Read the full judgment text of CACV 000198/2005 on BabelCite. This Court of Appeal judgment was delivered on 22 June 2007 before Tang VP, Cheung JA, Chu J.
Landlord and tenant – building management – common parts – Building Management Ordinance (Cap. 344) – water supply system – whether water tanks, mains, pipes and pumps for supply of water to units of a block constitute common parts – whether installation of individual meters between 1994 and 1996 changes the common nature of branch pipes – sub-block of 20 flats with single potable water pipe branching at parapet wall into 20 metered pipes and a parallel flush water pipe – Block D1 of Summit Court – DMC dated 17 August 1966 notionally dividing the development into 163 shares – Deed Poll of 16 August 1997 subdividing the D1/20F and Portion D1 Roof share – Portion D1 Roof owned by 1st defendant and used residentially – whether water pipes are common parts: yes – common parts under s.2 of BMO requires parts to be specified or designated in a registered instrument to be excluded, and the pipes were not so designated – John So v Lau Hon Man [1993] 2 HKC 356 distinguished – branch pipes integral to communal water supply remain common parts – quasi-easement principles under Jumbo King Ltd v Faithful Properties Ltd [1999] 2 HKCFAR 297 applied – Wheeldon v Burrows (1879) 12 Ch D 31 – whether parapet wall is part of Portion D1 Roof or common part: parapet wall is common part – plan not to scale and no colouring shown – estoppel against 1st defendant as successor-in-title to Mono Graphic – Mono Graphic applied to the Water Department for a separate meter and agreed to 1994-1996 overhaul – Snell, para. 5-26; Halsall v Brizell [1957] Ch 169; Rhone v Stephens [1994] 2 AC 310 – benefit-and-burden rule estops Mono Graphic and its successors from disputing installation – whether Incorporated Owners have right of access to water pipes under clause 10(k) of DMC: yes – water pipes are integral to water tanks – purposive construction per Chan PJ in The Grande Properties Management Ltd v Sun Wah Ornament Manufactory Ltd [2006] 9 HKCFAR 462 – s.40 of BMO does not override clause 10(k) – whether prior notice required: no – whether storeroom below machine room was conveyed to defendants: yes – roof plan of first assignment showed it coloured – Contract and Conveyance, 4th Ed (JT Farrand, p. 281) and Leachman v L & K Richardson Ltd [1969] 1 WLR 1129 – appeal on common parts dismissed, appeal on storeroom allowed, costs nisi 85% to plaintiff.
Legal issues: Whether water pipes for Block D1 are common parts under BMO · Whether the parapet wall is part of Portion D1 Roof or common parts · Whether the 1st defendant is estopped from complaining about the 1994-1996 pipe installation · Whether the Incorporated Owners have right of access to water pipes under clause 10(k) of the DMC · Whether the storeroom below the machine room was conveyed to the defendants
Outcome: Defendants' appeal on common parts dismissed; defendants' appeal on storeroom allowed; counterclaim to that extent allowed. Costs nisi ordered in plaintiff's favour at 85%.