Read the full judgment text of CACV 222/2019 on BabelCite. This Court of Appeal judgment was delivered on 11 June 2020 before Hon Lam VP, Chu and Au JJA.
Civil law – Deed of Mutual Covenant – construction – common areas – public pedestrian way – Estate Common Areas – exclusive use and occupation – commercial development – composite development – Building Management Ordinance – commercial common areas – share allocation – First Schedule – iterative construction process – appeal from Lands Tribunal – The appeal concerned the construction of a Deed of Mutual Covenant (DMC) dated 24 March 1999 in respect of the Maritime Bay estate in Tseung Kwan O, specifically whether a public pedestrian way (PPW) on the Upper Ground Floor connecting the estate to a footbridge and MTR station formed part of the Estate Common Areas. The PPW was required to be maintained under Special Conditions 12, 13 and 20 of the Government Grant and was to be open 24 hours a day for free public use. The DMC divided the estate into 5,411 undivided shares allocated between residential accommodation (Blocks 1 and 2), commercial accommodation, car parking spaces and common areas. – Whether the PPW is an Estate Common Area under the DMC – Yes, the PPW is an Estate Common Area, falling within the wide meaning of 'corridors and passages' in the definition and not used for the sole benefit of any one owner, and the commonly contemplated use by both owners of Commercial Units and owners of Residential Units (evidenced by the lift lobby at the Upper Ground Floor and the footbridge to the MTR station) confirmed its communal character. – Whether the L8 Plan (a plan dated August 2009) was determinative of what constitutes Common Areas – No, the L8 Plan was not determinative as it post-dated the DMC by some ten years, and Clause 8 of Section L did not confer on such a plan the legal effect of conclusively determining what is Common Area. – Whether Great Land (HK) Limited acquired exclusive right to use and occupy the PPW through the allocation of 251 shares to commercial accommodation in the First Schedule and Clause 1(a) of Section C – No, the reference to the Upper Ground Floor under Commercial Accommodation could not have meant the whole of the Upper Ground Floor, the exclusive right under Clause 1(a) was subject to the Government Grant (including Special Condition 13 providing for free public use), and Special Condition 24(a)(v) required the allocation of shares for common areas including passageways which were assigned to the Manager on trust for all owners. – Appeal allowed; judgment of the Lands Tribunal set aside; declaration granted that the PPW is an Estate Common Area under the DMC; Respondent to pay the Applicant's costs of the appeal and below.
Legal issues: Whether the PPW is an Estate Common Area under the DMC · Whether the L8 Plan is determinative of what constitutes Common Areas · Whether allocation of shares in First Schedule and Clause 1(a) of Section C give Great Land exclusive right over the PPW
Outcome: Appeal allowed; judgment of the Lands Tribunal set aside
Cited by 29 cases · Cites 6 cases