LATANGAN CO LTD v. CHU YIP SING

DCCJ 3373/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3373 OF 2008

____________

J U D G M E N T

1.  The dispute arose out of the use of a car parking space in Chevalier Garden, No.2 Hang Shun Street, Shatin, New Territories (“the Estate”). Chu, the Defendant, is the registered owner of the car parking space in question. The Manager of the Estate, the Plaintiff, commenced this action against Chu for injunctive relief and damages. Chu resists the claim and puts forward a counterclaim.

Undisputed background

2.  The Estate has various car park areas for residents and visitors.  By an Assignment dated 23 June 1989, Chu became the registered owner of car parking space no.6 on the Ground Parking Area No.10 (“CPS No.6”).

3.  In 2008, the Manager complained that a truck (‘the 1^st Truck”) was parked at CPS No.6 that protruded beyond the front boundary of the parking space.  Chu’s brother, Chu Yip Yau (“the Brother”), was responsible for the parking of the 1^st Truck there.  The Manager impounded the truck pursuant to the car park regulations.  After negotiation between the solicitors for the parties and intervention by the police, the 1^st Truck was released in the presence of the Brother, Chu’s then solicitors and the police.  The impounding and detention charges prescribed by the car park regulations were not paid.

4.  The 1^st Truck was released close to midnight of 30 May 2008.  Yet on 1 June 2008, another truck of similar size (“the 2^nd Truck”) was found parked at CPS No.6.  The Brother was again responsible for the parking of the 2^nd Truck there.  Again, the 2^nd Truck was impounded.  As at the date of trial, the 2^nd Truck remained impounded at CPS No.6.

The issues

5.  Based on various provisions of the deed of mutual covenants (“DMC”) and car park regulations governing the Estate, the Manager claims for an injunction compelling Chu, as the owner of CPS No.6, to cause the removal of the 2^nd Truck from his parking space; an injunction restraining Chu from further similar breach; and unpaid impounding and detention charges in respect of the 2 trucks.

6.  In defence, Chu contends that the car park regulations are not duly made or implemented in accordance with the DMC and thus not binding on any owner.  Further, CPS No.6 had been used to park the 1^st Truck for over 18 years without objection or interruption from the Manager or the Incorporated Owners of the Estate.  He avers that the parking of the 1^st Truck or the 2^nd Truck at his parking space would not seriously affect the use of the common areas by the other owners; and the Manager had not requested or demanded him to remove the 2^nd Truck or to pay the charges.

7.  Chu complains that instead, the impounding of the 2^nd Truck by the Manager amounted to obstruction or trespass to his parking space.  By way of counterclaim, he seeks an injunction compelling the Manager to release the 2^nd Truck and claims damages for the Manager’s trespass and wrongful interference with Chu’s use and enjoyment of his parking space.

8.  Broadly, there are the following issues:

(1) the applicability of the DMC and the car park regulations;

(2) the alleged breach on the part of Chu;

(3) the relief claimed; and

(4) the counterclaim.

The DMC and the car park regulations

9.  Chu took the Assignment of CPS No.6 expressly subject to the provisions of the Crown Lease that was deemed to have been issued under and by virtue of compliance with the Conditions of Sale under the New Grant No.11915 as well as the terms of the DMC.

The New Grant

10.  Clause 31(a) of the Special Conditions of the New Grant (“the Conditions”) specifies the various types of parking spaces to be provided in the Estate.  Among them, car parking spaces designated for the residential flats shall not be used for any purpose other than for the parking of private motor vehicles belonging to the residents.  The clause also specifies the provision of private motor vehicle parking spaces for visitors and parking spaces for goods vehicles in the Estate. The area and minimum headroom of the parking spaces for goods vehicles are also specified.

11.  Clause 31(b) of the Conditions stipulates that the various types of car parking spaces shall be designated in accordance with the approved car park layout plan.  The spaces indicated in such plan shall not be used for any purpose other than for the purposes set out in clause 31(a) above.  In the approved car park layout plan in the present case, the relatively larger spaces for parking goods vehicles are identified by the letter “L”, signifying that they are for parking lorries.

12.  In my view, the fair reading of the New Grant is that the parking spaces for private motor vehicles are distinguished from those for the goods vehicles.  In the absence of prior written consent of the Director of Lands, the approved layout of the various types of car parking spaces and their use must be maintained.

13.  CPS No.6 is designated as a private motor vehicle parking space and not for parking goods vehicle in the approved car park layout plan.  I reject the contention of Chu that private motor vehicles in this context mean any vehicles so that his car parking space, or effectively any private motor vehicle parking spaces, could be used for parking trucks.

14.  Compliance with the Conditions may be a matter between the Government and the owner.  This also becomes a matter between each owner and the other owners by virtue of the DMC.

The DMC

15.  The following provisions in the DMC are relevant:

Clause 1(a)

“Common areas” shall mean Estate Common Areas ……:

“Estate Common Areas” shall mean those parts of the Estate intended for the common use and benefit of all the Owners and/or persons using or visiting the estate including but not limited to the vehicular access roads ……

“Unit” shall mean a portion or portions of the Estate intended for the exclusive use and occupation and enjoyment by an Owner and “his Unit” in relation to an Owner means the Unit or Units in respect of which that Owner has the exclusive right and privilege to hold use occupy and enjoy.

“Conditions” shall mean …… Conditions of Sale deposited and registered in the District Land Office, Shatin as New Grant No. 11915 (as varied and modified by a Modification Letter dated the 16^th day of July 1987 ……

Clause 3(a)

The Estate Common Areas shall be deemed to be common areas for the use and benefit of the Owners and occupiers of the Estate which areas may, subject to the provisions hereof, be used by each Owner, his servants, agents, invitees and licensees in common with the First Owner and all other Owners of the Estate.

Clause 5

Every Owner and the occupiers for the time being of any Unit shall at all times be bound by and shall observe and perform the covenants provisions and restrictions contained herein and the Fourth Schedule hereto.

4^th Schedule

Covenants, provisions and restrictions referred to in Clause 5 of this Deed:-

……

5(a) …… nor do or cause or permit or suffer to be done any act or thing in his Unit which may be or become a nuisance or annoyance to or cause damage to the other Owners and occupiers for the time being of the Estate.

……

6(a) Not to do or permit or suffer to be done any act or thing in contravention of the Conditions or the Occupation Permit.

……

8  To be responsible to the Manager and the other Owners for the acts and omissions of all persons occupying his Unit with his consent, express or implied, and to pay all costs charges and expenses incurred in repairing or making good any loss or damage caused by the act, which the Manager is responsible for making good or repair, such costs charges and expenses shall be recoverable by the Manager as hereinbefore provided ……

……

11   To observe and perform all the covenants conditions and provisions of this Deed, the Sub-Deed and the House Rules.

Clause 22(a)(ii)

The Estate or any part thereof shall only be used for the purpose for which they are designed, constructed and intended to be used in accordance with the Conditions and the Occupation Permit issued therefor and ……

Clause 22(b)(i)

All Car Parks provided for use with Residential Units shall only be used for the purpose of parking motor vehicles belonging to the residents of the Estate.

Clause 22(d)

No part of the roadways, driveways, vehicular ramps, footbridges and footpaths shall be obstructed by motor vehicles or any other objects and the Manager shall have the absolute right to remove such obstruction without giving previous notice to the Owner(s) thereof and the costs (if any) thereof shall be recovered from the Owner(s) causing such obstruction.

16.  The above provisions, in particular clauses 5(a) and 6(a) of the 4^th Schedule as well as clauses 22(a)(ii) and 22(d) prohibit the owners from:

(1) doing or causing or permitting or suffering to be done any act or thing in their units (which, as defined, should include the privately owned car parking spaces) that may be or become a nuisance or annoyance to the other owners; or is in contravention of the Conditions; or

(2) causing obstruction of any part of the roadways, driveways, vehicular ramps or footpaths by motor vehicles.

17.  During the trial, the following powers and functions provided by the DMC were referred to:

Clause 12(a)

Except as otherwise herein expressly provided, the Manager shall be responsible for and shall have full and unrestricted authority to do all such acts and things as may in its opinion be necessary or requisite for the proper management of the Land and the Estate and (where applicable, the Access Ways).

Clause 12(d)

Without in any way limiting the generality of the foregoing the Manager shall have the following powers and authorities namely:-

……

(2)  To manage and control the parking of motor vehicles …… and the flow of vehicular traffic over all roads driveways and other areas intended for such purposes within the Estate and in particular to ensure that the Car Parks …… are used solely for their intended purposes and remain unobstructed.

……

(13) To prevent obstruction of any of the Common Areas …… and in particular the driveways, roads and the Car Parks within the Estate; such power shall extend to the removal of the article or thing causing the obstruction and to the demand and recovery of the costs therefor from the Owner(s) or occupiers of any Unit causing such obstruction or his servants licensees and invitees.

……

(16) To prevent (by legal action if necessary) any person including an Owner from occupying or using in any manner in contravention of the provisions of this Deed or the Conditions or any House Rules made hereunder any of the Common Areas or any part of the Land.

……

(25) To enforce the due observance and performance by the Owners of the terms covenants and conditions of this Deed and the Sub-Deed (where applicable) and the Conditions and to take action in respect of any breach thereof including the commencement, conduct and defence of legal proceedings and the registration and enforcement of charges as hereinafter or in the Sub-Deed mentioned.

……

(28) To take possession of and to manage …… all other Common Areas with full power to control the use thereof ……

Clause 12(e)

Subject to paragraph 12(d)(28) above all the Common Areas …… shall be under the exclusive management and control of the Manager who shall have full and unrestricted power to regulate and control the use thereof by the Owners or occupiers of the Estate.

18.  For the purpose of managing, regulating and controlling the use of the car park, the Manager has made and published various regulations.  Actually pleaded is the following regulations called 車輛管制條例 (or literally Regulations for Vehicle Control):

凡有違反以下管制條例的車輛，將會被鎖扣，凡經被鎖扣的車輛，車主或有關人仕須繳付私家路守則規定的有關費用後始獲放行：

1) 解扣費：HK$320.00

2) 拖車費：HK$350.00 (如適用)

3) 鎖扣期間停泊費：每日HK$320.00 (如適用)

茲將有關各項條例詳例如下，如有違反其中任何一項者，則將會依據上述辦法處理：

一. 停泊在非指定泊車位置，或停泊在屬其他登記車輛車位者。

……

二. 停泊於規劃車位白界以外的車輛，因而引致其他行人不便，或導致危及行人或駕車人仕的安全者。

……

19.  Essentially, the above regulations provide that any vehicle that is parked other than in its designated parking space or parked outside the (white) boundary of the parking space and thus causing inconvenience or danger will be impounded.  The vehicle owner or related person shall be liable to pay impounding charges (HK$320), towing charges (HK$350) or detention charges (HK$320 per day) before the vehicle will be released.

20.  Various other sets of regulations are not specifically pleaded but also referred to during the trial. There are the 停車場守則 (literally Car Park Codes) in Chinese which contain, among others, the following provisions:

Clause (12)

應將車輛泊在名下或租用車位界線内，不可佔用車位以外範圍，否則按阻塞通道處理。

Clause (13)

佔泊他人車位或阻塞通道的車輛屬違迫，管理處有權鎖事或拖車，有關車輛將被鎖扣，甚至被拖走，有關車主須繳付鎖車費或拖車費(如有)，車輛才獲放行。

21.  The combined effect of clauses (12) and (13) of this set of regulations is that any vehicle parked or occupying any area beyond the boundary of the car parking space will be treated as obstruction.  The Manager has the authority to impound or to tow away the vehicle.  The vehicle so impounded or towed away will be released only upon the payment of impounding or towing charges by the vehicle owner.  Also in Chinese are the 訪客車輛/上落貨車輛守則 (literally Visitor Vehicle/Loading and Unloading of Goods Vehicle Regulations) that contains similar provisions (under clauses 4 and 5).

22.  In the Conditions of Parking, in both English and Chinese, there are the following provisions:

Condition 4

The Company has the right to impound, remove and relocate any motor vehicle which is parked or left at an unauthorised space within this Car Park, is obstructing other users of this Car Park …… Any impounded, removed or relocated vehicle could not be collected unless and until all charges and expenses have been paid in full, handling fee for unlocking HK$320, towing charges HK$350, daily detention charge for each motor vehicle HK$320, and that all procedures for collecting such vehicles have been completed.

Condition 7

If a vehicle, which is detained under the above conditions, is not claimed within three (3) days after its detention, the Company shall forthwith give notice in writing thereof to the owner of the vehicle.  Unless the vehicle is removed from the place of detention upon payment of all charges payable under the terms abovementioned, within 25 days from the date of the said notice, the vehicle may be disposed of by the Commissioner of Police by sale or otherwise as he thinks fit.  The Company reserves the right to recover all charges and expenses in relation thereto against the registered owner of the vehicle.

Condition 9(b)

The users of any motor vehicle parked or intended to be parked in this Car Park shall comply with and obey all the lawful directions and regulations given by the Company, whether they are given verbally or in writing.  In particular such users shall obey the following restrictions:-

……

b)    not to park the vehicle in any part of the car parking space other than within the boundary of each individual car parking space;

……

Condition 11

Upon breach of any of the following conditions by a user of any motor vehicle parked in this Car Park (either personally or through parking or positioning of the relevant motor vehicle) namely; (a) causing any obstruction; …… The Company shall have a right to take such appropriate action as mentioned in clauses 4, 6 and 7 as the Company deem necessary against the owner and/or users of the relevant motor vehicle, and such action if taken shall in no way prejudice any of the Company’s right expressed in these Conditions of Parking or under common law.

23.  Properly construed, clauses 12(a), 12(d) and 12(e) of the DMC (above) are sufficient wide to confer on the Manager the authority to make and to publish the above regulations for the purpose of discharge of its function and duty to manage and to control the use of the car park by the residents or visitors.

24.  Chu contends that these regulations have not been duly made or implemented in accordance with the provisions of the DMC and therefore not binding on him.  But the basis of his contention was not made out; and he has produced no evidence in support.  No such case was put to his opponent’s witnesses either.  I reject that contention.

25.  The photographs produced depict the notices containing the above car park regulations at various conspicuous locations in the Estate.  In court, Chu claimed to have paid no attention to them.  As a matter of principle, whether Chu was actually aware of the contents of the notices is not determinative provided that they have been reasonably brought to his attention.  As a matter of fact, his alleged ignorance of the notices is unbelievable in view of his actual residence in the Estate for, as he admitted in court, more than 10 years until 2004.  In court, he also admitted having travelled in trucks into the Estate for parking while working as transportation worker for the Brother.  I find that there is no question about the binding effect of the above car park regulations on the owners and the users of the car park.

Whether Chu was in breach

26.  The parking of the 1^st Truck and then the 2^nd Truck at CPS No.6, which is not designated for parking goods vehicles, contravenes the Conditions.  This amounted to prima facie breach of clause 6(a) of the 4^th Schedule (and clause 22(a)(ii)) of the DMC.

27.  Regarding the effect of the parking of either of the trucks at CPS No.6, Tang gave evidence.  So did Madam Lee, who is a resident of one of the flats on the Ground Floor of Block 8 of the Estate.

28.  Madam Lee explained that her bedroom window is immediately above CPS No.6.  She observed that a truck started to be parked at CPS No.6 since June 2007.  After complaint, the truck was gone but another truck, presumably the 2^nd Truck, was parked there.  When parked at the CPS No.6 with its rear facing her bedroom window, the rear of the truck was less than a foot away from her window; and the roof of the rear compartment of the truck is almost as high as the bottom sill of her window.  The photographs produced support that observation.

29.  Madam Lee also recounted her experience of the consequence of the truck being parked there.  Dust from the roof of the rear compartment of the truck had been blown into her bedroom through the window of her bedroom.  Rubbish dropped from the above units onto the roof of the truck had been ricocheted into her bedroom through the window.  Rain water had also bounced off the roof of the truck into her bedroom which had once caused power leakage.  The experience effectively discouraged, if not prevented, Madam Lee from keeping the bedroom window open, if the truck was parked at CPS No.6.  Letters of complaint from the owner of her flat in 2007 and 2008 were produced.

30.  Tang described that the front of the truck (be it the 1^st Truck or the 2^nd Truck) protrudes beyond the front boundary of CPS No.6.  The unchallenged evidence is that the 2^nd Truck is 7 feet longer than the length of the parking space.  The photographs produced show that when parked, a substantial part of the front of the truck, including its front wheels, exceeds the front boundary of the car parking space as marked by white paint on the ground.

31.  The Manager has received complaints from the owner of the adjacent car parking space numbered 7 (“CPS No.7”) about the obstruction and inconvenience caused by the protruding truck parked at CPS No.6.  This was said to have affected the use and the letting of his car parking space.  Correspondence between the owner of CPS No.7 and the Manager in 2008 in this regard was produced.

32.  I find the evidence in respect of the effect of the parking of the 1^st Truck and the 2^nd Truck at CPS No.6, including what is mentioned above, was not effectively challenged during the trial.  I accept the evidence of Tang and Madam Lee in this regard.

33.  In the circumstances, the part of the truck that protrudes beyond the front boundary of the parking space in fact encroaches upon and obstructed both the driveway and the common area, contrary to clause 22(d) of the DMC.  The parking of the 2^nd Truck at CPS No.6 has in fact caused annoyance to other owners or occupiers of the Estate, contrary to clause 5(a) of the 4^th Schedule to the DMC.  Likewise, the provisions of the Regulations for Vehicle Control, Car Park Codes and clause 9(b) of the Conditions of Parking referred to above were also infringed.

34.  Chu claims that he is not the owner of the truck.  Nor did he have any control over it.  Hence it was argued on his behalf that he should not be held responsible.  In my view, whether Chu is the owner of the truck or has control over it is immaterial so long as he has caused or permitted or suffered it to be parked there.

35.  Chu claims that he was not aware of the parking of the trucks at his car parking space.  He also denied knowledge about the impounding of either truck until much later.  In my view, it matters not whether Chu was aware that the 1^st or the 2^nd Truck was actually parked there at a particular time.  As long as the space being used for the parking of the trucks was permitted and in fact contemplated, Chu became responsible as the owner of the parking space once the space was so used.  This is also the effect of clause 8 of the 4^th Schedule to the DMC (above).

36.  There is not suggestion that Chu’s consent to the Brother’s use of his parking space has ever been revoked.  The reality is in fact quite the contrary.  Chu never owns any motor vehicle.  The family members contributed towards the acquisition of the parking space; and the same was registered in his name for use by the transportation business of the Brother.  Chu confirmed that in court.  It bears all the hallmarks of a family arrangement.

37.  As Miss Cheung submitted, Chu assumed the attitude of ignorance and indifference in the matter.  He would go so far as suggesting the same in respect of the accuracy of his statement.  The point is that even assuming that Chu has ceased to have any interest or concern about the Brother’s use of the parking space, his responsibility remains, so long as he chose to remain as the owner of it.

38.  Had Chu ever considered that the Brother used his parking space, or used it in the manner, without his consent and thus getting him involved in the legal dispute, Chu could have joined the Brother as the third party to this action.  Chu did not; and I do not find that surprising.  The solicitors for Chu were in fact the same ones acting for the Brother in this episode from the outset.  In court, Chu admitted that it was at all times the Brother, not him, who had the conduct of his defence.  In my view, Chu and the Brother belong to the same front in this litigation.

39.  The pleaded case of Chu is that the 1^st Truck had been parked at CPS No.6 for over 18 years without objection or interruption by the Manager of the Incorporated Owners.  But Tang gave evidence that Chu had once been provided with a goods vehicle parking space numbered L22; and the truck had been parked there at the request of the Manager.  In court, Chu agreed that that had happened during the time when he worked as a transportation worker for the Brother and came along in the truck.

40.  Tang added that it was in late December 2007 when the Incorporated Owners instructed the Manager to strictly enforce the DMC and the car park regulations.  The Manager therefore requested that the 1^st Truck be removed from the assigned goods vehicle parking space unless the owner was willing to rent the goods vehicle parking space.  A few days later, in January 2008, the 1^st Truck was seen being parked at CPS No.6.

41.  The suggestion of waiver (or acquiescence) on the part of the Manager, not pleaded but made on behalf of Chu in court, would have afforded no valid defence to the enforcement action of the Manager.  The Manager has the power and is under the statutory duty to enforce the obligations under the DMC on behalf of all the owners of the Estate.  It has no authority, express or implied, to grant to any owner the right to act in breach of the DMC.  Equity will not hold the owners or the Manager bound by acquiescence or waiver to allow something that they could not have allowed by express grant: see The Incorporated Owners of Hoi Luen Industrial Centre & Anor v Ohashi Chemical Industries (HK) Limited, CACV 3/1995.

42.  It was also suggested that other trucks were also parked at non-goods vehicle parking spaces in the Estate.  Tang admitted that in court; but he explained that the locations of those parking spaces were peculiar.  For instance, in those private motor vehicle parking spaces, goods vehicles were actually parked in such a way that their fronts could still be kept behind the front boundary of the spaces.  The rear of the goods vehicles, though protruding beyond the rear boundary of the spaces, caused no obstruction to anyone because it was the hillside.

43.  In any event, the existence of other similar breach does not mean that the Incorporated Owners or the Manager was selective in the enforcement or they are targeting a particular owner.  In the worst case, the owners are entitled to compel the Incorporated Owners and the Manager to act accordingly.

44.  My conclusion is that Chu was in breach of the DMC.

The relief

Injunction to remove the 2^nd Truck

45.  First and foremost, the Manager asks for the removal of 2^nd Truck from CPS No.6.  It was argued on behalf of Chu that it was not the Brother who refused to remove the truck but the Manager which demanded the payment of the various charges that prevented the Brother from removing the truck.  In view of the above findings, there is no question about the Manager’s authority to make the various car park regulations including those prescribing the charges or the binding effect of the regulations on the Brother.

46.  So long as the owner of a parking space has caused or permitted his space to be used by the owner or user of the vehicle, it became the responsibility of the parking space owner vis-à-vis the other owners and the Manager to ensure that the parking regulations are complied with.  If the failure or refusal of the vehicle owner or user to do so, including the discharge of the liability to pay the various prescribed charges, leads to the breach on the part of owner of the parking space, that only means a right of recourse by him for an indemnity against the vehicle owner or user.

47.  The Manager is entitled to the injunction for the truck to be removed from CPS No.6.  As the truck is still impounded, it could be removed only upon its release by the Manager.  In view of the car park regulations, release of the truck hinges upon the settlement of those unpaid charges by the Brother.  However, the current prayer for the injunction and payment of the outstanding charges does not reflect the interrelationship between the two.  As the Manager is content with an injunction for the removal of the truck from CPS No.6 without specifying any condition precedent, I am prepared to make the order as prayed for but at same time specify that the Manager shall release the same so as to enable Chu to comply with the injunction.

The unpaid charges and damages

48.  The various car park regulations impose contractual liability to pay the charges on the owners or users of the vehicles parked in the car park.  Apparently the Brother but not Chu are bound by these regulations.  The only exception appears in the Regulations for Vehicle Control (above) which also apply to related persons (or “有關人仕”).  Nevertheless Miss Cheung accepted, and I think rightly, that there is a lack of clarity among these regulations in respect of whether the mere owner of the car parking space also attracts the liability to pay those charges primarily incurred as a result of the owner or user of the vehicle parked there.

49.  Could the owner of the parking space be liable to pay damages on the basis that the unpaid charges are the loss and damage suffered by the Manager?  In principle, the answer should be yes.  But the claim on that basis is unclear from the pleading.  Among the provisions of the DMC referred to during the trial, clause 8 of the 4^th Schedule (above) seems to be relevant.  Yet it only refers to the owner’s liability to pay “the costs charges and expenses incurred in repairing or making good any loss or damage caused by the act”.  It is questionable whether this could be construed to cover the unpaid charges in question that the vehicle owner or user has to pay.  No submission was made to suggest otherwise.

50.  Miss Cheung had instruction not to press on with the claim against Chu for the unpaid charges. I also make no award in respect of the claim for damages, without prejudice to the right of the Manager or the Incorporated Owners against the Brother for those charges.

Injunction against further breach

51.  Due to the dispute, the Brother has lodged complaints to various bodies and brought collateral proceedings against the Manager and the Incorporated Owners of the Estate.  Chu maintained his stance (and apparently the stance of the Brother as well) that the trucks may be parked in his parking space as of right, so long as this does not cause obstruction.  In view of the history of the present case and my observation about the attitude of Chu and the Brother, I am not convinced by the alleged willingness of Chu or the Brother to co-operate.  In my view, the Manager is entitled to an injunction to restrain further similar breach on the part of Chu.

Counterclaim

52.  The counterclaim is based on the alleged trespass and wrongful interference with Chu’s use and enjoyment of his parking space as a result of the impounding of the 2^nd Truck.  As found above, the Manager did what it was empowered by the DMC to do.  It was the Brother who dictated the predicament of Chu.  I see no valid basis for Chu to come round to claim that the obstruction caused by the 2^nd Truck occupying the parking space persisted because of the Manager’s enforcement of the DMC and the regulations in execution of its duty.  Otherwise, as Miss Cheung pointed out, Chu (or the Brother) would effectively be entitled to benefit from his own wrong.

53.  The injunctive relief being claimed is equitable in nature; and Chu’s right of claim for such relief is impaired in the circumstances where he cannot be considered as coming to the court with clean hands.  The claim for damages is un-particularised.  Nor is there evidence in support.  In court, Chu admitted that the parking space had never been let.  In view of the above findings, there is no factual basis for believing that the parking space had or would have been used other than by the Brother.

Order

54.  I give the following orders:

(1) Chu do remove, or cause to be removed, the 2^nd Truck from CPS No.6 forthwith upon the release of the same by the Manager;

(2) Chu be restrained, whether by himself, his servant, agent or otherwise howsoever, from parking any vehicle other than private motor vehicle or which will constitute breach of the DMC or the Sub-DMC of the Estate and the Conditions.

55.  I make a nisi order that Chu shall pay the Manager’s costs of this action, including any costs reserved.  Costs shall be taxed, if not agreed, with certificate for counsel.  In the absence of application to vary in 14 days, the nisi costs order shall become absolute.