Read the full judgment text of HCCT 60/2006 on BabelCite. This Court of First Instance judgment was delivered on 23 June 2014 before G Lam J.
Building management – common parts – water seepage – waterproofing membrane – external walls – deed of mutual covenant – incorporated owners – section 34I Building Management Ordinance – Lands Tribunal jurisdiction – locus standi – acquiescence – laches – res judicata – limitation – unauthorised building works – mandatory injunction. The plaintiff developer of Wing Ming Industrial Centre brought an action against the defendant incorporated owners of the building for failure to maintain common parts of the building, including the waterproofing membrane in the Upper Roof floor, walls and pile caps in the Basement, and ceiling slabs on the 10/F, causing water seepage and concrete spalling affecting the parts owned by the plaintiff. The defendant counterclaimed for breach of the deed of mutual covenant and the Building Management Ordinance (Cap. 344), including alterations to the external walls at the G/F and Loft carried out in or about 1994-1996 and 2005-2006, display of advertisements and signs, wrongful conversion of void areas in front of CPS 2, 3, 4, 5, 8 and 9, occupation of a G/F storeroom, construction of an extension wall behind CPS 5-10, excavation of a void in the Basement, and conversion of a G/F room known as Room A. Held, on Wing Ming's claims: the waterproofing membrane in the Upper Roof floor is a common part because it is a fixture used in connection with the enjoyment of other parts of the building within paragraph 11 of Schedule 1 to the Building Management Ordinance and a facility installed for the use and benefit of the building generally under DMC clause (ix), following The Incorporated Owners of Hong Leong Industrial Complex v HL Resources Ltd; the IO must replace the entire membrane in accordance with the experts' agreed specification. The Basement pile caps, retaining walls, common staircase landings, the small circular pit and the sump pit are common parts; the IO must repair the spalled concrete and corroded reinforcement bars and seal off water ingress. The smoke vent, however, is not a common part and was reconstructed by Wing Ming in 1994, so this part of the claim is dismissed. The 10/F ceiling slab is a common part and the IO must repair the remaining defects. Held, on the IO's counterclaims: a claim for breach of s. 34I of the Building Management Ordinance does not lie within the exclusive jurisdiction of the Lands Tribunal, and the High Court has concurrent jurisdiction. The IO has locus standi to bring counterclaims relating to common parts. The IO is debarred by acquiescence from seeking relief in respect of the 1994-1996 external wall alterations, which were obvious, were built in accordance with building plans approved by the Building Authority, and were not objected to for over a decade. However, a mandatory injunction is granted requiring Wing Ming to remove the 2005 and 2006 alterations, which were done without the Manager's consent and in the face of written objection, distinguishing Morris v Redland Bricks Ltd and applying the principles in Hollywood Shopping Centre Owners Committee Ltd v The Incorporated Owners of Wing Wah Building. The display of advertisements claim is dismissed on construction of DMC clause IV.19, the qualifying words applying to the entire prohibition and no pleaded case that the signs extended beyond the unit's frontage. On the void areas claim, Wing Ming committed breaches of DMC clause IV.27 and is deemed to have breached an obligation imposed by the DMC under s. 34I(2); however, the IO's claims for monetary relief in respect of CPS 2, 5, 8 and 9 are barred by the 12-year limitation period under s. 4(3) of the Limitation Ordinance (Cap 347), although declaratory and injunctive relief survives; the plea of abuse of process raised only by amendment in February 2011 is rejected following Ko Hon Yue v Chiu Pik Yuk. The G/F storeroom is a common part, not within Wing Ming's exclusive possession, and the IO is entitled to recover possession. The extension wall behind CPS 5-10 does not breach the DMC or Special Conditions (9) and (10) of the Conditions of Sale, because the narrow strip is within Wing Ming's exclusive possession and the District Lands Office expressed no objection to the alteration plans. The Basement excavated void claim fails in respect of the void itself, but Wing Ming must reinstate the brick wall that separates the Basement from the void because that wall is a common part. Room A is within Wing Ming's exclusive possession under the DMC, and the IO's counterclaim in respect of it is dismissed. Costs reserved.
Legal issues: Whether waterproofing membrane in Upper Roof is a common part · Whether claim for breach of s.34I BMO lies within exclusive jurisdiction of Lands Tribunal · Whether IO is debarred by acquiescence from complaining about 1994-1996 external wall alterations · Whether mandatory injunction should be granted for 2005 and 2006 external wall alterations · Construction of DMC clause IV.19 on display of advertisements · Whether Wing Ming wrongfully converted void areas in front of CPS 2, 3, 4, 5, 8 and 9 · Whether IO's claim in respect of void areas is an abuse of process · Whether IO has locus standi to bring counterclaims regarding common parts · Whether the G/F storeroom is a common part · Whether the extension wall behind CPS 5-10 breaches the DMC and Special Conditions · Whether Room A on the G/F is a common area
Outcome: Mixed outcome. Wing Ming's claims substantially succeed: the IO is required to repair defects in the Basement (ceiling at staircase landing, small circular pit, basement walls, sump pit, staircase void), replace the entire waterproofing membrane in the Upper Roof, repair the external walls beneath the Upper Roof slab, and repair the 10/F ceiling. The smoke vent claim is dismissed. The IO's counterclaims succeed in part: a mandatory injunction issues for removal and reinstatement of the 2005 and 2006 external wall alterations, the IO is declared entitled to recover possession of the G/F storeroom, and an injunction issues requiring Wing Ming to reinstate the brick wall at the Basement excavated void. The IO's counterclaims are dismissed in respect of the 1994-1996 external wall alterations (acquiescence), display of advertisements and signs, the void areas in front of CPS 2, 5, 8 and 9 for monetary relief (time-barred, though declaratory and injunctive relief is granted for CPS 3 and 4 and declarations for the others), the 11/F storeroom, the extension wall behind CPS 5-10, and Room A.
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