The Incorporated Owners of Hung Wai Building v. Sunny Elegant Ltd and Others
Read the full judgment text of LDBM 76/2019 on BabelCite. This Lands Tribunal judgment was delivered on 6 June 2024.
1. This case is concerned about Hung Wai Building situated at Nos. 3-5 Fa Yuen Street, Mongkok, Kowloon ( the Building ), which comprises a commercial podium with a total of 13 shops on the Ground Floor ( G/F ) and a total of 19 office units on the 1 st Floor ( 1/F ), and two residential blocks ( Block 1 and Block 2 respectively) with units on the 2 nd to 24 th Floors [1] .
Cites 13 cases
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LDBM 76/2019 [2024] HKLdT 43 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO.76 OF 2019 ___________________ BETWEEN
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___________________ J U D G M E N T ____________________ A Introduction 1.This case is concerned about Hung Wai Building situated at Nos. 3-5 Fa Yuen Street, Mongkok, Kowloon (the Building), which comprises a commercial podium with a total of 13 shops on the Ground Floor (G/F) and a total of 19 office units on the 1st Floor (1/F), and two residential blocks (Block 1 and Block 2 respectively) with units on the 2nd to 24th Floors[1]. 2.The Lands over which the Building were built (the Lands), and the said podium, are rectangular in shape, with, roughly, its East side facing Fa Yuen Street, its North and West sides facing 2 service lanes respectivley, and its South side adjoining another building. Block 2 is at the Northern side of the Building while Block 1 is at its Southern side. 3.This trial involves alleged common parts at G/F, 1/F and external walls of the Building which the applicant claimed to have been converted by the respondents to their own use to the exclusion of other owners. The respondents, however, claimed the areas in litigation to be their exclusive use areas. B Parties to this Application 4.The applicant (IO) is the incorporated owners of the Building incorporated pursuant to the provisions of Building Managment Ordinance (BMO)[2]. 5.Ms Becky Wong of counsel (Ms Wong) appeared for IO. 6.The registered Deed of Mutual Covenant governing the Building and the Lands is dated 14 November 1984 (the DMC). It was executed by Chun Wing Investment Company Limited (the Developer), Hong Yip Service Company Limited (Hong Yip) and two first purchsers of flat C on 11/F, Block 1 of the Building (First Purchasers). Hong Yip was named as the Manager in the DMC. Hong Yip has been running the Building until today as its managment company. 7.At all material times, the 1st respondent (R1) was, and is, the registered owner of Shop No.8 on G/F (the Shop)[3] and offices Nos.1 to 19 on 1/F (collectively the Offices)[4] of the Building. 8.At all material times, the 2nd respondent (R2) was, and is, the principal tenant, or tenant, of the Shop and the Offices from R1. 9.At all material times, the 3rd respondent (R3) and the 4th respondent (R4) respectively were, and are, sub-tenants from R2 and occupier of the Shop and the Offices, where a Chinese restaurant (the Chinese Restaurant) and a café (the Café) were at all material times, and are, operated by R3 and R4 respectively. 10.Mr K M Chong of counsel (Mr Chong), leading Ms Vivian Li of counsel, appeared for R1 to R4. C1 Two groups of areas in litigation 11.IO on one hand and R1 to R4 on the other hand litigate over two groups of areas of the Building. 12.First, they litigated over external walls of the Building facing West towards one service lane and, further away, Tung Choi Street (External Wall facing West). 13.It is admitted by R1 to R4[5] that, “since about September 2018, with the consent of R1, R2, R3 and/or R4 has/have erected 43 air-conditioner condensers and two chimneys at [External Wall facing West] for carrying on the said businesses of the Chinese Restaurant and the Café, thereby converting the external wall to their own use”. I take from the evidence that the part of External Wall facing West involved was that of 1/F level of the Building. 14.Secondly, they litigated over the following 5 areas on G/F and 1/F of the Building (collectively the Disputed Areas), namely: -
15.The Disputed Areas were at all material times, and are, used together with the Shop and the Offices as a whole for the said businesses of the Chinese Restaurant and the Café. C2 5 Main Issues in dispute C2.1 Issue 1: common parts or exclusive use areas? 16.IO first claims that 1) the Disputed Areas are “common parts” of the Building since the making of the DMC; and that 2) External Wall facing West has become “common parts” of the Building at the material times after the Developer had assigned all its undivided shares of the Building to purchasers. 17.R1 to R4 contend otherwise. They say that R1, as owner of the Offices, shall also have the exclusive right to occupy and enjoy the Disputed Areas and that the Disputed Areas are also owned by R1. They further say that R1, as owner of the Offices and the Shop, has exclusive right to those part of the External Wall facing West as part of the said units owned by it. C2.2 Issue 2: licence and/or misrepresentation or not? 18.Secondly, IO alleges that it had, in about February 2012, granted to R1 a licence over the Disputed Areas which is revocable at will or upon reasonable notice. The said alleged licence, said IO, had expired in July 2017 or had been revoked or terminated by letter of IO’s solicitors dated 30 May 2018. 19.To the contrary, R1 specifically denies the making of any oral licence, or alleged licensee agreement, with IO. Though it had signed onto a document headed “鴻威大廈-使用公眾地方責任承諾書” (the Chinese Undertaking), R1 said it was induced doing so prior to the signing of the Chinese Undertaking by alleged misrepresentation made to it by the then chairlady and vic-chairman of the managment commitee (MC) of IO pleaded at paragraph 14 of Amended Notice of Opposition, namely that:-
C2.3 Issue 3: breach of BMO and/or DMC or not? 20.Thirdly, it is disputed whether or not use and occupation of the Disputed Areas for said businesses of the Chinese Restaurant and the Café by R1, R2, R3 and/or R4 since alleged expiry, or termination, of the alleged licence from IO to R1 was, and is, in breach of the provisions of the DMC and/or s.34I of BMO. 21.The parties also disagree on whether or not erection of 43 air-conditioner condensers and 2 chimneys at 1/F level of External Wall facing West by R2, R3 and/or R4, with consent of R1, for carrying on the said businesses of the Chinese Restaurant and the Café since about September 2018 was, and is, in breach of the provisions of the DMC and/or s.34I of BMO. C2.4 Issue 4: estoppel by convention and/or proprietary estoppel 22.Fourthly, the parties disagree on whether or not estoppel by convention has been pleaded, or properly pleaded, by R1 to R4 in Amended Notice of Opposition, and, if so, whether or not R1 to R4 have, on the evidence, made out estoppel by convention and/or proprietary estoppel to defend IO’s claim and/or to acquire interest on the Disputed Areas. 23.For proprietary estoppel, it was alleged at paragraph 15 of Amended Notice of Opposition that, “in the premises, R1
24.For estoppel by convention, if pleaded at all, it was alleged at paragraph 48 of Amended Notice of Opposition that “Further, or in the alternative, by reason of the above pleaded facts and matters, even should there be mistake in the construction of the meaning of the DMC, [IO] is estopped and precluded from contending that, on a true construction of the DMC, the Disputed Areas formed part of the common parts of the Building on the ground that R1 have pursuant to such understanding, acted to its detriment (italics supplied)”. 25.IO submitted that neither estoppel was made out, and that estoppel by convention has not been properly pleaded. C2.5 Issue 5: what relief, if any, to be grantd ? 26.Fifthly, it falls upon this Tribual to decide on the appropriate relief to be granted to IO or R1 to R4, depending on the answers to the above 4 issues.
D1 Approach in assessing factual evidence 27.In assessing the testimony of parties’ factual witnesses, I have, inter alia, considered inherent probabilities of their evidence, consistency or otherwise of their evidence with contents of contemparneous documents, their internal consistency or otherwise, and also watched out for any of the witnesses having any motive to misrepresent the truth. 28.In view of the long lapse of time for some old events, which are beyond witnesses’ personal knowledge to tell and/or memory to recall, it is, I think, more reliable for this Tribunal to give more weight to the contents of contemparneous documents. D2 Factual witnesses called at trial D2.1 Ms Lam 29.IO called Miss Lam Wai Yee (Ms Lam), the chairlady of its MC at the material times, as its sole factual witness at trial. 30.Ms Lam only started residing at the Building in late 2006. She thus has no personal knowledge of events prior to late 2006. She also purported to speak to matters beyond her personal knowledge in her witness statement. Unless these evidence are corroborated by other evdence, I give no weight to such evidence of hers. 31.Ms Lam was also cross-examined by Mr Chong at length on her subjective views about design of the Building and its usage over the course of time. As shall be explained below, these questions are, I think, irrelevant to Issues 1 to 5 and the answers given by Ms Lam are also neither here nor there. 32.Subject to the above 2 caveats, I prefer Ms Lam’s evidence on Issue 2 to those of Mr Chu. Her evidence on Issue 2 was well supported by documents placed before this Tribunal and she was not shaken on the same after cross-examinatoin by Mr Chong. 33.If necessary, I shall consider the rest of Ms Lam’s evidence issue by issue below. D2.2 Mr Chu 34.R1 to R4 called Mr Chu Chung Sing (Mr Chu), director of R1, as their sole factual witness at trial. 35.In assessing Mr Chu’s evidence, I have given full allowance for his old age and limited education. 36.However, I still do not find Mr Chu a credible or reliable witness. Save for admissions given by him, which I give full weight thereto, I do not accept his evidence, especially those given by him on Issue 2 and Issue 4. 37.On material points, Mr Chu’s evidence is, I think, inherently implausible and contradicted by contents of contemporaneous documents. He also contradicted himself in the box when his evidence is compared against the contents of this witness statement. In gist, his evidence in the box materially departed from those in his witness statement. 38.For the rest of Mr Chu’s evidence on other issues, I consider them issue by issue below if required. D3 Single Joint Expert Report 39.Purusant to leave given by this Tribunal, a single joint expert report (SJE report) was prepared by Dr. Shui Cheong Kam (Dr Kam). It was admitted into evidence at trial without calling Dr Kam. In gist, Dr Kam gave opinion on the function of each of the equipment installed at the Switch Room on 1/F of the Building (see [64(3)] below) during the material period from 2017 to present. E Relevent BMO provisions 40.According to Section 2 of the BMO, “common parts” means:
41.Schedule 1 of BMO includes: -
42.S.34I (1) & (2) of BMO provide: -
F1 Relevant legal principles to resolve Issue 1 43.Issue 1 is, I think, ultimatley a question of construction of the DMC: 黎偉雄 v 信和物業管理有限公司 [2020] HKCA 448 at [2], per Lam V-P (as he then was). For the record, neither parties addressed me on Issue 1 by reference to the first assignment of flat C, 11/F of Block 1 of the Building made by the Developer and the First Purchasers on the same date of the DMC. 44.As to how to approach construction of the DMC, Lam V-P (as he then was) explained in 黎偉雄, supra, at [26] as follows: -
45.Lam PJ has recently repeated the above in Court of Final judgment of Donora Company Limited v The Incorporated Owners of Tsuen Kam Centre [2024] HKCFA 3 at [55] thereof. F2 Legal background to Issue 1 46.As to the legal background for execution of DMC in general, Lam V-P (as he then was) has also explained at [27] to [31] of 黎偉雄, supra, as follows: -
47.Schedule 1 of BMO 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: per Lam PJ at [56] of Donora Company Limited, supra, citing Tang Acting CJHC (as he then was) in Westlands Garden (IO) v Oey Chiou Ling [2011] 2 HKLRD 421, in particular [20]. 48.On BMO definition of “common parts”, at [51] and [52] of Donora Company Limited, supra, Lam PJ stressed that:
53.Post agreement (or post-DMC) conduct and statements of the parties are not generally relevant to the construction of the DMC: Hollywood Shopping Centre Owners Committee Ltd v The Incorporated Owners of Wing Wah Building Mongkok Kowloon [2011] 4 HKLRD 623 at [39], per Kwan JA (as she then was). Mr Chong also submitted that established authority obliges this Tribunal to consider (or construe) the DMC against the factual matrix or background “as at the date of the DMC”[9]. F3 Factual background to Issue 1 F3.1 Approved plans dated 1 September 1984 54.Having regard to G/F, 1/F and 2/F plans of the Building approved by the Building Authority on 1 Sepember 1984[10] laid before me, the following features, arrangments and facilities were, I find, present at the Building at the time of the making of the DMC, which is the crucial date for Issue 1. F3.2 G/F of the Building 55.All 19 shops found on G/F look, I think, roughly like 19 parallel columns, except for such spaces occupied by 4 lifts installed in the Building, presence of a tranformer room to the North of the Building and that shop No.13 and the Shop are shorter in depth and smaller in size from the rest. Shop No.1 is the Southern-most one while the Northern-most shop is Shop No.13. The numbering of G/F shop increases as one move North. 56.Except for the Shop, all the remaining 18 shops on G/F have, I find, their opening (or frontage) towards pavement of Fa Yuen Street. Again, except for the Shop which has no lavatory, each of the remaining 18 shops on G/F has their internal lavatory within the shop. 57.An “entrance hall”[11] with metal gate opens to Fa Yuen Street (or East) is found between shop Nos. 3 & 4 leading to lift lobby of Block 1, where one fireman’s lift and a passengers lift are found. A second “entrance hall”[12] with metal gate also opens to Fa Yuen Street is found betwen shops Nos.10 and 11 leading to lift lobby of Block 2, where one fireman’s lift and a passengers lift are also found. 58.According to legend on G/F plan, the two passengers lifts, I find, stop at G/F and those floors of Block 1 and Block 2 with singular numbering starting with 1/F upwards to 23/F, while the 2 fireman’s lifts stop at G/F and those floors of Block 1 and Block 2 with plural numbering starting at 2/F upwards to 24/F. 59.Apart from taking lifts upstairs, one can, I find, also walk upstairs (and go downstairs from upper floors to G/F on staircases). There is a pair of criss-crossing staircases to the West of Block 1 lift lobby, leading from service lane (to the West of the Building) to, I believe, the highest floor of Block 1. There is another pair of criss-crossing staircases to the West of Block 2 lift lobby, leading from the same service lane to, I believe, the highest floor of Block 2. 60.An “office entrance hall”[13] separates, I find, the Shop from the pavement of Fa Yuen Street to its South (one must go past the said hall to enter the Shop). The said hall is one out of five of the Disputed Areas i.e. the Entrance Space. 61.The said hall also leads one to two staircases and one stair landing adjacent to the Shop leading to 1/F i.e. the Staircases and the Stair Landing, another two out of five of the Disputed Areas. 62.Summing up, at the making of the DMC, there are, I find, 3 entrances for one to enter the Building from pavement of Fa Yuen Street i.e. 1) entrance hall to lift lobby of Block 1 allowing one to go to 1/F and 2/F to 24/F of Block 1, 2) entrance hall to lift lobby of Block 2 allowing one to go to 1/F and 2/F to 24/F of Block 2, and 3) the Entrance Space allowing one to enter the Shop or to go to 1/F through the Staircases and Stair Landing. Of coure, one can equally go out the Building in the opposite direction or manner. 63.At the same time, if one want to exit at service lane to the West of the Building, one can, I find, go downstairs through the 2 pairs of criss-crossing staircases found repectively to the West of the 2 lift lobbies of Block 1 and Block 2. Of coure, one can equally go in the Building in the opposite direction and manner. F3.3 1/F of the Building 64.In terms of setting, I find from looking at 1/F plan 3 horizontal rows within 1/F of the Building i.e.
65.So, roughly speaking, the Corridor separates First Row and Second Row in their middle by way of partitions. 66.The Toilets found within Second Row are also in dispute. They are independent toilets of their own i.e. not located within any of the Offices on 1/F. Unlike Shops Nos.1 to 7, 9 to 13 on G/F, none of the Offices on 1/F has any internal toilet of its own. The Toilets open to 2 passages leading to the Corridor. The Corridor in turn connects with two 1/F lift lobbies, allowing one to enter or leave the lifts at 1/F to and from the Corridor. 67.Among First Row is Office No.7, whose size is relatively smaller than other offices on First Row, as it is adjacent to remaining part of the Staircases and Stair Landing leading to 1/F and connecting with the Corridor. 68.In terms of movement, one can, I find, at the time of the making of the DMC, leave 1/F 1) through the Corrior, the Staircases and Stair Landing to the Entrance Space on G/F onto pavement of Fa Yuen Street, 2) by taking the 2 pairs of lifts, one for Block 1 and one for Block 2, either to go up to residential units at upper floors or go down to G/F lift lobbies with “entrance hall” leading out to pavement of Fa Yuen Street, or 3) by walking upstairs to residential units or downstairs to G/F and servcie lane using the 2 pairs of criss-crossing staircases accessible also through the Corridor on 1/F. F3.4 2/F of the Building 69.For either Block 1 or Block 2 on 2/F level, I find from 2/F plan the same typical arranagement of 4 one-bedroom flats (with one living and dining room, one kitchen and one bathroom) connecting to one lift lobby with 2 lifts plus a pair of criss-crossing staircases going up and down at the time of the making of the DMC. F4 The DMC 70.The DMC was executed on 14 November 1984, about 2.5 months after approval of building plans of the Building. 71.At recital (3) of the DMC, the Building and the Lands were “notionally divided into 1,440 equal undivided parts or shares which are intended to be assigned to the parties having the exclusive right to hold use occupy and enjoy particular units or other self-contained portions (italics supplied)” of the Building in the manners set down in a “Table of Allocation of Undivded Shares” below i.e.
72.Recital (4) recited first assignment of even date between the Developer and the First Purchasers of 6 equal undivided 1,440th parts or shares of the Lands and the Building together with exclusive right to use occupy and enjoy flat C on 11/F of Block 1. 73.Recital (5) says that, in order to provide for “the proper management operation servicing maintenance repair and insurance” of the Lands and the Building, the parties have agreed to enter into the DMC for the purposes of “defining and regulating their rights interests and oblgiations and all subsequent owners thereof”. 74.The DMC has 8 sections and 2 Schedules. 75.Section 1 provides as follows.
76.Section II entitled “EASEMENTS RIGHTS AND PRIVILEGES THE BENEFIT OF WHICH IS HELD WITH EACH EQUAL UNDIVIDED 1,440TH PART OR SHARE OF AND IN THE SAID LAND AND THE SAID BUILDING (italics supplied)” have Part A and Part B as follows: -
77.Section IV entitled “COVENANTS PROVISIONS AND RESTRICTIONS TO BE OBSERVED AND PERFORMED BY THE OWNERS (bold and italics supplied)” has, among others, the following covenants, provisions and restrictions, including: -
78.Section V concerns appointment of the Manager, its powers and duties, including to: -
79.Under clause 1 of Sub-Section D of Section V, each owner shall pay to the Manager Management Fees, out of which the Manager shall pay
80.Under clause 3 of Sub-Section D of Section V,
81.Under clause 4 of Sub-Section D of Section V,
82.Section VII covers “Owners’ Committee”. 83.Section VIII entitled “MISCELLANEOUS” has clause 4(b) defining “Owner” to include “person in whom for the time being the legal estate in any undivided share in the said Land and said Building is vested” and clause 4(c) defining “Unit” to include, where the context permits or requires, “flat, office, shop or other self-contained portion of the said Building intended for separate use and occupation”. 84.Clause 5 of Section VIII of the DMC defines “Common Areas” and “Common Facilities” which reads as follows:-
85.The Second Schedule of the DMC has 2 parts: -
F5. Conclusion on Disputed Areas for Issue 1 86.Reading the DMC as a coherent whole against the above legal and factual background, and having regard to the objects of the DMC stated in its recital (5), I have no doubt that a reasonable person would have understood its parties to mean that the Disputed Areas are to be common parts of the Building. The parties thereto had not, I think, manifested any common intention to specify or designate the Disputed Areas as being for the exclusive use, occupation or enjoyment of the Developer as alleged by R1 to R4.
F6 Conclusion on External Wall facing West for Issue 1 87.Reading the DMC as a coherent whole against the above legal and factual background, and having regard to the objects of the DMC stated in its recital (5), a reasonable person would, I think, have understood its parties to mean that external walls are exclusive use areas. The parties thereto had manifested a common intention to specify or designate external walls as being for the exclusive use, occupation or enjoyment of the Developer at the making of the DMC.
88.But that is not the end of our enquiry. 89.Looking at land searches of the Building produced before me, I find that the Developer had latest by August 1993 disposed of all its undivided shares of the Building and the Lands (it first disposed of all residential units by late 1986 and last disposed of, inter alia, the Offices and the Shop in July 1993). 90.At law, there cannot be a proprietary right to the exclusive possession of part of a multi-storey building except as an incident of common ownership in the building. The proprietary right of an owner in a multi-storey building is the right to an undivided share in the building. Where a person does not own any undivided share in a building, he is not entitled to the exclusive possession of those parts of the building to which no share has been allocated, and those parts thereafter revert to all co-owners and becomes common parts of the building: Incorporated Owners of No 27A Chatham Road, Kowloon v Lee Kai Kong [2001-2003] HKCLRT 273, [11]-[15] per Cheung JA[29]. 91.Therefore, once the Developer has alienated all its undivided shares in the Building and the Lands latest by August 1993, its right to exclusive use of the external walls of the Building had extinguished and the external walls of the Building, including External Wall facing West, thereafter become common parts of the Building, over which IO could exercise its rights, powers and duties to the exclusion of the owners pursuant to s.16 of BMO. 92.I cannot agree with paragraph 41 of Mr Chong’s final submissions that Ms Wong’s reliance of Incorporated Owners of No 27A Chatham Road, supra, and other authorities[30] is misplaced. Indeed, the law in this respect is well settled and Incorporated Owners of No 27A Chatham Road, supra, is a precedent binding on this Tribunal, especially it was an appeal from Lands Tribunal. 93.Contrary to paragraphs 42 and 43 of Mr Chong’s final submissions, the “proper use and enjoyment” argument has never been pleaded to be run on external walls of the Building. It was pleaded to be run on the Disputed Areas only. In any event, for reasons stated in last section, such argument is irrelevant and not in issue here. G1 Further facts leading to Issue 2 G2 Lease of the Shop, the Offices and the Disputed Areas by the Developer in 1986 94.A year or so after the making of the DMC, by a lease dated 21 February 1986 (the 1986 Lease), the Developer, I find, let “the whole of 1/F” and the Shop of the Building more particularly shown in pink on G/F and 1/F plans annexed thereto to China Resources Purchasing Company Limited (First Tenant) “together with the use in common with the Landlord and all others having the like right of the entrances staircases landings passages and toilets in the said building in so far as the same are necessary for the proper use and enjoyment of the said premsies and except in so far as the Landlord may from time to time restrict such use And together with the use in common as aforesaid of the lift service and escalators in the Building (if any and whenever the same shall be operating)”[31] for a fixed term of 9 years commencing no later than 10 December 1985[32] and with user restricted to supermarket and no other purpose whatsover. 95.On G/F plan annexed to the 1986 Lease, apart from the Shop, the Entrance Spacce, the Staircases and the Stair Landing are also within the demised premises. 96.On 1/F plan annexed to the 1986 Lease, apart from the Offices, the Staircases, the Stair Landing, the Corridor, the Toilets, the two 1/F lift lobbies are, among others, also within the demised premises. The Switch Room was, however, not one of them. 97.Among many provisions of the 1986 Lease drafted by the same firm of solicitors which prepared the DMC, the First Tenant may: -
98.At the same time, under the 1986 Lease, the First Tenant shall pay to or reimburse to the landlord i.e. the Developer the cost of any damage caused to any part of the common areas of the Building occasioned by it[35]. 99.In view of [94] to [97] above, I accept Mr Chu’s evidence, and find it likely, that the First Tenant had, during the term of the 1986 Lease, removed 1/F internal partitions and occupied the Disputed Areas, for the purpose of its supermaket business, despite they are “common parts” of the Building for common use by all its owners. 100.Nonetheless, the facts that the Developer had purported to let the Disputed Areas (which I find to be common parts from day 1) as well in the 1986 Lease to the First Tenant as private property would not change their status as common parts: Provident Commercial Investments Ltd v Incorporated Owners of Provident Centre and Others [2005] 4 HKC 155 at [21] per Yuen JA. G3 Tenancies at the Offices, the Shop and the Disputed Areas from 2004 to July 2017 101.On land searches before me, save that the 1986 Lease is registered, the following 3 tenancies were, I find, also registered against the Offices and the Shop at the Land Registry, namely :-
102.Looking at G/F and 1/F plans in the Schedules to Chinese Undertaing (see [119] below), I accept the common evidence of the 2 factual witnesses that Maxim had, with R1’s consent, also occupied the Disputed Areas without 1/F partitions (i.e. the Corridor having disappeared) for its catering business carried out at the Offices and the Shop until its departure from the Building in July 2017. 103.I am also prepared to accept Mr Chu’s unchallenged evidence, and find, that, with R1’s consent, Fairwood had, for its catering business, occupied not only the Shop and the Offices, but also the Disputed Areas during its term of its above registered tenancies from March 2004 to about May 2011. 104.Pausing here, IO was incorporated on 11 May 2010. G4 Lack of tenancy evidence for period from 1994 to 2004 105.However, no other tenancy was registered at the Land Registry against the Shop and the Office for the above one decade. 106.No documentary evidence was produced to shed light on tenancy, if any, entered during this 10 years and, if so, whether the Disputed Areas were occupied by the tenant(s) or not. 107.Neither could Ms Lam or Mr Chu give evidence on above from their personal knowledge. 108.I do not find it safe to rely or act on such uncorroborated hearsay given by Mr Chu from alleged sources of estate agent and alleged neighbourhood enquiry on the situation of 1/F of the Building from 1994 (expiry of the 1986 Lease) to 2004 (the year R1 purchased the Offices and the Shop). 109.For want of reliable evidence, I therefore cannot find whether the Disputed Areas were occupied, and, if so, who occupied them and for what purpose, during this decade. G5 Assignment of the Shop and the Offices in 1993 110.We now move to consider change of ownership of the Shop and the Offices over the years. 111.Moving back in time, the legal owernship of the Offices and the Shop changed hands after the making of the DMC, I find, as follows as shown by land searchses, and assignment, before me.
G6 Assignment of the Shop and the Offices to R1 in 2004 112.It was not until 2004 that R1 came into our picture. 113.By an assignemnt dated 28 May 2004 (2004 Assignment), Joyday assigned to R1 the Offices and the Shop for the consideration of $56,000,000. The 2004 Assignment was signed by, inter alia, Mr Chu on behalf of R1. It was subject to existing lettings and tenancies (i.e. subject to the first tenancy in favour of Fairwood). 114.The “lot number, sections, undivided shares, description and address etc” of the property so assigned to R1 in 2004 Assignment was set out in paragraph (a) of Schedule thereto as follows: -
Exclusive right to occupy, use and enjoy the Disputed Areas or external walls of the Building is, one should note, not found in the above paragraph (a) of the said Schedule. 115.The 1993 Assignment is not before me but its G/F and 1/F plans are. Looking at them[36], none of the Disputed Areas was coloured pink (neither was the Switch Room coloured pink in 1/F plan of 1993 Assignment). In other words, on these plans of 1993 Assignment, Joyday, I find, never assigned any of the Disputed Areas (or any exclusive right to external walls of the Building) to R1 in 2004 Assignment. 116.The “easements and other appurtenant rights, if any” of the property so assigned to R1 in 2004 Assignment set out in paragraph (c) of the same Schedule are as follows: -
117.Contrary to Mr Chong’s submissions, I do not think the above words “all other appurtenant rights” in paragraph (c) of Schedule to 2004 Assignment could expand R1’s purchase to include the Disputed Areas or external walls. I would repeat my earlier view that the Disputed Areas are not “appurtenant” to the Offices and the Shop. The same, I think, applies to external walls, which are, I think, not “appurtenant” to the Offices. The Offices would not, I think, become practically un-usable without air-conditioner condensers and chimney at 1/F level of External Wall facing West. In any event, this 2004 Assignment to R1 is also, I would stress, subject to and with the benefit of the DMC. And, by 2004, external walls of the Building had, by operation of law explained in section F6 above, become “Common Areas” of the Building as defined in the DMC. G7 Chinese Undertaking signed by R1 on 30 January 2012 118.One year or so after IO was incorporated on 11 May 2010, Mr Chu admittedly signed on R1’s behalf on the Chinese Undertaking on 30 January 2012 and on its covering letter addressed to IO and Hong Yip on 7 February 2012. Its main page reads as follows: -
119.The Schedules to the Chinese Undertaking include, among others, photos[37] of usage of the Disputed Areas by Maxim and its associated companies, G/F and 1/F plans of the Building with the Disputed Areas marked in red indicating areas occupied by Maxim and its associated companies. 120.For the following reasons, I reject Mr Chu’s evidence at, inter alia, paragraphs 12 to 17 of his witness statement that he (or R1) was induced to sign on the Chinese Undertaking by Alleged Misrepresentation: -
121.On the above factual dispute, I prefer and accept the contrary evidence given by Ms Lam on Issue 2 set out at paragraphs 26 to 29, 31 to 35 of her witness statement. H Findings of disputed facts on Issue 2 122.On factual dispute in Issue 2, I find that Mr Chu had read, and fully understood, the entirety of the Chinese Undertaking and that he had signed on it on R1’s behalf freely and voluntarily. IO never, I find, made Alleged Misrepresentation to R1 at all. I Legal conclusions on Issue 2 123.Reading the contents of the Chinese Undertaking, including its Schedules, as a whole, and the minutes of the 3 MC meeting above, I accept Ms Wong’s submissions that IO had granted in about February 2012 a bare licence over the Disputed Areas to R1 for the sole purpose of allowing R1’s then tenant i.e. Maxim to place its objects thereon for its catering business. 124.On its proper construction, the above licence is, I agree with Ms Wong, revocable unilaterally at the will of IO or upon reasonable notice given to R1 by IO. Alternatively, the said licence shall, I also agree with Ms Wong, expire automatically upon expiry or sooner termiantion of Maxim’s Tenancy and, if I may add, on assignment of any/all unit(s) of the Offices and the Shop from R1 to any third party. 125.Upon aforesaid termination of the above licence, R1 is, I think, obliged under the same to reinstate the Disputed Areas to its original conditions and return the same to IO. 126.In arriving at the above legal conclusions, I have had regard to paragraphs 34 to 36 of Ms Wong’s opening submissions, prohibition at s.34I(1)(a) of BMO against conversion of “common parts” except with approval by MC resolution[43], and power of the Manager under the DMC to grant “licence” over “Common Areas” at [78] above. J1 Proven facts leading to Issue 3 J2 Usage of the Disputed Areas by Maxim from 2012 to July 2017 127.I find that Maxim had, pursuant to Maxim’s Tenancy, continued carrying out its catering business at the the Shop, the Offices and the Disputed Areas from 2012 to July 2017[44]. It was done with consent of R1, who, however, had been granted licence of the Disputed Areas by IO in February 2012. 128.Maxim’s Tenancy finally, I find, came to its end in July 2017. Maxim thereafter moved out from its demised premises as well as the Disputed Areas. J3 Termination of R1’s licence over the Disputed Areas and R1’s failure to vacate 129.Accordingly, R1’s said licence above automatically expired in July 2017 on termination of Maxim’s Tenancy and R1 is liable at law to reinstate the Disputed Areas to its original conditions and to return the same to IO. 130.R1, however, did not do so and continued to occupy the Disputed Areas. 131.By its letter dated 21 November 2017, IO wrote to R1 reminding R1 of the terms of the Chinese Undertaking, pointing to the departure of Maxim and requiring R1 to reinstate the Disputed Areas to its original conditions. 132.By letter to R1 from IO’s solicitors dated 30 May 2018, IO gave 14 days’ notice to R1 to terminte the said bare licence of Disputed Areas, requiring R1 to remove all objects thereon and to vacate the same by 13 June 2018. 133.If not expired by termination of Maxim’s Tenancy, in view of IO’s earlier demand letter dated 21 November 2017 above, I find 14 days notice given above by IO’s solicitors to R1 to terminate R1’s licence over the Disputed Areas reasonable in all the circumstances of this case and that R1 is liable at law to return vacant possession of the Disputed Areas to IO by 13 June 2018. 134.R1, however, did not comply either and continued to occupy the Disputed Areas. 135.Correspondences thereafter ensured between R1’s solicitors and IO’s solicitors in June 2018 with each disagreeing with the other’s stance of the matter and legal opinion thereof. J4 R1’s letting of the Offices and the Shop (and the Disputed Areas) to R2 136.In the meantime, on 18 February 2018, R1, I find, had let the Shop and “entire 1/F” of the Building (i.e. inclusive of the Disputed Areas) to R2 at a monthly rental of $600,000 for commercial purpose for a term of 3 years from 18 May 2018 to 17 May 2021, with an option to renew for another 3 years to 17 May 2024 at an increased monthly rent of $660,000 (R2’s 2018 Lease). 137.R2 therefore only entered into our picture as from February 2018 and not earlier. J5 R2’s sub-letting of the Offices and the Shop (and the Disputed Areas) to R3 and R4 138.In fact, sometime in 2018 prior to entry of R2’s 2018 Lease, with R1’s consent, R2 had, I find, already sub-let: -
139.To above ends, R3 and R4, with consent of R2 and R1, had, I find, started carrying out decoration works to the Offices, the Shop and the Disputed Areas as from about March 2018. 140.After the aforesaid decoration works were completed in about late 2018, entire 1/F of the Building (save except for the 4 lifts and 2 pairs of criss-crossing staircases) were, I find, effectively divided into two and split between the Chinese Restaurant and the Café as a layout plan of general restaurant licence at 1/F of the Building dated March 2019 depicts[47]. 141.The respective interior decorations and arrangements of the Chinese Restaurant and the Café can also be seen (or gathered) from the said layout plan, a number of photos of the Chinese Restaurant produced[48], a number of photos of the Café produced[49], a number of photos of their common entrance produced[50], and unsigned 2nd Schedule Quotations all dated 8 February 2018 addresed either to the Chinese Restaurant or the Café[51]. 142.In response to the aforesaid, IO’s solicitors had written on 18 January 2019 to R2 complaining of conversion of the Disputed Areas in breach of BMO and the DMC, demanding for the said decorations works to cease and for the Disputed Areas reinstated to their original conditions. 143.R2 did not comply with IO’s demands and continued with its sub-letting of the Disputed Areas to R3 and R4. 144.Solicitors for R1 and R2 thereafter wrote back to IO’s solicitors arguing with IO’s solicitors in correspondences in February and March 2019. J6 Carrying on the Chinese Restaurant and the Café by R3 and R4 to exclusion of other owners & consequences 145.From about late 2018 or early 2019 until trial, without IO’s approval by way of MC resolution, in order to carry on their respective businesses of the Chinese Restaurant and of the Café, R3 and R4 had, I find, with consent and/or permission from R1 and R2, occupied and used the Disputed Areas to the exclusion of IO, IO’s agents and workmen, other owners and occupiers of the Buildings (as the case may be) in, among others, the following manners: -
146.Giving full weight to Dr Kam’s opinion in SJE report, one finds, I accept, during the material times since 2017 installed inside the Switch Room a main switchboard[52] which is the main electrical distribution centre of the whole Building[53]. Its functions are for distributing electricity supply for serving 2/F to 24/F domestic users with 4 cable risers, main electricity supply to 1/F meter rooms of the 2 residential blocks, and public services including lifts and public lighting in the Building. 147.Having regard to paragraph 10 of Schedule 1 of BMO (see [41] above) and “Common Facilities” definition in the DMC (see [84] above) and that no undivided share of the Lands and the Building is allocated to it, I find the Switch Room “common parts” of the Building i.e. it has not been designated or specified in the DMC as within the exclusive use of any owner. 148.As such, pursuant to s.18(1)(a) of BMO, IO is, I think, under a statutory duty to maintain the Switch Room and the aforesaid main switchboard installed inside the said room in a state of good and serviceable repair and clean condition, be it periodic inspection/repairs or urgent repairs/inspection in the event of emergency. I reject the contrary advanced by Mr Chong at paragraph 29 of his final submissions. 149.Regarding alleged incident on 26 June 2018 referred to at paragraph 57.2(f) of Ms Lam’s witness statement, I give no weight to its contents as they are entirely hearsay. No staff of Hong Yip or of IO’s electrical contractor concerned was called to give first-hand evidence of the said incident to this Tribunal. 150.And I do not find it necessasry to resolve parties’ rival contentions on Electricity Ordinance[54], Electricity (Wiring) Regulations[55] and Code of Practice made thereunder. 151.Nonetheless, on my existing factual findings in this section, I am still further satisified that:
J7 Conclusions on Issue 3 for the Disputed Areas 152.On my legal conclusion for the Disputed Areas on Issue 1 at section F5 above, my findings and conclusions on Issue 2 at sections H & I above, and my findings of facts in section J3 to J6 above, as the DMC was, and is, in force in respect of the Building, I find s.34I of BMO applies to the Building, and R1, R2, R3 and R4 in breach of:-
In this respect, “any person” in s.34I(1) of BMO refers to any person who occupies the common parts: Incorporated Owners of No 27A Chatham Road, supra, at [19] per Cheung JA. 153.Hence, R1, R2, R3 and R4 shall be deemed to be in breach of an obligation imposed on them by the DMC pursuant to s.34I(2) of BMO. 154.Regarding clauses 4 and 13 of Section IV of the DMC IO relies upon (see [77] above), on my findings in section J3 to J6 above, I find all R1, R2, R3 and R4 in breach of clause 13 and R1 alone in breach of earlier part of clause 4.
K1 Usage of External Wall facing West from 2018 until trial 155.In August 2018, while decorations were going on in respect of the Offices and the Shop, R1 had, I find, applied to Hong Yip to install 43 air-conditioner condensers and 2 chimneys at 1/F level of External Wall facing West for the purpose of carrying on the businesses of the Chinese Restaurant and the Café by R3 and R4 respectively. For such application, R1 had submitted to Hong Yip plans showing the locations of proposed equipment prepared by contractor[59]. 156.By letter dated 5 September 2018[60], in response to R1’s application above and plans lodged thereof, Hong Yip demanded R1, inter alia, for payment of deposit for giving consent for the same but R1 disagreed. Thereafter, from about September 2018 until trial, without approval or consent from IO or Hong Yip, R2, R3 and/or R4, with R1’s consent, had erected 43 air-conditioner condensers and 2 chimneys at 1/F level of External Wall facing West as per the locations shown on the said plans for the purpose of carrying on the said businesses of the Chinese Restaurant and the Café. 157.I accept Ms Lam’s undisputed evidence that, at all material times since September 2018, the above erection of air-conditioner condensers and chimneys at 1/F level of External Wall facing West increased loading on External Wall facing West, produced noise and heated air adversely affecting occupiers of the Building at 2/F and above. K2 Conclusion on Issue 3 for External Wall facing West 158.On my legal conclusion that external walls of the Buiding has become “common parts” latest by August 1993 in section F6 above and on my findings of facts in section K1 above, as the DMC was, and is, in force in respect of the Building, I find s.34I of BMO applies to the Building, and R1, R2, R3 and R4 in breach of:-
159.Hence, R1, R2, R3 and R4 shall be deemed to be in breach of an obligation imposed on them by the DMC pursuant to s.34I(2) of BMO. 160.Given that external walls of the Building has latest by August 1993 become “Common Areas” as defined in the DMC by operation of law as was explained in section F6 above, clause 33 of Section IV of the DMC (see [77] above), I think, applied thereafter to require individual owner, including R1, to seek prior written consent from the Manager to install air-conditioning units and plants on external walls of the Building and to comply with such conditions, if any, imposed by the Manager. 161.I reject Mr Chong’s submissions at paragraph 51 of his final submissons. Clause 33 of Section IV of the DMC expresssly empowers the Manager to impose conditions for giving prior written consent. Deposit payment is, I think, one possible condition that the Manager may reasonably require. Not only that 1/F level of External Wall facing West is not “appurtenant” to the Offices, the situation commented by Rogers V-P in Metro City Managment Limited v Tsui Fee Hung Vincent and Lam Wai Fun, unreported, CACV No.328/2005, 6 June 2006, referred to at paragraph 54 of Mr Chong’s final submissions is also, I think, far removed from the circumstances of this case. 162.Hence, further or alternatively, I find R1 owner in breach of clause 33 of Section IV of the DMC in that R1 had permitted installaton of the said 43 air-conditioner condensers and 2 chimneys at 1/F level of External Wall facing West without first obtaining prior written consent of IO or Hong Yip to such installation. L1 Issue 4: Estoppel by convention & proprietary estoppel L2 Relevant legal principles of the above 2 estoppels 163.In Cheung Lai Mui v Cheung Wai Shing & Others (2021) 24 HKCFAR 116, Ribeiro PJ and Gummow NPJ explained at [23] to [27] of their joint judgment the requirements of proprietary estoppel as follows:-
164.In Szeto Chak Mei (The sole administratrix of the unadministered properties of the late Szeto Chiu, Deceased) v Chan Lam Shan and Others, unreported, HCMP 836/2012, 1 March 2016, DHCJ Cooney SC also summarized at [31] to [42] of his judgment the principles of proprietary estoppel as follows:-
165.In First Laser Ltd. v Fujian Enterprises (Holdings) Co. Ltd & Another (2012) 15 HKCFAR 569, Lord Collins of Mapesbury NPJ said at [79] that Ribeiro PJ had in Unruh v Seeberger (2007) 10 HKCFAR 31 re-stated the essential elements of an estoppel by convention as follows: -
L3 Estoppel by convention properly pleaded or not? 166.Having considered the principles of estoppel by convention in section L2 above, I agree with Ms Wong that R1 to R4 have not properly pleaded a case of estoppel by convention of the Disputed Areas in their Amended Notice of Opposition for IO to meet.
L4 Estoppel by convention made out or not? 167.In any event, on my factual findings and legal conclusions above and on the evidence before me, R1 to R4 have not, I think, made out any estoppel by convention of the Disputed Areas against IO. 168.I give the following reasons.
169.For the above reasons, I absolutely disagree with Mr Chong that the only reasonable inference to be drawn by this Tribunal is that Hong Yip, other owners of the Building and IO had, prior to 2012, conducted their business on an alleged understanding that exclusive rights to use, occupy and enjoy the Disputed Areas be vested in owners from time to time of the Shop and the Offices. 170.In so far Mr Chong seeks to rely at paragraph 72 of his final submissions on 2004 Assignment as the transaction or legal relationship for purpose of estoppel by convention, the other party to such R1’s transaction is Joyday and not Hong Yip or other owners of the Building than Joyday. 171.Were Mr Chu really mistaken in the above $56,000,000 transaction to believe (wrongly at law) that R1 was purchasing from Joyday “entire 1/F of the Building” and the Shop, his wrong assumption or understanding in this respect was, on his own evidence in his witness statement and under cross-examination, induced by alleged words of estate agent to him to that effect, his alleged observation of the vinicity, his alleged enquiries of neighbourhood, and alleged failure of explanation from R1’s then conveyancing solicitors on the subject matter of such pricely purchase and no other reasons. L5 Proprietary estoppel made out or not? 172.On the basis of the legal principles in Section L2 above, R1 has, I think, failed to make out its case of proprietary estoppel of the Disputed Areas pleaded at paragraph 15 of Amended Notice of Opposition (repeated at [23] above). 173.My reasons are as follows. 174.First, R1’s plea of proprietary estoppel of the Disputed Areas is based on Alleged Misrepresentation allegedly made to it by IO a week before signing of the Chinese Undertaking. On Issue 2 above, I have already found against Alleged Misrepresentation and found for R1’s free and voluntary entry into a bare licence with IO in about February 2012 as evidenced by Mr Chu’s signature on the Chinese Undertaking. 175.In any event, such investment of money and money’s worth on the Disputed Areas particularsized in 2nd Schedule Quotations was paid for by R3 and R4 and not by R1, as Mr Chu confirmed in cross-examination and as addressees on the face of these unsigned quotations suggest. R1 did not thereby acted to its detriment. 176.Absent quotations signed by, and records of payments to contractor from, R3 and R4, I would not accept from Mr Chu that R3 and R4 had invested as substantial as “several millions” as he claimed at paragraph 20 of his witness statement. 177.Neither did, I think, R1 invest jointly with R3 and R4 as alleged. Mr Chu also confirmed under cross-examinatoin that R1 had not relayed Alleged Misrepresentation (or Chinese Undertaking) to R2, R3 or R4. These parties could therefore not have jointly invested in reliance of Alleged Mispresentation. 178.As a matter of facts, IO did not stand by while R1, R3 and R4 made the alleged investment above. IO made its written demand on R1 to restore the Disputed Areas by letter as early as in November 2017. IO’s solicitors served their demand letter on R1 in May 2018 and their demand letter on R2 in January 2019. In April 2019, these proceedings at Lands Tribunal were taken out first against R1 and R2, with R3 and R4 later added as parties. 179.In addition, Mr Chu also confirmed in the box that it was not R1 but R1’s tenant who paid for liability insurance required under the terms of the Chinese Undertaking. 180.R1’s alleged expenditure on flat roof and external walls (whose claimed total amount I do not accept either without sufficient proof) could not, I think, be referrable to IO’s Alleged Misrepresentation on the Disputed Areas. 181.Mr Chu also produced no document of alleged quantum of expenses allegedly incurred by R1 in maintaining and/or repairing the Disputed Areas in reliance of Alleged Misrepresentation. 182.Had R1 been induced by Alleged Misrepresentation as alleged, it acted to its great finanical advantage by letting the Disputed Areas together with Offices and the Shop to: -
183.The above substantial countervailing benefit acquired by R1 must, I agree with Ms Wong, also be taken into acccount. 184.Standing back and looking at R1’s claim in the round, I do not find it unconscionable for IO to go back on Alleged Misrepresetation if required. M. Issue 5 – relief to be granted 185.For my factual findings and legal conclusions on Issue 1 to Issue 4, all the counterclaims raised by R1 to R4 cannot be supported and must be dismissed. 186.For the same reasons, it is, I think, just and approrpiate to grant a declaration to clarify the “common parts” status of the Disputed Areas as IO seeks in this application. 187.Mandatory injunction to require R1, R2, R3 and R4 to remove objects at the Disputed Areas, to reinstate them and vacate them is, in my views, also called for. So is mandatory injuncton to remove air-conditioner condensors and chimneys from 1/F level of External Wall facing West and reinstate the said wall. I agree with Ms Wong that it is appropriate to impose a time limit of 3 months from the handing down of this Judgment for these 2 injunctions. 188.Prayer (4) of IO’s applicaton is, I think, unnecessary at the moment. I will give parties liberty to apply. IO may apply for the same in future should R1, R2, R3 and R4 be uncooperative. 189.I will also grant the 2 prohibitory injunctions in prayers (5) and (6) to prevent future breaches of the DMC and BMO by R1, R2, R3 and R4. 190.IO has, I think, failed to adduce evidence at this trial of the amount of its loss due to conversion of the Disputed Areas and 1/F level of External Wall facing West. Nominal damages will therefore be awarded to IO only. N. Disposition 191.I dismiss all the counterclaims of R1, R2, R3 and R4. 192.On IO’s application, I first grant declaration as per prayer (1) of Amended Notice of Application against R1 and R2. 193.Secondly, I grant mandatory injunction against R1, R2, R3 and R4 as per prayers (2) and (3) of Amended Notice of Application with a time limit of 3 months from the handing down of this Judgment for each injunction. 194.Thirdly, instead of making order sought by IO in prayer (4) of Amended Notice of Application, I give parties liberty to apply. 195.Fourthly, I grant the 2 prohibitory injunctions sought by IO at prayers (5) and (6) of Amended Notice of Application against R1, R2, R3 and R4. 196.Fifthly, I award damages in sum of $100 in favour of IO against R1, R2, R3 and R4. 197.Lastly, this Judgment endorsed with penal notice shall be drafted, filed and served by IO’s solicitors on R1, R2, R3 and R4. O. Costs order nisi 198.Costs normally follow the event after trial. I see nothing to depart from this general rule in this case. 199.I make costs order nisi that costs of both application and counterclaims, including all reserved costs of both and the costs of this trial together with certificate for counsel, be paid by R1, R2, R3 and R4 to IO, to be taxed on District Court scale if not agreed. 200.Should there be no application to vary the above costs order nisi within 14 days of the handing down of the Judgment, the same shall automatically become absolute and effective without further order of this Tribunal.
Ms Becky Wong, instructed by Lam & Partners, for the Applicant Mr K M Chong and Ms Vivian Li, instructed by Christine F L Ip & Young for the 1st, 2nd, 3rd and 4th Respondents. [1] 2/F to 22/F of Block 1 has 4 units each floor. 2/F to 22/F of Block 2 has 4 units each floor. 23/F and 24/F of Block 1 has 2 units each floor. 23/F and 24/F of Block 2 has 2 units each floor. Units on 2/F and 23/F have flat roof while units on other floor do not. [2] Cap.344 [3] Identified and coloured in pink on G/F Plan (I) annexed to Amended Notice of Application. [4] Identified and coloured in pink on 1/F Plan (I) annexed to Amended Notice of Application. [5] Paragraph 37 of Amended Notice of Opposition and paragraph 45 of Amended Notice of Application [6] Identified and coloured in yellow on G/F Plan (II) annexed to Amended Notice of Application. [7] The Corridor and Toilets, together with the Staircases and Stair Landing, are identified and coloured in yellow on 1/F Plan (II) annexed to Amended Notice of Application. [8] Actually, there is more than one quotation in the 2nd Schedule to Amended Notice of Opposition. [9] paragraph 2 of Mr Chong’s final submissions [10] Exhibits “R1”, “R2” and “R3” [11] So marked on G/F plan [12] So marked on G/F plan [13] So marked on G/F plan [14] Office No.1 has a storeroom connected to it. [15] Office No.19 has its own storeroom too. [16] Marked as “M. LAV” on 1/F plan [17] Marked as “FEM. LAV” on 1/F plan [18] Both offices Nos. 14 and 18 have a storeroom each. [19] Marked as “FEM. LAV” on 1/F plan [20] Marked as “M. LAV” on 1/F plan [21] Office No.13 has also a storeroom. [22] So marked on 1/F plan [23] So marked on 1/F plan [24] Mr Chong also agreed at paragraph 12 of his opening submissions that the Corridor falls within the word of “passage” of the DMC definition of “Common Areas”. [25] paragraph 27 of Mr Chong’s skeleton opening [26] as well as paragraphs 4 - 9, 18, 22 - 24, and 29 of his skeleton opening [27] which could merely mean that it lead to offices, and not to be exclusively used by office owners and occupants. [28] Paragraph 1(a), 10, 13-16 of Mr Chong’s skeleton opening [29] See also Goldenwick Ltd. v Standard Chartered Bank (Hong Kong) Ltd. [2008] 3 HKLRD 266 at [56] and [74] per Poon J. (as he then was); The Incorporated Owners of Cheong Wang and Cheong Wai Mansion v HKSAR [2001] 1 HKLRD 483, at 486 to 488, per Deputy High Court Judge Wolley [30] See footnote 29 [31] Clause of “Premises” in the 1986 Lease at p.238 of trial bundle [32] The 1986 Lease should therefore end in 1994. [33] Clause 2(a) of Third Schedule [34] Clause 3 of Third Schedule [35] Clause 18 in section III [36] G/F and 1/F plans of 1993 Assignment are exactly the said plans used by IO in Amended Notice of Application to identify the Disputed Areas. [37] Taken in October and November 2011 [38] A belated application to adduce witness statement of Yip was refused by this Tribunal. [39] Agenda 7(2) [40] Agenda 1 and 5 [41] Agenda 1 and 10 [42] R1 to R4 did not challenge their accuracy at trial. [43] Even with MC approval, any approved conversion of common parts to one’s use cannot, one thinks, be indefinite, for otherwise it amounts to re-writing the deed of mutual covenant which normally requires unaminous consent from all owners. [44] Maxim had exercised its option to renew for one term in Maxim’s Tenancy. [45] marked in blue in 1/F plan at p.170 of trial bundle [46] marked in orange in 1/F plan at p.172 of trial bundle [47] p.298 of the trial bundle [48] pp.178-179 of trial bundle [49] pp.181-185 of trial bundle [50] pp.174-176 of trial bundle [51] pp.58-96 of trial bundle [52] Photo taken by Dr Kam on his inspection on 18 October 2022 at p.340 of trial bundle [53] and 4 front of the meter switches for 1/F users/owners, whose functions are serving the protection and controlling on/off power supply to Offices Nos.4, 5, 9 and 11 on 1/F. [54] Cap.406 [55] Cap.406E [56] I have already taken into account paragraph 10 of witness statement of Mr Chu. [57] There are 4 prohibitions in clause 13. Only the last prohibition restricts owners of the Building. [58] Cap.219 [59] pp.215 to 217 of trial bundle [60] pp.211 to 217 of trial bundle [61] Mr Chu claimed in the box that it has lately been reduced to $300,000 per month. |
Cases cited in this judgment
Further hearings and rulings under LDBM 76/2019