WELL BORN REAL ESTATE MANAGEMENT LTD v. TO WAI KUEN

LDBM 315/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 315 OF 2014

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J U D G M E N T
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1.  The Applicant is the estate manager of Granville Garden situated 18 Pik Tin Street, Tai Wai, New Territories, Hong Kong (“the Estate”). By way of a Notice of Application taken out on 23 October 2014,it applies for an order for declaration andinjunction mainly to restrain the Respondent from doing acts in contravention to the provisions in the relevant Government Grant and the deed of mutual covenant (“the DMC”).

2.  The Respondent has not responded to the proceedings.  No Notice of Opposition has been filed and he was absent throughout.  Having read the affirmations of the Applicant, I am satisfied that relevant documents had been served on him.  The trial therefore proceeded in his absence.

Evidence of Mr Choi Ka Kuen

3.  Mr Choi is Property Manager of the Applicant.  It is his evidence that since 1997 the Applicant has been the appointed estate manager pursuant to the DMC and responsible for the management of the Estate. The Respondent is the registered owner of Car Parking Space No.104 on Level 1 of the Estate (“CPS L1-104”).  He isalso the registered ownerof a motorcycle bearing registration mark MX4657 (“the Motorcycle”). It is said that since July 2013, the Respondent has been parking the Motorcycle together with a private car on CPS LI-104 or outside CPS L1-104 which is common part of the Estate.

4.  Mr Choi said that such conduct is in contravention of Special Condition 23(a) of the Government Grant which providesthat the car parking space shall not be used for any purpose other than for the parking ofprivate motor car registered under the Road Traffic Ordinance. Section 2 of the Road Traffic Ordinance Cap. 374, clearly defines that private car does not include a motor cycle.

5.  Further Clause 2, Part C of Section IV of the DMC providesthat no owner shall use or permit or suffer to be used any car parking space of which he is the owner otherwise than for the purpose of parking one motor vehicle at any one time.

6.  Finally under Clause 1(31), Part B of Section V of the DMC, the Respondent is responsible for and shall have full and unrestricted authority to do all such acts and things as may be necessary or requisite for the proper management of the Estate including to enforce the observance and performance by the owners or any person occupying any part of the Estate.  Hence, the Applicant as the estate manager issued a number of written warnings to the Respondent demanding him to comply with the Government Grant and the DMC.  Such written warnings included five notices affixed to a private motor car or the Motorcycle parked on CPS L1-104; one warning posted up at the car park entrance that motor cycle is prohibited, two warning letters specifically addressed to the Respondent and finally one letter before action from the solicitors representing the Applicant.  It is unfortunate that theRespondent refused or omitted from refraining parking of the Motorcycle on CPS L1-104 until about 2 weeks ago.

7.  Mr Choi said that although the Motorcycle was not seen being parked on CPS L1-104 for about 2 weeks, the Applicant would not discontinue the Application since there was no undertaken given by the Respondent that he would not continue with the breach.  The Applicant asks for an order of this Tribunal in terms of the relief sought in the Application.

8.  Having heard evidence of Mr Choi, I accept that the Government Grant permits only private motor vehicles registered under the Road Traffic Ordinance being parked in the car park.  Motor vehicles do not include motor cycles under the Road Traffic Ordinance.  I find that the Respondent has breached the Government Grant and the DMC by parkingthe Motorcycle on CPS L1-104 by itself and sometimes together with another motor vehicle and yet at some other times, parked it outside CPS L1-104.  I am satisfied that the breach may continue if no injunctive order is granted.  I enter judgment for the Applicant and grant the order sought.

Costs

9.  Costs should follow the event.  The Respondent should pay the costs of the Applicant, summarily assessed at $27,645.50.  This is a costs order nisi to become absolute if no application is taken out to vary the same within 14 days.

Order

10.  My order is as follows:-

1.	A declaration that the Respondent was in breach of Special Condition 23(a) of the Government Grant and Clause 2, Part C of Section IV of the DMC;
2.	An injunction order that the Respondent whether by himself, his servant, agents or otherwise howsoever be restrained from parking any motocycle in CPS L1-104;
3.	Penal Notice be endorsed; and
4.	The Respondent do pay the Applicant the costs of this application, summarily assessed at $27,645.50.  This is a costs order nisi to become absolute if no application is taken out to vary the same within 14 days.