WONG LAI KAI v. WU CHAN CHOI AND OTHERS

CACV 189/99 & CACV 195/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 189 OF 1999

(ON APPEAL FROM HCPI NO. 962/1996)

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J U D G M E N T

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Hon Mayo VP:

1. On 22 July 1994 the plaintiff was walking on the pavement outside shop 5B on the Ground Floor of Lok Fu Building at Fuk Tin Path, Yuen Long ("the shop") when the awning erected outside the premises collapsed and he received quite serious injuries.

2. The shop was owned jointly by D1 to D4 in the proceedings which were taken by the plaintiff to recover damages in respect of the injuries he sustained. D5 in the proceedings was the tenant of the shop pursuant to a Tenancy Agreement. D6 in the proceedings was the incorporated owners of the building.

3. In the amended Statement of Claim the plaintiff formulated a claim in the alternative. The way in which these claims were formulated can be seen from paragraph 1(d) and (e) of the amended Statement of Claim and paragraphs 3 and 4:

"...

1. (d) There was a awning constructed of iron and wood attached to the top of the shop front of the Premises ('the Awning') which projected over the public highway.

(e) Alternatively, if, which is not admitted, the Awning was not attached to the exterior or any part of the Premises the Plaintiff shall aver as follows:

(i) The Awning was attached to the external wall or external parts of the said Lok Fu Building;

(ii) The Deed of Mutual Covenant in respect of the said Lok Fu Building dated 15th August 1977 and registered in the Lands Office by memorial No. 201399 provided under clause 4(f)(vi) that the cost of keeping in good and tenantable repair and condition all external parts of the said Lok Fu Building should be borne by all owners of the said Lok Fu Building in proportion to the number of units in the same owned by them;

(iii) The external wall where the Awning was attached was part of the common parts of the said Lok Fu Building for which the 6th Defendant was and is responsible and liable under section 16 of the Building Management Ordinance Cap.344;

(iv) Further or alternatively the 6th Defendant was thus an occupier of the external wall where the Awning was attached or from which the Awning was erected.

...

3. By placing and keeping the Awning, or causing or permitting the Awning to be placed and kept, so that it projected over the said highway and constituted a potential danger to persons lawfully using the same, the 1st to 5th Defendants or alternatively the 6th Defendant committed a nuisance upon the said highway.

4. Further or in the alternative, the said accident was caused by the negligence of the 1st to 5th Defendants or alternatively the 6th Defendant."

4. The defence run by D1 to D4 was that they were under no obligation to maintain the awning and accordingly could not be held liable. D5 ran a similar defence but contended in the alternative that the collapse of the awning was attributable to an act of God namely the very heavy rainfall preceding the collapse.

5. Pang J heard this action on 4 January 1999. He held that D5 did indeed have a duty to maintain the awning and that his failure to discharge this duty was the cause of this collapse. He held him to be liable to the plaintiff for the injuries he sustained.

6. The Judge also held that when D1 to D4 leased the shop to D5 they no longer had a duty to maintain the awning which had been erected prior to the Tenancy Agreement in question and he held that they were not liable.

7. The Judge also held D6 was not liable.

8. It would appear that the plaintiff did not attempt to enforce his judgment against D5 as it was unlikely he would be able to discharge the judgment.

9. The plaintiff in CACV 189/99 appeals against the judgment and contends that the Judge should have found D6 liable for this accident.

10. D6's answer to this is that D1 to D4 or D5 should have been held liable. If they are wrong in this D1 to D4 should make a contribution or indemnify D6 against any damages they may be ordered to defray.

11. In CACV 195/99 D6 has filed a Notice of Appeal which it was intended should be heard immediately after the conclusion of the appeal in CACV 189/99. In this appeal they seek an order that D1 to D4 should be held liable for this accident on the basis that they had a continuing duty to maintain the awning notwithstanding the Tenancy to D5. They further contend that in any event D1 to D4 were liable to indemnify them in respect of any award made against them and failing that any damages payable should be apportioned between them.

12. Shortly after Pang J delivered his judgment the plaintiff lodged his appeal. D6 then lodged what was described as being a protective appeal. This was on the basis that if the plaintiff was successful in his appeal D6 was anxious to preserve its rights against D1 to D4. When lodging the Notice of Appeal they requested that their appeal should be heard immediately after the appeal which had been lodged by the plaintiff.

13. This was rather unfortunate. As will be appreciated if the plaintiff's appeal was unsuccessful there would be no need for D6's appeal to proceed. Also of course there was a distinct possibility that at the conclusion of CACV 189/99 the court would reserve its judgment.

14. In this event it would have been uncertain whether or not it was necessary for the appeal in CACV 195/99 to be proceeded with.

15. At the hearing before Pang J the contest in this litigation was effectively between the plaintiff and D6. D1 to D5 did not appear at the trial. D1 only appeared before us and his role was limited to participating in CACV 195/99.

16. Returning to the appeal in CACV 189/99 Mr Chan for the plaintiff realised the necessity to re-amend the Statement of Claim so as to plead that D6 should be held liable for the damages in addition to D1 to D5. This application was opposed by Mr Leung for D6 mainly on the ground that when an amendment had been made to the Statement of Claim during the trial he had not opposed the application as Mr Chan had conceded that if the Judge found that the wall to which the awning was attached was not a common part of the building there could be no question of D6 incurring any liability. Mr Leung said that he had conducted the case below on this basis and he considered that he would definitely now be prejudiced if the amendment which was now being sought was allowed.

17. We advised the parties that we would defer making an adjudication on whether or not leave should be granted but that we would in the meantime hear the parties de bene esse.

18. Having given the matter careful consideration I am of the opinion that leave should not be granted. Mr Chan was not able to advance any compelling reason why the application should be granted. On the other hand Mr Leung argued that this was a matter of basic importance and that he had run the case below on the basis of the concession which had been made by Mr Chan. I am doubtful however whether a refusal to grant the leave sought would in fact have a decisive effect on the outcome of this appeal.

19. In his submissions to us Mr Chan placed reliance upon the terms and conditions contained in the Deed of Mutual Covenant and upon the provisions contained in the Building Management Ordinance, Cap. 344.

20. He accepted however that there was no specific provision in the Deed of Mutual Covenant which provided that the external walls of the building were common parts.

21. However he submitted that when the Judge had considered this issue he had laboured under a misapprehension as to the effect of clause 10(e) of the Deed of Mutual Covenant.

22. At p. 4 of the judgment the Judge said:

"Counsel for the Plaintiff submitted that if the Court finds the awning was attached to the external wall of the building, which could not be in the exclusive possession of the owner/occupier of Shop 5B, then pursuant to clause 4(f)(vi) of the Deed of Mutual Covenant, the awning should be regarded as being attached to the common part of the building for which the 6th Defendant is responsible under s.16 of the Building Management Ordinance, Cap.344.

Under Clause l0(e) of the Deed of Mutual Covenant, the owners covenanted with each other:

'Not to erect or affix or permit or suffer to be erected ... any signboard, signs, notices, posters, signal, advertisement ... to the exterior of the said building or to common areas within the said building or any part thereof or to any exterior wall ... of the said building PROVIDED that the owner or owners for the time being of the ground floor of the said building shall have the right to erect or affix signboard to the exterior of his part of the said building but the height of such signboard shall not exceed the ceiling level of such part of the said building.'

The burden falls squarely on the Plaintiff to establish that the awning was erected on the external wall of the building and not the part where the owner/occupiers were entitled to exclusive use. The photographs produced at the hearing did not assist the Plaintiff's case on this point. There is no evidence that the awning was above the ceiling level of the Shop in question. The representative of the 6th Defendant, Mr Nip, explained that the awning was fixed below the concrete edge of the ground floor ceiling and hence within the shop premises. His evidence was not challenged."

23. I am inclined to think that Mr Chan is right. Clause 10(e) cannot assist in determining whether or not the awning was attached to a common part. The exception to the prohibition against erecting structures to the exterior of the building is limited to erecting a signboard. The awning which collapsed is altogether more elaborate than a signboard and its erection could not in any manner be countenanced by this exception. I do not think that this takes matters any further one way or the other.

24. In my view the answer to the question as to whether the exterior wall of the shop where it is accepted that the awning was attached is a common part is to be obtained from the Building Management Ordinance ("the Ordinance), Cap. 344:

25. "Common parts" are defined in s. 2 in this way:

"Building Management Ordinance, Cap. 344

2. Interpretation

'common parts' (公用部分) means -

(a) the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and (Amended 8 of 1993 s. 2)

(b) unless so specified or designated, those parts specified in the First Schedule;"

26. The first item in the first schedule indicates that external walls are common parts.

27. I am satisfied that the exterior wall was a common part.

28. Mr Chan submitted that once this was established he was able to make out his claim against D6. His authority for this was s. 16 of the Ordinance which provides:

"Building Management Ordinance, Cap. 344

16. Rights etc. of owners to be exercised etc. by corporation

When the owners of a building have been incorporated under section 8, the rights, powers, privileges and duties of the owners in relation to the common parts of the building shall be exercised and performed by, and the liabilities of the owners in relation to the common parts of the building shall, subject to the provisions of this Ordinance, be enforceable against, the corporation to the exclusion of the owners, and accordingly -

(a) any notice, order or other document which relates to any of the common parts of the building may be served upon the corporation at its registered office; and

(b) any proceedings in the tribunal in respect of any of the common parts of the building may be brought and pursued by or against the corporation. (Amended 27 of 1993 s. 42)"

29. I do not accept that this is the case. It would be a rather surprising result if this case is considered on its merits.

30. There can be no doubt from the evidence which was before the Judge that the awning had been erected when the Tenancy of the shop was granted to D5 and this formed part of the demised premises. What is clear is that D5 obtained a benefit from the awning as customers using the restaurant sheltered from the elements under the awning. On the face of it one would expect D5 to be responsible to maintain the awning in good condition and ensure that it did not constitute a hazard.

31. Support for this can be derived from s. 34H of the Ordinance:

"Building Management Ordinance, Cap. 344

34H. Duty to maintain property

(1) Where a person owns any part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to the use, occupation or enjoyment of that part, as the case may be, but the deed of mutual covenant in respect of the building does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition.

(2) The obligation in subsection (1) shall be deemed to be an obligation owed to all owners of the building under the deed of mutual covenant."

32. While it is true that the section makes reference to exclusive rights to occupy part of the premises I do not consider this to be a problem. D5 did have an exclusive right to occupy the shop. Although the exterior wall may have been a common part it was nonetheless incumbent upon him to keep it and the awning attached to it in good order and condition.

33. In this connection assistance can be obtained from the judgment of Rhind J who delivered the judgment of the Court of Appeal in So John v Lau Hon-man [1993] 2 HKC 356. In that case the court was seized of an appeal where a claim had been made for damages arising out of the escape of water from a pipe in the common part of a building which flowed into a flat belonging to another owner. Rhind J had this to say on p. 362:

"Clearly, for many purposes, the floor slab is a common part, but that by itself need not necessarily be fatal to the appellants' claim.

Not liking the result to which his own logic appeared to be impelling him, the judge found himself attracted by an argument advanced on behalf of the appellants to the effect that the part of the floor slab occupied by the water pipe for the exclusive use of the respondents could be regarded as a part of the building, along with the rest of Flat E on the 13th floor, of which the respondents had exclusive right of use.

The learned judge went on to state:

I am concerned with a space within that slab occupied by water pipes exclusively feeding outlets within Flat 13E. For howsoever long that pipe, serving that purpose, occupies that space, I am driven, in the absence of any authority to the contrary, to conclude that that exclusive space cannot be anything but 'his part of the said buildings', whatever may be the position regarding the rest of the slab mass.

We agree entirely with the approach adopted by the learned judge in that paragraph. He was right, in our view, to treat the circumstance that the sole purpose of the pipe was to serve the respondents' flat as the determining factor as to whether the pipe was in the respondents' part of the building.

Although we are not aware of any direct authority on the rights and obligations between tenants in common of adjoining flats in relation to a pipe exclusively serving one of their flats in a block in multiple ownership held under a DMC, we think useful guidance can be found in the law on easements in relation to land generally where there can be the benefit of property rights to the three-dimensional space through which a water pipe runs, together with ownership of the pipe itself. See Taylor v St Helen's Corp (1877) 6 Ch D 264, and Simmons v Midford [1969] 2 Ch 415. In Wheeldon v Burrows (1879) 12 Ch D 31, James LJ suggested that where water is brought to a house by a pipe laid under the land of another the pipe can be regarded as a corporeal part of the house if used exclusively to serve the house.

With that sort of analogy with land-use in mind, we see no conceptual difficulty in construing cl 10(c) of the DMC and the definition of 'common parts' in s 2 of the Ordinance in such a way as to hold that the water pipe in the floor slab came within the respondents' part of the building.

As the respondents are the ones to get the exclusive benefit from the use of their fresh water pipe, it is not unreasonable they should bear the exclusive burden of the cost of repairing it if it becomes defective. Such was the common intent of those entering into the DMC, in our view.

By allowing their pipe to fall into disrepair with the result that water escaped to the appellants' flat, the respondents were in clear breach of their obligation under s 10(c) of the DMC not to permit anything in their flat which might be a nuisance to other occupiers of the building, escape of water from one person's premises to another's being a classic instance of nuisance in the eyes of the law."

34. The observations made by the Judge are particularly germane to the instant appeal. I am satisfied that the Judge has correctly stated the law and that in this appeal D5 was liable for the injuries sustained by the plaintiff and that no liability was incurred by D6. The consequence of this is that in my opinion this appeal should be dismissed.

35. The result of this is that there will be no necessity to hear D6's appeal in CACV 195/99.

36. I have had the advantage of seeing Keith JA's draft and with respect find myself in agreement with his views on costs.

Hon Keith JA:

Introduction

37. The liability of the 6th Defendant to the Plaintiff was treated at first instance as depending on a narrow issue: was that part of the external wall to which the awning was attached (a) a part of the common parts of the building or (b) a part of the shop over which it had been erected? If the former, the 6th Defendant would have been liable to the Plaintiff on the basis that the maintenance of the awning would have been its responsibility. If the latter, the 6th Defendant would not have been liable to the Plaintiff, since the maintenance of the awning would have been the responsibility of either the 1st to 4th Defendants as owners of the shop or the 5th Defendant as the tenant of the shop, depending on which of them had the exclusive right to occupy the shop. On the issue on which the liability of the 6th Defendant was treated as depending, the judge found that the part of the external wall to which the awning was attached was not part of the common parts of the building, but part of the shop. He therefore dismissed the Plaintiff's claim against the 6th Defendant. The principal point taken by the Plaintiff on this appeal is that the judge's conclusion on this issue was wrong.

The importance of the assignment

38. The judge found as a fact that the awning had been attached to the external wall of the building at a height below the ceiling level of the ground floor. There is no challenge to that finding of fact. Accordingly, the question is whether the judge was right to conclude that the external wall of the building at that height was not part of the common parts of the building, but was part of the shop which the 1st to 4th Defendants had had the exclusive right to occupy before letting the shop to the 5th Defendant. Whether that part of the external wall was part of the shop which the 1st to 4th Defendants had had the exclusive right to occupy depended on what was originally assigned to them or their predecessors-in-title. Unfortunately, that assignment was not before the judge. What was before the judge was the Deed of Mutual Covenant defining the rights and obligations of the various co-owners of the units in the building as between themselves. But whatever the Deed of Mutual Covenant may have said about what parts of the building constituted the common parts, the Deed of Mutual Covenant could have been no substitute for what was actually assigned to the 1st to 4th Defendants or their predecessors-in-title.

The provisions of the Deed of Mutual Covenant

39. As it is, I do not think that any assistance can be derived from the provisions of the Deed of Mutual Covenant. I note, for example, that on one view of cl. 4(f)(vi) it treats "all external parts of the .... building" as common parts, but that phrase has to be construed as subject to the external parts of the building which may have been assigned to the owners of the individual units. Again, cl. 4(n) identifies various parts of the building which are to be treated as common parts. External walls are not referred to in cl. 4(n), but cl. 4(n) does not purport to contain an exhaustive list of those parts of the building which are common parts. It begins:

"The common parts .... referred to [in] this deed shall include ...." (Emphasis supplied).

40. Nor do I think that any assistance can be derived from those provisions in the Deed of Mutual Covenant which regulate the erection of structures. Cl. 9 provides:

".... each owner may place and erect in his own part of the .... building at his own expense any additions ... and may make alterations thereto and shall have the right to remove the same at his own expense."

Cl. 10 provides:

"Each owner of the .... building hereby covenants with the other .... (e) [n]ot to erect or affix or permit or suffer to be erected or affixed any signboard, signs, notices, posters, signal, advertisement, illumination flag or sunshade bracket fitting or thing to the exterior of the .... building or to common areas within the .... building or any part thereof or to any exterior wall door or window of the .... building PROVIDED that the owner or owners for the time being of the ground floor of the .... building shall have the right to erect or affix signboard to the exterior of his part of the .... building but the height of such signboard shall not exceed the ceiling level of such part of the .... building."

These provisions do not provide for what are to be regarded as the common parts of the building. Cl. 9 merely permits owners of each unit in the building to erect structures in their own units, but it does not identify where those units end and where the common parts begin. Cl. 10 permits owners of units on the ground floor to erect signboards on the exterior of the building, but it does not state whether that part of the exterior of the building on which signboards can be erected constitute the common parts of the building. Save for that, cl. 10 prohibits owners of all units in the building from erecting structures of all kinds on the exterior of the building or in any of the common parts of the building, but that does not equate every part of the exterior of the building with the common parts.

The Building Management Ordinance

41. If the provisions of the Deed of Mutual Covenant do not help on what parts of the building constituted the common parts, what else can help? Mr Chan Chi Hung for the Plaintiff relied on section 2 of the Building Management Ordinance (Cap. 344) ("the Ordinance") which defines "common parts" as meaning

"(a) the whole of a building, except such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner; and

(b) unless so specified or designated, those parts specified in the First Schedule ...."

The First Schedule included "external walls". I do not think that this definition helps. Excluded from the common parts are "such parts as have been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner". By not causing to be produced to the judge the instrument by which the shop was assigned to the 1st to 4th Defendants or their predecessors-in-title, the Plaintiff has not proved that that part of the external wall to which the awning was attached had not been specified or designated in it as being for the exclusive use, occupation or enjoyment of the owners of the shop for the time being.

42. In the interests of completeness, I should refer to section 34H of the Ordinance, which provides:

"(1) Where a person owns a part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to the use, occupation or enjoyment of that part, as the case may be, but the deed of mutual covenant in respect of the building does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition.

(2) The obligation in subsection (1) shall be deemed to be an obligation owed to all owners of the building under the deed of mutual covenant."

Having read the whole of the Deed of Mutual Covenant, it is plain that the Deed of Mutual Covenant does not expressly impose on anyone an obligation of the kind to which section 34H(1) relates. Accordingly, such an obligation is deemed by section 34H(2) to have been owed under the Deed of Mutual Covenant. But that deemed obligation does not, in my view, add anything of substance to the debate. The effect of the deemed obligation was to impose on the person who

(a) owned,

(b) had the right to the exclusive occupation of, or

(c) had the exclusive right to the use, occupation or enjoyment of,

that part of the wall to which the awning was attached the duty to maintain the awning in good repair and condition. I accept, of course, that the 5th Defendant had the right to the exclusive occupation of the shop, but the question is who had the exclusive right to the use of the part of the wall to which the awning attached. It may be that, as a matter of fact, the 5th Defendant was using, occupying and enjoying, to the exclusion of all others, the part of the wall to which the awning was attached, but the deemed obligation to repair is imposed only on the person who had the right to do so. Thus, section 34H does not assist on the critical question in the present case, because it does not help on who owned that part of the wall to which the awning was attached, or who had the right to the exclusive possession of it, or who had the exclusive right to use, occupy or enjoy it.

43. That is not to say that section 34H is of no assistance at all. The point is that it only assists once a conclusion has been reached on who owned, or had the right to possess, use, occupy or enjoy, to the exclusion of all others, that part of the wall to which the awning was attached. Such a person had a duty to keep the awning in good repair and condition, but it should not be overlooked that by section 34H(2) that was a duty which was deemed to be owed under the Deed of Mutual Covenant to the other owners of the building. That does not necessarily mean a duty of care to passers-by.

Other grounds for liability

44. Thus, in the absence of the production to the judge of the instrument by which the unit was assigned to the 1st to 4th Defendants or their predecessors-in-tile, there was, in my opinion, no material on which the judge could have found that that part of the external wall to which the awning had been attached was part of the common parts of the building which had not been assigned to the 1st to 4th Defendants or their predecessors-in-title. Since the burden was on the Plaintiff to prove that, he could not be said to have discharged that burden.

45. The conclusion which this analysis leads to accords with my instincts about the case. I would have been very surprised if responsibility for an awning erected outside a shop for the benefit of the shop and its customers lay with the incorporated owners of the building rather than the occupier of the shop for the time being. Secondly, I would have been very surprised if the external wall of the shop above the shop window or the open space between the shop and the street which was below the level of the ceiling of the shop would have been regarded as not being part of the shop. Policy considerations of this kind lay behind the understandable conclusion of the Court of Appeal in So John v. Lau Hon Man [1993] 2 HKC 356, in which it was held that a water pipe which exclusively served a particular flat was part of that flat.

46. If, therefore, the 6th Defendant could not be held liable to the Plaintiff on the narrow issue on which liability was treated as turning at first instance, is there some other basis for holding the 6th Defendant liable to the Plaintiff? Mr Chan contended that there was. Since the awning was not a signboard, it could not come within the proviso to cl. 10(e) of the Deed of Mutual Covenant. The 6th Defendant was under a duty not to allow a breach of cl. 10(e) to continue, and by not taking steps to cause either the 1st to 4th Defendants or the 5th Defendant to remove it, the 6th Defendant was in breach of that duty. This argument is of no avail to the Plaintiff. Assuming that there was such a duty on the 6th Defendant (which I doubt), it was a duty which the 6th Defendant owed only to the owners of the units in the building, not to third parties such as the Plaintiff. That is because the Deed of Mutual Covenant did no more than define the rights and obligations of the owners of the units in the building and the 6th Defendant amongst themselves.

47. Finally, there was some debate in the course of the hearing of the appeal as to whether the hearing at first instance should have been confined to the narrow issue on which the case was decided. The Plaintiff's pleaded causes of action were in negligence and nuisance. Thus, rather than getting bogged down in an arid dispute as to the status of that part of the external wall to which the awning was attached, would it not have been more appropriate to consider whether, on the primary facts found by the judge,

(a) the 6th Defendant owed a duty of care to the Plaintiff, and if so whether it had been in breach of that duty in not taking any steps to have the awning maintained or removed, or

(b) the 6th Defendant had permitted a nuisance to continue to be present?

48. The answer is that these issues were not open for consideration on the pleadings. The liability of the 6th Defendant was predicated in the Amended Statement of Claim on the footing that the part of the external wall to which the awning was attached was part of the common parts. Thus, even if it was thought at the time of the hearing at first instance that the focus of the debate was too narrow, nothing could have been done about that without a wholesale amendment to the pleadings. The only amendment to the Amended Statement of Claim which was sought at the trial was to allege that the 6th Defendant was liable to the Plaintiff in addition to the 1st to 5th Defendants, rather than as an alternative to them. That was not opposed, only because counsel for the Plaintiff had conceded that the only issue for the judge to decide would still be the narrow issue on which the case was ultimately decided. In fact, the judge made no ruling on the application to amend, and the matter was left in the air.

The application for leave to re-amend in the course of the appeal

49. All that remains for me to deal with, then, is the application which Mr Chan renewed before the Court of Appeal to re-amend the Statement of Claim to treat the 6th Defendant's liability to the Plaintiff as in addition to, rather than alternative to, the liability of the 1st to 5th Defendants. That question is academic in view of my conclusion that the 6th Defendant is not liable to the Plaintiff at all, but I should explain my thinking on the topic. The application was renewed because of the judgment which had been given against the 5th Defendant. If the 6th Defendant was held by the Court of Appeal to be liable, the Plaintiff would have had to give up his judgment against the 5th Defendant if the Amended Statement of Claim remained in its current form. It was to avoid being put to his election that Mr Chan sought the re-amendment. For my part, I would have refused that application. Cumulative as opposed to alternative liability is inconsistent with the Plaintiff's pleaded case that liability depended upon whether the part of the external wall to which the awning was attached was within the exclusive occupation of the unit or part of the common parts. I do not see how on the Plaintiff's pleaded case both the 5th Defendant and the 6th Defendant could have been liable to him.

Conclusion

50. For these reasons, I agree that the Plaintiff's appeal should be dismissed. The dismissal of his appeal means that I do not have to address the appeal of the 6th Defendant in which he seeks orders from the Court of Appeal relating to the notices of contribution and indemnity served on the 1st to 5th Defendants.

51. What orders for costs should be made on the appeal is more complex than usual because the judge made no order for costs, leaving it to the parties to apply in due course for their costs of the trial at first instance - an application which was never made because of the filing of the appeal. Having considered the issue with some care, I would make the following orders nisi for costs. The Plaintiff should pay to the 6th Defendant the 6th Defendant's costs of the action and the appeal to be taxed if not agreed. However, since the Plaintiff is now legally aided, and was legally aided at the trial at first instance, I would order that those costs be not enforced without the leave of the court. I would make no order for the costs of the hearing for directions before Rogers JA.

52. As for the Plaintiff's costs, I would order the 5th Defendant to pay to the Plaintiff his costs of the action to be taxed if not agreed. I would not myself limit the 5th Defendant's liability to only a proportion of the Plaintiff's costs, because it was proper for the Plaintiff to sue all six Defendants, leaving it to the court to decide, on facts of which the Plaintiff would have been unaware, which of them was liable. For the same reason, I would also order the 5th Defendant to indemnify the Plaintiff in the sum which the Plaintiff has to pay for the 6th Defendant's costs of the action (though not the appeal). I would make no other order for the Plaintiff's costs save that his costs of the action and of the appeal be taxed in accordance with the Legal Aid Regulations.

53. As for the costs of the 6th Defendant's appeal, I would, subject to one reservation, make no order for those costs - partly because I have not had to address the merits of that appeal, but also because I would have ordered that a date for the hearing of D6's appeal should only be fixed once the outcome of the Plaintiff's appeal had been known. After all, it was only fixed for hearing immediately after the Plaintiff's appeal because that was what the 6th Defendant's Notice of Appeal sought. My reservation relates to the 6th Defendant's costs of serving its Notice of Appeal, which it had to do in order to protect its position. I would order that those costs be paid by the Plaintiff, such order not to be enforced without the leave of the court.

Hon Woo JA:

54. I have had the advantage of reading the judgments in draft of my brethren, Mayo VP and Keith JA, and I agree with them that the appeal of the Plaintiff against the 6th Defendant should be dismissed.

55. The reason which is the main basis of my decision is that the Plaintiff had not discharged his burden of proof that the awning which had collapsed to cause him personal injuries was attached to the common parts of the building, as opposed to Shop 5B which was owned by the 1st to 4th Defendants and occupied by the 5th Defendant, which common parts were within the responsibility of the 6th Defendant to keep in good condition and repair. No evidence was adduced at the trial that the part of the building at the shop front of Shop 5B to which the awning was attached had not been "specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner", so that that part was within the definition of "common parts" in section 2 of the Building Management Ordinance, Cap 344.

56. Pang J, who heard the case, had also dealt with this failure on the Plaintiff's part in his judgment:

"The burden falls squarely on the Plaintiff to establish that the awning was erected on the external wall of the building and not the part where the owner/occupiers were entitled to exclusive use. The photographs produced at the hearing did not assist the Plaintiff's case on this point. There is no evidence that the awning was above the ceiling level of the Shop in question. The representative of the 6th Defendant, Mr Nip, explained that the awning was fixed below the concrete edge of the ground floor ceiling and hence within the shop premises. His evidence was not challenged."

57. The judge also said:

"...there is undisputed evidence from the Plaintiff that the 5th Defendant had been using the awning to provide shade and cover for those customers of the food stall who sat at tables placed on the pavement by the 5th Defendant."

He concluded that "the 5th Defendant, through the registered owners, acquired the right to the exclusive use of the part of the external wall where the awning was erected."

58. For my part, I would hold that by reason of the evidence before the judge and his findings, the part of the building to which the awning was attached should be treated as part of the shop in the circumstances of this case, and as such, the 1st to 4th Defendant as the owners or the 5th Defendant as the tenant had the exclusive right to use, occupy and enjoy that part of the building. The same approach was adopted in So John v Lau Hon Man [1993] 2 HKC 356, where this Court, differently constituted, held that the floor slab occupied by water pipes exclusively feeding outlets within a flat was properly treated as part of the flat. At p 362H, Rhind J, delivering the judgment of the Court said:

"We agree entirely with the approach adopted by the learned judge ... He was right, in our view, to treat the circumstance that the sole purpose of the pipe was to serve the respondents' flat as the determining factor as to whether the pipe was in the respondents' part of the building."

59. I am therefore of the view that section 34H of the Building Management Ordinance applies to the present circumstances. The section provides:

"(1) Where a person owns a part of a building, has the right to the exclusive possession of any part of a building or has the exclusive right to the use, occupation of enjoyment or that part, as the case may be, but the deed of mutual covenant in respect of the building does not impose an obligation on that person to maintain the part in good repair and condition, that person shall maintain that part in good repair and condition.

(2) The obligation in subsection (1) shall be deemed to be an obligation owned to all owners of the building under the deed of mutual covenant."

60. I consider that although there is no evidence of ownership of the 1st to 4th Defendant of the part of the building to which the awning was attached, by reason of the use, occupation and enjoyment of the awning, realistically no one else including the 6th Defendant apart from the 1st to 4th Defendants as owners and the 5th Defendant as tenant of the shop, could possibly use, occupy and enjoy that part of the building. The 1st to 4th Defendants or the 5th Defendant should be treated as having the exclusive right to use, occupy and enjoy that part of the building. In the circumstances, they had the obligation to maintain that part in good repair and condition, and the 6th Defendant should not properly be held responsible.

61. For the reasons given by Keith JA, I would also dismiss the Plaintiff's application to re-amend the Amended Statement of Claim.

62. I also agree to the order of costs proposed by both of my brethren. I would like to add a few words on the proposal that there be no order as to costs regarding CACV 195 of 1999, the appeal brought by the 6th Defendant. That appeal was taken out for the purpose of claiming indemnity or contribution against the 1st to 4th Defendants and the 5th Defendant should the Plaintiff succeed on his appeal against the 6th Defendant. The proper course should have been that the 6th Defendant's appeal be heard only after the Plaintiff's appeal was determined. The 6th Defendant and the 1st Defendant, both legally represented, had chosen or at least had allowed the 6th Defendant's appeal to be fixed to be heard at the same time as the Plaintiff's appeal or immediately after the hearing of the Plaintiff's appeal, without awaiting to see if the actual necessity would arise, dependent upon the outcome of the Plaintiff's appeal. In such circumstances, it would not be proper for their costs to be borne by the Plaintiff, nor would it be proper for the parties to the 6th Defendant's appeal to have costs against one another in view of the determination of this Court on the Plaintiff's appeal eliminating any need to decide the 6th Defendant's appeal.

Hon Mayo VP:

63. This appeal is accordingly dismissed. Also an order nisi is made on costs in the form of the order proposed in Keith JA's judgment.