松林置業有限公司 v. 名德大樓業主立案法團
Read the full judgment text of CAMP 26/2018 on BabelCite. This Court of Appeal judgment was delivered on 7 May 2018.
1. The applicant is the developer of Ming Tak Building, Kwai Chung, New Territories (“the Building”) and the registered owner of shop premises numbers C, D, E and F (“the Shop Premises”) at the ground floor of the Building. The respondent is the incorporated owners of the Building.
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CAMP 26/2018 [2018] HKCA 266 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO 26 OF 2018 (ON AN INTENDED APPEAL FROM LDBM NO 72 OF 2017) ____________
____________ Before: Hon Kwan and Poon JJA Dates of Written Submissions : 14 & 27 March 2018 Date of Judgment: 7 May 2018 ________________________ J U D G M E N T ________________________ Hon Poon JA (giving the Judgment of the Court) : INTRODUCTION 1.The applicant is the developer of Ming Tak Building, Kwai Chung, New Territories (“the Building”) and the registered owner of shop premises numbers C, D, E and F (“the Shop Premises”) at the ground floor of the Building. The respondent is the incorporated owners of the Building. 2.The Building was designed and built in 1966. The ground floor and 1st floor are commercial floors whereas the 2nd to 7th are residential floors. There are provisions of fire service equipment on the 1st to 7th floors. There are water pumps and a water tank on the roof as well. 3.On 28 February 2014, the Fire Services Department issued a Fire Safety Direction under section 5 of the Fire Safety (Buildings) Ordinance, Cap 572 to the applicant and the respondent, directing them to carry out installation/improvement of fire service equipment of the Building. Disputes arose between the parties concerning whether the installation of automatic sprinkler and fire hydrant/hose reel system (“the Fire Services Equipment) inside the Shop Premises were to be considered as common parts. The applicant took out an application before the Lands Tribunal for an order that the costs of such installations were to be contributed by all the owners of the Building in accordance with their respective shares on the basis that the Fire Services Equipment were common parts. 4.By a judgment handed down on 21 December 2017 (“the Judgment”), Deputy District Judge Eric Tam refused the applicant’s application. The applicant applied for leave to appeal but it was refused by the Judge by a decision dated 1 March 2018 (“the Leave Decision”). By way of summons take out on 14 March 2018, the applicant renews its application for leave to appeal before the Court of Appeal. 5.We have duly considered the parties’ written submissions. We take the view that the applicant’s application can be disposed of on paper without an oral hearing. We now hand down our judgment. DISCUSSION 6.Under section 11AA(6) of the Lands Tribunal Ordinance, Cap 17 (“LTO”) :
7.We first consider if the appeal has a reasonable prospect of success. 8.In dismissing the applicant’s application, the Judge reasoned as follows :
9.Mr Wong, counsel for the applicant, advanced 3 grounds of appeal :
10.As correctly identified by the Judge, the real dispute between the parties is whether the Fire Services Equipment to be installed in the Shop Premises as required under the Fire Safety Directions forms common parts of the Building. 11.At [10] of the Judgment, the Judge rightly acknowledged that the definition of common facilities/parts should not be confined to its location, whether it is located in the common area or privately owned and designated area, but the facilities/parts should be for the use and benefit of all the owners of the Building. The Judge went on to find at [11] of the Judgment that :
12.On that basis, the Judge considered at [12] of the Judgment that even though the Fire Services Equipment could decrease the risk of fire of the Shop Premises and might be of indirect benefit of the whole Building, it could not be considered as for the use and benefit of all the owners of the Building directly and therefore, would be regarded as common parts of the Building. 13.The Judge went on to find at [13] of the Judgment that despite the Fire Services Equipment in the Shop Premises was to be connected to the fire service equipment of the Building, it did not form an integral part of the system as it was installed independently in the Shop Premises. On this matter, Mr Wong argued that the automatic sprinklers to be installed is integrated with all other sprinkler systems of the buildings. The Judge dealt with this argument at [9] of the Leave Decision :
14.Based on the evidence before the Judge, we agree with his finding that : (i) the Fire Services Equipment are located inside the Shop Premises which share no common part of the Building, (ii) they are for the exclusive use and benefit of the applicant to decrease the risk of fire of the Shop Premises and (iii) they can be installed independently and do not form an inalienable and integral part of the fire service system of the Building. We cannot see how the Fire Services Equipment can be regarded as common parts of the Building. 15.Mr. Wong tried to challenge the Judge’s finding by arguing in ground 1 of the intended appeal that Judge failed to refer to or apply the statutory definition of “common parts” under Section 2 and Schedule 1 of BMO. The Judge dealt with the matter in [6] and [7] of the Leave Decision :
16.As already explained, the Fire Services Equipment to be installed in the Shop Premises does not fall within the definition of commons parts under section 2 of BMO. We agree with the analysis of the Judge at [6] of the Leave Decision. Thus, we do not consider the provisions under BMO could take the applicant’s case any further. 17.In our view, the Judge is entitled to find, factually, that the Fire Services Equipment does not form common parts of the Building. The applicant has failed to satisfy us that the Judge’s finding is plainly wrong. Accordingly, there is no basis for this Court to intervene. Ground 1 does not have any reasonable prospect of success. 18.Grounds 2 and 3 can be dealt with together. They concern the scope and interpretation of Schedule 1 of BMO. Mr Wong submitted that, on its proper construction, the term “fire fighting equipment” in paragraph 10 of Schedule 1 is not in any way qualified or restricted by the phrase “intended for the use and benefit of all of the owners generally”. We disagree. Paragraph 10 provides :
In our view, paragraph 10 must be read in its entirety. Plainly, the phrase “intended for the use and benefit of all the owners generally” applies for all items preceding it. There is no merit in Grounds 2 and 3. 19.To complete our discussion, we consider the Judge right in distinguishing the cases cited by the applicant at [20] and [21] of the Judgment :
20.For the above reasons, we hold that there is no reasonable prospect of success for the applicant’s intended appeal. 21.Further, we can see no reason why in the interest of justice the matter has to be heard by the Court of Appeal either. Conclusion 22.Accordingly, we refuse to grant leave and dismiss the applicant’s application. As the application is entirely without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that no party may request our decision to be reconsidered at an oral hearing inter partes. 23.Costs should follow the event. We make an order nisi the applicant is to pay the respondent’s costs, which we summarily assess at nisi HK$60,000.
Mr Wong Cho Lik, instructed by Cheung & Co., for the Applicant Ms Sabrina Leung, instructed by Huen & Partners, for the Respondent | ||||||||||||||||
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