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Donora Company Limited v. The Incorporated Owners of Tsuen Kam Centre (荃錦中心業主立案法團)

Read the full judgment text of FAMV 177/2023 on BabelCite. This Court of Final Appeal judgment was delivered on 26 July 2023 before Ribeiro PJ, Fok PJ, Lam PJ.

1. We grant leave to appeal confined to the following Questions which we are satisfied are of the requisite importance to justify consideration by the Court of Final Appeal, namely:

Legal issues: Leave to appeal on questions of great general or public importance

Outcome: Leave to appeal granted on two questions of great general or public importance.

Case No.FAMV 177/2023[2023] HKCFA 21
Court
Court of Final Appeal
Date26 Jul 2023
JudgeRibeiro PJ, Fok PJ, Lam PJ
Case Document
100%Judiciary

FAMV No. 177 of 2023

[2023] HKCFA 21

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 177 OF 2023 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 345 OF 2021)

________________________

BETWEEN
  DONORA COMPANY LIMITED Applicant
  and  
  THE INCORPORATED OWNERS OF TSUEN KAM CENTRE Respondent
  (荃錦中心業主立案法團)  

________________________

Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Fok PJ and Mr Justice Lam PJ
Date of Hearing and Determination: 26 July 2023

________________________

DETERMINATION

________________________

The Appeal Committee:

1.We grant leave to appeal confined to the following Questions which we are satisfied are of the requisite importance to justify consideration by the Court of Final Appeal, namely:

Question 1: Notwithstanding an earlier reservation of exclusive right to use, occupy and enjoy the external walls in the first assignment by the developer, whether and in what circumstances the grant of rights to co-owners for certain uses of the external walls of a building in a deed of mutual covenant is a sufficient manifestation that the developer does not have such exclusive right?

Question 2: Where a deed of mutual covenant contains a definition that common areas mean, inter alia, parts of the building which are “intended for common use”, whether the fact that the external walls of the buildings serve the functions of (i) holding and supporting the building, (ii) preventing damage to the building’s interior and (iii) enabling the co-owners to have peaceful enjoyment of their respective units of the building means that the external walls are “intended for common use” and hence common areas notwithstanding an earlier reservation of exclusive right to use, occupy and enjoy the external walls in the first assignment by the developer?

2.The appeal will be listed for hearing on 12 January 2024.

(R A V Ribeiro)
Permanent Judge 		(Joseph Fok)
Permanent Judge 		(M H Lam)
Permanent Judge

Mr Benjamin Yu SC and Mr James Man, instructed by Mayer Brown, for the Applicant

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