LATANGAN CO LTD v. CHU YIP SING

DCCJ3373/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3373 OF 2008

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D E C I S I O N

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1.  The plaintiff applies for final judgment and an injunction against the defendant for parking a lorry in the defendant’s own parking space in a private estate.

2.  The plaintiff is a management company appointed as the manager of the estate known as Chevalier Garden in Shatin under a DMC dated 15 September 1987.  The plaintiff claims that the defendant is in breach of the DMC for parking a lorry on the carparking space which was meant for a private car only.  Because the lorry is longer than the parking space itself, the lorry had protruded beyond the marked carparking-space area by about 2 feet.  The plaintiff claims the defendant has caused an obstruction of the common area.

3.  The plaintiff took out a summons on 23 October 2008 under Order 29 Rules 1 and 7 because the defendant had failed to file an acknowledgement of service up to 22 October 2008.  In fact, the Defendant did not file the acknowledgement until 12 November 2008 of the writ with a general endorsement dated 2 August 2008.  The plaintiff issued a summons for final judgment on 23 November.

4.  The statement of claim was filed by the plaintiff on 3 October 2008.  I understand from the body of the summons taken out by the plaintiff on 23 October 2008, it is asking for judgment in default of acknowledgement and in default of defence.

5.  The defendant’s solicitor filed a notice to act on 22 October 2008 and took out the summons for extension of time to file a defence and counterclaim with an additional application to join as a co-defendant the defendant’s brother who is the owner of the lorry.  This summons was adjourned by Master Lo on 12 November 2008 until after the resolution of today’s summons, probably because of the inclusion of the defendant’s summons of 22 October 2008 for the joinder of party.

6.  The defendant filed his affirmation on 26 November 2008, one day after the 14 days allowed under the order of Judge Mimmie Chan of 10 November 2008.  The defendant, however, did serve a copy of the affirmation before filing on the plaintiff on 25 November 2008 and notified the plaintiff that the defendant would file the affirmation the next day.

7.  At the beginning of today’s hearing, the plaintiff did not raise any issue as to the late filing of the defendant’s affidavit.  The affidavit was relied on by the defendant in Mr Jim’s submissions today.  Mr Jim is the legal representative of the defendant.

8.  Mr Chan, the legal representative of the plaintiff, raised the issue of late filing in his reply.  Under the circumstances, I think the defendant should be given leave to rely on his affidavit, he had given the plaintiff ample notice of it, though the defendant had failed to apply to court for leave to file it out of time.  Since it is only one day out of time, I would allow the defendant’s affidavit to be used at today’s hearing.  I will entertain an application on costs because of this failure on the defendant’s part.

9.  The defendant’s affidavit and Mr Jim’s submission both raised issues of law in the defendant’s defence.  These included the question of whether the rules imposed by the manager were based on proper authority under the deed of mutual covenant and the action taken by the plaintiff of impounding the defendant’s brother’s lorry was a legal act or not.

10.  The defendant further deposed to the fact that his brother, who is also a resident in his property, had been parking his lorry in the same carparking space in the previous 18 years, and there had been no complaints he knew of before the plaintiff took action in January 2008 to impound the lorry; further, that the plaintiff had allowed other lorries and trucks to be parked in the same manner in other carparking spaces in the same parking lot.

Findings

11.  After hearing both parties and reading their respective affidavits and affirmations, I find the defendant has raised a valid, proper and good defence in law.  He should be allowed to contest the plaintiff’s claim at the trial.  I find it most intriguing when the plaintiff claimed the defendant’s lorry to be obstructing the common area, yet all the plaintiff did was to lock up the tyres of the lorry, forbidding the lorry to be moved and the lorry remained in the same carparking space for over 11 months in 2008.  If it caused an obstruction, it would have been, one would expect, removed, and this power of removal is a power authorised under the DMC.

12.  Secondly, if it was an obstruction of the common area, why should the plaintiff allow other lorries to be parked in the same parking lot in the similar manner?  And further, why was the defendant allowed to park the lorry there in the last 18 years before January 2008?

13.  I find a defence in law has been raised by the defendant and these are issues that should be considered by the judge at trial.  The DMC should be carefully examined at the same time.

14.  For the aforesaid reasons, I dismiss the plaintiff’s application.

(Discussion re costs)

15.  The plaintiff’s summons is dismissed.  Costs of the plaintiff’s summons in the cause; costs of today be to the defendant in any event except for costs of the defendant’s affirmation filed without leave on 26 November 2008; costs of today to be taxed if not agreed.