The Incorporated Owners of Kin Wing Commercial Building v. World Treasure Properties Ltd
Read the full judgment text of LDBM 107/2016 on BabelCite. This Lands Tribunal judgment was delivered on 13 July 2023.
1. The applicant was at all material times and is owners’ corporation ( IO ) of Kin Wing Commercial Building situated at Nos.24-50 Kin Wing Street, Tuen Mun ( the Building ).
Cites 13 cases
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LDBM 107/2016 [2024] HKLdT 24 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 107 OF 2016 ____________
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_____________________ J U D G M E N T _____________________ A. Introduction 1.The applicant was at all material times and is owners’ corporation (IO) of Kin Wing Commercial Building situated at Nos.24-50 Kin Wing Street, Tuen Mun (the Building). 2.The respondent was at all material times since 2004 and is registered owner of Units 703, 704, 904, 905 and Carpark Nos.5, 13, 14, 24, 25 and 26 of the Building. 3.In this application, IO sues the respondent for unpaid balance of its share of costs of certain works of the Building purportedly carried out pursuant to order issued by Building Authority (BA), together with collection charge and interest. Ms Becky Wong of counsel (Ms Wong) appeared for IO at trial. 4.The respondent defended IO’s claim on the main ground that part of the said works were carried out on private properties (i.e. canopy at 1/F level and external walls of certain floors) whose costs should be paid by their private owners and also that canopy works are outside scope of order issued to IO by BA. It counterclaimed against IO for declarations, inter alia, that it is not liable to contribute to costs of works over the said properties. Mr Victor Chiu of counsel (Mr Chiu) appeared for the respondent at trial. B. Witnesses called at trial 5.The background facts I found in section C have largely been proven by undisputed documentary evidence, undisputed factual evidence given by parties’ witnesses, admissions made by the respondent and its witness, and, lastly, common and undisputed factual observations and expert opinions given by parties’ experts. 6.IO called周美德 (Chow)[1], chairlady of its management committee (MC), as its sole factual witness whereas the respondent only called its director 何權佳 (Ho) to testify. 7.Ir. Fan Siu Kay (Fan) was called as IO’s expert witness to give evidence on, and Mr Ben T. C. Chan (Chan) testified as respondent’s expert witness on, the following 3 issues: -
C. Backgrounds facts C1. The Building & 1/F Canopy 8.The Building is a 10-storey industrial building (with 26 car parking spaces at its basement) built at a corner site bounded by Kin Wing Street on one side and Kin On Street on the other side. Its occupation permit was issued on 2 February 1982. 9.As is shown in Schedule of deed of mutual covenant of the Building (the DMC) and approved plans of the Building, the G/F to 4/F of the Building were built as shopping arcade, bank and restaurant while its 5/F to 10/F were built as offices. 10.A canopy made of reinforced concrete was built at 1/F level of the Building by way of a cantilevered slab structure projecting over pedestrian pavements along Kin Wing Street and Kin On Street (1/F Canopy), providing shelter from rain and sun to pedestrians as well as some of the shop fronts at G/F. The extent of its projection from the walls of the Building was 1.6m[2]. Its construction was approved by the Building Department (BD) and approved plans of the same had been retrieved from BD by parties’ experts. It was finally removed by IO’s contractor latest by January 2016[3]. C2. First Assignment & the DMC 11.By an assignment dated 28 August 1982 (First Assignment), Isoba Limited (First Owner) assigned to Royal Hong Kong Jockey Club (HKJC) 979 equal undivided 8,578 shares of Tuen Mun Town Lot No.148 (the Land) and the Building thereon together with 1) the exclusive right to hold use occupy and enjoy Shops Nos.3, 4, 5, 6, 7 and 8 on G/F[4] and the external wall of such shops and 2) all that portion of Shopping Arcade on G/F[5] (collectively JC Premises)[6]. 12.On the same date, the DMC was executed by the First Owner, HKJC and a management company, and it was later registered at the Lands Registry. 13.Under the DMC, “common parts” means:
14.By the DMC, the Land and the Building were notionally divided into 8,578 equal undivided shares, which shares are, among others, allocated in First & Second Columns of its Schedule as follows:
15.Hence, the respondent was at all material times since 2004 been holder of 236 equal undivided shares of the Land and the Building. 16.Two other matters should be noted from the Schedule of the DMC, namely: -
17.By clause 1 of the DMC, the First Owner shall have the exclusive right and privilege to hold use occupy to the exclusion of HKJC of “All Those units[13] set out in the First Column of the Schedule hereto” save and except JC Premises assigned to HKJC. By clause 2 thereof, HKJC shall have the exclusive right and privilege to hold use occupy JC Premises to the exclusion of the First Owner. 18.Since its purchase of JC Premises, HKJC has been operating at the same an off-course betting centre. Other shops including bank also came to be opened for business at G/F of the Building over time. C3. Ownership of the 3 Units A 19.By an assignment dated 15 September 1982, First Owner assigned 2,590[14] equal undivided 8,578 shares of and in the Land and the Building together with the exclusive right to hold use occupy and enjoy 1) Unit A on G/F, 2) Unit A on 1/F, 3) 1/F Canopy, and 4) Unit A on 2/F (collectively the 3 Units A)[15] and the external walls of the 3 Units A[16] to their 1st purchaser. 20.In 2004, Chu Chung Shing Investment Company Limited (CCS) came to be registered as the owner of the 3 Units A (and their external walls) and 1/F Canopy. C4. Complaints over external walls before 2012 21.On 22 September 2009, BD issued letter to IO advising of receipt of complaint and their inspection result of concrete loosening at 7/F external wall of the Building facing Kin Wing Street and suggesting IO arranging early repair in the interest of occupiers and the public. 22.After IO had received aforesaid letter from BD, a meeting of MC was held on 29 October 2009, during which it was agreed to put up newspaper advertisement to tender for the engagement of a surveyor to assess the matter. 23.Judging from venue and contents of MC meetings held over the years in minutes, and photos of the Building taken over the years, produced at trial, restaurants (of different names) have been operating at the 3 Units A since at least October 2009. 24.On 14 September 2010, management office of the Building informed MC an incident of mosaic titles falling off external walls at 10/F of the Building the day before and urged IO to conduct external wall repair as soon as possible. C5. Winfield Incident 25.On 9 June 2011, a cantilevered reinforced concrete canopy at 1/F level of Winfield Industrial Building situated at No.3 Kin Kwan Street, Tuen Mun, to the opposite of (and within sight of) the Building[17] collapsed onto pavement and injured a passer-by (Winfield Incident). The design and construction of 1/F Canopy of the Building was similar to that of the collapsed canopy in Winfield Incident[18]. 26.On 10 January 2012, surveyor explained to members of MC that ceiling waterproofing membranes, load-bearing and structural parts of the Building should belong to, and their repair responsibility should lie with, all owners. C6. BD’s pre-action letter to IO in 2012 27.On 26 March 2012, BD issued letter to IO advising IO of defects/damage at exterior and common parts of the Building and its intention to issue order pursuant to Buildings Ordinance[19] (BO) requiring removal of all loosened/damaged rendering and mosaic tiles at external walls of the Building. 28.On 26 April 2012, MC held meeting to discuss result of tender and also decided to instruct lawyer to obtain land search result of 1/F Canopy to ascertain its ownership. On 14 June 2012, MC held another meeting to discuss proposed 3 different methods (or options) of repairing external walls of the Building. C7. The 2012 Order 29.On 23 July 2012, pursuant to s.26A(1) of BO, BA issued and served an order on “the owner of Unit A & Canopy on 1/F & Unit A on 2/F and the External Walls, of [the Building]” requiring the said owner (i.e. CCS) to appoint an Authorized Person (AP) to “investigate and report on the integrity and stability” of 1/F Canopy[20] and to “submit proposals for remedial works” if, inter alia, its “drainage system” “is defective, inadequate or blocked” by 23 January 2013 (the 2012 Order). 30.On 13 September 2012, a meeting of MC was held. Tenders of external repair (with 3 options) were opened. Lawyer 廖成利 (Liu) was welcomed to serve as voluntary legal adviser to IO for one year. By then, MC had knew from CCS of the 2012 Order and another order about steel frame demolition[21] and knew that 1/F Canopy was registered in name of CCS from land search obtained. Representative from CCS i.e. 葉蔭初 attending the meeting had replied MC, I accept from Chow, that only the latter about steel frame demolition would be complied with[22]. Had CCS indicated to MC that it would comply fully with the 2012 Order over 1/F Canopy, I find it unlikely for IO to have resolved in the end to take it up itself. In this respect, I accept from Chow that all minutes of meetings of IO were prepared by staff of management office and they were not drafted in minute details. 31.On 8 August 2013, general meeting (GM) of IO was held, during which it was resolved to cancel contract with consultant and invite tenders again for repair works of the external walls of the Building. On 5 September 2013, IO held its MC meeting and resolved to invite tender of the aforesaid repair works and engagement of independent surveyor to monitor contractor. 32.On instructions from Sunfield Engineering Consultants Ltd. (Sunfield), which, I believe, was engaged by CCS, Geotechnics & Concrete Engineering (HK) Ltd. carried out structural investigation works at 1/F Canopy and completed its report dated 27 September 2013 (the 2013 Structural Report). C8. The 2014 Order 33.On 31 March 2014, pursuant to s.26 of BO, BA issued and served an order on IO declaring the Building being dangerous and requiring IO to commence by 29 June 2014 (and to complete by 29 September 2014) the following works to its “common areas and exterior”: (a) “remove loose cracked and otherwise defective concrete from [its] reinforced concrete structure, clean existing exposed steel bars of loose rust and foreign matter, provide and securely fix in place additional steel bars as necessary and reinstate”; and (b) “remove all loose and defective external rendering and internal plastering (bold and italics supplied)” (the 2014 Order). 34.On 16 April 2014, pursuant to the 2012 Order, Sunfield completed its unsigned survey report on 1/F Canopy (the 2014 Canopy Survey Report). 35.The next day i.e. 17 April 2014, a meeting of MC was held, whereby it was resolved to engage works and legal consultants on external wall repair works. After the 2014 Canopy Survey Report was submitted to MC by CCS, it was agreed that all owners should be responsible if there was structural problem with 1/F Canopy[23] and MC required engineer appointed by CCS to supply for IO’s reference (and also for analysis by consultant to be engaged by IO) further details of 3 remedial options of 1) partial demolition of 1/F Canopy; 2) its total demolition; 3) extra support to it by steel bars. 36.Though there was no written record in MC meeting minutes produced of MC receiving legal advice from Liu that structural parts of 1/F Canopy belong to IO such that IO is responsible for the same[24] and though Chow changed her evidence of MC/her receiving such advice from Liu “in meeting” to “over the phone” and to “meeting him on the street”, I accept Chow’s evidence of MC having received, and discussed, such advice from Liu prior to GM of IO on 24 October 2014 for the following reasons:
37.On 29 May 2014, another meeting of MC was held. Representatives from CCS and from Sunfield explained to members of MC contents of the 2014 Canopy Survey Report (including concept of factor of safety (FS) more or less than 1, and that 3 test areas of 1/F Canopy were found to have FS of less than 1 but with no immediate danger) and suggested 3 work proposals costing from $1.12M to $1.46M. They are: 1) partial demolition of 1/F Canopy with span reduced to 0.8m; 2) its total demolition; and 3) extra support to it by steel bars. Some members of MC suggested however, due to the 2012 Order being directed against CCS, that the said proposals be discussed by MC only after legal advisers to be engaged by IO explained, or sorted out, the liability issue for the said works. As such, opinions given by CCS and Sunfield are for IO’s reference only. 38.On 10 July 2014, GM of IO was held whereby it was resolved to engage Cheung Wing Architects & Engineers Ltd (the Architect) as IO’s consultant on external walls repair works of the Building. 39.On 31 July 2014, at another MC meeting, IO signed its consultant contract with the Architect and resolved that the Architect would arrange survey of the Building and report to IO later. 40.On the Architect’s instructions, Global Tests Ltd (Global Tests) surveyed the external walls of the Building on 15 August 2014, prepared an infra-red survey report dated 18 August 2014 (Infra-red Report) and discovered 181 suspected external wall defects: 1) 147 locations of external wall finishes suspected to be delaminated; and 2) 34 locations at external wall suspected to be suffering from water seepage. The total defective area is 152 m² (or 3.2% of all total external walls of 4,800 m²). 41.On 28 August 2014, another MC meeting was held. Report from the Architect was received. Items or details of repair works of the Building were approved, with newspaper advertisement of tender to be put up by the Architect. 42.On 29 August 2014, CCS executed an assignment of the 3 Units A (and their external walls) and 1/F Canopy in favour of China All Enterprises Limited (China All). 43.On 18 September 2014, MC held another meeting and resolved to invite tenders by way of 3 options (all 3 of them involved removing the 1/F Canopy) after having considered analysis prepared by the Architect. Among other differences of the said 3 tender options, item 4 thereof involved external wall repairs using different materials at different pricing for the said 3 options. 44.On 8 & 17 October 2014, MC held meetings to discuss tender analysis prepared by the Architect, discounts given by tenderers on all 3 tender options, and to discuss methods, and order, of demolishing canopy as advised by tenderers. C9. 2014 GM resolutions to carry out the Works 45.By resolutions passed at GM of IO held on 24 October 2014, it was resolved to appoint Wing Shing Engineering & Builder Limited (the Contractor) as IO’s contractor to carry out 2nd tender option of repair works of the Building (the Works), inclusive of demolition of 1/F Canopy, with 11 more optional items of works chosen. The Works, Ho agreed under cross-examination, is the first major renovation of the Building after it was built. 46.IO held another MC meeting on 6 November 2014 whereby it was resolved to collect from owners their contributions to renovation works by way of 4 installments, the latest one by 30 June 2015. It was also agreed by MC to allow individual owners to use scaffolding erected by IO for external wall repair works to replace their own aluminum windows (in the end, CCS had used such scaffolding to replace windows of 1/ F and 2/F with walls at its own costs, according to Chow’s evidence I accept). C10. Costs of relevant items of the Works 47.On the same day, IO executed contract with the Contractor to carry out the Works by way of 2nd tender option at a discounted total sum of $19.9M (its original price being $20,054,400) (the Contract). 48.Looking at the Contract, the Works consist of a total of 13 items. Item 12 thereof in sum of $3.6M is in dispute. It is for removal of 1/F Canopy (the subject matter of Issues 1 & 2 for experts’ opinion) with particulars as follows:
49.Items 3.1 to 3.8 of the Works are headed “repair of reinforced concrete and rendering of common external wall of the Building”. These were, Ho agreed, carried out to structural parts of the external walls of the Building[25]. Two pertinent items for our present purpose are:
50.Item 4 of the Works in the Contract in total sum of $6.405M (under 2nd tender option)[26] is also in dispute. It is the subject matter of Issue 3 for experts’ opinion. Like items 3.1 to 3.8, they are also works on external walls of the Building but those in item 4 are other works on all external walls totaling 4,800 m² [27] with particulars as follows:
C11. Dispute over respondent’s share of contribution 51.On 13 November 2014, 3 & 4 December 2014, respondent’s solicitors thrice wrote to Chow to complain about costs of the Works over 1/F Canopy and 1/F & 2/F external walls in the Contract. The respondent later wrote to Chow to the same effect, saying that it would only pay 1st and 2nd installments totaling $273,747.02, which it did by 7 May 2015. 52.In about December 2014[28] or shortly afterwards, the Works began. 53.On 23 October 2015, respondent’s solicitors wrote to IO’s solicitors to repeat earlier stance at [51] above. IO’s solicitors replied on 12 November 2015 to demand the respondent to pay outstanding 3rd and 4th installments in total sum of $273,747.02. C12. Completion of the Works by January 2016 54.By 29 January 2016, the Works had been practically completed[29]. On 6 April 2016, BA wrote to IO to confirm that works relating to the 2014 Order had all been completed after inspection by its consultant on 2 January 2016. 55.On 25 May 2016, IO took out this application, seeking to recover $273,747.02 from the respondent. 56.On 28 July 2016, the respondent filed its Form 7 in opposition. 57.On 3 August 2016, respondent’s solicitors tendered on behalf of the respondent to IO’s solicitors their cheque in sum of $129,764.57 ($127,776.17 thereof being balance of respondent’s share of the Works by deducting $273,747.02 from $401,523.19 and $1,988.40 being interest on the said balance of $127,776.17 at 8% p.a. from 25 May 2016 to 3 August 2016) and IO had accepted the same. C13. 2018 GM resolution to build a new canopy 58.On 18 September 2018, IO resolved at GM to re-build canopy at 1/F level and to appoint the Contractor for the said rebuilding works at the costs of $1.4M. A new external structural steel canopy with aluminum cladding projecting over the street is now seen at 1/F level of the Building, including on 24 September 2022 when parties’ experts made their joint site inspection. D. Parties’ contentions D1. IO’s contentions 59.IO says that, on proper construction of the DMC and application of BMO,:
60.The Works, including those of external walls and demolition of 1/F Canopy, said IO, were within its powers and duties under s.18(1) and (2) of BMO in that they were to comply with the 2014 Order and to fulfill IO’s duties in accordance with clauses 12(c), (d) and (dd) of the DMC. 61.Further or alternatively, the Works, including demolition of 1/F Canopy, were for the common interest of the Building. The inclusion of 1/F Canopy demolition was, IO argued, necessarily incidental to or in the interests of the management of the Building and/or for the common interest of all owners of the Building as a whole as it obviates present and future risk that 1/F Canopy might pose to members of the public and/or owners of the Building and avoid possible civil and/or criminal liability on the part of IO. 62.The total costs of the Works should be paid by all owners of the Buildings in proportion to their respective undivided shares as per the Schedule of the DMC and the respondent is thus liable to pay the sum of $547,494.04 i.e. $19,900,000 x 236/8,578. Having previously paid IO the sums of $273,747.02 and $127,776.17, the respondent remains liable to pay IO the balance of $145,970.85 (i.e. $547,494.04 - $273,747.02 - $127,776.17). D2. Respondent’s contentions 63.The respondent says that, on proper construction of the DMC and proper application of BMO, owner of 1/F Canopy and owners of Assigned External Walls (from G/F to 2/F) are respectively entitled to exclusive use, occupation and enjoyment of the said canopy and their respective external wall(s) to its/their entirety. Their structural parts are not common parts of the Building. In addition, the respondent says that only external walls from 3/F to 10/F of the Building are common parts. 64.The respondent also says that only owner of 1/F Canopy was obliged to comply with the 2012 Order but that MC had wrongly opined that IO should carry out remedial works to 1/F Canopy in compliance with the 2012 Order. The Works were thus not to comply with the 2014 Order only. They included renovation to Assigned External Walls and demolition of 1/F Canopy, which are not common parts, thus falling outside IO’s duties under clauses 12(c), (d) and (dd) of the DMC and s.18(1) & (2) of BMO. 65.Further or alternatively, if owners of 1/F Canopy and of Assigned External Walls are, the respondent argued, entitled to exclusive use of their surfaces only, they should maintain such surfaces under clause 20(m) of the DMC and s.34H of BMO. If they so failed leading to damage and/or dilapidated state of the concrete slab and structure thereof, the said owners should be liable for the costs of the Works relating to 1/F Canopy and the Assigned External Walls. 66.The costs of the Works relating to the Assigned External Walls should, the respondent argued, first be borne and paid for by their respective owners having exclusive right to their use and enjoyment under the Schedule of the DMC. Thus, China All should, pursuant to s.34H of BMO, be responsible for maintenance of the external walls of the 3 Units A. The remaining costs of the Works over external walls should then be borne by all owners in proportion to their respective undivided shares under the DMC. As there are in total 11 floors in the Building, all owners should only be responsible for 8/11 of the costs of the Works over external walls. 67.The respondent should, it was argued, not be responsible for the costs of maintenance of 1/F Canopy (in sum of $3,572,283.39[30]) nor 3/11 of the decoration costs of the Works over external walls (in sum of $6,355,687.53[31]). Its due share of contribution to the Works should only be $401,523.19 i.e. [$19.9M - $3,572,283.39 - $6,355,687.53 x 3/11] x 236/8578. 68.Having paid $273,747.02 before this application was taken out on 25 May 2016 and tendered $129,764.57 by way of cheque sent to IO’s solicitors on 3 August 2016, the respondent says that it had fully paid IO its due share of contribution to the Works plus interest from 25 May 2016 to 3 August 2016. 69.The respondent counterclaims declaration that:
D3. IO’s reply contentions 70.If, which is denied, the 1/F Canopy and the Assigned External Walls are not common parts of the Building, such of the Works carried out by IO over them were, IO averred, necessarily incidental to or in the interests of the management of the Building and/or for the common interest of all its owners.
71.IO puts the respondent to proof of its factual contention in [65] above. 72.Items 4.1 to 4.6 of the Works are not, IO averred, decoration works but are for compliance with the 2014 Order and/or repair and maintenance works of the Building. If they are decoration works as alleged, IO may carry out improvement or decoration works to common parts under s.18(2)(fa) of BMO. 73.Finally, IO said that the DMC and/or BMO does not contain any clauses which support the apportionment of 3/11 as contended by the respondent. E. Other relevant DMC provisions 74.Recital 5 of the DMC provides that the First Owner and HKJC have agreed with the management company for the latter to undertake management of the Building and the Land on the terms and conditions of the DMC and
75.In the DMC, “owner” means: -
The word “owner” when used in relation to any unit in the Building shall unless the context otherwise requires mean
76.In the DMC, “the unit” means “each of the parts of the Building set out in the First Column of the Schedule hereto”. 77.Clause 3(b) of the DMC reads:
78.Clause 6 of the DMC reads:
79.Clause 7 of the DMC reads:
80.Clause 9 of the DMC reads:
81.Clause 12 of the DMC reads:
82.Clause 16(d) of the DMC reads:
83.Clause 16(g) of the DMC reads:
84.Clause 16(h) of the DMC reads:
85.Clauses 20(a), (h), (l), (m) & (r) of the DMC read as follows:-
F. Relevant BMO & related provisions 86.Under s.2 of BMO, “common parts” mean: -
87.Para 1 of Schedule 1 of BMO reads: “External walls and load bearing walls, foundations, columns, beams and other structural supports (bold and italics supplied)”. The word “canopy” is nowhere found in the said Schedule 1. 88.Definition of “common parts” in s.2 of, and First Schedule of, Predecessor Ordinance reads substantially the same like those in [86] and [87] above. 89.S.14(1) of BMO reads:
90.S.18(1) of BMO reads:
91.S.18(2) of BMO reads:
92.S.18(2A) of BMO reads:
93.S.34H of BMO reads:
94.Code of Practice on Building Management and Maintenance issued pursuant to s.44(1) of BMO and taking effect as from 1 August 2007 (COP 2007)[33] has the following paragraph 1.2:
95.Paragraph 4.2 headed “Structural elements” of COP 2007 has the following paragraph 4.2.1:
96.Paragraph 4.3 headed “External walls” of COP 2007 has the following paragraphs 4.3.1 and 4.3.3:
97.And paragraph 4.4 headed “Canopies and balconies” of COP 2007 has the following paragraphs 4.4.1:
G. Discussion G1. Item 12 of the Works to remove 1/F Canopy 98.Ms Wong submitted that it was within power and duties of IO under s.18(1)(a) to (c) and s.18(2)(g) of BMO to remove 1/F Canopy under item 12 of the Works. And IO did it in line with the 2014 Order and clauses 12(c), (d) & (dd) of the DMC. Mr Chiu took the contrary position on each of these points. G1.1 Structural parts of 1/F Canopy common parts or not? 99.IO has, one thinks, to first prove that 1/F Canopy was “common parts” of the Building before it becomes duty-bound under s.18(1)(a) of BMO to “maintain” it “in a state of good and serviceable repair and clean condition”. 100.Opinion on Issue 1 as it was framed was, I believe, therefore sought from the 2 experts to assist this Tribunal on the above point. However, given that parties’ dispute only focuses on whether structural parts of 1/F Canopy are “common parts”, I wonder if Issue 1 was framed too wide than it is required to resolve this narrow dispute. 101.As it turned out, Fan and Chan gave wide-ranging opinions on, inter alia, structural design of 1/F Canopy on approved plans, whether practice note and concrete code etc. were applicable to 1/F Canopy at the time the Building was built, whether 1/F Canopy was cast (or built) monolithically, and the degree of corrosion, if any, of its reinforced steel bars between 2012 and 2015. 102.It appears to me that the narrow question the 2 experts could assist this Tribunal is simply whether structural parts of 1/F Canopy are “... other structural supports” of the Building within para 1 of Schedule 1 of BMO (or Predecessor Ordinance) or not. 103.As a matter of law, whether structural parts of 1/F Canopy are “common parts” of the Building as alleged by IO depends on proper construction of the DMC and application of s.2 and para 1 of Schedule 1 of BMO (or Predecessor Ordinance). 104.The DMC should be read as a whole in light of the factual and legal context of its making and the practical objects which it was intended to achieve. Both textual analysis and contextualism are useful tools in this construction exercise. To arrive at a proper construction, the court has to conduct a unitary exercise in each case going through an iterative process: Donora Company Limited v IO of Tsuen Kam Centre [2024] HKCFA 3 (Donora)[34], para 55. 105.The correct approach is to read the DMC together with the First Assignment in discerning parties’ common intention. Applying s.2 of BMO (or Predecessor Ordinance), the question is when these documents are read together whether they manifest a common intention to specify or designate the relevant part as being for the exclusive use, occupation or enjoyment of an owner. These documents should be construed together contextually and purposively in a coherent fashion: Donora, para 39. 106.In applying the statutory definition, the court must examine all relevant provisions instead of narrowly confining itself to one single provision. One should not simply ask if there is any clause in a registered instrument which stipulated that the exclusive use, occupation and enjoyment of a particular part be given to an owner. One must pay regards to the overall context of the transaction and the other relevant provisions in the instruments effecting the same transaction. The specification or designation in an instrument referred to in the statutory definition refers to the relevant and effective specification or designation in the transaction: Donora, para 40, 51 & 52. 107.Schedule 1 of BMO (or Predecessor Ordinance) serves as a non-exhaustive pointer to what might commonly be regarded as common parts and if a part has been specified in that schedule a stronger indication is required before the court can come to the conclusion that it is not common part: Donora, para 56. 108.Going through the aforesaid iterative process in our case in the manner below, reading the DMC and the First Assignment together, I do not think that they manifest a common intention to specify or designate the structural parts of 1/F Canopy as being for the exclusive use, occupation or enjoyment of an owner like owner of Unit A of 1/F and Unit A of 2/F.
109.After going through the above iterative process in the manner above, I would therefore prefer, and find for, IO’s contentions to those of the respondent on this point. Reading the First Assignment and the DMC as a coherent whole, I conclude that any reasonable person would have understood the parties to them to mean that the structural parts of 1/F Canopy are to remain as “common parts” for the benefit of all owners of the Building. G1.2 S.18(1)(a) of BMO? 110.Though I accept IO’s contentions that structural parts within 1/F Canopy are “common parts” of the Building, I do not accept IO’s further contention that it had exercised its power under s.18(1)(a) of BMO to “maintain” the said “common parts” “in a state of good and serviceable repair and clean condition” when what it had done was to remove the whole 1/F Canopy (more than its structural parts I found to be “common parts”) without replacement. IO’s case on this section therefore, I think, fails. G1.3 In compliance with the 2014 Order or not? 111.IO has, one thinks, also to prove that it was ordered or required to remove the structural parts of the 1/F Canopy (i.e. “common parts” of the Building as I found above) by BA under the 2014 Order made under BO before it became duty-bound under s.18(1)(b) of BMO to carry out such works. 112.Looking at the details of investigations required by para (a)(i)-(viii) & (b)(i)&(ii) of the 2012 Order and the detailed works required by para (a) & (b) of the 2014 Order, the focus of the two orders is, I think, apparently different:
113.Against the above observation, I prefer the reasons given by Chan at para 62(1) & (2) of his expert report and at para 8.4.2 of the joint expert report, and find that the 2014 Order was likely intended by BA to require IO to complete such works at para (a) & (b) thereof to “exterior and common areas” of the Building other than 1/F Canopy which then was subject matter of the 2012 Order still valid against its “owner”[40] i.e. CCS and unperformed. 114.Had BA had 1/F Canopy in mind again when it issued the 2014 Order against IO such that it overlapped in part with (or touched upon again the subject matter of) the 2012 Order, BA should likely, one thinks, have made it clear to IO (and CCS) in the 2014 Order or otherwise the inter-relationship between the two orders. 115.If it be necessary, I reject Chow’s evidence in her supplemental witness statement that the demolition of 1/F Canopy by IO was in compliance with the 2014 Order for the following reasons.
If it be necessary, I therefore find it likely that IO had removed 1/F Canopy in purported compliance with the 2012 Order. 116.Were I wrong with my conclusions and/or findings above, had the 2014 Order also covered 1/F Canopy as IO had suggested, the complete removal of 1/F Canopy as item 12 of the Works definitely went beyond, I think, what was ordered or required in para (a) of the 2014 Order as suggested by Fan.
117.In this respect, I disagree with Ms Wong’s submission at para 12 of her closing submission. Authority or power for IO to do more than what was ordered or required by the 2014 Order should, I think, be sought elsewhere, if any, than from s.18(1)(b) of BMO itself or else the section would be easily abused or misused. 118.Hence, IO’s case here fails on the facts I find. G1.4 S.18(1)(b) of BMO? 119.On my findings in sections G1.1 & G.13, I do not find it within IO’s duty as per s.18(1)(b) of the BMO to undertake removal of the entire 1/F Canopy. The IO was not ordered by the 2012 Order to do so. Neither was such entire removal works in respect of the “common parts” of the Building as I have found. G1.5 S.18(1)(c) of BMO & clause 12(c) & (d) of DMC? 120.On Issue 2, Fan opined that removal of 1/F Canopy was related to and/or incidental to and/or facilitated the repair and maintenance of the Building. 121.Ms Wong also submitted that demolition of 1/F Canopy involving removal of reinforcement steel bars cast inside parent structure of the Building so as to eradicate and/or prevent risk of corrosion of its parent structure is definitely incidental to and/or facilitates the repair and maintenance works of the Building[42]. 122.Ms Wong referred this Tribunal to s.18(1)(c) of BMO & clauses 12(c) & (d) of the DMC quoted above, which, except for s.18(1)(c) of BMO, all relate to “common parts” of the Building. Nevertheless, one way or another, clause 12(c), 12(d) and 16(d) of the DMC relied upon by IO do use such express words like “keep clean and in good sanitary state and condition”, “keep in good repair and condition”, “replace” damaged or destroyed part(s), “maintenance”, “upkeep” and “repair” to restrict or confine their scope of operation. 123.In IO of Beauty Court v Hon Ping Kay & Another, unreported, LDBM 2/1998, 11 December, 1998 (Beauty Court), the following had been said by the Lands Tribunal[43] in a dispute about “repair works”:
124.At para 13 & 14 of 和富大廈(荃灣)業主立案法團 v浩鴻發展有限公司 & Another, unreported, LDBM 15/2011, 10 January 2012 (和富大廈), HH Judge M. Wong had also distinguished “repair” and “improvement” as follows:
125.For reasons below, I am afraid that complete demolition of 1/F Canopy by way of item 12 of the Works can in no way be regarded as “repair”, “maintenance” or “improvement” of the Building or to “its common parts”.
126.For s.18(1)(c) of BMO, Ms Wong had also not pinpointed any alleged DMC obligation (or clause) for control, management and administration of the Building that IO could enforce by instructing contractor to remove 1/F Canopy. 127.In so far Ms Wong falls back to submit that “prevention is better than cure”[45] i.e. it is reasonable for IO to remove risk of collapse of 1/F Canopy before it happens, such submission is, I think, outside the express wordings of the DMC clauses and BMO section considered in this section and thus not open to IO to run. 128.For the above reasons, Ms Wong’s case in this section does not succeed either. G1.6 S.18(2)(g) of BMO & clause 12(dd) of the DMC? 129.I go on to consider Ms Wong’s last submission on the 2 most general powers of IO in s.18(2)(g) of BMO and clause 12(dd) of the DMC. Relying on them, Ms Wong submitted that removal of 1/F Canopy was for the common interests of all owners of the Building and that such removal was necessarily incidental to or in the interests of the management of the Building. 130.At para 13 of IO of Swiss Towers v Chow Yum Wah, unreported, CACV 122/2006, 20 October 2006 (Swiss Towers), Cheung JA, giving the judgment of Court of Appeal, after referring to the long title of BMO and s.14(1) of BMO, had explained s.18(2)(g) of BMO as follows:
131.In support of her submissions, Ms Wong relied on Beauty Court, supra, where the applicant corporation reached an agreement with 1/F flat owner to share the costs of reconstructing a balcony. Having found part of the balcony outside the said 1/F flat forming part of external part of the building for which all owners should share its repair costs under the deed of mutual covenants, the Lands Tribunal accepted that the damaged balcony endangered the safety of others and needed to be reconstructed urgently and that it was reasonable for the applicant to reach the said agreement with the 1/F flat owner. Without referring to s.18(2)(g) of BMO, the Tribunal found this work item “within the power and obligation given” to applicant “under the law” and the said expenses recoverable from the respondent owner[46]. 132.At trial, Chow gave evidence that, after Winfield Incident, IO was greatly concerned about its potential legal liability in the event of collapse of 1/F Canopy. It was against such background (and also, I think, CCS’s reluctance to comply with the 2012 Order in [30] above) that MC decided on IO taking up the 2nd remedial proposal of total demolition suggested by Sunfield in [37] above. This proposal can, said Chow, completely eradicate all potential danger of collapse of 1/F Canopy, or risk of IO being sued, once and for all. MC thus had discussions with CCS, which also gave its consent for the canopy to be removed[47]. The decision to remove 1/F Canopy was therefore, said Chow, made in the interest of all owners of the Building as a whole. 133.Having regard to all evidence adduced at trial, I accept the above evidence of Chow on the following grounds: -
134.Applying Swiss Tower and following Beauty Court, handling or solving of outdated design and construction problems of 1/F Canopy and its safety risk of collapse, and the consequential risk of potential legal liability (by coming to an agreement with CCS to remove 1/F Canopy) is, I think, a matter in which all owners of the Building “have a common interest” as per s.18(2)(g) of BMO and also reasonably incidental to and/or in the interests of the management of the Building as per clause 12(dd) of the DMC. It is a common problem of the management of the Building faced by all its owners. 135.Hence, I accept IO’s contentions that it was within its power or discretion under s.18(2)(g) of BMO and clause 12(dd) of the DMC to resolve on instructing contractor at GM to remove 1/F Canopy in the Works. 136.In the event I am wrong on my ruling in section G1.1 and Mr Chiu were right that the entirety of 1/F Canopy was within exclusive use occupation and enjoyment of CCS (and of China All after 29 August 2014), for same reasons given by me in this section, I would have remained of the same view that it was within power or discretion of IO under s.18(2)(g) of BMO and clause 12(dd) of the DMC to resolve at GM to remove 1/F Canopy if so far it may be necessary. 137.In coming to the above ruling, I reject Mr Chiu’s contrary submissions based on s.34H of BMO. 138.In gist, public fund of IO should, Mr Chiu argued, be spent on “common parts” for which IO had duty to maintain and not on private properties. Were it otherwise, there could well be misuse of public fund on private properties to the windfall of individual private owner(s). As CCS (and, after 29 August 2014, China All) was, under s.34H of BMO, responsible to maintain and repair 1/F Canopy, such costs should not be paid by all owners (or paid upfront by all owners and recovered from individual private owners afterwards) but by CCS (or China All). To apply s.18(1) & (2) of BMO (and clause 12 of the DMC) in the way suggested by IO would, Mr Chiu submitted, be contrary to the mandatory and overriding[51] provision of s.34H of BMO, unreasonable, absurd, nonsensical and contrary to the law. 139.My reasons to disagree with Mr Chiu are as follow:
140.Hence, IO has, I conclude, managed to prove its case on s.18(2)(g) of BMO and clause 12(dd) of the DMC regarding item 12 of the Works while all its rest fails. G2. Items 4.1 to 4.6 of the Works over all external walls 141.Ms Wong submitted that it was within power and duties of IO under s.18(1)(a)-(c) and s.18(2)(fa) & (g) of BMO to carry out items 4.1 to 4.6 of the Works. It was done by IO in line with the 2014 Order and clauses 12(c), (d) & (dd) of the DMC. Again, Mr Chiu took the contrary position on each of these points. G2.1 Structural parts of Assigned External Walls common parts or not? 142.Again, IO has to first to overcome the “common parts” or “private/exclusive area” hurdle in order to apply s.18(1)(a) of BMO. 143.Ms Wong conceded that Assigned External Walls do not form common parts of the Building but that their exclusive use area must, she argued, be confined to the space of their adjoining units surrounded by these external walls, the ceiling and floor slab. These exclusive use areas do not, she submitted, extend to the structural parts of Assigned External Walls[53]. As such, for Assigned External Walls, the parties’ dispute also lies with their structural parts alone. 144.For Other External Walls, the respondent effectively submitted that they are common parts of the Building (see [63] above) and the IO does not contend otherwise. And both parties are contended for their costs of the Works to be shared by all owners of the Building in proportion with their respective undivided shares (see [66] & [67] above). I would therefore proceed with the rest of the Judgment on such common ground of the parties. 145.For parties’ difference over structural parts of Assigned External Walls, going through the same iterative process as suggested by Donora, by looking at First Assignment and the DMC as a coherent whole in the manner below, I do not think that their parties had manifested a common intention to specify or designate the structural parts of the Assigned External Walls as being for exclusive use of their respective individual owners.
146.After going through the above iterative process, IO’s contention is, I think, the right one on this point. Notwithstanding specification of, and allocation of shares to, Assigned External Walls in First Column of the Schedule of the DMC, their structural parts remain, I think, “common parts” of the Building. That accords, I think, with what a reasonable person rather than a pedantic lawyer would have understood the parties of the DMC to mean. G2.2 S.18(1)(a) of BMO? 147.But items 4.1 to 4.6 of the Works were all carried out on the surfaces of all external walls of the Building. Looking at [50] above, items 4.1, 4.3, 4.4 and 4.5 involved demolishing external wall finishes, installing and cleaning external wall tiles, and installing tiles with expansion joints for external wall tiles. Item 4.2 concerned rendering. Item 4.6 was painting of pipes/drain pipes. 148.Hence, putting aside items 4.1 to 4.6 of the Works carried out at Other External Walls, these items carried out at Assigned External Walls were not carried out at structural parts of Assigned External Walls. In other words, these items were not carried at “common parts” of the Building (as I have found in section G2.1) as required by s.18(1)(a) of BMO. 149.IO was thus, I think, under no duty under s.18(1)(a) of BMO to carry out items 4.1 to 4.6 of the Works at Assigned External Walls, whatever the position might well be regarding same works at Other External Walls. IO therefore fails on this point. G2.3 In line with the 2014 Order or not? 150.Under Issue 3, Fan opined that all items 4.1 to 4.6 of the Works were not for the compliance of the 2014 Order. The said order was, he opined, solely related to the removal of dangerous elements. There was, he pointed out, no additional requirement in the said order to reinstate external wall tiles finishes. 151.To the contrary, Chan’s views on Issue 3 are that only items 4.4 and 4.6 of the Works were not in compliance with the 2014 Order. On the results of Infra-red Report found at [40] above and limited to those damaged locations at Other External Walls, Chan opined in his expert report, and in joint expert statement, that only a total of 152 m² of works in items 4.1, 4.2, 4.3 & 4.5 of the Works were in compliance with the 2014 Order[56]. 152.For reasons explained in the next section, I do not find it necessary to resolve the above differences between the 2 experts. In either case, IO cannot succeed either. G2.4 S.18(1)(b) of BMO? 153.As neither of the 2 experts opined in favour of IO that all items 4.1 to 4.6 of the Works were carried out in compliance of the 2014 Order, there is, I am afraid, no available favourable expert evidence that IO could rely upon to prove that it was ordered or required by order of BA to carry out all items 4.1 to 4.6 of the Works such that it became duty-bound under s.18(1)(b) of BMO to do so. Again, IO has, I think, to seek elsewhere for the necessary power or authority, if any, to carry out all items 4.1 to 4.6 of the Works. 154.On the evidence before me, s.18(1)(b) of BMO (and the 2014 Order) therefore, I think, does not empower IO to carry out all items 4.1 to 4.6 of the Works on all external walls of the Building. G2.5 S.18(1)(c) of BMO & clauses 12(c) & (d) of the DMC? 155.For same reason of lack of alleged DMC obligation to enforce given in [126] above, I do not think s.18(1)(c) of BMO avails IO to carry out items 4.1 to 4.6 of the Works at all external walls of the Building. 156.Regarding clauses 12(c) & (d) of the DMC both involving “common parts” of the Building, IO suffers, I think, from same fatal problem of items 4.1 to 4.6 of the Works carried out at Assigned External Walls being surface works and not being structural works as explained by me in section G2.2. 157.The provision and clauses in this section cannot, I think, support IO’s case either. G2.6 S.18(2)(fa) of BMO? 158.This power or discretion of IO under s.18(2)(fa) of BMO covers 3 different kinds of works: i) renovation; ii) improvement and iii) decoration work. 159.Under Issue 3, Fan opined that all items 4.1 to 4.6 of the Works were for the repair and maintenance of the Building. 160.In comparison, Chan took the views in his expert report, and in the joint expert statement, that:-
were for the repair and maintenance of the Building. 161.In spite of the above contrary expert opinion of Chan, on the authority of Beauty Court and 和富大廈, Ms Wong has, I think, by way of submissions below, put forward forceful arguments that all such works in items 4.1 to 4.5 of the Works could be regarded as either renovation, improvement, or decoration works of the Building under s.18(2)(fa) of BMO[58].
162.On the other hand, Chan questioned the necessity and costs to demolish as many as 4800m² of external wall tiles over all external surfaces of the Building (by way of item 4.1 of the Works) to carry out structural repairs below at only 152m² area he calculated (or, one may add, at only 300m² area for item 3.3 of the Works). 163.But, again, s.18(2)(fa) of BMO, one notes, applies only to renovation, improvement or decoration work “to the common parts” and not “to the building”. 164.With respect, experts’ opinion in Issue 3, and Ms Wong’s submissions, regarding items 4.1 to 4.6 of the Works being repair and maintenance of the Building are misplaced. 165.Even assuming I were to rule in favour of Ms Wong’s argument above, whatever may be the position regarding Other External Walls, such works carried out at the surfaces of Assigned External Walls could not, one thinks, be renovation, improvement or decoration works “to the common parts” as per s.18(2)(fa) of BMO on my ruling in section G2.1. For this reason, I also do not find it necessary to reach a conclusion on Ms Wong’s argument above. 166.IO’s case on s.18(2)(fa) of BMO also fails. G2.7 S.18(2)(g) of BMO and clauses 12(dd) of the DMC? 167.Relying on Chow’s evidence, Ms Wong last submitted that carrying out items 4.1 to 4.6 of the Works on all external walls of the Building is a matter “in which the owners of the Building have a common interest” and/or necessarily incidental to or in the interests of the management of the Building under clause 12(dd) of the DMC. 168.In the box, Chow further gave evidence (which I accept) that if only parts of the external walls of the Building were repaired or improved, there would be color difference between different parts of the Building, adversely affecting its aesthetic appearance. Moreover, IO had, she said and I accept, opted for repairs to all external walls of the Building (as opposed to damaged parts) to have a complete overhaul of all of them (solving, inter alia, their structural and seepage problems) in order to avoid further mosaic tiles falling off from them causing dangers to passers-by (thus avoiding potential legal liability on the part of IO). As such, the repairs of all external walls of the Building resolved by IO at GM held on 24 October 2014 are, she stressed, in the common interest of all owners of the Building as a whole. 169.Ms Wong sought support for her submissions from the judgment of HH Judge M. Wong in 陳民華及另十七人 及 元朗屏會街9號同發大廈業主立案法團, unreported, LDBM 165/2011, 27 June 2012, where His Honour held that the incorporated owners had power to install new central air-conditioning water collection pipes[61] under s.18(2)(fa) & (g) of BMO by saying the followings at para 14 & 15 thereof:
170.In further support of her submissions, Ms Wong also cited judgment of Deputy District Judge Simon Lui in 好順利大厦業主立案法團 對 Wealth Gear Ltd及另一人 [2018] HKLdT 19, where it was said at para 19 as follows:
171.I take note of Mr Chiu’s submissions regarding the above 2 cases[62] where he highlighted their factual differences from this case and thereby sought to distinguish them. In addition, Mr Chiu objected to their application, as he did in opposition to IO’s case of removal of 1/F Canopy, by reference to s.34H of BMO (but on the different premises that CCS, or China All, has exclusive use of Assigned External Walls in its entirety and therefore should, he argued effectively, be solely responsible to pay for their maintenance and repair). 172.Of course, the facts of the 2 cases in [169] and [170] above are not on all fours with this case. Notwithstanding that, I find their reasoning convincing in our context and still applicable to the evidence of Chow I accept and the different factual circumstances of this case. 173.In so far Mr Chiu’s objection based on s.34H of BMO is concerned (see [138] above), I repeat reasons given by me at [139] above in reply thereto. Again, I would stress that I am only concerned myself in this judgment (or this dispute) with existence or otherwise of power or discretion of IO under s.18(2)(g) of BMO and/or clause 12(dd) of the DMC to carry out items 4.1 to 4.6 of the Works over all external walls of the Building[63]. 174.Applying Swiss Towers and the reasoning of the above authorities, and on the facts I find, I accept Ms Wong’s submissions and conclude that IO had power or discretion under s.18(2)(g) of BMO and/or clause 12(dd) of the DMC to undertake item 4.1 to 4.6 of the Works for all external walls of the Building. It is a matter in which the owners of the Building have a common interest and/or necessarily incidental to or in the interests of the management of the Building. 175.Again, were I wrong in my conclusion in section G2.1 and Mr Chiu were right that Assigned External Walls in their entirety belong to their respective different owners, for the reasons given in this section, I would have remained of the same view that it was within IO’s power or discretion under s.18(2)(g) of BMO and/or clause 12(dd) of the DMC to undertake items 4.1 to 4.6 of the Works for all external walls of the Building, including Assigned External Walls. 176.Hence, IO has, I think, also made out its case only on s.18(2)(g) of BMO and clause 12(dd) of the DMC to carry out items 4.1 to 4.6 of the Works over all external walls of the Building. G3. Further & alternative plea of respondent made out or not? 177.I refer to [65] and [71] above. The respondent had not, I think, proven that owners of 1/F Canopy and of Assigned External Walls had failed to maintain external surfaces of 1/F Canopy and Assigned External Walls respectively causing damage and/or dilapidated state of their structural parts. No factual or expert evidence to the above effect was forthcoming at trial. 178.Further, the above plea has, I think, no legal foundation either.
G4. Does respondent owe IO unpaid balance as alleged? 179.On my findings and rulings in sections G1 & G2 that IO had power or discretion under s.18(2)(g) of BMO and clause 12(dd) of the DMC to resolve to carry out items 4.1 to 4.6 as well as item 12 of the Works, the respondent’s challenge to IO’s apportionment of the costs of the Works, and its consequential liability as an owner of the Building to share, fails. 180.I therefore reject respondent’s different method of apportionment and calculations at [67] above. 181.If not bound by GM resolution made on 24 October 2014 pursuant to s.14(1) of BMO, the respondent as an owner of the Building should, I think, be liable to pay to IO all costs and expenses for the exercise of its power and to pay all other outgoings which are payable in respect of the Building as a whole pursuant to clause 16(d) of the DMC,. 182.Save to dispute sharing all costs of item 12 of the Works and 3/11[64] costs of items 4.1 to 4.6 of the Works, which attempt has failed above, the respondent did not otherwise dispute IO’s apportionment method of all costs of the Works in proportion to the respective undivided shares of the owners of the Building, which method I find to be the appropriate one for IO to adopt in this case. 183.Hence, the respondent was, I find, at all material times since 3 August 2016 liable to pay IO outstanding balance of its due share of contribution to the costs of the Works in sum of $145,970.85 as per the calculations in [62] above. G5. Should the counterclaims be granted? 184.For the reasons given, and my conclusion, in the last section, it is, I think, inappropriate for me to grant the 3 declarations sought by the respondent in its counterclaim. G6. Collection charge & Interest 185.The respondent made no submission opposing IO’s claim of collection charge of $150 per clause 16(g)(ii) of the DMC and I would allow it as the said clause so provides. 186.The respondent also made no submission opposing IO’s interest claim. I also find it appropriate to award pre-judgment interest as per clause 16(g)(i) of the DMC to compensate IO for its loss of use of its money over time. H. Disposition 187.Accordingly, I enter judgment in this application as follow:
I. Costs Order Nisi 188.Costs normally follow the event. As the applicant has prevailed on both its application and respondent’s counterclaim, I make a costs order nisi that the respondent do pay the applicant the costs of the application and the costs of the counterclaim, including all reserved costs of both and the costs of this trial together with certificate for counsel, to be taxed on District Court scale if not agreed. 189.Finally, I thank both counsels for their able assistance.
Ms Becky Wong, instructed by Chung & Kwan, for the Applicant Mr Victor Chiu, instructed by Kitty So & Tong, for the Respondent [1] She is an old lady aged 77 at trial. [2] C141 (para 13), meaning paragraph 13 at page 141 of Trial Bundle C. All page references in footnotes are trial bundle references in same format. [3] Photos of 1/F Canopy (now removed) can be found at C144-146. [4] as shown coloured pink on plan hereto annexed [5] as shown coloured pink on plan hereto annexed [6] except and reserved upon itself and its assigns the sole exclusive right to hold use occupy and enjoy all the shops, offices, floors, car parking spaces, flat-roofs and roofs of the Building other than the premises hereby assigned [7] Cap.344 [8] Unit A on G/F (a small portion, or corner unit, of G/F) is located at the junction of Kin Wing Street and Kin On Street. [9] Unit A on 2/F as shown in the said plan covers almost the entirety of 2/F, except one lift area and 2 corridor areas. [10] There are 8 offices on 5/F, according to 5/F Plan in the DMC. [11] There are 8 offices per floor from 6/F to 10/F, according to 6/F-10/F Plan in the DMC. [12] On G/F Plan to the DMC, one also finds transformer room, switch room, refuse room and drive way (photos at B412-416), and also Restaurant Entrance on G/F at a corner at the junction of Kin Wing Street and a service lane. [13] “the unit” means each of the parts of the Building set out in the First Column of the Schedule of the DMC [14] 240 + 2350 [15] as shown coloured Pink and marked “A” on the Plans hereto annexed [16] except and reserved upon itself and its assigns the sole exclusive right to hold use occupy and enjoy all the shops, offices, floors, car parking spaces, flat-roofs and roofs of the Building other than the premises hereby assigned [17] C103, C116, C118-C120 [18] C17 (para 5.2.3) [19] Cap.123 [20] with 1/F Canopy marked on a plan annexed to the said order [21] Its minute reads: “屋宇署發出一樓簷篷維修令及鐵架拆除令”. [22] Its minute reads: “酒樓業主朱松勝置業有限公司代表答覆遵從指示” [23] Its minute reads: “會上認同如若屬大廈結構問題，則大廈各業主有責” [24] Liu had, said Chow and I accept, also given advice to MC that, notwithstanding individual owners may have right to use external walls of the Building, its structural parts are responsibility of all owners of the Building. [25] Ho also agreed that costs of items 3.1 to 3.8 are to be shared by all owners. [26] Item 4 in option 1 tendered by the Contractor costs only $1.575M whereas item 4 in option 3 tendered by the Contractor costs as much as $14.833M [27] C170-171 (para 68 & para 69) [28] The Architect filled in BD Form BA 4 giving notice of appointment of AP regarding the Works on 20 December 2014. [29] On 29 January 2016, the Architect lodged to BD Form BA14 certifying their completion on such date. [30] after taking discount given by the Contractor into consideration [31] after taking discount given by the Contractor into consideration [32] This was added by s.5 of Ordinance No.12 of 1998. By s.4 of the same ordinance, s.14(1) of BMO was also amended to its present form. [33] published as GN 3771 on 15 June 2007 [34] In view of this latest Court of Final Appeal judgment handed down on 8 February 2024, further closing submissions and further reply submissions were sought by this Tribunal from parties after judgment was reserved. [35] It is explainable by the expert opinion of Chan (agreed by Fan) that the 1/F Canopy is not load-bearing, see para 33 of respondent’s closing submission. Hence, 1/F Canopy was not supposed to carry any load. See also para 4.4.1 of COP 2007. [36] Para 4.1.1 at C11, para 4.5 at C13, para 4.8 at C14, para 4.9 at C15, para 45(2)-(4) at C156, para 49 at C161, para 3 & 4 of IO’s closing submission [37] Quoting Tang ACJHC (as he then was)’s observation at [50] of Westlands Garden (IO) v Oey Chiou Ling & Another [2011] 2 HKLRD 421 about Nation Group, supra, 436D-F. [38] Its heading is “Conclusion”. Its material parts read: “…it is necessary to consider what precisely was comprehended in the allocation, to the undivided shares the subject of the sale to the purchaser, of the right to the exclusive use of “the First Floor and its Canopy and Flat Roof”. In my opinion, this includes the right to the exclusive use of the floor and ceiling surfaces of the First Floor and of the air space between them; and of all the external surfaces of the canopy and flat roof. It does not include any right to any part of the structure of the building… (original italics)”. [39] See judgment of Ribeiro PJ at 436G of Nation Group, supra, & observation of Deputy Judge Roy Yu (as he then was) at para 50 of IO of Mei Foo Sun Chuen Stage VI v Grandyield Knitters Ltd, unreported, LDBM 110/2011, 5 April 2012. [40] In BD’s view on land search record [41] Para 3(2) of respondent’s reply submission [42] Para 10 of IO’s closing submissions [43] consisting of HH Judge Yung and Member Mr N.T. Poon [44] Or its junction with parent structure of the building [45] para 7 of IO’s closing submission [46] pp.3-4 of the judgment [47] Of course, CCS (or China All), as an owner of the Building, would remain liable to contribute its own due share of costs of removal of 1/F Canopy after IO elected to remove it on behalf of all owners of the Building. [48] By reference to reg.136 of Building (Construction) Regulations (1976 Edition) made under Cap.123 [49] E.g. Lily Tse Lai Yin & Others v IO of Albert House, unreported, HCPI 828/1997, 23 December 1999, Leung Tsang Hung & Another v IO of Kwok Wing House & Others (2007) 10 HKCFAR 480, Liao Kuo Chun v Win Capital (HK) Ltd [2010] 4 HKLRD 257 [50] B427 (letter dated 13 June 2022 from respondent’s solicitors to IO’s solicitors) [51] Under s.34C(2) of BMO, Part VIA of BMO (including s.34H) shall prevail over any inconsistent terms of any deed of mutual covenant or other agreement. [52] In any event, there is no provision in BMO to tell us whether s.18(2)(g) prevails over s.34H or the other way round. [53] Para 32 of IO’s closing submission [54] E.g. clauses 16(a)(i)(ii), 16(b) & 16(c) of the DMC [55] Neither is there similar repair costs provisions for particular owners in respect of Other External Walls, common exterior wall, external walls or exterior of the Building. [56] C171-173 (para 71 - 74). C248 (para 10.1). In chief, Chan submitted, and adopted, revised figures of G/F to 1/F areas in form of Exh.R4. [57] C171-173 (para 71 - 74). C248 (para 10.1). In chief, Chan submitted, and adopted, revised figures of G/F to 1/F areas in form of Exh.R4. [58] para 32 of IO’s closing submission [59] B145, 158-164, 167-171 (angle problem), B148-149, 151, 153-155, 158, 159, 169, 171 (obstruction by objects), [60] which allows for expansion by thermal effect and thus benefits all external walls of the Building though it was set up at 2-storey interval each, starting at 2/F level and ending at 10/F level: see C175-176 (para 81 & 82) [61] which were not installed for use by G/F owners who therefore objected to sharing their costs. [62] para 24 to 30 of respondent’s reply submissions [63] Hence, it is up to IO (or all owners of the Building) to decide for itself at GM on 24 October 2014 which tender option to select, as each has different item 4 of external wall repairs at different prices. [64] Which percentage cannot be right in any event, as certain units at G/F of the Building have no undivided shares assigned to their external walls in the Schedule of the DMC. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment