Read the full judgment text of CACV 000389/2002 on BabelCite. This Court of Appeal judgment was delivered on 2 April 2003 before Woo JA, Cheung JA and Yuen JA.
Civil law – building management – common parts – Building Management Ordinance (Cap. 344) – Deed of Mutual Covenant – exclusive use of staircase landings and flights of steps – owner of first floor and roof erects iron gate enclosing cockloft landing, metal grille, wooden doors and wall obstructing staircase – whether cockloft landing is a common part not within his exclusive possession – whether he is in breach of s.34I of the Building Management Ordinance by converting common parts and unreasonably interfering with other owners' use – whether other owners retain a right of way under Clause 2 of the DMC for emergency escape and maintenance of common parts – whether a minority owner may sue the incorporated owners to compel it to enforce the DMC and the Ordinance – whether the respondent may raise the standing issue for the first time on appeal under the principle in Flywin Co. Ltd. v. Strong & Associates Ltd – held, cockloft landing is a common part and Mr. Tam is in breach of the DMC and the Ordinance – held, Clause 2 preserves a right of emergency access to the roof – held, a private owner may bring proceedings to compel the corporation to act, and the Lands Tribunal has jurisdiction under s.45 and clauses 1 and 2 of the Tenth Schedule of the Ordinance – held, new issue admissible on appeal as it is a pure question of construction – appeal allowed – respondent ordered to take action against Mr. Tam to remove the iron gate, restrain further conversion of the cockloft landing, and maintain free unobstructed emergency passage through the staircase to the roof – no order as to costs in the Tribunal – applicant awarded costs of the appeal to be taxed in accordance with the Legal Aid Regulations.
Legal issues: Whether the cockloft landing is a common part of the building · Whether Mr. Tam is in breach of s.34I of the Building Management Ordinance · Whether Clause 2 of the DMC preserves a right of emergency access to the roof · Whether a private owner may sue the corporation to enforce the DMC and BMO · Whether the respondent may raise the standing issue for the first time on appeal
Outcome: Appeal allowed; the judgment of the Lands Tribunal was set aside and the respondent was ordered to take action, including legal action, against Mr. Tam to remove the iron gate, restrain further conversion of the cockloft landing, and maintain free unobstructed emergency access through the staircase to the roof.
Cited by 2 cases