The Incorporated Owners of Mei Foo Sun Chuen Stage v. V. Grandyield Knitters Ltd

HCMP 1008/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1008 OF 2012

(ON AN INTENDED APPEAL FROM LDBM NO. 110 OF 2011)

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BETWEEN

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J U D G M E N T

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

1.This application arises out of a dispute between the incorporated owners of a multi-storey residential building and the owner of one of the units in that building. On 5 April 2012, Deputy Judge R. Yu as Presiding Officer in the Lands Tribunal gave judgment in favour of the incorporated owners against the owner, granting an injunction requiring the owner to remove the exhaust unit of an air-conditioning unit from the external wall of the building.

2.The owner, being dissatisfied with the judgment, sought leave from the Presiding Officer to appeal to this court but the application was refused by him on 9 May 2012.  The owner now applies to this court by summons dated 22 May 2012.

3.Under s. 11(2) of the Lands Tribunal Ordinance (Cap. 17), any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment of the Tribunal on the ground that such judgment is erroneous in point of law.

4.Leave is sought on the basis that the proposed appeal satisfies the test in s. 11AA(6)(a) of the Ordinance, namely that the appeal has a reasonable prospect of success, as to which test see SMSE v KL [2009] 4 HKLRD 125 at §17.

5.The owner has submitted a written statement in support of the application for leave to appeal, to which is annexed a schedule of proposed grounds of appeal, whilst for their part the incorporated owners have submitted a written statement in opposition.

6.The main issue in the Lands Tribunal was whether the external wall is a common part of the building, the Presiding Officer noting that the owner’s counsel agreed that its case would fail if the external wall was a common part (Judgment §23).

7.Ground 1 of the proposed notice of appeal seeks to contend that the Presiding Officer erred in ruling that the external wall formed part of the common parts of the building in that he erred in law in his construction of the First Purchaser’s Assignment, the DMC and the First Assignment.

8.We are not satisfied that the proposed ground of appeal enjoys a reasonable prospect of success.  As the Judge noted (Judgment §53) there is no provision in the DMC that any part of the external wall is part of the Units in the building.  Hence the external wall must fall within the definition of “Common Parts” in the DMC (viz. “all parts of the Building and Section except the Units”).

9.Furthermore, we do not consider that it is reasonably arguable that the Judge erred in law in his rejection of the owner’s argument that the developer had reserved the surface of the external wall to itself in the First Purchaser’s Assignment or the First Assignment in the absence of any allocation of shares to the external wall (Judgment §§58 & 61).

10.On this basis, the Presiding Officer was correct to hold that the external wall is a common part under the DMC and also the Building Management Ordinance, Cap. 344 (“BMO”). It follows therefore that the incorporated owners were empowered under s.34I of the BMO to enforce the DMC for the common interest of the co-owners of the building as a whole against the owner.

11.In view of the owner’s acceptance (which, in our view, must be right) that its defence must fail if the external wall is a common part, it follows that this conclusion renders the other proposed grounds of appeal academic and it is unnecessary to consider them further.

12.We would therefore dismiss the summons for leave to appeal and, since we consider that the application is totally without merit, we would make an order, pursuant to RHC O.59 r.2A(8), that no party may request this determination to be reconsidered at an oral hearing inter partes.

13.As for costs, these should be borne by the owner.  The incorporated owners’ costs in respect of the summons will be assessed on a gross sum basis and, to this end, we therefore direct the incorporated owners’ solicitors to submit a bill of costs within seven days hereof and give leave to the owner to submit its response within seven days thereafter.

Written submissions by Ms Yanky Lam, instructed by Lo & Lo, for the Applicant/Respondent

Written submissions by Mr Lee Yee Hung, instructed by King & Wood Mallesons, for the Respondent/Applicant