RADFORD PORTFOLIO MANAGEMENT LTD v. THE SECRETARY FOR JUSTICE for and on behalf of THE DIRECTOR OF LANDS

cacv 257/2009

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 257 of 2009

(on appeal from hcmp NO. 2297 of 2008)

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J U D G M E N T

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Hon Rogers VP:

1.  This is an appeal from a judgment of Deputy High Court Judge Carlson given on 13 November of last year.

2.  The matter is in a short compass.  It started by an originating summons by one of the owners of one of the flats in the Royalton at 118 Pok Fu Lam Road, Hong Kong.  The case involves the question as to whether the plaintiff is entitled to have a car stacking device in his car park space.

3.  I have some undisguised sympathy for the plaintiff.  He is not professing to do anything wrong and it seems to me that the terms of the lease in respect of the Royalton are harsh.

4.  Under the conditions of exchange which relate to this property, clause 13(g) provides that:

“The total number of residential units in any building or buildings erected or to be erected on the lot shall not exceed 30.”

And then the special condition 15 provides:

“(a)  Space shall be provided within the lot to the satisfaction of the Director for the parking of private motor vehicles belonging to the residents of the building or buildings erected or to be erected on the lot and their bona fide visitors at the rate of not more than one space for each private residential unit provided on the lot;

(b)    the space provided in accordance with the sub-clause (a) of this Special Condition shall not be used for any purpose other than the purposes specified therein.”

5.      Reference to subclause (c) can be omitted, and Special Condition 16 provides:

“A plan approved by the Building Authority indicating the layout of the parking spaces or car ports or both to be provided within the lot in accordance with Special Condition No. (15) hereof or a copy of such plan certified by any authorised person as defined in the Buildings Ordinance shall be registered by the grantee, by Memorial and the Land Registry.”

6.  There is no dispute that that was all done and the plaintiff, through purchase and his rights under the Deed of Mutual Covenant, has the right to use car park space No. 33.

7.  The residents of the Royalton have in the past found it slightly inconvenient to be able to park only one car.  They installed devices which are termed stacking devices, which enable a car to be driven onto it and then, by hydraulic means, the car would be raised.  There would then be a car park space underneath.

8.  The defendant to these proceedings, the Director of Lands, did not approve of this and took steps, to prevent that.  This court has, unfortunately, been burdened with at least one box file of correspondence which has nothing to do with this case, which relates to the Director’s attitude in respect of other persons.  Suffice it to say that other residents of the Royalton who had car stacking devices erected thereon have had them removed.

9.  The plaintiff has only one car.  He has no intention of parking two cars on the space, but does not wish to remove the car stacking device.  He finds it convenient for a number of reasons.  It is, in my view, understandable, because those who park cars in tightly parked spaces in car parks will know that very frequently, their cars are damaged by the car next door when, because it is close, the car doors hit against their car.  I can understand that and I have some sympathy for the plaintiff wishing to retain the car stacking device so he can raise his car out of harm’s way, where his next-door neighbour will not hit it when he opens his car door.

10.  But the problem remains as to whether the plaintiff is entitled to the declaration which is sought, which is that the plaintiff would not be in breach of the conditions of exchange by parking a private motor vehicle on a car stacking device within the property subject to the following conditions:

“ (a)     the car stacking device, with or without a private motor vehicle parked on it, shall not exceed the two-dimensional space of the Property;

  (b)     only one private motor vehicle should be parked on the car stacking device at any one time; and

  (c)     the car stacking device shall be used solely for the purpose of and in connection with the parking of private motor vehicles.”

11.  Mr McCoy SC, with his customary skill, has argued eloquently for the plaintiff and has pointed out that the plaintiff does indeed own the so to speak cubic space, which is comprised within the car parking space 33, and is entitled to the maximum utilisation of what is, in effect, his proprietary right.

12.  Nevertheless, I am reluctantly driven to the conclusion that the car stacking device, when it is raised, does provide more than one space and that simply is in breach of Special Condition 15(a).

13.  Mr Chan, who has appeared on behalf of the defendant, has indicated that in the court below, the defendant did apparently concede that if there was a scissor lifting device which would prevent the space underneath the raised car being used as a car parking space, there would then be no double car parking space and there would be no breach of this condition.

14.  That seems to me to be right.  That concession has caused me to give serious thought as to whether this court should take the offer that the plaintiff has given to submit to an undertaking not to use the space under the stacking device when it is in its raised condition as a car parking space.

15.  Regrettably, I have come to the conclusion that that would not suffice, much though I would be happy to resolve this matter on that basis.  Regrettably, there would still be a space underneath which would contravene clause 15(a) even though the space were not to be used for car parking.

16.  I do not accede to the argument that the provision of such an undertaking would cause difficulty to the Director, because he would have to have people to enforce that undertaking.  When a party to litigation submits to an undertaking, which is equivalent to an injunction, the court proceeds on the basis that they will adhere to it.

17.  It is in those circumstances, therefore, that I consider that this appeal falls to be dismissed.

Hon Cheung JA:

18.  In my view, the wording of Special Condition 15(a) is clear.  The space so specified is one space and not two spaces created by a stacking device, irrespective of whether the Appellant only wishes to use one of the spaces so created.  Accordingly, I will also dismiss the appeal.

Hon Bharwaney J:

19.  I agree with the judgments of the Vice-President and Mr Justice Cheung.