 13 rule 6 and Order 19 rule 7 of the Rules of the District Court.

2.  At the hearing on 4 August 2022, I granted the judgment and declaratory reliefs sought by the plaintiff. Here are my reasons.

Legal principles

3.  In an application under Order 19 rule 7, the court cannot receive any evidence in cases hereunder, but must give judgment according to the pleadings alone: see Hong Kong Civil Procedure 2022 Vol 1 at 19/7/11.

4.  It is not the practice of the court to make a declaration of right in default of defence, or on admissions or by consent but where such relief is to be granted without trial or evidence, the right course for the court is not to make a declaration but to state on what footing the relief is to be granted: see Hong Kong Civil Procedure 2022 Vol 1 at 19/7/14.

5.  The declaratory reliefs to be granted should not be in terms wider than what the plaintiffs are entitled to and what is necessary to do justice to them: see Hong Kong Civil Procedure 2022 Vol 1 at 19/7/20.

Service

6.  The amended writ of summons was served on the defendant on 26 January 2022 by substituted service pursuant to the order of Master Jocelyn Leung dated 29 December 2021.

7.  The present summons was served on the defendant on 29 April 2022 to the 3 usual and last known addresses of the defendant.

8.  I am satisfied that the defendant has had due notice of the present proceedings and summons but has chosen not to appear.

The plaintiff’s pleaded case

9.  The plaintiff is and was the operator of parking services at the car park in Jumbo Court, No 3 Wai Fook Road, Aberdeen, Hong Kong (“the car park”).

10.  The car park provides spaces for the parking of vehicles charged at hourly and monthly basis subject to the terms and conditions as promulgated and contained in the Conditions of Parking (“the conditions”) which stands as a notice billboard (in English and Chinese) at the entrance of the car park. The users of the car park should have accepted or deemed to have accepted the conditions before a licence or permit is granted by the plaintiff to them for using the car park.

11.  The defendant is the registered owner of private cars bearing registration Nos 007 HK and GP3380 (“the cars”).

12.  On diver dates since 25 June 2020, the defendant parked the said 2 cars in the car park and remained therein without checking out.

13.  Clause 4 of the conditions provides that motor vehicles parked in the car park shall accrue parking charges for the time being in force, which are as follows:-

Effective date	Monday to Friday (per day)	Saturday/Sunday/ holidays (per day)
Before 1.12.2020	$75	$105
1.12.2020 to 12.9.2021	$82	$110
13.9.2021 to present	$95	$115

14.  Clause 6 of the conditions provides that the plaintiff shall have a general lien upon, on the right of retention, of any motor vehicle together with all its accessories and contents until all sums due to the plaintiff have been repaid.

15.  Clause 7 of the conditions provides that on default of payment of any sum payable by the owner/user of any motor vehicle within 7 days of a demand, or in the event of any motor vehicle being parked in the car park for a continuous period of 32 days or more and the plaintiff having given 7 days’ notice of its intention to sell such motor vehicle should the same not be removed from the car park, the property in the relevant motor vehicle shall automatically pass to the plaintiff who shall upon the expiry of the 7 days period be entitled to sell such motor vehicle and/or its accessories or contents by whatever means it deems fit and to recover from the proceeds of sale any moneys due to the plaintiff together with its costs and expenses incurred (including legal fees).

16.  Clause 8 of the conditions provides that the balance of the proceeds of sale shall be held by the plaintiff and the plaintiff shall not be accountable to any person for such balance unless within 30 days after the date on which the motor vehicle is sold any person satisfies the plaintiff that at the time such motor vehicle became the property of the plaintiff, he was the proper legal owner of such vehicle, the plaintiff shall pay such balance to such person without interest.

17.  Clause 18 of the conditions provides that the plaintiff shall have the authority to impound or tow away vehicles that are in breach of any terms in the conditions.

18.  Up to 30 September 2021, the defendant has failed to pay the parking charges incurred:-

Registration No	Parking period	Parking charges
007 HK	25.6.2020 to 30.9.2021	$41,293
GP3380	5.7.2020 to 30.9.2021	$40,393
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	Total:	$81,686

19.  Pursuant to clause 7 of the conditions, the plaintiff on diver occasions sent letter to the defendant demanding payment of the parking charges.

20.  By a letter dated 28 September 2021, the plaintiff through its solicitors gave notice to the defendant of its intention to sell the vehicles upon the expiration of 7 days from the date of the notice unless the arrears of parking charges are paid off and the vehicles are removed from the car park.

21.  No action was taken by the defendant in response to the said notice.

Money judgment

22.  The facts pleaded in the statement of claim are not controverted, I accept them at its face value.

23.  I am satisfied that the plaintiff is entitled to judgment on the arrears of parking charges in the sum of $81,686 together with interest at the rate of 6% per annum from 1 October 2021 to the date of judgment and thereafter at judgment rate to the date of payment.

24.  The plaintiff is also entitled to further parking charges from 1 October 2021 until such day the cars are removed from the car park at $95 per day from Mondays to Fridays per car and at $115 per day for Saturdays, Sundays and public holidays per car.

Declaratory reliefs

25.  The conditions were posted up as a notice billboard at the entrance of the car park. Anyone entering the car park should have notice of the conditions. I am satisfied that the conditions have been incorporated into the licence to the users of the car park.

26.  By virtue of clause 7 of the conditions, the property in the cars passes to the plaintiff should the defendant fail to remove them from the car park upon the expiry of the 7 days’ notice dated 28 September 2021 and the plaintiff is entitled to sell the cars. The proceeds of sale shall be applied to pay off the parking charges due to the plaintiff together with its costs and expenses incurred (including legal fees).

27.  By virtue of clause 18 of the conditions, the plaintiff is entitled to impound and tow away the cars.

28.  By virtue of clause 8 of the conditions, the plaintiff shall hold the balance of the proceeds of sale and pay the same to the legal owner of the cars within 30 days of the sale.

29.  I am satisfied that those are the rights which the plaintiff is entitled to exercise due to the fault of the defendant and are necessary in order to do justice to the parties.

30.  Accordingly, I granted the following declaratory reliefs as sought by the plaintiff:-

(1) a declaration that the property in the cars passes to the plaintiff and the plaintiff is entitled to dispose of them (or each of them) by sale and to apply the proceeds of sale in each of them towards settlement of (a) arrears of parking charges due on the cars under paragraphs 23 and 24 above; (b) reasonable costs of the sale; and (c) the costs of this action in the sum of $50,000;

(2) a declaration that the plaintiff shall have the authority to impound and to tow the cars or any of them away from the car park to such places as the plaintiff deems fit; and

(3) a declaration that the plaintiff shall hold the balance, if any, of the proceeds of sale, account for, and pay over the same without interest to any person(s) who prove(s) to the plaintiff’s satisfaction within 30 days after the sale that it/they was/were the proper legal owner(s) of such of the cars when the same became the plaintiff’s property/properties.

Costs

31.  By summary assessment, I order the defendant to pay the plaintiff the costs of this action including this application in the sum of $50,000.