Chui Marjorie Che Ying and Another v. Appeal Tribunal (Buildings) and Another

CACV 291/2022, [2024] HKCA 873

On Appeal From [2022] HKCFI 1467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 291 OF 2022

(ON APPEAL FROM HCAL NO 1655 OF 2021)

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BETWEEN

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J U D G M E N T

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

A.  INTRODUCTION

1.This is the appeal of the Building Authority (“the BA”)  against the Order of Coleman J (“the Judge”)  dated 30 June 2022 (“the Order”), allowing the applicants’ judicial review.  The Judge has set out his reasons for the Order in his written judgment (“the Judgment”)  of the same date.

2.This appeal turns on the principal question as to whether, on a proper construction, the word “building” in section 28(3)  (“s 28(3)”)  of the Buildings Ordinance (Cap 123)  (“the BO”)  means the whole or entire building of a multi-storey building, and the word “owner” in the phrase “the owner of such building” shall mean all the co-owners of the building.

3.The Judge, in allowing the judicial review, says they do.  The BA now appeals against the Order.

4.At the end of the hearing of the appeal[1], we reserved our judgment to be handed down.  This is what we do now.

B.  BACKGROUND

5.The material background leading to the judicial review has been summarized by the Judge in his Judgment at [1] - [8], which we gratefully adopt.  For the purpose of this appeal, we further highlight the following.

6.The present case concerns a residential building known as “The Lamma Palace” at Nos 302/302A, Prince Edward Road West, Kowloon (“the Building”).

7.The Building is a residential building of more than 20-storeys.  It is divided into a number of flats.  Relevant to the present purposes are the units known as Flat B on the 10^th Floor (“10B”)  and Flat B on the 11^th Floor (“11B”).  The applicants are the owners of 11B.

8.By the design of the Building, the soil and waste pipe taking discharge from the bathroom of a unit at an upper floor will pass through the floor slab and then the bathroom of the corresponding unit at the floor below, before it joins the main pipe of the Building.  Upon leaving the floor slab between the two floors, the pipe is affixed to the ceiling of the lower unit.  As is common in modern building design, a false ceiling is put in place to hide the pipe in the lower unit.  It could be said the pipe taking discharge from the upper unit (perhaps except the segment inside the floor slab)  is physically located within the lower unit.

9.The subject pipe in this case takes discharge from 11B and the relevant segment (“the Pipe”)  is physically located in the bathroom of 10B.

10.On two occasions on 15 November 2018 and 26 September 2019, the BA, being the statutory authority under the BO, inspected the Pipe (“the Inspections”).  The BA formed the opinion that the Pipe was defective.

11.Under s 28(3), where, in the opinion of the BA, the drains or sewers of any building are inadequate or in a defective or insanitary condition, the BA has the power to issue orders “on the owner of such building” requiring repair or renewal works to be done.

12.Further, the BA’s internal policy document, known as the “EB Division Manual” (“the EBD Manual”), further provides that if such a pipe is for the exclusive use and benefit of an owner of an individual unit, the order may be served on the owner of that unit rather than all the co-owners of the building.

13.Therefore, on 3 October 2019, the BA served a repair order (“the Repair Order”)  on the applicants as owners of 11B, requiring them to repair or renew the Pipe located at 10B.

14.The applicants believed that the Repair Order was wrongly served on them as it was their view that, according to the relevant provisions in the Deed of Mutual Covenant (“the DMC”)  of the Building, it is the owners of 10B who should have the responsibility to maintain the Pipe since it is situated within their unit.

15.Hence, the 1^st applicant appealed the Repair Order to the Appeal Tribunal (Buildings)  (“the BAT”), and a preliminary hearing was held on 27 July 2021.

16.Before the BAT, the 1^st applicant argued that the Repair Order was not validly served because: (a)  there was in fact no leakage of the Pipe, which was the basis for the BA to conclude that the Pipe was inadequate or in a defective or insanitary condition; and (b)  the Repair Order should have been served on the 10B owners, or other persons rather than the 11B owners.

17.On 6 October 2021, the BAT rendered its decision (“the BAT Decision”), effectively dismissing the appeal in holding that no good cause had been shown for holding a full hearing in respect of the said appeal.  In other words, the BAT upheld the BA’s decision and reasons for serving the Repair Order on the applicants.

C.  THE JUDICIAL REVIEW

18.On 6 December 2021, the applicants filed a Form 86 seeking leave to apply for judicial review to challenge the BAT Decision.  The BA was joined as the 2^nd putative respondent[2].

19.A rolled-up hearing was held before the Judge on 22 May 2022.  Both the applicants and the BA were represented by counsel.

20.The applicants raised four grounds of judicial review before the Judge.  Those grounds may be summarised as follows:

(1)  Ground 1: The BAT erred in law in applying the so-called “exclusive use and benefit test” in §12(b)(ii)  of the Instruction No 1 of the EBD Manual Part III Section 6 in deciding who should be served with the Order, as s 28(3)  makes no reference to the said test.  (“JR Ground 1”)

(2)  Ground 2: The Order was unlawfully served on the 11B owners because the BA’s decision was based upon the EBD Manual, which is an internal policy document, which is undisclosed, unpublished and contrary to the proper construction of s 28(3).  (“JR Ground 2”)

(3)  Ground 3: It was irrational for the BA not to take into account the DMC in deciding who should be served with the Order.  (“JR Ground 3”)

(4)  Ground 4: There was insufficient evidence before the BAT to support the conclusion that the Pipe was “inadequate or in a defective or insanitary condition”.  (“JR Ground 4”)

21.Before the Judge, in opposing the application, the BA effectively contended that it had a discretion under the empowering provision of s 28(3)  to decide which one of the co-owners should be served.

22.By the Judgment, the Judge refused to grant leave to apply for judicial review on JR Grounds 3 and 4 as these grounds are not reasonably arguable, but granted leave and allowed the judicial review substantively under JR Grounds 1 and 2.  He therefore made the Order, quashed the BAT Decision and remitted it back to the BAT for reconsideration in light of the Judgment with costs against the BA.

23.The Judge’s reasons for making the Order are in essence as follows.

24.In respect of JR Ground 1, the Judge concluded that the BAT erred in law in its reading of s 28(3)  for the following reasons:

(1)  On a proper construction, the word “building” refers to the entire building and the word “owner” includes all co-owners of the Building.  Adopting such a construction, if the relevant drain is within the common parts of the Building, by operation of section 16 of the Building Management Ordinance (Cap 344)  (“the BMO”), the repair order under s 28(3)  should be served on the Incorporated Owners.  However, if the drain is not within the common parts, as in the present case, then the order should be served on all the co-owners of the Building.  If necessary, the liability among the co-owners could be sorted out among themselves by reference to the DMC or other mechanisms.

(2)  The BA does not have a discretion to pick and choose among the co-owners on whom to serve the Order, as this is not apparent from the language of the section.  Being served with a repair order is a serious matter and could potentially lead to both civil liability and criminal liability against the recipient of the order.  Criminal liability requires a higher degree of certainty and he considered that the legislature would not leave the trigger of criminal liability to the discretion of the BA.  Had this been the intention, the legislature would have used much clearer language.

25.In respect of JR Ground 2, given his conclusion under JR Ground 1, the Judge further held that the relevant provision in the EBD Manual, which provides that, “[f]or defective pipes for the exclusive use and benefit of the owner of an individual unit”, the BA “has the unfettered discretion on whether a section 28 order is to be served on all the co-owners of the land on which the building is situated or on one or more of the owner(s)  of the unit(s)  of the building”, is inconsistent with s 28(3)  and the BA’s reliance on it was unlawful, as was the BAT Decision in this respect.

26.On the other hand, the Judge refused to grant leave to apply for judicial review under JR Grounds 3 and 4 for the following reasons:

(1)  In respect of JR Ground 3, as the construction of s 28(3)  does not turn on the DMC, the BA and the BAT were not irrational in the public law sense in disregarding the DMC.

(2)  In respect of JR Ground 4, apart from photos of the Pipe, a building surveyor who conducted the Inspections, gave evidence before the BAT that the Pipe was leaking and his evidence was accepted by the BAT.  It could not be argued that the BAT was irrational in accepting his evidence.  Further, the required jurisdictional antecedent in s 28(3)  is the BA’s opinion about the condition of the Pipe, rather than the actual condition of the Pipe.  It was not argued by the applicants that the BA had not formed such an opinion before serving the Order on the applicants.

D.  THIS APPEAL

D1.  Grounds of appeal

27.On 28 July 2022, the BA lodged the Notice of Appeal (“Notice of Appeal”)  seeking to appeal against the Order insofar as it relates to allowing the judicial review under JR Grounds 1 and 2.

28.By way of the Notice of Appeal, the BA has raised two grounds of appeal, which can be summarized as follows:

(1)  Whilst the Judge was correct in law holding that, as a matter of construction, the word “building” in s 28(3)  means the entire Building and that the co-owners of the Building fall within the phrase “owner” in the same section, the Judge erred in holding that:

(a)    the phrase “owner of the building” means and only means all co-owners of the Building.  He ought to have construed the phrase to mean both (i)  all the co-owners of a multi-storey building; and (ii)  any co-owner(s)  of the same;

(b)     the BA has no power and / or discretion to serve an order under s 28(3)  on a particular co-owner of the Building; and

(c)    the BA must therefore issue and serve the Repair Order upon all the co-owners of the Building.

(“Appeal Ground 1”)

(2)  The Judge thus further erred in holding that, by reason of his (incorrect)  construction of s 28(3), the EBD Manual, in particular §12(b)  thereof, is inconsistent with s 28(3)  and the BA and BAT’s reliance thereon was unlawful.  (“Appeal Ground 2”)

29.On 17 August 2022, the applicants (by then acting in person)  lodged a Respondents’ Notice (“Respondents’ Notice”).  However, it is pertinent to note that the Respondents’ Notice does not seek to raise any additional grounds to affirm the Order or contend by way of cross-appeal that the Order was wrong in part.  Instead, it only seeks to set out the applicants’ responses to the contentions raised in the Notice of Appeal akin to a skeleton submission.

30.Further, after lodging their written submission for the appeal,[3] the applicants by their letter[4] asked to be excused from attending the hearing, which request was granted by the court.

D2.  Discussion

D2.1  Appeal Ground 1

31.This turns fundamentally on the true construction of s 28(3), which relevantly provides as follows:

“28. Drainage

…

(3)  Where in the opinion of the Building Authority the drains or sewers of any building are inadequate or in a defective or insanitary condition he may by an order in writing served on the owner of such building require –

(a)  such drainage works as may be specified in the order to be carried out;

(b)  an authorized person to be appointed to carry out such investigation in relation to the drains or sewers of such building as may be so specified; and

(c)  the submission for approval by the Building Authority of proposals for drainage works to be carried out to remedy the inadequacy or the defective or insanitary condition, being proposals based on the findings of the investigation,

within such time or times as may be specified in the order.” (emphasis added)

32.In this respect, it is pertinent to note that in the court below:

(1)  Counsel for the applicants submitted that, on a proper construction, the word “building” in the phrase “the owner of the building” could also mean the part of the building where the subject defective drain or sewer is situated, and thus in the present case, the phrase should mean the owner of 10B.  See [37] - [42] of the Judgment.

(2)  On the other hand, the BA’s counsel submitted that the word “building” should mean the entire or whole building and “owner of the building” could mean all or any of its co-owners.  Thus, in the present case, all the co-owners of the Building “could have been served”, but since s 28(3)  is an empowering provision only, the BA has a discretion to decide which one of the co-owners should be served with a repair order in accordance with the guideline set out in the EBD Manual.  See [51] of the Judgment.

33.Disagreeing with both sides’ submissions, the Judge held that on a proper construction, the word “building” means “the entire building”, and “owner of the building” only means all the co-owners of the relevant building.  He further held that, in the absence of any clear words in the provision, the BA does not have any discretion to choose which of the co-owner to serve and thus, if the drain is not within the common parts, as in the present case, the Repair Order should be served on all the co-owners of the Building.

34.With respect, we do not think the Judge was right in his above construction of s 28(3).

35.There is no dispute that the following well-established principles regarding statutory construction are relevant to the present case:

(1)  In construing a statute, which is a question of law, the court’s task is to ascertain the intention of the legislature as expressed in the language of the statute.  This is an objective exercise: HKSAR v Cheung Kwun Yin (2009)  12 HKCFAR 568 at [11] per Li CJ.

(2)  The modern approach is to adopt a purposive interpretation.  The statutory language is construed having regard to its context and purpose, which may be evident from the provision itself.  Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning.  Context and purpose are considered when interpreting the words used and not only when an ambiguity may be thought to arise: Cheung Kwun Yin, supra, at [12] and [14] per Li CJ.

(3)  The court should assess the likely consequences of adopting each of the competing constructions and lean against a construction that creates an absurdity, an anomaly, or otherwise produces an irrational or illogical result: Jade City International Ltd v Director of Lands [2002] 3 HKLRD 33 at [49] - [57] per Mayo VP.

36.Applying the above principles, in our view, on a proper construction in its proper context and purpose, the words “the drains or sewers of any building” in s 28(3)  should mean the drains or sewers that serve the building or part of the building which are found to be defective or inadequate.  We will explain why.

37.First, under section 2 of the BO, “building” is defined to include “the whole, or any part, of” any domestic building.  Thus, a “building” can mean the whole or any part of the building.

38.Second, the plain and objective purpose of s 28(3)  is to provide an effective remedy and enforcement scheme for defective drains or sewers of a building, which are identified by the BA to be inadequate or in a defective condition, to be maintained and repaired by serving a repair order on the relevant owner to carry out such maintenance and repair.

39.In this respect, it must be objectively within the minds of the legislature (as it is common sense)  that there will likely be situations where only a particular part of the whole drainage or sewage system, which exclusively serves a particular unit or part of the building, is found to be defective or inadequate.  In such circumstances, the purpose of the provision will be best served and facilitated if the owner of this specific unit or part of the building is to be required to carry out the necessary maintenance and repair of the identified defective or inadequate drain or sewer.

40.Third, as a matter of language, the words “of any building” in the phrase “the drains or sewers of any building” can also mean the “drains or sewers” serving the building as the use of the particle “of” can also mean, in the appropriate context, “appurtenant to”.  For the same reason, the word “building” in the subsequent phrase “the owner of such building” should also mean the owner of the part of the building which is served by the identified defective drains or sewers.

41.Fourth, in our view, this construction is the correct one since:

(1)  It best facilitates and reflects the abovementioned purpose of this provision, as:

(a)  it would enable an effective method to require the specific owner of the part of the building which is served by the defective drain or sewer to be responsible for repairing it.  This is also consistent with the common and practical sense that it is the owner who uses and enjoys the benefits of the identified drain or sewer that should be responsible for its maintenance and repair;

(b)  if there are more than one units or parts of the building which are served by the identified defective drain or sewer, then, that drain or sewer would be, for the purpose of s 28(3), regarded as the drain or sewer of those units or parts of the building, and their respective owners could be served with a repair order;

(c)  this construction will similarly cover the situation where if the identified defective drains or sewers serve the whole building or the common parts of the building, in which case all the co-owners of the building shall be required to carry out the maintenance and repair.

(2)  It is consistent with the statutory definitions or ordinary meanings of the respective relevant and operative words and phrases in the provision, understood in its proper context as explained above.

(3)  As fairly accepted by Mr Ng for the BA, this construction would not lead to any policy or practical difficulties.

42.To the contrary, for the following reasons, we find the construction reached by the Judge that the word “building” in the provision should only mean the whole building and the word “owner” therefore must also mean all its co-owners cannot be the correct one.

43.As rightly submitted by Mr Ng, the Judge’s interpretation would give rise to uncertainty: the Judge’s interpretation means that when one defect occurs within the exclusive possession of one flat (outside common parts), all other innocent co-owners must still receive a s 28(3)  repair order.  The title of all other innocent co-owners would be encumbered by a s 28(3)  order because of a defective pipe not within their own flats and / or not for their use, bearing in mind that a s 28(3)  order is a registrable instrument under section 28(6A).

44.Further, the Judge’s construction would also give rise to practical difficulties as:

(1)  Each co-owner will bear individual responsibility to comply with a s 28(3)  order directed to a drain which serves one co-owner’s flat, and a breach of a repair order may result in criminal liability under the BO.

(2)  It also follows that unreasonable burden (both in terms of time, costs and uncertainty)  would be put upon (a)  each co-owner, for they have to comply with or appeal against such order; (b)  the BAT, for it has to handle appeals (potentially by all co-owners other than the one responsible); (c)  the BA, for it has to serve a s 28(3)  order on multiple additional co-owners, to deal with every appeal lodged, to deal with registration (sections 28(6A)  and (7B))  and recovery of costs (section 28(7A)); and potentially to lay prosecutions (section 40(1B)).

(3)  At [94] of the Judgment, the Judge observed that this is analogous to serving the order on the incorporated owners (“the IO”). With respect, this is incorrect.  Whilst for those drains and pipes in the common parts it may be said to be so, for those that are outwith the common parts, it is difficult to see how the IO should be responsible in the first place.  Unless otherwise provided in a DMC, the IO is only empowered to deal with the common parts: see eg, section 16 of the BMO and section 39B of the BO. At [95] of the Judgment, it was said that this would be “conducive” to ensuring compliance.  But it could not.  As submitted by Mr Ng, what it may create is a flood of non-compliable s 28(3)  order and / or create chaotic “peer pressure” (if not “peer terror”)  over the delinquent co-owners to comply.  This could not have been the intention of the legislature.

(4)  Potential legal actions involving incorporated owners (or all co-owners)  may constitute a latent defect or encumbrance upon the title of all the innocent co-owners.  Serving a s 28(3)  order will naturally place an unfair burden on each co-owner’s title and put uncertainties over all potential sale and purchase.

45.Finally, we also agree with Mr Ng that the Judge has in his construction exercise erroneously ascribed too much weight to (a)  the other statutory provisions such as the Building (Standards of Sanitary Fitments, Plumbing, Drainage Works and Latrines)  Regulations (Cap 123I)  (“the Regulations”); (b)  other provisions / versions of the BO; and (c)  to the legislative history of s 28(3):

(1)  It is difficult to see how the Regulations would have any impact on the meaning of “owner” or whether discretion is accorded to the BA.  It is a non-sequitur to say that simply because at the pre-construction phrase there was only “one owner” (being the developer), thus, “owner” in the context of s 28(3)  must also refer to all successors-in-title post-construction.  The meaning of the word “owner” is a matter of statutory construction in the right context as explained above.

(2)  The gravamen of the Judge’s reference to the legislative history of the BO (ie, including sections 103 - 105 of the Buildings Ordinance 1935; section 19 of the Buildings Ordinance 1955)  is the differential treatment between “drain and sewers” and “windows or external wall”.  See [82] - [91], [103] - [105] of the Judgment.  This contrasting exercise with other schemes under the BO is not fruitful (viz. sections 24, 30B, 30C).  It is not logical that somehow because the schemes in respect of windows or external walls have been haphazardly revised over the years, this would in any way allow one to infer the meaning prior[5].

46.At the same time, we also have not lost sight of Mr Ng’s contentions that, on a proper construction of s 28(3):

(1)  The word “building” in s 28(3)  should only mean the whole building, and the “owner of such building” should mean all the co-owners (as also so concluded by the Judge), but;

(2)  The BA has a discretion to decide which of the owners of the building should be served with a repair order (which is rejected by the Judge).

47.We are also unable to accept this, as the plain wording of s 28(3)  simply does not provide any such discretion to the BA.

48.Mr Ng however submits that the word “may” in the phrase “the [BA] may by an order in writing served on the owner of such building require” gives and is intended to give a discretion to the BA as to the choice of which owner to be served with a repair order.

49.This is incorrect.  As a matter of language, on a plain and objective reading of this phrase in the provision, the word “may” is obviously intended to refer to BA’s discretion as to whether to issue a repair order or not, but not as to, after deciding to issue a repair order, which owner the order should be served upon.  The latter is to be informed and prescribed by the meaning of the phrase “the owner of such building”.

50.It seems that Mr Ng is forced to advance the submission that the BA has a discretion to decide which owner is to be served with the repair order by reason of his underlying contentions that the word “building” can only mean the whole building and thus the phrase “drains or sewers of any building” can only mean the drains or sewers of the entire building.  Counsel’s said contentions are premised on his further submission that, as a matter of language, the use of the particle “of” in this phrase is to mean “situated within” or “located within”.

51.With respect, we do not agree with Mr Ng’s contentions.

(1)  First, as explained above, the word “building” is defined to include any part of the building, and the context of s 28(3)  plainly permits this inclusive meaning to be adopted;

(2)  Second, again as explained above, the use of the particle “of” as a matter of language does not limit it to refer only to the meaning of “situated within” or “located within”.  In the right context as explained above, it could mean “appurtenant to”.

(3)  In this respect, in our view, if the use of the particle “of” is intended to mean “situated within” or “situated inside” in the present statutory context, it would lead to an absurd result. As the court pointed out at the hearing, the absurd result can be illustrated by this example: there are two houses (say, House A and House B)  where House A is located behind House B.  The drainage or sewage pipe of House A leaves from it and passes through House B’s basement (and thus is “situated within or inside” House B)  before joining the public drainage in front of House B.  For the purpose of s 28(3), it cannot be objectively intended (as it would be absurd)  that House A’s said sewage pipe would be regarded as the “drain or sewer” of House B (as it is situated within or inside House B), and the owner of House B would have to be served with a repair order to repair it.  To the contrary, the objective and more reasonable statutory intention must be that this sewage pipe would be regarded as that of House A only (as the pipe serves House A)  and it is House A’s owner who would be served with a repair order if this pipe is found to be defective.

52.Mr Ng has further submitted that the BA’s construction would result in a more reasonable and flexible (and thus effective)  facilitation of the purpose of the provision.  This is so as, under the BA’s construction, if one serves an order on the flat owner that is exclusively benefited by that particular drain, but for one reason or another, either s/he cannot be found or s/he says that s/he has no power to enter into another part of the building to repair his/her drain, the BA can consider serving an order on somebody else within the building.

53.We are not persuaded.  As we have pointed out at the hearing, in such a scenario, there are other options available to the BA under the BO to ensure effective enforcement of the repair order, for examples:

(1)  sections 22(1)(d)  and (2)  provide that the BA may at any time enter and where necessary, in the presence of a police officer, break into any premises or enter upon any land to carry out or cause to be carried out any work which he is authorized to carry out under the BO, provided that a warrant from a magistrate has been obtained.

(2)  section 28(7)  also provides that, where the owner cannot be found or fails to comply with any repair order, then the BA, may, without further notice, carry out, or cause to be carried out all or any part of the drainage works or investigation specified in the order, and such drainage works as he considers to be necessary or expedient to remedy the inadequacy or the defective or insanitary condition.

54.In any event, as a matter of reality, in a case like the present one, where there is leakage to the flat below, we do not think that the owners of the flat below would realistically wish to refuse the owners served with the notice permission to enter his flat and carry out the repairs.

55.In the premises, and for all the reasons explained at [37] - [41] above, we hold that, on a proper construction in its proper context and purpose, the words “the drains or sewers of any building” in s 28(3)  should mean the drains or sewers that serve the building or part of the building which are found to be defective or inadequate; and the phrase “owner of such building” shall mean the owner of the part or parts of the building which the identified defective drain or sewer serves exclusively.

56.In the premises, in the present context, as the Pipe serves 11B exclusively, the owners of “the building” would be the 11B owners and only the 11B owners will have to be served with the Repair Order.

57.The Judge therefore erred in allowing JR Ground 1 and the BA succeeds under Appeal Ground 1 to the extent explained above.

D2.2  Appeal Ground 2

58.This ground challenges the Judge’s holding that §12(b)(ii)  of the EBD Manual is unlawful and thus the BAT Decision in upholding the Repair Order is also unlawful.

59.§12(b)  of the EBD Manual provides as follows:

“(b)  Defective soil/waste/rain water pipes above ground

(i)  Subject to (ii)  below, the order should be served on all the co-owners of a building and the cost of repair/replacement of the defective pipes should in general be apportioned amongst them according to the number of undivided shares held by each co-owner, irrespective of the type, use or location of the defective pipes.

(ii)  For defective pipes for the exclusive use and benefit of the owner of an individual unit, the order may be served on that owner rather than on all the co-owners.  According to legal advice, the BA has the unfettered discretion on whether a section 28 order is to be served on all the co-owners of the land on which the building is situated or on one or more of the owner(s)  of the unit(s)  of the building.  However, the discretion shall be exercised reasonably, having regard to the facts of the case.”

60.§12(b)(ii)  of the EBD Manual is premised on the BA’s understanding of the effect of s 28(3), in that, although all co-owners are to be served with a relevant repair order, this is subject to BA’s discretion to serve such order only on a particular owner.

61.For our reasons set out under Appeal Ground 1, this understanding and construction of s 28(3)  is incorrect.  Hence, §12(b)(ii)  of the EBD Manual is indeed unlawful as it is based on an incorrect reading of s 28(3).

62.However, given the correct construction of s 28(3)  we have set out above, the Repair Order is still correctly and rightly served on the applicants as owners of 11B, which the defective Pipe exclusively serves as correctly found by BA.  Thus, the BAT Decision in upholding the Repair Order is also correct although for a different reason.

63.In the premises, we will not quash the BAT Decision on the basis of JR Ground 2, and thus the BA also succeeds under Appeal Ground 2 to the extent explained above.

E.  DISPOSITION

64.For all the above reasons, we allow the appeal under Appeal Grounds 1 and 2 to the extent explained above, and set aside paragraphs 1 (insofar as it relates to JR Grounds 1 and 2), 2 and 3 of the Order.  We further make an order that the judicial review based on JR Grounds 1 and 2 be dismissed.

65.As to costs, although the applicants did not participate at this hearing, they have substantively opposed the appeal by lodging the Respondents’ Notice and written submissions in support of the Order and the Judge’s reasons.  We therefore see no reasons as to why costs should not follow the event.

66.Accordingly, we make an order nisi that the applicants shall pay the BA’s costs in this appeal and below, such costs to be taxed if not agreed.  This order nisi shall become absolute 14 days from today unless any of the parties applies by summons to vary it.

Mr Ernest Ng and Mr John Fong, instructed by Department of Justice, for the 2^nd putative respondent

The 1^st and 2^nd applicants’ attendance be excused