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LDBM000152/2000
香港特別行政區
土地審裁處
建築物管理申請2000年第152號
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宜高物業管理有限公司 |
申請人 |
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遠東銀行（旺角）大廈業主立案法團 |
答辯人 |
主審法官：李何禧蓮暫委法官
聆訊日期：2000年6月29日
宣判日期：2000年7月24日
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判 決 書
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1. 申請人是遠東銀行(旺角)大廈的管理公司。
2. 答辯人是遠東銀行(旺角)大廈的業主立案法團。
3. 遠東銀行(旺角)大廈(該大廈)位於旺角奶路臣街11號。該大廈公契以註冊摘要編號748751於一九七零年七月十七日在土地註冊處登記(公契)。該大廈分為戲院，商戶及住宅三部份。戲院佔不可分割份數180份，商戶佔92份，住宅佔128份。總份數為400份。(公契序文第(3)段)
4. 申請人要求土地審裁處裁定大廈維修工程開支的分攤計萛方式。
5. 雙方無異議，該大廈須依從維修令修葺公共地方及設施。
6. 答辯人不同意有關簷蓬工程，公共電力走廊及走火樓梯，外牆，工程棚架及外牆油漆等六項的維修費用分攤計算方
法。
7. 對於消防系統，外牆水渠，供水喉，天台水缸漏水，樓梯鐵器及窗，防煙門及1至4號電梯等七項的維修費用分攤計算方法，答辯人並無異議。
8. 答辯人認為根據公契，第5條：
"The right to use the exterior walls and canopies of the said building for advertising purposes and to affix advertisements thereto shall be allocated as follows;-
(a) The owners for the time being of the theatre premises shall have such rights over the whole of the top, bottom and side of all the canopies of the said building projecting over the pavements and the reinforced concrete girders supporting the theatre roof.
(b) The owner for the time being of the theatre premises shall in addition have the right to affix an advertising sign at the corner of the building abutting on the junction of Portland Street and Nelson Street above the 1st Floor level.
(c) Subject as aforesaid each of the owner of the theatre premises and of the shop or non-domestic premises in the basement and on the ground to sixth floors shall be entitled to affix or exhibit advertising signs from the exterior of the portion of the said building owned by him but no such sign shall be installed so as to extend beyond the exterior of such portion (including one half of the width of dividing walls or beams).
(d) Each owner shall be solely responsible for the expenses of fixing, maintaining, operating and removing any advertising sign installed or affixed by him or with his consent and shall fully and effectually indemnify every other owner from and against all loss, damage, injury, actions, proceedings, claims and expenses which such other owner may suffer or incur resulting directly or indirectly from any defect in such sign or in its installation or removal or any failure to maintain the same in good repair and condition. &
(f) The owners for the time being of the flats on the 7th to 24th floors inclusive shall not affix or install on the exterior of any flat or project outside any flat any sign, advertisement notice structure cage or other projection whatsoever."
9. 住宅業主無權在簷蓬設置廣告牌，只有戲院及商戶有這權利， 所以住宅業主不應分担簷蓬工程維修費用。
10. 答辯人反對戲院無需繳付公共電力維費用。答辯人認為戲院應按份數付180份。有關走廊及走火樓梯工程，外牆及工程棚架，答辯人要求商戶應於這幾項每項繳92份。答辯人同意戲院無須負責。
11. 致於外牆油漆，此項並非大廈外牆，只是該大廈內的公共牆壁。答辯人認為每一層的業主應負責自己那一層的支出。
裁决
12. 該大廈公契曾無列明公用地方，包括外牆，走廊，樓梯等有任何業權。
簷蓬工程：
13. 公契於第5段列明：
"The right to use the exterior walls and canopies of the said building for advertising purposes and to affix advertisements thereto shall be allocated as follows;-
(a) The owners for the time being of the theatre premises shall have such rights over the whole of the top, bottom and side of all the canopies of the said building projecting over the pavements and the reinforced concrete girders supporting the theatre roof.
(b) The owner for the time being of the theatre premises shall in addition have the right to affix an advertising sign at the corner of the building abutting on the junction of Portland Street and Nelson Street above the 1st Floor lever.
(c) Subject as aforesaid each of the owner of the theatre premises and of the shop or non-domestic premises in the basement and on the ground to sixth floors shall be entitled to affix or exhibit advertising signs from the exterior of the portion of the said building owned by him but no such sign shall be installed so as to extend beyond the exterior of such portion (including one half of the width of dividing walls or beams).
(d) Each owner shall be solely responsible for the expenses of fixing, maintaining, operating and removing any advertising sign installed or affixed by him or with his consent and shall fully and effectually indemnify every other owner from and against all loss, damage, injury, actions, proceedings, claims and expenses which such other owner may suffer or incur resulting directly or indirectly from any defect in such sign or in its installation or removal or any failure to maintain the same in good repair and condition. &
(e) The owners for the time being of the flats on the 7th to 24th floors inclusive shall not affix or install on the exterior of any flat or project outside any flat any sign, advertisement notice structure cage or other projection whatsoever."
14. 因此，只有戲院及商戶可以佔用簷蓬，其他業主不能享有這權利。
根據建築物管理條例第34H條：
"(1)凡擁有建築物任何部分的人，或對建築物任何部分具有獨有管有權的人，或對該部分具有獨有的使用、佔用或享用權的人（視屬何情況而定），雖則該建築物的公契並無對該人施加維持該部分修葺妥善及狀況良好的責任，該人亦須維持該部分修葺妥善及狀況良好。
（2）第（1）款的責任，須當作為根據公契對建築物的所有業主負上的責任。”
15. 作為對簷篷具有獨有的使用，佔用或享用權的人，戲院及商舖的業主須維修簷篷修茸妥善及狀況良好。此項維修費用由戲院及商戶以業權份數此例負責。
戲院負責：簷篷維修費÷(180 + 92) x 180。
商戶負責：簷篷維修費÷(180 + 92) x 92，住宅業主無維修責任。
公共電力
16. 公契附表二第2(e)及2(f)如下：
"(e) The theatre has entirely separate electrical and water installations and the owners for the time being shall be solely responsible for the maintenance repair and reinstalment of such installations and all charges for electricity and water incurred in operating the same but shall not be liable to contribute towards the costs charges and expenses of maintaining repairing reinstating or operating the electrical and water installations in the remainder of the said building.
(f) The costs charges and expenses of maintaining repairing and reinstating the main electrical and water installations and apparatus including the water pumps serving the said building (apart from the theatre premises) as a whole shall be borne and paid by the owners for the time being of the shop or non-domestic premises in the basement and on the ground to 6th floors and the 128 flats on the 7th and upper floors proportionately to the number of 1/400th parts or shares owned by them respectively."
17. 因公契清楚界定戲院有獨立電力及供水裝置，無需對大廈其他公用電力及供水裝置負任何責任。
18. 公共電力維修費用由商戶及住宅以業權份數比例繳付。每一份業權分攤計算如下：
19. 公共電力維修費÷(92 + 128)
走廊及走火樓梯
20. 公契第2(b) & (c)如下：
"(b) The owners for the time being of the non-domestic premises in the basement and all persons authorized by them shall have the exclusive right to use the staircases marked "A" and "B" on the said plan No. 1 and the entrances thereto and to landings therein and shall be solely responsible for the expenses of lighting maintaining and cleaning the same and such owners shall in addition at their own expense keep the exterior walls of the non-domestic premises in the basement in good and tenantable repair and condition.
(c) The owners for the time being of the non-domestic premises on the First floor and all persons authorized by them shall have the exclusive right to use the staircase marked "D" on the said plans Nos 1 and 2 and the entrance thereto and the landings therein and shall be solely responsible for the expenses of lighting, maintaining and cleaning the same and such owners shall in addition at their own expense keep the exterior walls of the non-domestic premises on the first floor in the good and tenantable repair and condition.
有關“A”“B”樓梯，由地庫商戶業主負責維修費。
有關“D”樓梯及1/F走廊，由1/F商戶業主負責維修費用，
21. 公契第2(d)如下：
"(d) The owners for the time being of the non-domestic premises on the 1st to 6th floors an the flats on the 7th and upper floors shall have the right in common with each other and all persons authorized by them respectively but exclusive of the other owners for the time being of other portions of the said building to use the staircases marked "C" and "E" on the said plans Nos. 1,2,3,4,5 and 6 and the entrances thereto and the landings therein. The expenses of lighting, maintaining and cleaning these staircases shall be divided into 191 shares and one of such shares shall be paid by the owner of each undivided 400th share allocated to such non-domestic premises or flat in respect of each such undivided share and such owners shall in addition at their own expense kept the exterior walls of the non-domestic premise on the 1st to 6th floors and the flats on the 7th and upper floors in good and tenantable repair and condition."
22. 按公契1/F及以上業主負責由1/F至7/F及以上樓層， 有關“C”及“E”樓梯維修費用，分攤以191份為基本，每一份業權以比例分攤。每一份業權分攤計算方式：
23. 走廊1/F以上樓梯維修費用÷191
24. 公契附表2，第2(b) 及 (c) 如下：
"(b) The costs charges and expenses in respect of the lighting maintaining and cleaning of the arcade passage on the ground floor coloured Yellow on the said Plan No. 1 shall be borne and paid by the owners for the time being of the shop premises on the ground floor hatched Red on the said Plan No. 1 proportionately to the number of 1/400th undivided parts or shares in the said land and building owned by them respectively.
(c ) The costs charges and expenses in respect of the lighting maintaining and cleaning of all the other passages and lobbies shall be borne and paid by the owners for the time being of the non-domestic premises on the 1st to 6th floors and the 128 flats on the 7th and upper floors proportionately to the number of 1/400th undivided parts or shares owned by them respectively.
25. 根據公契，除了G/F商戶業主需全部負責地下走廊維修費用外，1/F及以上樓層由各業主以份數比例支付走廊維修費用。1/F以上每一份業權分攤計算方式：
26. 1/F及以上走廊維修費用÷[(92-G/F份數)+128]
外牆
27. 公契第2(b)(c)及(d)如下：
"(b) The owners for the time being of the non-domestic premises in the basement and all persons authorized by them shall have the exclusive right to use the staircases marked "A" and "B" on the said plan No. 1 and the entrances thereto and to landings therein and shall be solely responsible for the expenses of lighting maintaining and cleaning the same and such owners shall in addition at their own expense keep the exterior walls of the non-domestic premises in the basement in good and tenantable repair and condition.
(c) The owners for the time being of the non-domestic premises on the First floor and all persons authorized by them shall have the exclusive right to use the staircase marked "D" on the said plans Nos 1 and 2 and the entrance thereto and the landings therein and shall be solely responsible for the expenses of lighting, maintaining and cleaning the same and such owners shall in addition at their own expense keep the exterior walls of the non-domestic premises on the first floor in the good and tenantable repair and condition.
(d) The owners for the time being of the non-domestic premises on the 1st to 6th floors an the flats on the 7th and upper floors shall have the right in common with each other and all persons authorized by them respectively but exclusive of the other owners for the time being of other portions of the said building to use the staircases marked "C" and "E" on the said plans Nos. 1,2,3,4,5 and 6 and the entrances thereto and the landings therein. The expenses of lighting, maintaining and cleaning these staircases shall be divided into 191 shares and one of such shares shall be paid by the owner of each undivided 400th share allocated to such non-domestic premises or flat in respect of each such undivided share and such owners shall in addition at their own expense kept the exterior walls of the non-domestic premise on the 1st to 6th floors and the flats on the 7th and upper floors in good and tenantable repair and condition."
28. 地庫商戶業主須負責地庫外牆維修費用。1/F商戶業主須負責1/F外牆維修費用。公契2(c)及(d)，就有關1/F有重疊之處。商戶業主維修該部份外牆的責任，但明顯公契的規定是地庫及1/F商戶業主須各自負責自己部份的外牆維修，不與其他業主共同分担。
29. 1/F以上各層業主負責1/F以上的外牆維修費用。每份業權分攤方計算方式：
30. 1/F以上外牆維修費÷[(92-地庫及1/F份數)+128]
工程棚架
31. 公契附表二第2(g)如下：
(g) The costs charges and expenses in respect of all other items shall be borne and paid by the owners in the proportion of 1/400th share for each 1/400th undivided part or share in the said land owned by them respectively.
32. 除了戲院外，所有業主每一份業權以份數比例支付工程棚架費用。
33. 分攤計算方式：
34. 工程棚架費用÷(92 + 128)
外牆油漆
35. 此項工程乃大廈內的公共牆壁。根據公契附表二第2(g)，除了戲院不涉此項工程，其餘業主每一份業權以份數比例支付此費用。
36. 外牆油漆費用÷(92 + 128)
37. 就訴訟費用，不作任何命令。
申請人由梁冠明先生代表應訊
答辯人由龍麗珍女士代表應訊。
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