The Incorporated Owners of Hong Kong Mansion, Causeway Bay v. Bothlink Ltd

HCMP 1814/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1814 OF 2010

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J U D G M E N T

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1.The plaintiff is the incorporated owners of Hong Kong Mansion in Causeway Bay. It sues the defendant for recovery of two voids in the building. The defendant says that the exclusive rights to use and occupy the two voids had been assigned by the developer to its predecessor in title and are now owned by it.

Locations of the voids and the disputes

2.One void is on the main roof.  It is the lower storey of a 2-storey structure.  The upper storey is a lift maintenance platform.  The void is currently occupied exclusively by the defendant.  It was marked “MACHINE RM.” in the approved building plan.  The plaintiff says that the whole of the 2-storey structure comprising the void and the maintenance platform above it constitute the machine room for the lifts at the main roof.  The defendant however argues that the machine room is just the maintenance platform in the upper storey and does not include the void below.  The defendant also argues that it owns the exclusive right to use and occupy this void.  There is no dispute that the machine room is a common area.  The argument is whether the machine room is comprised of the maintenance platform and the void and below it or just the maintenance platform.

3.The other void is also underneath a lift maintenance platform which is on the 19/F flat roof.  This void is also currently occupied exclusively by the defendant.  It was also marked “MACHINE RM.” in the approved building plan.  The argument is the same. It is whether the machine room, which is indisputably a common area, is comprised of the maintenance platform and the void and below it or just the maintenance platform.

4.I will first deal with the design of the voids as shown in the building plans approved by the Building Authority under the Building Ordinance, Cap 123.  I will then deal with how they have been altered by the defendant for the current use. 

5.Both sides have called experts to testify on whether the two voids are part of the two machine rooms respectively. The plaintiff’s expert Mr Law Sheung Ping James is a Chartered Building Surveyor and authorised person.  He has extensive experience in building surveying and administration of the Buildings Ordinance.  The defendant’s expert Mr Yuen Wing Keung Michael is a registered architect and authorised person.  He has extensive experience in building projects.  Neither side has challenged the expertise of the other’s expert and I accept that both experts are qualified to give expert evidence on the issues herein.

The GFA do not include the voids

6.The plaintiff’s expert Mr Law has considered the occupation permit dated 19 March 1966 (p 243) and the building volume calculation in the approved plan (p 284).  He found that the areas of the two voids were excluded from the floor space (p 225) and building volume calculation (p 269).  He also said in his report (p 226) and oral evidence that the Buildings Department would require the voids to be sealed off and be inaccessible if they should be excluded from the calculation of gross floor area (“GFA”) of the building.  He also said that the occupation permit also did not mention any permitted use of the 2 machine rooms (or the two voids).  The defendant did not challenge this opinion.

The design and configuration of the void on the main roof

7.For the 2-storey structure at the main roof, Mr Law said that in the approved building plan, there was an authorised entrance at the south-west corner which was guarded by a 2 inch hardwood self-closing door.  This entrance led into the lower part of the structure where there was a cat-ladder for climbing up to the maintenance platform above.  The lift technician could climb up the cat-ladder and step onto the maintenance platform as there was no wall and door enclosing the platform above.  The air-space of this part of the lower storey of the structure merged with the air space of the platform above.  This part of the lower storey of the structure was segregated from the rest of the lower storey by walls.  The rest of the lower storey was the void.  It had no access from the outside and was an inaccessible void. 

8.Mr Law also provided sketches to demonstrate why the void shown in the approved building plan was an inaccessible one (pp 229, 268 and 286).  His sketches showed location of the approved entrance to the lower part of the structure at the south-west corner and the cat-ladder inside that corner for climbing up to the maintenance platform.  Behind the cat-ladder is a wall at the lower part which sealed off the void.  He also provided photos showing the existing locations of the authorised entrance, the cat-ladder and the wall behind the ladder (pp 236, 237-photo 11 and 278-photo 9).

9.The defendant’s expert Mr Yuen also referred to Mr Law’s 1st sketch and photos (pp 229, 236 and 237-photo 11) and accepted the authorised entrance and cat-ladder drawn therein as the access to the maintenance platform at the upper level.  He also accepted that the existing authorised entrance and cat-ladder as shown in the photos were built as per the approved building plan though he used this to support his contention. His contention was that the machine room was designed and built only at the upper level and the void underneath was owned by the defendant (p 297).

10.Mr Yuen in oral evidence however did not accept that the void underneath the maintenance platform was sealed up and inaccessible.  He also changed stance by saying that the position, which he had accepted in his report to have been for the cat-ladder, was in fact an unguarded opening through which one could enter into the void.  He placed the cat-ladder further back into the void.  On his new case as portrayed in oral evidence, there was the authorised entrance to the 2-storey structure at the south-west corner as pointed out by Mr Law.  Inside the structure and at the point where Mr Law said there was the cat-ladder, Mr Yuen said that that was an unguarded opening leading to the void.  Mr Yuen then positioned the cat-ladder inside the void for climbing to the maintenance platform.  In this configuration, the void would not be inaccessible.  In fact, the maintenance platform above was only accessible through the void.

11.However, this configuration has some problems.  The first problem is that it is different from the configuration shown in the sketch and photos produced by Mr Law which Mr Yuen had already accepted in his report.  Mr Yuen has not given any reason for changing his case.  Regarding the point where he said was an unguarded opening, it is shown in the photographs to be a wall behind the existing cat-ladder and not an opening.  This point was also represented by 2 solid lines in the approved building plan.  They do not indicate an opening but a wall.  There is also a fire hydrant built right across this alleged unguarded opening rendering it illogical to have an opening there (p 237-photo 11).  All these made Mr Yuen new case sound unreal.

12.The configuration deposed to by Mr Law do not have any problem.  He read from the approved building plan that the void was sealed off and inaccessible and that is in line with his evidence that the void has not been included in the GFA calculation and should be inaccessible. 

13.I find Mr Law’s evidence on the void and that it is part of the machine room on the main roof clear and reasonable.  I accept his evidence.  I reject Mr Yuen’s evidence on this issue insofar as it is in conflict with that of Mr Law.

14.I also agree with the evidence of Mr Law and the submission of Mr Chong, the plaintiff’s counsel that the void is necessary for raising the maintenance platform to a higher level to provide for an extension of the lift shaft.  This extension of the lift shaft is required by the building regulations to cater for the overrun of the lift so that the lift, when over run, will not hit the hoist at the top.  Though the void is sealed off and the inside is inaccessible, it supported the maintenance platform above.

15.I also note that the void is currently partitioned into 2 compartments and used and occupied exclusively by the defendant.  There is an entrance to each of the compartments (p 286).  These entrances cannot be found on the approved building plan.  Mr Law said that these were unauthorised openings.  I agree.

The design and configuration of the void on 19/F flat roof

16.I now move on to the machine room at the 19/F flat roof.  Mr Law referred to the approved building plan for the 19/F which was approved on 20 January 1966.  He said that the void as shown in the plan was completely sealed off and inaccessible from the outside.  That made it not part of the GFA.  There was only an authorised entrance to the maintenance platform above it.  The entrance was at the north-east corner of the 2-storey structure and was guarded by a door.  There was also a cat-ladder at the same point leading from the floor level to the entrance.

17.There is in evidence an earlier approved plan of the elevation of the whole building.  It was approved by the Building Authority on 8 May 1963.  This plan showed the machine room on the 19/F with an access at the lower storey and without any cat-ladder.

18.Mr Law said that this early elevation plan was superseded by the building plan approved on 20 January 1966.  The elevation plan had no detail for constructing the building.  Mr Law said it was for showing the outlook and height of the building and the position of the windows before the building was built.  The builder, when undertaking the construction works, had to seek detailed information from the building plans and consult the architect.  Mr Law thought it likely that the architect should have amended the plan after the 8 May 1963 approval and upon advice from E&M engineers on the design of the machine room for the lift. 

19.He thought that the architect should have put in an amended elevation plan incorporating the amendment (i.e. to build a cat-ladder leading from the floor level to an opening at the upper storey of the structure).  He however opined that the absence of such plan was probably because of the negligence of the architect.  He also found it not uncommon for there to be discrepancies between the elevation plan and the floor plans.  In the light of the scanty details in the elevation plan, it is certainly not enough for the purpose of putting up the building.  I think Mr Law’s evidence on the elevation plan and its having been superseded by subsequent amendment reasonable and I accept it as correct.

20.Mr Yuen for the defendant said that the opening with a door as shown in the approved building plan should have been at the lower storey of the structure.  He accepted that there should also be a cat-ladder right in front of the door as a cat-ladder was so drawn on the approved building plan for the 19/F.

21.He said that the cat-ladder was in 2 parts with the lower part affixed onto the door of the entrance at the lower storey.  The upper part of the cat-ladder was then affixed onto the external wall of the upper part of the structure and led to its roof.  However, I cannot see the wisdom of such arrangement.  If it was necessary to provide a cat-ladder to go from the floor of 19/F to the roof of the 2-storey structure, then the cat-ladder could have been built to the west and adjacent to the door so that there was no need to split it into 2 parts with the lower part affixed on the door.

22.Furthermore, on Mr Yuen’s case, the entrance was to the lower storey and not to the maintenance platform at the upper storey.  The platform would then be completely sealed off and inaccessible from the outside as the approved building plan only showed a vent for release of air pressure in the lift shaft and a louvre for ventilating the maintenance platform.

23.Currently there is an entrance guarded by a door at the lower storey and another entrance also guarded by a door to the maintenance platform above.  Both entrances are at the same vertical position.  The cat-ladder which is supposed to be at the same location is now positioned to the west and adjacent to the lower door.  There is no part of a cat-ladder leading to the top of the 2-storey structure as suggested by Mr Yuen.  However, the existing cat-ladder is not a safe way to reach the entrance to the maintenance platform as its top is not right in front of the entrance to the platform but on the side.  It is dangerous for the technician to walk from the top of the ladder to the entrance for the obvious risk of fall.  Hence, there is another steel staircase built on the western side of the 2 entrances for access to entrance above.  This staircase runs covers the cat-ladder and has its landing right outside the upper entrance for safe access to the maintenance platform. 

24.Mr Law said that in his experience, the original cat-ladder for access to the maintenance platform had been moved to the west to make way for the making of the unauthorised lower entrance.  After being moved to the west, the cat-ladder was no longer a safe means of access to the entrance above.  Hence, the new steel staircase was built to provide safe access to the upper entrance.  He also said both the lower entrance and the new steel staircase were unauthorised building works as they are not in the approved building plan.

25.Mr Yuen for the defendant however referred to 2 other lift machine rooms on the 19/F.  They are machine rooms Nos. 3 and 4.  They are only single storey structures and underneath them are residential units.  Mr Yuen therefore said that the machine room in question should also be of one-storey only and not include the void below it.

26.However, the situations of the machine rooms Nos. 3 and 4 are different from that of the machine room in question.  For those 2 machine rooms, their maintenance platforms need not be elevated to extend the lift shafts for a safety margin for overrun of the lifts.  The lifts under these 2 machine rooms only go up to the 17/F.  Their lift shafts along the 18/F serve as the extensions for overrun.  However, the lift under the machine room in question goes up to the 18/F.  There is therefore the need to elevate the maintenance platform of that machine room to a higher level so that the lift shaft can be extended to provide for the margin for overrun.

27.On the maintenance platform and void on the 19/F flat roof, I again find Mr Law’s evidence reasonable and logical.  I cannot imagine how the maintenance platform at the upper storey could have been designed to be sealed off and inaccessible from the outside or that the Building Authority would have approved such a design.

28.Furthermore, to have the void below sealed up and made inaccessible is in line with Mr Law’s evidence that the void had not been included in calculating the GFA of the building.

29.I therefore accept the evidence of Mr Law on the configuration and design of the void and the maintenance platform in question on the 19/F flat roof.  I also accept that the lower entrance and the new steel staircase are unauthorised building works.  I also reject the evidence of Mr Yuen on this matter to the extent that it is different from that of Mr Yuen.

30.I also accept Mr Law’s evidence and Mr Chong’s submission that the void is necessary for raising the maintenance platform to a higher level to provide for an extension of the lift shaft for lift overrun.  The void also enclosed the extended lift shaft for overrun.

Designation of common areas

31.I now deal with the designation of common areas in the building.  The first flat assigned by the developer was Flat 13I.  The assignment was executed on 15 April 1966 (“the 1st Assignment”).  After providing for the assignment by the developer of the rights of exclusive use and occupation of Flat 13I to the purchaser, it continued to provide:

“(b) the Purchaser in consideration of the grant thereinbefore and hereinbefore contained THEREBY GRANT unto the Vendor the Confirmor and others the co-owners other than the Purchaser from time to time of the said premises (if any) full right and privilege to held use occupy and enjoy ALL THOSE remaining self-contained portions flat basements mezzanine floors and shops including the open yards (if any) thereof the exterior walls of the said buildings the flat roofs and other roofs thereof and the driveway and the loading and unloading spaces in the basement thereof and the transformer room of the said buildings and other portions (not otherwise intended to be used for the common enjoyment of the co-owners and co-occupiers for the time being of the said messuages or buildings) comprised in the said messuages or buildings save and except the said FLAT ‘I’ on the Thirteenth Floor.”

(Emphasis supplied)

32.The developer and the 1st purchaser then executed the Deed of Mutual Covenants on 23 April 1966 (“the DMC”). Since the DMC was made after the 1st Assignment, there was thus no reference to the DMC in the 1st Assignment.  The first step to consider the nature and status of the voids is thus to look at the terms of the 1st Assignment. 

33.The structure of the 1st Assignment is however very simple.  The full right to use and occupy Flat 13I was assigned to the 1st purchaser.  The full right to use and occupy all other self-contained flats, basements, mezzanine floors and shops and their open yards, if any, the exterior walls, the flat roofs and other roofs, driveway, loading and unloading spaces and the transformer room and other portions were reserved to the developer.  But then the other portions that were reserved unto the developer did not include the excepted portions which are “intended to be used for the common enjoyment of the co-owners and co-occupiers for the time being”.  Such excepted portions are the common areas.

34.There is no evidence of any further assignment of interest in the building after the 1st Assignment and before the execution of the DMC, which should be the case.  The rights of the developer and the 1st purchaser under the 1st Assignment could still be varied by the DMC as they were also the parties to that instrument.  However, there is no provision in the DMC that runs contrary or even qualifies the provisions in the 1st Assignment.

Are the voids common areas?

35.By definition, the common areas would include the two voids as they are sealed up areas the only intended uses of which are to raise the maintenance platforms to provide for the overrun extensions of the lift shafts and to support the platforms.  These are uses for the common enjoyment of all co-owners and co-occupiers for the time being. 

36.I do not regard the voids as parts of the main roof or the 19/F flat roof respectively.  If the 2 extended lift shafts were only enclosed by its own walls and the 2 maintenance platforms were supported by some columns, then it may be arguable that the areas adjacent to the lift shafts and underneath the platforms are parts of the flat roof on the main roof and the 19/F flat roof.  However, when such areas are sealed off from the roof areas and the only purposes they serve are to provide for the lift shaft overrun extensions and support the maintenance platforms, they are no part of the roofs and are to provide for uses for the common enjoyment of all.

The basis of the defendant’s claim to the voids

37.I now deal with the purported assignment of the two voids to the defendant.  Recital 3 of the DMC provides as follows:

“3. For the purpose of the sale of shops basements apartments and other portions in the said building, the said premises and building have been notionally divided into 353 equal undivided parts or shares and one or more of such shares is intended to be assigned to the Purchaser or Purchasers thereof together with the right to the exclusive use occupation and enjoyment of one or more of the said shops basements or apartments or any other portions as shown on the Assignment plans to be annexed to the Assignments thereof.”

38.The solicitors for the plaintiff searched the Land Registry records and found that Flats 19E and 19F were the first flats on the 19/F that were sold by the developer.  They were sold by assignments dated 9 July 1966 (“the 1966 Assignments”).  Each of the 1966 Assignments had an assignment plan annexed to it.  Each assignment plan showed the flat assigned in pink colour.  All these are in line with recital 3 of the DMC.  Save the flat assigned that was coloured, the 2 plans are the same and this of course should be the case.  Regarding the 2-storey structure that housed the lift maintenance platform and the void in question on the 19/F, both plans had the structure represented in a rectangular shape and marked with the words “MACHINE RM.”

39.Though these 2 assignment plans were not for showing the assignment of the 2-storey structure, the marking of the whole structure as “MACHINE RM.” is in line with the marking in the approved building plan and the plaintiff’s argument that the maintenance platform and the sealed off void underneath it constitute the machine room that was intended to be used for the common enjoyment of all co-owners and co-occupiers.

40.Regarding the main roof, there is no 1st assignment plan made in the 1960s as there is no self-contained unit on it for sale.

41.Despite the two voids being sealed up and inaccessible from the outside, the defendant claims that the developer had purportedly assigned the exclusive right to use and occupy them to the defendant’s predecessor in an assignment dated 23 November 1981 (“the 1981 Assignment”). 

42.The 1981 Assignment was executed by the liquidator of the developer on behalf of the developer.  It granted unto the purchaser 3 equal undivided 333rd parts or shares of and in the lot together with the full right and privilege to hold use occupy and enjoy the flat roof on the 11/F, the flat roof on the 19/F, the whole roof and the exterior walls on the east and west sides of the building with the said flat roofs, roof and exterior walls more particularly shown and coloured pink on the plans annexed thereto.  These descriptions clearly do not include either of the two voids as they cannot be regarded as parts of the 19/F flat roof or the roof.  There is also no definition clause to deem them as parts of the 19/F flat roof or the roof.

43.The assignment plans annexed to the 1981 Assignment however do not show a straight forward picture. Regarding the rectangular box marked “MACHINE RM.” in the approved building plan for the 19/F. and the assignment plans for the 19/F in the 1966 Assignments, it was represented differently on the assignment plan annexed to the 1981 Assignment.  It was carved out into 2 parts on the 19/F assignment plan of the 1981 Assignment.  The smaller part was marked “L” which should stand for “lift”.  The larger part was marked “P.H.” which the defendant said should mean “penthouse”.  There was also a right of way at the northern side of the rectangular box where there are in existence the cat-ladder and the steel staircase.  The smaller part marked “L” and the right of way are of the same colour as the background but the larger area marked “P.H.” is in pink colour as the adjacent area marked “Flat Roof”.  I note that this division of the rectangular area into two parts and the designation of a right of way were not present in the plans of the 1966 Assignments.  The area marked “P.H.” is where the void is. 

44.Regarding the area marked “MACHINE RM.” on the approved building plan for the main roof, it was marked “P.H.” in the assignment plan annexed to the 1981 Assignment.  This is the 2-storey structure with the void underneath.

45.However, the 1981 Assignment did not assign any “P.H.” or penthouse or void on the 19/F or the main roof to the assignee.  The only ambiguity is the areas marked “P.H.” are coloured pink.  The defendant’s case for the two voids is based on this colouring only. 

The sales brochure

46.Mr Chan, counsel for the defendant also referred me to an undated sales brochure which was probably distributed to potential purchasers at the time when the units were put up for sale.  The floor plan for the 19/F in the brochure showed the rectangular box unmarked with any description and not divided into two parts but was of the same colour as the adjacent flat roof.  There was also no uncoloured right of way provided next to the box.  All plans in the brochure also bore a legend saying that they were subject to the amended plan to be approved by the Building Authority.

The defendant’s argument on the assignment plans

47.Mr Chan further submitted that the difference between the 1966 Assignment plans and the 1981 Assignment plan could be because of a mistake of the authorised person in preparing the plans annexed to the 1966 Assignments in that he failed to properly represent the penthouse in those plans and he only corrected himself in the plan annexed to the 1981 Assignment.  Mr Chan tried to strengthen his argument by reference to the 19/F plan in the brochure which showed the rectangular box in the same colour as the adjacent flat roof.

The principle of construction

48.Mr Chan further asked me to follow the principle of construction of documents spelt out by Lord Hoffmann, NPJ in Jumbo King Ltd v Faithful Properties Ltd & Ors [1999] HKLRD 757 where Lord Hoffmann said at 773 to 774:

“The construction of a document is not a game with words. It is an attempt to discover what a reasonable person would have understood the parties to mean. And this involves having regard, not merely to the individual words they have used, but to the agreement as a whole, the factual and legal background against which it was concluded and the practical objects which it was intended to achieve. Quite often this exercise will lead to the conclusion that although there is no reasonable doubt about what the parties meant, they have not expressed themselves very well. Their language may sometimes be careless and they may have said things which, if taken literally, mean something different from what they obviously intended. In ordinary life people often express themselves infelicitously without leaving any doubt about what they meant. Of course in serious utterances such as legal documents, in which people may be supposed to have chosen their words with care, one does not readily accept that they have used the wrong words. If the ordinary meaning of the words makes sense in relation to the rest of the document and the factual background, then the court will give effect to that language, even though the consequences may appear hard for one side or the other. The court is not privy to the negotiation of the agreement – evidence of such negotiations is inadmissible – and has no way of knowing whether a clause which appears to have an onerous effect was a quid pro quo for some other concession. Or one of the parties may simply have made a bad bargain. The only escape from the language is an action for rectification, in which the previous negotiations can be examined. But the overriding objective in construction is to give effect to what a reasonable person rather than a pedantic lawyer would have understood the parties to mean. Therefore, if in spite of linguistic problems the meaning is clear, it is that meaning which must prevail.”

49.Mr Chan further relied on the observation of Litton PJ in the same case at 765:

“There was no specific mention of spaces on those floors such as “utility”, “storage”, “air-handling plant room”, “meter” etc.  It is the appellant’s case that this made the property rights vested in the developer in respect of those floors uncertain: That he cannot be deemed to have retained the right of exclusive possession over the spaces marked “utility”.  That submission succeeded at trial.  I would reject that submission.  The allocation of space within the commercial portion was of no conceivable interest to Mr Cheng Ah Loong.  The deed of assignment and the DMC, both dated 1 May 1968, read together were clear: Mr Cheng Ah Loong had exclusive possession of flat A5 on the 6^th floor and portion No. 11 on the main roof.  He had easements over portions of the domestic part of J. Hotung House for the purpose of passage.  Full stop.  The developer retained the right of exclusive possession over the rest as a legal incident of his 719/720^th share of the land and building.

The dealings with the commercial portion of J. Hotung House later on by the developer are wholly consistent with this view of the property rights.”

50.Regarding the observation of Litton PJ on the retention of the right to exclusive possession in a DMC, that is not applicable to the facts of this case.  The designation of common areas in this case was by the 1st Assignment by the description of areas “intended to be used for the common enjoyment of the co-owners and co-occupiers”.  The 1st Assignment pre-dated and did not mention the DMC.  There was also no derogation from such designation in the DMC either.

Analyses and decision

51.I would apply the principle of construction propounded by Lord Hoffmann in Jumbo King.  I would consider the design and use of the two voids which are parts of the two 2-storey structures.  They were built to provide for the extensions of the lift shafts for overrun and support the maintenance platforms.  They are obviously for the common enjoyment of the co-owners and co-occupiers.  They are in fact also not penthouses.  The authorised person should have known that they are not penthouses as they had not been taken into account in calculating the GFA of the building.  I find the annotation of “P.H.” over the two 2-storey structures (which included the maintenance platforms and the voids underneath) by the authorised person on the assignment plans for the 19/F and the main roof annexed to the 1981 Assignment erroneous.  It was also wrong for him to have coloured them pink.

52.Regardless whether they are penthouses or just sealed up voids, they are in any event not part of a roof or flat roof.  The 1981 Assignment by which the defendant makes the claim contains no reference to voids or penthouses or “P.H.” 

53.If there would be any problem in the construction of the 1981 assignment, the problem was created by the error of the authorised person in describing the two 2-storey structures as “P.H.”s, to stand for penthouses or whatever he wanted them to stand for, and applying on them the same pink colour as applied on the parts of the 19/F flat roof and main roof assigned to the defendant’s predecessor.  The assignment plan of the 1981 Assignment for the 19/F is also different from the plans of the 1966 Assignments for Flats 19E and 19F and that is unwarranted.

54.Mr Chan argued that the plans of the 1966 Assignments were for the assignment of exclusive rights of possession of Flats 19E and 19F and not for the roof or the voids.  That is of course correct, but that does not explain so much difference between the 1966 plan and 1981 plan including the drawing of a square for the lift within the rectangular box and the provision of a right of way outside it in the 1981 plan.  The right of way must be for the unauthorised steel staircase.  If a right of way should have been needed even without the unauthorised steel staircase, it would only have covered a very small area around the position of the original cat-ladder. 

55.Furthermore, if effect should be given per the pink colour on the plans annexed to the 1981 Assignment, as the defendant contends, then the defendant would own the exclusive rights not only to the voids, but also to the two maintenance areas above them as the pink colour covered the whole of the two 2-storey structures (except the “L” corner of the structure on the 19/F).  This is of course absurd.

56.Regarding the plans in the sales brochure, it is not clear as to when they were prepared as they were all said to be subject to the amended plan to be approved by the Building Authority.  They might have been printed for distribution and use in the sale of units at a time well before the completion of the construction of the building.  In any case, they are not proper building plans or assignment plans.  I cannot place any weight on them.

Judgment

57.For the above reasons, I find that each of the two voids is part and parcel of a 2 storey structure.  Each 2-storey structure as a whole is a machine room as shown in the approved building plans and the 19/F plans of the 1966 Assignments.  The voids, as parts of the 2 machine rooms, were designated as common areas in the 1st Assignment dated 15 April 1966.  This is consistent with the approved building plans and the assignment plans of the 19/F annexed to the 1966 Assignments.  They had not been assigned to the defendant’s predecessor in title by the 1981 Assignment as that assignment did not assign any void or penthouse or “P.H.” to the assignee.  In any event, the voids had already been designated as common areas on 15 April 1966 and could not have been assigned to the defendant’s predecessor on 23 November 1981.

58.I therefore declare that the two voids in question were and are common parts/areas of the building.  I order the defendant to vacate its occupation from them and restore them in accordance with the approved building plans in the way as I have decided herein.  I also order the defendant to account and pay to the plaintiff the rents and profits of the voids received by the defendant since 6 years before the issuance of the originating summons up to the date when the defendant vacates its occupation of them.

Costs order nisi

59.I also make a costs order nisi that the defendant do pay the plaintiff the costs of this action to be taxed with certificate for 2 counsel.

Mr K M Chong and Ms Emma Wong, instructed by Ng & Co, for the plaintiff

Mr Kenneth C L Chan and Mr Billy Ma, instructed by Peter Mo & Co, for the defendant

Please refer to CACV184/2012 for the relevant appeal(s) to the Court of Appeal.