黎偉雄 v. 信和物業管理有限公司
Read the full judgment text of CACV 222/2019 on BabelCite. This Court of Appeal judgment was delivered on 14 January 2021 before Lam VP, Chu JA, Au JA.
Civil appeal – leave to appeal to Court of Final Appeal – great general and public importance – deed of mutual covenant – common area – public pedestrian way – Government Grant – construction of DMC – unitary exercise – CACV 222/2019 – Whether a 24-hour free public pedestrian way (PPW) built within a development according to Government Grant conditions is a 'common area' under the DMC when physically situated within the part of the development owned by the developer/first owner – Whether common areas/facilities can exist within a distinct part of a development held in single ownership – Court of Appeal allowed substantive appeal and declared PPW an Estate Common Area – Respondent applied for leave to appeal to CFA and sought to amend Notice of Motion – Court granted leave to amend with costs against Respondent – On the merits, Court refused leave on GPI grounds holding that reformulated questions presented a distorted view of the substantive judgment – Construction of DMC is a unitary and iterative exercise taking all relevant pointers into account – Arguments of counsel merely concerned weight to be attached to matters already duly considered – No reasonable prospect of success – 'Otherwise' limb left for Appeal Committee – Amended Notice of Motion dismissed with costs to be taxed if not agreed.
Legal issues: Whether leave to appeal to the Court of Final Appeal should be granted on grounds of great general and public importance or otherwise
Outcome: Leave to appeal to the Court of Final Appeal refused on the GPI grounds; Amended Notice of Motion dismissed with costs. The 'otherwise' limb was left for the Appeal Committee to decide.
Cited by 5 cases · Cites 1 case
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CACV 222/2019 [2021] HKCA 51 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 222 OF 2019 (ON APPEAL FROM LDBM 142/2017) __________________________ BETWEEN
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________________________ JUDGMENT ________________________ Hon Lam VP (giving the Judgment of the Court): 1.This Court handed down the substantive judgment in this appeal on 11 June 2020. The appeal was allowed and a declaration was granted to the effect that Great Land did not have exclusive right to use and occupy the PPW[1] and the PPW is an Estate Common Area under the DMC. 2.On 8 July 2020, the Respondent applied by a Notice of Motion for leave to appeal against the judgment of 11 June 2020 to the Court of Final Appeal. Subsequently, the Respondent sought to amend the Notice of Motion by a summons of 31 August 2020. The amendments sought were to reformulate the questions for determination by the Court of Final Appeal as per the advice of counsel of the Respondent. 3.Though the amendments were opposed by the Applicant, the real issue is whether leave should be granted on the grounds as reformulated. We grant leave to amend with an order that the Respondent should pay the costs of the summons of 31 August 2020. 4.The re-formulated questions (as set out in the Amended Notice of Motion) are as follows (“the GPI Questions”):
5.These are said to be questions of great general and public importance. 6.In addition, the Respondent also sought leave pursuant to the “or otherwise” limb on the following grounds:
7.With respect, the way in which the GPI Questions were formulated presented a distorted view on our reasons for allowing the appeal. As we have emphasized in the substantive judgment, the construction exercise is an iterative process and all relevant pointers are to be taken into account. As it should be clear from a fair reading of the judgment, we did not concentrate on the two factors (referred to in Questions 1 and 2) in coming to our conclusion. It should also be clear from the judgment that we have taken account of the factual and legal context of the DMC in the process (which counsel failed to address in the present application). We have also analysed the related provisions in the DMC and the Grant (as part of the contextual material which, in our view, are highly relevant given the nexus between the DMC and the Grant). 8.In the submissions of Mr Li SC and Mr Lee, there is no disagreement with the general approach adopted by this Court in the construction exercise as set out at [26] of the judgment. Such approach is well supported by authorities (cited at footnotes 7 to 10 in the judgment). 9.Nor do we understand counsel to be arguing that the common contemplated use of the PPW (as part of the layout of the Estate) cannot be a relevant factual context for the court to consider in the construction exercise. Given the specific stipulations under the Grant (in particular Special Conditions 13 and 24(a)), the approved building plan and the layout plan attached to the sale brochures, we cannot see any basis for suggesting that we erred in taking the contemplated user of the PPW into account in order to identify if it falls within the definition of Estate Common Area (which includes any corridor and passages of a communal nature) in the DMC. Thus, the contemplated user of the PPW must be relevant in order to see if it falls within the concept of corridor and passages in that definition. 10.The same applies to the provisions in the DMC itself concerning Commercial Common Areas and Commercial Common Services and Facilities which were the focus under Question 3. 11.As we have also emphasized, the construction of a DMC is a unitary exercise. In this particular case, we considered these matters significant in light of the overall factual and legal context discussed in the judgment. The significance of similar factors could vary in different cases. To highlight this point, the physical layout of the PPW, its connection with the residential units through the lift lobby and its access to the MTR station are all special features in the present case. 12.Viewed in that light, it is difficult to see how the questions could be of great general public importance. Put it in other way, we do not see how the Court of Final Appeal can give general guidance on such matters. 13.In the end, the arguments of Mr Li revolved around the weight to be attached to these matters. As it should be clear from our substantive judgment, these arguments had all been duly considered by us. In that regard, in light of the holistic analysis set out in our judgment, we do not find such arguments to carry any reasonable prospect of success. 14.For these reasons, we would not grant leave on the GPI grounds. 15.As for the otherwise limb, it is a matter for the Appeal Committee to decide. However, we note that the Applicant is acting in person. Further, given the unitary nature of the exercise in question, we are not convinced that much purpose will be served by having an appeal to the Court of Final Appeal solely on the ground canvassed in the Notice of Motion under this limb. Against such background, this may not be a suitable case for ventilating issues highlighted in the Notice of Motion under this ground. 16.Accordingly, we dismiss the Amended Notice of Motion with costs, such costs are to be taxed if not agreed.
The applicant acting in person Mr C Y Li SC and Mr Lee Tung Ming, instructed by Woo, Kwan, Lee & Lo，for the respondent |
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