Wong Kwan Yee v. The Incorporated Owners of Diamond Mansion (Nos. 466 468, Lockhart Road) and Another

CACV 59/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 59 OF 2011

(ON APPEAL FROM HCA NO. 2576 OF 2007)

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BETWEEN

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Before: Hon Tang VP, Hartmann and Fok JJA in Court

Date of Hearing: 9 March 2012

Date of Handing Down Judgment: 21 March 2012

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J U D G M E N T

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Hon Tang VP:

1.I have had the advantage of reading Fok JA’s judgment in draft, I am in respectful agreement and have nothing to add.

Hon Hartmann JA:

2.I agree fully with the judgment of Fok JA.  I too would dismiss the appeal.

Hon Fok JA:

3.By his judgment dated 4 March 2011, Deputy High Court Judge Burrell granted a declaration that the plaintiff has acquired a right of way from the mezzanine floor to the lift lobby at Diamond Mansion, Nos. 466-468 Lockhart Road.  This is the appeal of the 1^st defendant incorporated owners against that judgment.

THE FACTS

4.Diamond Mansion is a 13-storey mixed commercial and residential building.  The ground and the mezzanine floors above of the building are commercial.  Shop A on the ground floor and the mezzanine floor above are owned by the plaintiff (“the Premises”). The floors above the mezzanine floor are residential and are served by lifts which are accessed from a lift lobby on the mezzanine floor.  A staircase from the mezzanine floor lift lobby leads down to the street at the ground floor level. On the left side of the lifts, if one is facing them, is a door in the wall, on the other side of which is the mezzanine floor of the plaintiff’s premises.  At the time of the trial below, the lift lobby side of the doorway was covered in marble cladding so that, if one were standing in the lift lobby, no door would have been visible.

5.The plaintiff’s predecessor in title purchased the Premises by a sale and purchase agreement dated 10 September 1964.  The plan annexed to the agreement[1] shows a gap in the wall where the doorway described above is situated.

6.The occupation permit for the building is dated 5 January 1965 but the amended plan approved for the occupation permit[2] does not show a doorway at the place where the door is in fact located.  Instead, it shows a gap in the wall at a different location, about 4 metres closer to the front wall of the building.

7.The Premises were first assigned to the plaintiff’s predecessor in title by way of an assignment dated 16 March 1965.  A Deed of Mutual Covenant (“DMC”) was entered into between the developer and the first purchaser of one of the residential units in the building on the previous day, 15 March 1965.  The DMC annexed a plan[3] that did not show an opening where the doorway is situated.

8.In 1966, the plaintiff became a tenant of the Premises.  Her evidence, that there was always a door at the site in question, was eventually not challenged by the incorporated owners.

9.The learned Judge below held that he was not able to say that the door was built by the developer but did find that the opening existed at the time of the first assignment in March 1965.  It will be necessary to return later in this Judgment to examine what precisely the Judge found in this regard.

10.In 1978, the plaintiff purchased the Premises and, from 1980, she began to let them out to other tenants.  From 1994 to 2004, the Premises were operated as a restaurant.  This necessitated the conversion of the door into a “fire door” or “approved fire exit”, which was duly carried out and approved by the Building Authority in 1994.  The conversion included the creation of a smoke lobby at the doorway on the side of the door within the Premises.

11.The Judge found that the door remained a door from the date of the first assignment in March 1965 until 2004.  He also accepted the evidence that the door was used since the mid-1960s.  He noted that “[i]t may not have been a busy access but it was in regular use by the occupants of the plaintiff’s premises both during her tenancy and by her tenants during her ownership”[4].

12.That it may not have been a busy access is consistent with the fact that, since the 1970’s, the incorporated owners’ caretaker has been stationed at a desk situated in the lift lobby immediately in front of the site of the doorway.  The caretaker has been so stationed with his back to the doorway throughout the time (i) when it was a door (prior to 1994), (ii) after it became a fire exit (in 1994) and (iii) since it has been covered by marble cladding (since March 2007).

13.In 2004, the plaintiff leased the Premises to a tenant who uses them for a watch and jewelry retail business.  For reasons of security, that (current) tenant removed the smoke lobby, bricked up the doorway on the side of the door within the Premises and covered the brickwork with plasterboard or plywood.  The Judge found that he did so in 2004 rather than after the incorporated owners commenced their renovation works in 2006 and that it was probable he put up the brick wall without the plaintiff’s knowledge.

14.In the course of renovations by the incorporated owners, the doorway on the side of the lift lobby in the building was sealed by the installation of marble cladding in March 2007.

15.The writ in this action was issued in December 2007.

16.Sometime after the issue of the writ, the plaintiff’s current tenant removed the plasterboard on the side of the door within the Premises and reinforced the brick wall with a steel plate.  The Judge found that it was probable he did so in 2009/10 at the plaintiff’s request in connection with this action.

17.In June 2009, the plaintiff received a notice from the Building Authority under section 24(1) of the Buildings Ordinance (Cap. 123) requiring her to demolish the building works consisting of the “[b]locking up of one exit door of protected lobby at M/F” and to reinstate in accordance with the plans approved by the Building Authority.  During the hearing of the appeal, we were informed that the reinstatement work had already been carried out so that the doorway was now unobstructed and that, in the event the appeal were to succeed, it was the incorporated owners’ intention to block up the doorway again (at which point it was anticipated a further building order might be issued which, if issued, the incorporated owners would dispute).

THE JUDGMENT BELOW

18.The Judge rejected the incorporated owners’ contention that the door was illegal, which was advanced on the basis that it was opened up by a tenant or an owner after the issuance of the occupation permit, or alternatively, on the basis that section 17(6) of the 1976 Fire Escape Code of Practice required a protected lobby and there was no such lobby prior to 1994.

19.He concluded that the plaintiff had not lost the easement she had acquired (by virtue of the sufficient user he found there to have been from 1965 to 2004) by reason of abandonment.  He therefore held:

“42. I consider the plaintiff to be more desirous of claiming her rights than she is of claiming her door back. They are not the same thing. She regards the installation of the marble wall as a breach of her rights. She is primarily asking the court to declare that she is in the right. The lack of a door for the last 6-7 years has been disadvantageous to no one. Since 2009 [the plaintiff’s tenant] has removed the plasterboard/plywood and has reinforced his brick wall with a steel plate. The plaintiff is happy with her tenant for the time being and said in evidence that she would be willing to renew the tenancy in 2012/13 if a reasonable rent was agreed. There are no current plans for it to become a restaurant again.”

20.He rejected the defendant’s argument that the caretaker could not sit anywhere else and that he should not sit in front of a fire door.

21.He considered that the defendant had mischaracterised the plaintiff’s case.  He observed:

“48. Much of [counsel for the 1^st defendant’s] final submission was on the basis that the plaintiff claims the right to use the door as a fire exit. This is not the plaintiff’s case. The plaintiff seeks a declaration that she has acquired a right of way through the door and a mandatory injunction to reinstate it. It could be a fire door in the future but would have to be reinstated as such in compliance with all requirements and conditions as laid down by the Building Authority and the Fire Department. If the user of the plaintiff’s premises changes to a restaurant again it will have to be a fire door. It is also likely (see below) that any reinstatement, whether for a restaurant or not, will require a fire door.”

22.The Judge concluded:

“53. My primary finding is that the door existed and was used, perhaps sparingly but sufficiently for legal purposes, from 1965 to 2004. It has not been proved to have been an illegal structure and the plaintiff has established an easement by virtue of nearly 40 years use as a door. She did not abandon her right to the easement in 2004 when the door was probably first bricked up. Her complaint about the defendant’s actions was sufficiently soon after she became aware of either side’s acts of blocking up.

54. ‘Do I have a right to have a door in that location?’  This is the simple question which sparked off this litigation.  It is now answered in the affirmative.”

23.As to relief, the Judge declined to award damages to the plaintiff or to grant the mandatory injunction claimed by her but did grant the declaratory relief she sought.  For the avoidance of doubt, the Judge declared that no legal grounds existed for either party to oppose the section 24 notice under the Buildings Ordinance.

THE INCORPORATED OWNERS’ CASE IN SUMMARY

24.It is the incorporated owners’ case on appeal that the doorway is illegal.  As such, it was contended that the plaintiff could not acquire any easement in respect of the use of the illegal doorway.

25.It is also the incorporated owners’ case that the wall where the doorway is located is a common part of Diamond Mansion and that, for this further reason, it was not possible for the plaintiff to acquire an easement in respect of the doorway.

26.Finally, it is the incorporated owners’ case that there could not be a real easement of the doorway since the plaintiff is a co-owner of Diamond Mansion.

ILLEGALITY

27.The first issue to be considered is whether the doorway is illegal.

28.The incorporated owners’ case on illegality was put in two ways.  First, it was contended that it was common ground between the parties that, if the doorway was not there from the outset, it would need approval and, since there was no evidence of approval, it must be illegal.  The incorporated owners’ case is that the approved plan for Diamond Mansion as amended does not show a doorway and that, hence, the opening of the doorway must constitute an unauthorised building work contrary to section 14(1) of the Buildings Ordinance and thus an offence under section 40(1AA) of that ordinance.

29.Secondly, it was contended that the non-existence of a smoke lobby protecting the doorway was a breach of paragraph 17(6) of the Code of Practice on Provision of Means of Escape in Case of Fire and Allied Requirements (“the COP”), the December 1959 edition of which would have been applicable when the doorway first existed.

Illegality – when was the doorway constructed?

30.As to the first contention, it is relevant to note what the Judge below found, namely:

“17. However, the exact date [when the doorway was constructed] only matters insofar as it is relevant to the issue of the door’s legality. If it was part of the original development it can safety be deemed to have been legal. If on the other hand it was opened up by a tenant or an owner after the issuance of the Occupation Permit it may not be legal.

18. Whether or not the door was built by the developer is not possible to say. However the available evidence does enable me to proceed on the basis that, and I do so find, the opening existed at the time of the first assignment in March 1965. Further, that it remained a door until 2004 (the events of 2004-2007 I shall deal with later). I also accept the evidence that since the mid 1960s the door was used. It may not have been a busy access but it was in regular use by the occupants of the plaintiff’s premises both during her tenancy and by her tenants during her ownership.

…

25. I accept the argument that if the 1994 application had been, in effect, an application to alter an illegal structure into a fire exit it would not have been approved without requiring reinstatement. An order under section 24 of the Buildings Ordinance requiring such removal or reinstatement would have been made.

…

28.       On the balance of probabilities ‘illegality’ of the opening has not been established.”

31.As I read them, these paragraphs show that the Judge found that the doorway was present from the outset and that it was not opened up by a tenant or an owner after the issuance of the occupation permit.  This point emerges particularly from the Judge’s acceptance of the argument that the fact that reinstatement of the doorway into a solid wall was not required in 1994 supports the fact that the doorway itself was not regarded as an unauthorised building work.  If that is so, there is no question of illegality of the doorway and the incorporated owners’ first line of argument fails.

32.Mr Kelvin Leung, counsel for the incorporated owners, acknowledged that the illegality argument advanced by the incorporated owners required that the opening for the doorway was not made at the time the building was constructed.  He submitted that paragraphs 17, 18 and 25 of the Judgment should be read as meaning that the Judge found that the developer had opened the doorway after the occupation permit was issued.

33.I do not agree that this is what the Judge meant.  It is clear from what the Judge said that the identity of the person who made the doorway was not the important issue.  Instead, it was the timing of the creation of the doorway that was material.  As to this, I read paragraphs 17, 18, 25 and 28 of the Judgment as indicating that the Judge found as a fact that the doorway was not opened up by a tenant or owner after the issuance of the occupation permit and that it existed at the time of the first assignment in March 1965.  On the basis of those findings, the probable inference, in my judgment, is that the door was part of the original development.

34.It was submitted on behalf of the incorporated owners that the Judge was wrong to rely on a number of irrelevant matters in reaching his finding that the doorway was not illegal.  Mr Leung submitted that the Judge made a number of factual errors. First, it was said that the Judge was wrong to rely on the existence, on each of the floors above the mezzanine floor, of a doorway at the same location as the doorway in question.  What the Judge said was this:

“15. At every floor above the mezzanine floor there has always been a door at the same location which was part of the original building and appears on the original building plans.”

35.I do not consider that the Judge erred as contended.  The Judge made this observation immediately after rhetorically posing two questions, namely (i) why the sale and purchase agreement plan shows a doorway whereas the later occupation permit plan does not do so (although it shows a gap in a different place) and (ii) whether it was more likely that a mistake was made in inserting a door that did not exist or in omitting a door that did exist.[5]  The fact that there was a doorway in the same location at each of the upper floors in the residential portion of the building at the very least demonstrated that the part of the wall where the doorway in question was located could not have been a load-bearing or structural wall.  Hence, after making the observation he did in paragraph 15 of the Judgment, the Judge went on to say:

“16. There is force in the argument that it is more likely that a door did exist in 1964 because it did appear on the sale and purchase plan. A draughtsman drawing a door on a plan which wasn’t there is difficult to imagine. Moreover, every floor above did have a door.”

36.Secondly, Mr Leung submitted that the Judge was wrong to rely on the fact that the plan annexed to the sale and purchase agreement between the developers and the plaintiff’s predecessor in title shows a gap in the wall where the door space is.[6]  Mr Leung submitted that the plan annexed to the sale and purchase agreement was for identification purposes only so that the Judge should not have referred to it.

37.I do not agree that the Judge was in error in doing so.  The fact that the sale and purchase agreement described the Premises as being “more specifically shown and marked on the plan hereto attached and coloured Pink” and this plan showed a doorway at the mezzanine level of the premises[7] is evidence supporting the acquisition, by the plaintiff’s predecessor in title, of an equitable right to specific performance of that sale and purchase agreement and to the creation (if it did not in fact already exist) of a doorway at the location shown in the plan annexed to the agreement.  This would be so even if the creation of a doorway required additional work such as the moving of the internal staircase in the Premises in order to enable a protected lobby to be constructed in front of the doorway.  As between the vendor developer and the plaintiff’s predecessor in title as purchaser, the purchaser would have acquired a contractual right to a doorway at that location.

38.This would remain the case notwithstanding the fact that the Deed of Mutual Covenant (“DMC”) entered into by the developer in respect of the building has a plan attached which does not show a doorway between the mezzanine level of the Premises and the lift lobby.  Contractually, the plaintiff’s predecessor in title would be entitled to prevent the developer entering into a DMC which affected his prior equitable interest.

39.Thirdly, Mr Leung submitted that the Judge was wrong to rely on the fact that the plan approved for the occupation permit does not show a door space at the site of the doorway in question but instead shows a gap in the same wall but at a different site, about 4 metres closer to the front wall of the building.

40.I do not think this criticism is made out either.  The Judge did not rely on that particular plan or the gap shown in his analysis of the issue in the section of the Judgment containing his factual findings[8]. Instead, the Judge’s reference to the existence of an opening at a different part of the wall shown in the plan approved for the occupation permit is contained in paragraph 10(2) of the Judgment which is part of the Judge’s recitation of a brief chronology of matters relating to the issue of when in the mid 1960s the door probably first appeared.

41.Mr Leung further submitted that the incorporated owners had conceded the existence of the doorway “in or about” 1966 in the course of final submissions[9] and had done so because the only issue was one of prescription since, he contended, it was the plaintiff’s own case that the doorway was a structural alteration to the building requiring approval from the Building Authority.  For this reason, too, the incorporated owners had withdrawn witness statements relating to the time when the doorway existed and, by doing so, had been prejudiced.

42.However, the argument dealt with in paragraph 25 of the Judgment (see paragraph 30 above) shows clearly that it was in issue before the Judge whether the doorway was illegal, which in turn depended on whether it was there as built from the outset.  In other words, the Judge had not understood the plaintiff to have conceded the illegality of the doorway.

43.Mr Leung’s further submission was put in the skeleton submissions of the incorporated owners on appeal as follows:

“15. It is P’s pleading that the installation of the Opening consisted of structural alteration to the Building [Core/47 §30] such that approval from BD was required: s 14(1) Buildings Ord {1}. There being no approval from BD, the illegality of the Opening prior to 1994 is not open to dispute and it is not an issue before the Court: §18/13/2 HKCP 2011{3}. Once it is established that the Opening was not constructed with the building, it is not open for P to say that the existence of the Opening prior to 1994 was not illegal.”

44.But paragraph 30 of the plaintiff’s statement of claim[10] (relied on as the source of this submission of the incorporated owners) pleads:

“30. If, which is not admitted, the Opening did not exist when the Building was constructed as pleaded in paragraphs 25 and 26 above, the construction of the Opening would consist of structural alteration to the Building.”

45.This paragraph relates to the plaintiff’s contention that there was no requirement to reinstate the wall before the conversion work to turn the door into a fire exit in 1994, thus supporting the fact that the doorway was not illegal.  It also shows clearly that the plaintiff’s case that the doorway was a structural alteration was premised on the doorway not existing when the building was constructed as pleaded in paragraphs 25 and 26.  Those paragraphs pleaded the plaintiff’s primary factual case as to the date of construction of the doorway as follows:

“25. In actual construction, as far as the Opening was concerned, the Building had followed the plan attached to the Agreement of 10 September 1964 rather than the plan attached to the Deed of Mutual Covenant, having installed the Opening on the Mezzanine Floor by way of a doorway between the privately owned part and the common corridor.

26. In other words, the Opening had been existent before and since the first Assignment of 16 March 1965 of the Property, alternatively, since 1966 when the Plaintiff first occupied the Property as tenant.”

46.As I have noted above, that primary factual case of the plaintiff was the finding of the Judge and, so, the alternative factual premise on which the plaintiff accepted the doorway would be illegal (i.e. that “the Opening did not exist when the Building was constructed as pleaded in paragraphs 25 and 26”) did not exist. It follows that the incorporated owner’s reliance on a concession of illegality on the part of the plaintiff is not sustainable.

47.Finally, as regards the witness statements which Mr Leung contended had been withdrawn by the incorporated owners, these were statements of a Madam Chan Wan, who was only able to give evidence as to the status of the doorway as from 1969, when the door was already there, and so I do not accept that the complaint of prejudice is made out.

Illegality – breach of the COP?

48.I turn to the incorporated owners’ second line of argument, based on paragraph 17(6) of the COP.

49.Paragraph 17(6) provides:

“(6) The exit route from any room, flat or storey to any part of a staircase which serves a storey more than 100 feet above the level of the ground shall be through a lobby. Such lobby shall be either

(a) a protected lobby, or

(b) a lobby open to the external air on at least two sides.

Provided that this paragraph shall not apply to a staircase to which access is from a balcony approach.”

50.It was contended that paragraph 17(6) of the COP would apply to the doorway, since the lift lobby into which it opens from the mezzanine level of the Premises leads to a staircase leading directly down to the street outside and also to a staircase leading up to the residential floors of the building above.  Neither of these staircases is accessed via a protected lobby or by a lobby open on at least two sides.

51.I do not consider that this argument assists the incorporated owners.  Although paragraph 1(1) of the COP refers to regulation 37(a) of the Building (Planning) Regulations 1956 which requires that “every building shall be provided with such means of escape in case of fire as may be required by the intended use of the building”, breach of the COP or regulation 37(a) is not a criminal offence.  Such a breach may lead to the Building Authority issuing an order to the relevant property owner to require rectification works to comply with the COP but it does not mean that the doorway is illegal.

52.This conclusion is reinforced by reference to paragraph 1(2) of the COP which states that the Building Authority deals with each case “on its merits after full consideration of the circumstances”.  This demonstrates that individual cases will be dealt with on the basis of their own particular facts and it therefore cannot be assumed that a non-compliant doorway will necessarily be made the subject of a building order by reason of its failure to conform to the requirements of the COP.

53.In the present case, the section 24 notice (which, as I have already noted, has already been complied with) required the reinstatement of the doorway as shown in the 1994 plans[11], i.e. as a door with a smoke lobby within the Premises as laid out when operating as a restaurant.  Mr Leung could not now dispute the legality of such reinstatement, which is clearly not now illegal.  However, his case was that the wall was a common part of the building at the time of the DMC so that, by reason of section 34I of the Building Management Ordinance, Cap. 344, there was no right on the part of the developer or predecessor in title to the plaintiff (or anyone else) to remove it.  I shall return to deal with this argument below.

54.It follows from the above analysis that I reject the contention of the incorporated owners that the Judge was wrong to find that the door was not illegal.

DEED OF MUTUAL COVENANT

55.Clause 2 of the DMC provides:

“2. Each of the parties hereto and his licensees shall in common with his co-owners of the whole of the said premises and their licensees have access to and be entitled to use the entrance-hall staircases and landings the common passages and of and in the said building for all purposes connected with the proper use and enjoyment of the floor in the said building of which he is entitled to the exclusive use occupation and enjoyment and for the purposes of ingress and egress from such floor.”

56.On the basis of the Judge’s finding that the doorway was present from the outset, it follows that the plaintiff and her licensees are entitled to rely on this provision of the DMC to entitle them to access to the lift lobby through the doorway.  Furthermore, they would be entitled to rely on this provision to prevent the incorporated owners from blocking the doorway and thereby restricting their right of access to the lift lobby through the doorway.

57.Mr Leung submitted that the plaintiff’s case was not put this way below.

58.However, the plaintiff’s statement of claim does plead clause 2 of the DMC at paragraph 20 and I have already set out above paragraphs 25 and 26 of the statement of claim which plead the plaintiff’s factual case as to the time of the construction of the doorway.  The statement of claim also pleads:

“26A. The Opening together with the wall which divides the Property from the common corridor was at all material times and still is part of the Property.”

59.In my judgment, there is a sufficient basis of pleading for the plaintiff to succeed on the basis of the Judge’s finding that the doorway existed from the outset and the right of access to the lift lobby granted by clause 2 of the DMC.  The argument is also sufficiently alluded to, in my judgment, in paragraph 3 of the supplemental respondent’s notice.

60.If, there were any issue as to the safety of the doorway, that would depend on compliance with the relevant version of the COP[12] and would be a matter to be determined as between the Building Authority and the person responsible for the door (in this case the plaintiff)[13] but the incorporated owners would not be able to prevent the plaintiff and her licensees using the doorway to access the lift lobby.

Common parts

61.Mr Leung submitted that the plaintiff’s predecessor in title had, by opening the doorway in the wall, converted part of the common parts of the building to his own use in contravention of section 34I of the Building Management Ordinance, Cap. 344.  That section provides:

“34. (1) No person may –

(a) convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners’ committee (if any); …”.

62.However, if the doorway was part of the building from the outset and before the DMC was entered into, the space in the wall where the doorway is situated is not part of the common parts of the building.

63.Mr Leung contended that the Judge did not find that the doorway’s construction pre-dated the DMC since the Judge’s finding in paragraph 18 of the Judgment was that the opening existed at the time of the first assignment in March 1965.  The first assignment of the Premises is dated 16 March 1965 but the DMC is dated 15 March 1965.  However, I do not regard the one day’s difference in the dates of the first assignment and DMC as material in this context.  If the doorway existed on 16 March 1965, it is clearly more probable than not that it existed on 15 March 1965 when the DMC was entered into.  The alternative, namely that it was only constructed precisely on 16 March 1965 and not before, is unrealistic.

64.It would therefore follow that the plaintiff’s pleading in paragraph 26A of the statement of claim is established and the space in the wall where the doorway is situated is part of the Premises and not part of the common parts of the building.  There is therefore no question of any breach of section 34I of the Building Management Ordinance by the plaintiff.

EASEMENT

65.The conclusion that the plaintiff is entitled to rely on clause 2 of the DMC to continue to use the doorway as a means of access to the lift lobby of the building (and therefore as a basis for the declaratory relief granted in favour of the plaintiff by the Judge) is sufficient to dispose of the appeal.  However, since the Judge granted the declaration he did on the basis of the plaintiff’s acquisition of an easement, I shall address this issue briefly.

66.The incorporated owners’ first contention in respect of the Judge’s conclusion that the plaintiff had acquired an easement is that the existence of the doorway prior to 1994 was illegal so that the period of existence of the doorway prior to 1994 should not be counted as part of the requirement of 20-years’ user to establish an easement by prescription. Reliance was placed on Neaverson v Peterborough Rural District Council [1902] 1 Ch 557 at pp. 563 and 573.

67.The answer to this contention is that the doorway is not illegal for the reasons set out above.

68.The next contention of the incorporated owners is that “a co-owner in a multi-storey building cannot have a real easement over the common parts, as one cannot have a real easement over one’s own property”: see Hollywood Shopping Centre Owners Committee Ltd v Wing Wah Building Mongkok Kowloon (IO) [2011] 4 HKLRD 623 at §60 citing Jumbo King Ltd v Faithful Properties Ltd (1999) 2 HKCFAR 279 at p. 297D.

69.The first answer to this is that the space where the doorway is situated is not, on the basis of the Judge’s finding that the doorway was present from the outset, part of the common parts of the building.

70.In any event, whilst it is correct that a real easement cannot be acquired by a co-owner in a multi-storey building, the rights of co-owners over the common parts can be called quasi-easements and function for all practical purposes as if they were easements: see Kung Ming Tak Tong Co Ltd v Park Solid Enterprises Ltd (2008) 11 HKCFAR 403 at §§41-43.  In this sense, rather than the Wheeldon v Burrows sense, the plaintiff could acquire a quasi-easement in respect of the space in the wall where the doorway is situated (assuming, for this purpose, that space to be a common part).

71.This argument would not be affected by section 34I of the Building Management Ordinance (see above) because the right to use the doorway as a means of access to the lift lobby had been acquired by 20-years’ user by 1985 and, since that provision was only enacted in 1993, it could not affect the right already acquired.

OTHER ARGUMENTS

72.In the light of the conclusions I have reached above, it is not necessary to deal with the other arguments raised by the plaintiff in her supplemental respondent’s notice, including the arguments of estoppel by deed and estoppel by convention.

CONCLUSION

73.For these reasons, I would dismiss the appeal.

74.As to costs, I see no reason why they should not follow the event and I would therefore make an order nisi that the incorporated owners pay the plaintiff’s costs of appeal to be taxed, if not agreed.  For the avoidance of doubt, the Judge’s costs order is undisturbed by this Judgment.

Mr Nelson Miu & Mr Kenny Chan, instructed by P. H. Chin & Co., for the Plaintiff/Respondent

Mr Kelvin Leung, instructed by Pansy Leung Tang & Chua, for the 1^st Defendant/Appellant