Donora Co Ltd v. The Incorporated Owners of Tsuen Kam Centre

CACV 345/2021

[2023] HKCA 457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 345 OF 2021

(ON APPEAL FROM LDBM NO 176 OF 2018)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.On 13 January 2023, this Court handed down its Reasons for Judgment for allowing the Respondent’s appeal against the judgment of His Honour Judge M Wong, presiding officer of the Lands Tribunal, dated 22 March 2021.

2.The basic facts of the case and the reasons for allowing the Respondent’s appeal are fully set out in the Reasons for Judgment, and will not be repeated here.

3.By an Amended Notice of Motion dated 10 February 2023, the Applicant applies for leave to appeal the Court of Appeal’s judgment to the Court of Final Appeal. At §5 of the Amended Notice of Motion, the following questions, said to be questions of great general or public importance, are identified:

(1)  Question 1: Where a first assignment reserves a part of the building, e.g. the external walls, to the developer, and where the deed of mutual covenant contains definitions of common areas, whether the reservation of the first assignment means, or means it is more likely (and if so to what extent), that the true construction of the deed of mutual covenant excludes those areas from common areas, or that such areas could not be intended for common use?

(2)  Question 2: Whether parties can be described as “reserving” parts of the building to any particular owner in a deed of mutual covenant if exclusive possession is conferred upon that particular owner in the deed of mutual covenant?

(3)  Question 3: Whether the expression “[a]ll other parts of the Buildings … which have not been specifically reserved by the [Applicant] in accordance with this Deed” in the definition of “Building Common Areas”, or like expressions in deeds of mutual covenant, construed in their context and purpose (especially taking into account the Court’s determination of Question 2, as well as the respective role of deed of mutual covenant and first assignment in conveyancing practice), should or could mean parts of the building which have not been provided in the deed of mutual covenant as being under the exclusive possession of any particular owner?

4.Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.As mentioned at the beginning of the Reasons for Judgment, the principal question which was determined by the Court of Appeal was whether the external walls of the development known as Tsuen Kam Centre, 300-350 Castle Peak Road, Tsuen Wan, New Territories (“the Building”) are:

(1)  “common parts” of the Building, as contended by the Applicant; or

(2)  subject to the provisions of the Deed of Mutual Covenant (“the DMC”) relating to the Building, for the exclusive use, occupation and enjoyment of the Applicant (Developer), as contended by the Respondent.

6.The answer to this question depends on the true construction of the DMC read together with the “First Assignment” relating to a unit of the Building in the present case. The inquiry is fact and context specific. The judgment of the Court of Appeal does not deal with the status of external walls of multi-storey buildings in Hong Kong generally. It only answers the question of the status of the external walls specifically in relation to the Building in the present case.

7.As can be seen from the Applicant’s Skeleton Argument and Reply Submissions, essentially, the Applicant’s intended appeal boils down to its disagreement with the Court of Appeal’s construction of the DMC read together with the First Assignment. The merits of the Applicant’s arguments have been dealt with in the Reasons for Judgment. We do not propose to address them again in this judgment.

8.Although Questions 1 and 3 identified in the Amended Notice of Motion are framed as general questions, those questions cannot be answered in the abstract, but can only be answered by reference to the specific facts and context in any given case. Insofar as Question 2 is concerned, we do not see that the answer to it would be determinative of the true construction of the DMC read together with the First Assignment in this case. Nor do we consider that the question itself can be regarded as a question of great general or public importance.

9.Overall, we do not consider that the Applicant’s intended appeal involves any question of great general or public importance.

10.Insofar as the Applicant is seeking leave to appeal under the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, it is the well-settled practice of the Court of Appeal to defer consideration of such matter to the Appeal Committee of the Court of Final Appeal. We see no reason to depart from this practice in the present case.

11.For the above reasons, the Amended Notice of Motion is dismissed with costs to the Respondent, to be taxed if not agreed, with certificate for 2 counsel.

Mr Bernard Man SC & Mr Jonathan Ng, instructed by Mayer Brown, for the Applicant

Mr Denis Chang, SC, Ms Teresa Wu & Mr Tommy Cheung, instructed by Chan, Wong & Lam, for the Respondent