Read the full judgment text of CACV 455/2018 on BabelCite. This Court of Appeal judgment was delivered on 8 November 2019 before Kwan VP, Chu and Au JJA.
Civil law – building management – construction of Deed of Mutual Covenant (DMC) – common parts and common areas – External Walls – exclusive use, occupation and enjoyment – Building Management Ordinance (Cap 344) s.2 – appeal – Whether the External Walls of a multi-storey building form part of the common parts where the developer has been given specific but limited exclusive rights to use the External Walls for certain prescribed purposes – Whether the 2nd plaintiff's claim that the Developer had exclusive rights to all use and enjoyment of the External Walls under clauses 8(b) and (c) of the DMC succeeds – DMC expressly defines "Common Areas" to include the External Walls of the Building – BMO s.2 and Schedule 1 also include External Walls within common parts unless designated for exclusive use – Held, on proper construction of the DMC as a whole and against the legal background of co-ownership, clauses 8(b) and (c) confer on the Developer only specific limited exclusive rights (to install apparatus and to use the External Walls for advertising), not exclusive rights to all use and enjoyment – The External Walls also provide the external framework of the Building, support the structure, and enable all co-owners to have peaceful enjoyment of their units; these structural and physical uses have not been reserved exclusively to the Developer – Therefore the External Walls remain common parts of the Building – Incorporated Owners of Hong Leong Industrial Complex v HL Resources Ltd distinguished – Appeal by the 2nd plaintiff dismissed with costs to the IO, to be taxed if not agreed – Grounds 2 and 3 (duty of IO and reliefs) rejected as dependent on Ground 1.
Legal issues: Whether the External Walls form part of the common parts of the Building on construction of the DMC · Whether the IO owed duties to the plaintiffs in relation to the External Walls and the 2010 Assignment · Whether the plaintiffs were entitled to the reliefs sought
Outcome: Appeal dismissed with costs to the 1st defendant (IO).