DONORA COMPANY LIMITED v. THE INCORPORATED OWNERS OF TSUEN KAM CENTRE (荃錦中心業主立案法團)

FAMV No. 177 of 2023

[2023] HKCFA 21

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 177 OF 2023 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 345 OF 2021)

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DETERMINATION

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The Appeal Committee:

1.  We grant leave to appeal confined to the following Questions which we are satisfied are of the requisite importance to justify consideration by the Court of Final Appeal, namely:

Question 1: Notwithstanding an earlier reservation of exclusive right to use, occupy and enjoy the external walls in the first assignment by the developer, whether and in what circumstances the grant of rights to co-owners for certain uses of the external walls of a building in a deed of mutual covenant is a sufficient manifestation that the developer does not have such exclusive right?

Question 2: Where a deed of mutual covenant contains a definition that common areas mean, inter alia, parts of the building which are “intended for common use”, whether the fact that the external walls of the buildings serve the functions of (i) holding and supporting the building, (ii) preventing damage to the building’s interior and (iii) enabling the co-owners to have peaceful enjoyment of their respective units of the building means that the external walls are “intended for common use” and hence common areas notwithstanding an earlier reservation of exclusive right to use, occupy and enjoy the external walls in the first assignment by the developer?

2.  The appeal will be listed for hearing on 12 January 2024.