FLYWAY INVESTMENT LTD v. THE INCORPORATED OWNERS OF GOLDEN COURT AND ANOTHER

LDBM 111/2018

[2023] HKLdT 17

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 111 OF 2018

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J U D G M E N T

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Background

1.  This is an application taken out by the applicant for a declaratory order against the 1^st respondent that the applicant, its tenants and its licensees are entitled to use Lift No. 1 (“Lift No. 1”) at Golden Court, 22-52 Electric Road, 1A-1C Lau Sin Street, and 2-8 Yatch Street, Hong Kong (“the Building”) according to the provision of the DMC (as hereinafter defined) of the Building or the Building Management Ordinance (“BMO”). Further, it seeks an order against the 1^st respondent to provide or to instruct Otis Elevator Company (HK) Limited (“OTIS”) to provide the Fire Resistance Proof of the lift door of Lift No. 1 at 1/F to the applicant. And further, the applicant claims against the 1^st and 2^nd respondent for damages.

Applicant’s Claim

2.  It is not disputed that the Building was built in late 1950s and the occupation permit was issued on 14 November 1958. The developers were Ho Ying Chow and Young Chi Wan (“the Developers”).

3.  The Deed of Mutual Covenant of the Building is dated 10 October 1961 and registered in the Land Office by M/N 353917 (“the DMC”). The Developers are one party to the DMC, and the other parties to the DMC are the other co-owners of the Building who have then acquired their share(s) in the Building from the Developers. The Flats (as defined in the DMC) are to be used for residential purpose (clause 10). The Shops (as defined in the DMC) are to be used for commercial purpose (clause 11). And the 1^st Floor of the Building (“1/F”) may be used for dwellings or commercial purpose (clause 12).

4.  There are 2 lifts in the Building, Lift No. 1 and Lift No. 2. This application only concerns Lift No. 1.

5.  According to the Notice of Application, since 15 November 2007, the applicant became the owner of the entire 1/F or more specifically, Flats A, C, D, E, F, G and H, and Flat B on 1/F (“those Flats”). Flat A to H are the only units on 1/F, besides common parts.

6.  The applicant acquired those Flats subject to a tenancy agreement expiring in or about September 2010, and the tenant operated a restaurant. After the expiry of the tenancy, the applicant recovered possession and started to run its own restaurant business at those Flats.

7.  The applicant claims that since at least 1990s, and at all time since it acquired those Flats, there was a lift opening on the wall facing the lift shaft of Lift No. 1, allowing access to Lift No. 1 from 1/F. From the photo produced which I shall be coming to later, this is a proper opening served as a lift landing to 1/F for Lift No. 1, with lift outer doors.

8.  It is the case of the applicant that since at least 1990s, and at all times since the applicant acquired those Flats at 1/F, until around March 2017, the owners, the tenants and licensees of 1/F, including the applicant had access to Lift No.1 with the knowledge and consent of the 1^st respondent.

9.  Since around March 2017, the applicant claims that the 1^st respondent made complaints to the Food and Environmental Hygiene Department (“FEHD”) alleging that the wall opening was in contravention of the relevant law and was inconsistent with an approved building plan of the Building, the plan being approved on 8 September 1958 (“the 1958 Plan”). FEHD investigated into the matter.

10.  As contended by the applicant, in order to avoid any adverse impact on the restaurant licence, the applicant suspended the use of Lift No. 1 and caused a brick wall (“the Brick Wall”) to be built in front of the opening on the wall (or lift landing) on 1/F in or around April 2017. And it is claimed by the witness for the applicant that the Brick Wall is built within the area of Flat A to H of 1/F and serve the purpose of sealing up the lift landing/opening at 1/F. Hence while there is the Brick Wall, the lift landing to 1/F still exist but concealed by the Brick Wall. And the applicant avers that the Brick Wall is not common parts.

11.  For clarity, the wall with the lift landing is one of the walls surrounding the lift shaft and the respondent claims that it is, as claimed by the respondent, part of the common parts. It is to be referred to as “the Wall” hereinafter, which is to be distinguished from the Brick Wall.

12.  It is the applicant’s case that in or around May 2017, it made an application to the Buildings Department to remove the Brick Wall to use the lift landing, and has obtained the approval.

13.  But in order to complete the work to remove the Brick Wall, the applicant has to submit the Fire Resistance Proof of the lift outer doors at the lift landing on 1/F. They have requested the document from the 1^st respondent and was refused. The applicant also claims that the lift service company, OTIS, has been instructed by the 1^st respondent not to provide the Fire Resistance Proof. Hence they took out this application to compel the 1^st respondent to provide the Fire Resistance Proof.

14.  And at the same time, the applicant seeks a declaratory relief on the right of the 1/F owner(s) to use Lift No. 1.

15.  By reason of the above matters, the applicant also claims damages against the 1^st and 2^nd respondents, including –

i)  The applicant, its tenant and its licensees have been unable to use Lift No. 1;

ii)  The applicant had to and did incur costs to erect the Brick Wall;

iii)  The applicant had to and did incur costs for removing the Brick Wall; and

iv)  The completion of the demolition work has been delayed and the applicant had to and did incur extra costs.

16.  No evidence has been adduced for the damages and the applicant asks for an order that damages are to be assessed.

17.  And as against the 2^nd respondent, the applicant claims that he was and is an owner of a flat in the Building, and he is the current chairman of the 1^st respondent. Since no later than late 2010, when he was not a member of the management committee of the 1^st respondent, he was discontented with the operation of the restaurant run by the tenant of the applicant and made various complaints to different government departments. And since he became the chairman of the management committee of the 1^st respondent, the 2^nd respondent has been using the power and resources of the 1^st respondent against the applicant’s tenant by making complaints to various departments of the government, including the issue on the lift landing at 1/F. It is claimed that he is acting unreasonably and/or with bad faith in his office as the chairman and shall not be entitled to the protection under section 29A of the BMO and shall be jointly and severally liable for the damages claimed.

The Respondents’ Opposition and Counterclaim

18.  The 1^st respondent is the incorporated owners of the Building and the 2^nd respondent is the current chairman of the management committee of the 1^st respondent.

19.  The respondents claim under the Amended Notice of Opposition and Counterclaim that the original design of the Building does not provide any opening (or lift landing) for Lift No. 1 on 1/F. And at all material times until around January 2017, the respondents had no knowledge that an opening should not be created on the Wall (referring to the wall on the lift shaft on 1/F) for access to Lift No. 1. As Ms. Cheung, counsel for the respondents submits, at a time unknown to both the applicant and the respondents, a wall opening for access to Lift No. 1 was created on the Wall. It is further claimed that there are no available records of documentary evidence showing the 1^st respondent approved the wall opening, despite diligent search by the respondents.

20.  I repeat paragraph 6 of the Amended Notice of Opposition –

“6. Save that it is admitted that the owners, tenants and licensees of the 1^st Floor had access to [Lift No. 1] for quite some time until around April 2017 when the Applicant caused the Brick Wall to be built, paragraph 8 is not admitted. The Respondents aver as follows:

(i) The original design of the Building does not provide any opening for [Lift No. 1] on the 1^st Floor.

(ii) At all material times until around January 2017, the Respondents had no knowledge that the wall on the 1^st Floor facing the lift shaft of [Lift No.1] (“the Wall”) should not have been demolished to create an opening for access to [Lift No. 1].

(iii) In or about May 2016, the 1^st Respondent engaged a professional building surveyor (“the Surveyor”) for the purpose of complying with the Mandatory Building Inspection Scheme.

(iv) In or about January 2017, the Surveyor advised the 1^st Respondent that the Wall Opening was not shown in the building plan of the 1^st Floor approved by the Building Authority on 8^th September 1958 (“the 1958 Plan”). It was only at that time the 1^st Respondent realized that the Wall should not have been demolished for the creation of the Wall Opening, nor should there be any access to [Lift No. 1] on the 1^st Floor.

(v) ….

(vi) ….

(vii) ….”

21.  It is the respondents’ case that there should be no lift landing or opening for Lift No. 1 at 1/F. The 1^st respondent has made various compliant to FEHD hoping they would take action for the lift landing be closed. It is claimed that these complaints were made in discharge of its duty under section 18(1)(c) of the BMO. The 1^st respondent has also requested the applicant to reinstate the Wall by closing the lift landing on the Wall, relying on the 1958 Plan.

22.  It is also claimed by the respondents that the Wall is a common part of the Building. Any alternation to the Wall shall be subject to the approval of the 1^st respondent. And in the alternative, the Wall is not within the area for the exclusive use of the owner(s) of Flat A, B, C, D, E, F, G & H of 1/F and/or the applicant. (I note that the Brick Wall is different and could be within the areas of those Flats which I shall come to when dealing with the evidence of the witness for the parties.)

23.  The 1^st respondent claims that every owner of the Building has access to their floor but subject to the original design of the Building as approved by the Buildings Department or the relevant Government authorities. It relies on the 1958 Plan and claims that there was no access to 1/F for Lift No. 1.

24.  The claim of the applicant is denied and by paragraph 34 of the Counterclaim, the 1^st respondent complains that the applicant has in breach of section 34I(1)(a) of the BMO created or caused the wall opening to be created or to remain. It claims an injunction that the applicant shall reinstate the Wall and the area where the Wall was previously situated to their original states and conditions in accordance with the 1958 Plan.

25.  The 2^nd respondent also admits that he had made complaints to Environmental Protection Department and the Police between 2010 and 2012 before he became a member of the management committee of the 1^st respondent. The complaints were about noise nuisance generated by the restaurant then operating at 1/F, and other owners had also made similar complaints.

26.  As to act done after he became the chairman, the 2^nd respondent said they would the collective decision of all members of the management committee and further denies that he has been acting unreasonably or under bad faith.

27.  In the Reply and Defence to Counterclaim, the applicant avers that the lift doors of Lift No. 1 on 1/F were installed and/or has been maintained by the 1^st respondent. The 1^st respondent must have approved the removal of part of the Wall and the installation of the doors of the Lift No. 1 and it is within the power of the 1^st respondent to so approve.

The Agreed Issues in Dispute

28.  Parties have agreed a List of Issues in Dispute, as follow –

A.  Whether on a proper construction of the DMC the applicant, its tenants and licensees have any right thereunder to access and/or use [Lift No. 1] at 1/F;

B.  Whether the 1^st respondent was in breach of clause 2 and/or 7 and/or 12 of the DMC by (i) refusing to provide or instruct OTIS to provide information of Fire Resistance Proof referred to in the Notice of Application and/or (ii) complaining to FEHD;

C.  Whether the Wall with the Wall Opening is a common part of the Building within the meaning of the BMO;

D.  Whether the 1^st respondent had approved the opening of the Wall facing the lift shaft of Lift No. 1 on 1/F, and if so, whether any such approval has been lawfully revoked or withdrawn;

E.  If the 1^st respondent has never approved and/or withdrawn its approval to the Wall Opening, whether the applicant is in breach of section 34I(1)(a) of the BMO by altering and/or converting the Wall and/or the Wall Opening into its own use;

F.  Whether the Tribunal should grant the injunction and order as counterclaimed by the 1^st respondent in the circumstances of this case;

G.  Whether the 2^nd respondent has acted in bad faith and/or unreasonably in doing the acts as particularized in paragraphs 28 and 32 of the Notice of Application, and whether the 2^nd respondent is entitled to any protection under section 29A of the BMO;

H.  Whether the applicant has suffered any loss and damage as claimed or at all that the respondents or any of them shall be liable, and if so, what loss and damages has been suffered.

The Applicant’s case

29.  The applicant is represented by counsel Mr. David Tang with Mr. Calvin Law. There is one witness for the applicant, namely its manager Madam 張韻玲 (“AW-1”). AW-1 adopted her witness statements dated 3 March 2021 and 17 March 2021 as her evidence-in-chief.

30.  According to the evidence of AW-1, the applicant acquired those Flats at 1/F in 2007, subject to tenancy. The tenant then operated a restaurant called 維京海鮮酒家. By around March or April 2009, the tenancy expired and the applicant recovered possession and operated a restaurant called 御名軒from September 2009 onward.

31.  AW-1 said she lived in that district for some period of time. There are 2 lifts in the Building. And since the 90’s, 1/F has been used to operate restaurant business. From what she heard from neighbor living in that district, for a long time before the applicant acquired those Flats, people may use Lift No. 1 to enter or leave 1/F.

32.  And when the applicant acquired those Flats at 1/F, the lift landing was in existence. And on cross examination, she said she had used Lift No. 1 to arrive at 1/F in 2007. But she had no idea how the lift landing and doors were built. And she said the regular examination and maintenance of the lift was the responsibility of the 1^st respondent. She claims that by such examination included the operation of the lift landing and doors at 1/F. She claims that the 1^st respondent should have full knowledge of the existence of the lift landing.

33.  AW-1 also produced a photograph showing the frame for the lift landing for Lift No.1 at 1/F when 維京海鮮酒家returned possession to the applicant. It shows that the frame appears to be a properly constructed lift frame with lift control.

34.  AW-1 is also responsible for the management of 御名軒. The guests could use Lift No. 1 24 hours a day. And later, an outsider entered 1/F causing concern on security. The applicant reflected the issue to the 1^st respondent and they suggested to the applicant to fix a period in a day when the lift door to 1/F would be locked. And hence in 19 April 2011, the applicant issued a notice that Lift No. 1 would only be available for access to 1/F from 7 a.m. to 12 mid-night.

35.  On cross examination, Ms. Cheung, counsel for the respondents refers to another notice by the applicant dated 25 April 2011. It shows that there were complaints by other owners and users of the Lift No. 1 that the applicant had high usage of Lift No. 1. And the applicant would only use Lift No. 1 for people with special need, such as elders. AW-1 agreed that was issued by the applicant.

36.  AW-1 also mentioned that there was another lift landing for Lift No. 2 which has been closed. The position of Lift No. 2 is the kitchen of 1/F. But one could still see some lift equipment, such as the frame, and the signal panel. A photograph has been produced. She suggests that if there is no access to 1/F via lifts, there would not be a frame for Lift No. 2.

37.  Pausing here, there appears to be an old opening at 1/F for Lift No. 2. The 1^st respondent has engaged an expert to investigate and his report has been produced. And this report mentioned that there should not be an opening for Lift No. 1 at 1/F. I shall come back to this report later in the respondent’s evidence.

38.  AW-1 said by around 2010, the 2^nd respondent had made various complaints to government departments, including emission of smoke, noise, and hygiene. The departments did make investigation, but a lot of the complaints were not substantiated. AW-1 claims that some officers privately informed her that the complaints were made by the 2^nd respondent.

39.  There is correspondence between the applicant and 1^st respondent with the Buildings Department. In one of the letters, the Buildings Department replied on 24 March 2017 making it clear that the Wall is not structural. But Buildings Department do not know the fire resistance power of the lift door at 1/F and refers the case to Electrical and Mechanical Services Department (“EMSD”) and FEHD to follow up. It also advises the owner of 1/F, the applicant, to provide Fire Resistant Proof as required under the Buildings Ordinance.

40.  To avoid trouble with its restaurant licence, the applicant built the Brick Wall immediately before the landing door of Lift No. 1 on 1/F, which in effect closed the access to Lift No. 1.

41.  Around the same time, EMSD expressed its concern that the gap between the Brick Wall and the lift’s landing door at 1/F may pose danger. The lift service to 1/F was suspended and is still suspended.

42.  In September 2017, the applicant applied to Buildings Department for permission to remove the Brick Wall and permission was granted on 28 November 2017.

43.  For the removal of the Brick Wall, Buildings Department required Fire Resistance Proof of the lift’s door at 1/F. The applicant wrote to the 1^st respondent on around January 2018 but to no avail. The applicant approached the lift servicing company OTIS but was told that the 1^st respondent specifically directed it not to issue any certificate to the applicant.

44.  A letter dated 28 September 2020 from OTIS to the 1^st respondent has also been produced. In the letter, OTIS informed the 1^st respondent that the outer doors of the 2 elevators of the various floors were replaced in 1990. It is submitted that this letter is referring to the outer doors at 1/F and I shall come to the submission at the Discussion section hereinafter.

45.  Hence the applicant also claims a mandatory injunction against the 1^st respondent that it should provide to the applicant the Fire Resistance Proof, or direct OTIS to provide the Fire Resistance Proof of the lift’s door.

46.  During cross examination, Ms. Cheung put to AW-1 that according to the building plans, there is no lift opening. AW-1 said she did not know.

47.  The DMC has been produced.

48.  That is the applicant’s case.

The Respondents’ case

49.  There are two witnesses for the respondents.

50.  The first witness is Madam 許美珍(“RW-1”). She adopted her witness statement dated 14 April 2021 as her evidence-in-chief.

51.  RW-1 is the treasurer of the 1^st respondent. She has been living in the Building since about 1970. She claims that according to her memory, when 1/F was operating as restaurant by 麗東閣海鮮酒家and維京海鮮酒家 respectively, she could not go to 1/F directly via Lift No. 1. She has to take Lift No. 1 to go to the ground floor and walk up the staircases to the restaurant.

52.  RW-1 said after the renovation to the Building in 2009, there is a lift button for 1/F. She does not mention if she has any knowledge when the lift landing has been built and by whom.

53.  The second witness is the 2^nd respondent, Mr. 林世龍. He adopted his witness statements dated 4 March 2021 and 14 April 2021 as his evidence-in-chief.

54.  The 2^nd respondent is the chairman of the 1^st respondent. He became a member of the management committee since 2011 and became the chairman in 2015.

55.  The 2^nd respondent and his wife acquired a unit in the Building in 1995. When he first moved into the unit, he noticed that the Lift No. 1 could not be used to enter 1/F, as the lift door would not open at 1/F. He did not know if there was a wall built at the present lift landing. Later, the occupier of 1/F may arrange Lift No. 1 to stop at 1/F for access by people of special need, such as wheelchair users. There is a button for 1/F in the lift panel controlled by key, and the control button with key appears in one of the photographs produced. And later, the users may operate Lift No. 1 inside the lift to go to or leave 1/F.

56.  The 2^nd respondent has not mentioned if he noticed that the applicant had damaged the Wall to build the lift landing. And all that he said was Lift No. 1 would not open at 1/F.

57.  The 2^nd respondent found a record kept by the 1^st respondent that the applicant said would be using Lift No. 1 from 19 April 2011. He believes since then, the applicant or the occupiers of 1/F may use the Lift No. 1 to enter and leave 1/F.

58.  The 2^nd respondent produced a minutes of the management committee meeting held on 12 May 2011 recording that some other occupiers of upper floors complained that the Lift No. 1 was mainly occupied by visitors to 1/F. In the meeting, the applicant agreed that the Lift No. 1 would only be used by visitors to 1/F with special need. For other visitors, they would use the staircase. This was agreed by the management committee. The 2^nd respondent further explains that he was then not aware that there should be a wall between Lift No. 1 and 1/F. He believes the other members of the management committee do not know either. Hence they agreed to the arrangement.

59.  About May, 2016, the 2^nd respondent said the 1^st respondent had engaged a registered surveyor Mr. Cheung to investigate the Building in accordance with the Mandatory Buildings Inspection Scheme imposed by government. In early 2017, he was told by the surveyor that according to the building plan, there should be a wall erected in front of the lift landing at 1/F. It would serve as a protection against fire and escape of smoke from 1/F to other floors of the Building. The surveyor also said the wall should be structural wall.

60.  A letter has been produced which shows that the surveyor Mr. Cheung made a report to the Buildings Department. He refers to the 1958 Plan and reported, inter alia, that the wall at 1/F around the lift shaft has been opened and it may be an unauthorized structure. For this application, no order of restoration issued by the Buildings Department has been produced. The 1^st respondent had been informed by the Buildings Department that the Wall was not structural wall. However, the Buildings Department could not assess the fire resistance design of the lift door and they had required the applicant to supply the Fire Resistance Proof.

61.  As the 1^st respondent was afraid that the applicant would remove the Brick Wall, it instructed its solicitors to report the matter to various government departments, including Fire Services Department, EMSD, Buildings Department and FEHD. There is no evidence of any action taken by the various departments, except the issue of Fire Resistance Proof as herein mentioned.

62.  The 2^nd respondent also said that the Lift No. 2 should also be surrounded by wall and does not have access to 1/F. In about September 2020, the 1^st respondent engaged another surveyor Mr. Wong of 黃山建業事務所to inspect and was informed that the wall had been damaged/opened. Currently the opening was filled up. The 1^st respondent had requested the applicant to reinstate that wall, but the matter is not before me in this application.

63.  After the applicant built the Brick Wall, the EMSD notified the 1^st respondent that the space between the Brick Wall and the lift door is wide enough to keep one person. For safety reason, it was suggested that the Lift No. 1 shall not stop at 1/F. The Lift No. 1 has been set not to stop at 1/F for safety reason.

64.  In or about January 2018, the 1^st respondent consulted the owners of the Building for their opinion if they would allow the applicant to use Lift No. 1 to access 1/F. 50 owners have signed a complain letter to the Buildings Department, FEHD, EMSD and Fire Services Department.

65.  The 2^nd respondent said he had checked the record of the 1^st respondent and there was no Fire Resistance Proof. He then checked with OTIS and was confirmed that they had not retained the Fire Resistance Proof. The letter from OTIS was produced. He also reminded OTIS not to disclose such information without first obtaining the approval from the 1^st respondent.

66.  And giving evidence for himself, the 2^nd respondent admits that he had made complaints to Police and Environmental Protection Department about noise emitted from 1/F at mid-nights, which created nuisance to him and other occupiers of the Building. He said he made the complaint in good faith. And other occupiers also had similar complaints. Such complaints are based on fact and not with ill intent.

67.  And the other complaints to various government departments by the 1^st respondent were made after resolution at management committee or owners’ meetings.

68.  The respondents have also been produced the surveyor’s report of Mr. Wong. No leave has been obtained and this surveyor’s report is to cover Lift No. 2. But for fairness to the parties, I would also mention this report in my ruling.

69.  That is the respondents’ case.

Discussion and Ruling

70.  It cannot be disputed that there is a lift landing/opening at 1/F latest at 2011 according to the evidence of the 2^nd respondent. And it is admitted in the Amended Notice of Opposition and Counterclaim that the 1/F owner has been having access through the 1/F lift landing for some times before 2017. Before I come to the agreed List of Issues of Dispute, I have to consider when the Building was erected in 1958, whether there was any opening on the Wall surrounding the lift for access to 1/F, or there should be a wall in front of the opening. (In fact, it is not necessary to rule on each of the issues as they are covered by my ruling hereinafter.)

71.  Ms. Cheung relies on the building plans produced, in particular the 1958 Plan and submits that there was a wall built at 1/F blocking the access to 1/F via Lift No. 1. She first refers to an earlier plan which is the drainage plan approved on 24 January 1958 which Ms. Cheung submits that its shows that there could be an opening or lift landing at 1/F for Lift No. 1 (and for Lift No. 2).

72.  Ms. Cheung then refers to 1958 Plan and submits that where there appears to be an opening is replaced with 2 straight lines representing a solid wall. Hence there could not be an opening.

73.  Pausing here, I am not a surveyor or expert and I am reading the drawing as a layman. Parties could not assume this Tribunal could make finding on the structure by looking at the plan without assistance from expert. And secondly, it is an issue that how many plans have been submitted to and approved by Buildings Department.

74.  The respondents have made application for expert evidence on whether the Wall is a structural wall or whether it is common parts. After the hearing, the respondents have withdrawn the application.

75.  Ms Cheung also relies on some statements given in this Tribunal before HH Judge Wong by counsel Mr. Co, then representing the applicant in summons for expert report on the hearing on 15 July 2020, who admitted that the applicant would not dispute that there was a wall in the 1958 Plan which does not provide for an opening.

76.  I have been provided with the transcript of the hearing. It appears that Mr. Co stated that when the applicant acquired those Flats, there was already an opening. Then the 1^st respondent made a complaint, and the applicant built the Brick Wall. And the 1^st respondent complained that they made such work. So the applicant made an application to the Buildings Department to make a proper opening. In the conversation with HH Judge Wong, Mr. Co did mentioned that the opening was not in the original plan. He also mentioned that there was no record of application for making the opening that the 1^st respondent could be discovered. But he did not accept it is an illegal opening or structural change.

77.  HH Judge Wong has rightly pointed out that the applicant could not apply for making the opening without consent or approval from the 1^st respondent, the incorporated owners. They also require the approval of Buildings Department. Whether there was such approval would be a matter of fact and no expert evidence would be required.

78.  But one must remember that we are not concerned with whether there is the lift landing/opening provided in the 1958 Plan. It is for the respondents to satisfy me that when the Building was erected, it was erected in accordance with the 1958 Plan and the lift opening was not there. And if it was not there when built, who had built the lift landing, before I could consider if there is sufficient ground that it may be reinstated by sealing the opening.

79.  I am aware that from the surveyor report of Mr. Wong adduced in respect of Lift No. 2, the surveyor mentioned that these are the only plans he found that were submitted and approved by the Buildings Department. But this has not been an issue raised for expert opinion in respect of Lift No. 1 and the applicant has not been given a fair chance to response to such comment. I am not prepared to draw any conclusion based on these plans submitted by the respondents.

80.  Ms. Cheung in her closing submission refers to the evidence of AW-1 in Court. On cross-examination, AW-1 has been referred to a letter from her solicitors dated 1 November 2021. It was mentioned that according to the plan obtained from FEHD, there was a wall at the lift shaft. For the purpose of applying for restaurant licence, a wall was built in front of the lift shaft within those Flats. And after operating the restaurant for a while, the wall was removed for access to Lift No. 1 from 1/F. AW-1 has not objected to the contents of the letter.

81.  And in 2017, as said hereinbefore, the applicant built the Brick Wall in order not to jeopardize its restaurant licence. Ms. Cheung submits that even on the applicant’s case, there should be a wall built in front of the lift landing and which the 1^st respondent asks for reinstatement.

82.  Doing my best, I would say that there did not appear to be an opening in 1958 Plan for the 1/F lift landing. But that could not be conclusive as to how the Building was erected. And assuming that the Wall has no opening, one has to consider when the opening came into existence.

83.  Mr. Tang refers to the letter from OTIS dated 28 September 2020. He explains that the letter was a response to the query from the 1^st respondent when the applicant asked the 1^st respondent for Fire Resistance Proof of the outer door of Lift No. 1 at 1/F. He submits that the doors were replaced in 1990. By replacing, that means there was a lift door before 1990. And OTIS should have more information about the history of the lift system, but they have not been called as witness.

84.  Though RW-1 and the 2^nd respondent said there was no access to 1/F through Lift No. 1 until 2009 or 2011, their evidence is not clear if there was no lift landing at 1/F. They only said the lift doors did not open at 1/F. The 2^nd respondent said Lift No. 1 did not open at 1/F and he did not know if there was a wall or lift landing at 1/F.

85.  Making a hole on the wall surrounding any lift must be noisy and noticeable by occupiers of the Building. And it would be impossible to prevent dust, pebbles, and concrete from falling into the lift shaft causing malfunction of the lift. Particularly for RW-1 who lived in the Building since 1970, it is impossible that she has not noticed of such construction work if she was in the Building. And if she was not in, surely other owners or occupiers of the Building would report the matter to the 1^st respondent.

86.  And more importantly, it is common sense that if someone makes an opening to a wall enclosing the lift, he cannot then have access to the lift unless the lift would stop at 1/F and open the door. That includes a change to the lift system, and the installation of the outer doors.

87.  Hence, this is not a simple case of making a hole on the Wall as now claimed by the respondents. The lift system, which must be in the control of the 1^st respondent and its agent, has to be modified to allow Lift No. 1 to stop at 1/F lift landing and open the lift doors. And, the lift landing is closed by lift outer doors which are to open when Lift No. 1 arrives, and close when it is to leave. The fact that Lift No. 1 could stop at 1/F lift landing/opening clearly indicates the consent/agreement of the 1^st respondent for the opening be made (if not there in the beginning) and the change of lift system to allow Lift No. 1 to stop at 1/F.

88.  Further, I have no direct evidence that the lift landing was created by the applicant. I accept there are authorities to say that, if the lift landing is an unauthorized building working, by keeping and using it the applicant may be liable to reinstate the unauthorized building working. But as I said, this is part of the modified lift system and the burden on the 1^st respondent is higher to explain how Lift No. 1 came to serve 1/F, including building of the lift landing on 1/F and the variation of the lift system, and to justify they may close the opening now.

89.  It is the evidence of AW-1 that the lift outer doors at 1/F was maintained by OTIS. I note that OTIS said it does not retain the record of the Fire Resistance Proof. OTIS should be an available witness to testify on how the lift landing came into existence. It can be anticipated that, if it was the contractor who install the lifts when the Building was built, they would be able to say the lifts had no exit at 1/F when the Building was built, and when it changed the lift system so that Lift No. 1 could stop at 1/F, and it continues to maintain the whole system. And if OTIS took up the maintenance job after the Building was built, it would still be able to say at least when they took over, was there a lift landing. OTIS has not been asked to give evidence and that is very unsatisfactory.

90.  It is telling that OTIS does not keep the Fire Resistance Proof of the lift doors. A fair analysis is that they built or are involved in the building of the lift doors at least since 1990. I would be very surprised that a reputed lift maintenance company would not follow the legal procedure properly for taking any maintenance work on lift systems.

91.  There is no evidence who made that opening. As the 1^st respondent is asking for an injunction that the opening be reinstated, the burden rests on it to show who made the opening and altered the lift system so that Lift No. 1 could serve 1/F (continuously or by operation of keys). It is sufficient for me to say that the 1^st respondent has not satisfied this Tribunal with evidence that the lift landing at Lift No. 1 was built by the applicant, as claimed by the 1^st respondent in the Amended Notice of Opposition and Counterclaim.

92.  Further, given the size of building work at 1/F and amendment to the lift system, I have no hesitation to accept the submission of Mr. Tang that this must have been approved by the 1^st respondent. And it cannot be denied that they knew about the occupiers of 1/F using Lift No. 1 for some times before 2017. Even if the 1^st respondent asks for relief to seal up the opening, it has to be justified.

93.  Having considered the evidence of AW-1, I accept her evidence that the lift landing was there before the applicant acquired those Flats. I found that when the applicant acquired those Flats, Lift No. 1 could serve 1/F.

94.  It is an issue of dispute whether the Wall surrounding Lift No. 1 is a common part of the Building. Ms Cheung submits that the lift landing/the opening is common parts and are controlled by the 1^st respondent (Issue C). While Mr. Tang argues that the applicant is the owner of the whole 1/F, from the plan produced, it is obvious that the wall surrounding the lift shaft had not been assigned for the exclusive use of the owner of 1/F. I accept Ms. Cheung’s submission that the Wall and the lift landing are common parts.

95.  While the lift landing is common part, the 1^st respondent would have control of the Wall with the lift landing under section 34I of BMO. But that does not follow that they may seal up the lift landing as they wish. They are in control but subject to the rights of the owners to use the common parts in accordance with the DMC. Hence, the burden is again on the 1^st respondent to prove that the 1/F owners are not entitled to use the Lift No. 1. This Tribunal still have to understand how this lift landing come into existence in the beginning before I could be satisfied that the injunctive reliefs claimed by the 1^st respondent are justified.

96.  Mr. Tang submits that according to the DMC, the occupiers of 1/F may use the lift. He refers to clause 2 which read –

“2. Each of the parties hereto and his licensees shall in common with his co-owners of the whole of the said premises and their licensees have access to and be entitled to use the entrance staircase landings passages and elevators of and in the said Building for all purposes connected with the proper use and enjoyment of the Flat or Shop in the said Building of which he is entitled to the exclusive use occupation and enjoyment and for the purpose of ingress to and egress from each premises.”

97.  Mr. Tang further submits that the owner(s) of 1/F have to share the costs of maintenance and service of all the lifts. In contrast, the owners of ground floor shops of the Building does not have to share in such costs. He submits that it is a clear intention of the drafter of the DMC that the owners of 1/F are entitled to use the lifts.

98.  Reading the above clause in the DMC, I think there could be no argument that the owners including the owners of 1/F could use the lifts one way or the other in accordance with the provision of clause 2. If indeed there is no opening at 1/F, then their usage would be limited to accessing other floors. It cannot be disputed that there is now an opening for Lift No. 1 and the lift system is now available for access to 1/F. The question is still whether there was an opening when the Building was erected, or that it was subsequently built with the approval of the 1^st respondent, for this Tribunal to decide if the application by the 1^st respondent to compel the applicant to close the lift landing is justified.

99.  Ms. Cheung may argue that this is an unlawful building work and therefore they should comply with the relevant law to have the opening closed. I have to say that she has to prove with expert evidence. As at today, there have been many complains to the Buildings Department about the opening at 1/F, made by the 1^st respondent assisted with legal advice. And yet there is no order or direction that the opening should be sealed. And what the Buildings Department asked for is only the Fire Resistance Proof of the lift doors. It is a long way for Ms. Cheung to convince me that there is evidence that the lift landing is unlawful building work and should be rectified. And if so, (which I make no finding) from the analysis above, should this not be done by the 1^st respondent, and not the applicant? It is sufficient to say that the 1^st respondent fails to prove its case.

100.  Ms. Cheung also submits that the 1^st respondent has revoked any consent given for building the lift landing at 1/F. But this must be based on proof that there was no lift landing originally and approval for building the lift landing was granted. And I do not even have the background as to how such approval was given in order to be satisfied that the revocation is justified.

101.  I also adopt Mr. Tang’s analysis on acquiescence. Indeed, the 2^nd respondent when questioned by this Tribunal, he accepted that the previous members of the 1^st respondent had allowed such alteration and that is why he has to “correct” it.

102.  In summing up, I accept that the 1958 Plan shows that there is a wall before the lift landings at 1/F. But I am not satisfied that all the building plans have been produced. I found that the 1^st respondent could not satisfy me that the lift landing was not built when the Building was erected by evidence, or that it was not erected with their consent subsequently, their application for injunction to reinstate the Wall by the applicant must fail.

103.  With the above analysis, I first rule against the 1^st respondent for the application for the injunctive reliefs.

104.  As for the Brick Wall built by the applicant, according to the evidence of AW-1, it was built within the area in the exclusive possession of the applicant. It is not disputed that the Brick Wall sealed up the lift landing and it would be within the area in the exclusive possession of the applicant. And subject to permission by the Buildings Department, I see no reason why they were not entitled to remove the Brick Wall.

105.  Currently, the Lift No. 1 does not stop at 1/F for safety reason. And part of the safety reason is because there is a space between the Brick Wall and the lift doors. The applicant seeks a declaration that the applicant is entitled to access and to use the Lift No. 1. I have given the interpretation of clause 2 of the DMC on the right of the applicant to use the lifts, and I do not think I need to grant any declaration as claim. The applicant also seeks a further order that the 1^st respondent do take all steps reasonably necessary to allow the applicant to access and use Lift No. 1 unless expressly prohibited by relevant government authorities. As the applicant could not use the Lift No. 1 because it has erected the Brick Wall, and the Lift No. 1 does not stop at 1/F for safety reason as required by Fire Services Department, no order should be granted at this stage. If the matter of demolition of the Brick Wall is resolved with permission of Buildings Department, and the safety warning against Lift No. 1 to stop at 1/F is lifted, and still the 1^st respondent refuse to allow Lift No. 1 to stop at 1/F, that may be a separate application. And I do urge the 1^st respondent to sensibly resolve the dispute.

106.  The next part of my consideration is whether the applicant is entitled to compel the 1^st respondent and/or its agent to disclose the Fire Resistance Proof of the lift outer doors at 1/F to satisfy the condition to remove the Brick Wall, which would block the access to the lift. These lift doors would have served fire resistance function. It is in respect of these doors the applicant is being asked for fire resistance proof.

107.  The applicant has not referred to any authority under which it is entitled to seek inspection and discovery of the Fire Resistance Proof. And in any event, the 2^nd respondent has given his evidence that after his search of record, no Proof was found being kept by the 1^st respondent. And the 1^st respondent has taken the effort to clarify with OTIS who has confirmed that they did not keep the Proof. In the circumstances, I fail to see how this Tribunal could compel the 1^st respondent to provide the Fire Resistance Proof.

108.  Accordingly, the application by the applicant for an order that the 1^st respondent do provide the Fire Resistance Proof is refused. Anyway, the outer doors are there. I appreciate that inspection of the outer doors is obstructed by the Brick Wall. But I believe it could be arranged for the Brick Wall be taken down and that an expert be instructed to assess the Fire Resistance Proof of the outer doors.

109.  Finally, on damages, the applicant has not produced any evidence. It only asks for damages to be assessed. There is no prior order for a split trial and I have no application at the hearing. It is wrong for this Tribunal to direct damages to be assessed. The application is therefore dismissed. And since no damages is proven, I do not have to deal with the complaint that the 2^nd respondent should be jointly and severally liable for the damages.

110.  And I would add, the 2^nd respondent made the complaints to the various government departments. It is their professional judgment if the complaints should be followed up. And for the Brick Wall, and the request of Fire Resistance Proof, it appears from the evidence above that the 1^st and/or 2^nd respondents cannot be said to be acting under bad faith or unreasonable.

111.  That deals with the application and counterclaim. The applicant fails with the application for discovery of Fire Resistance Proof, and the respondents fail with the counterclaim of injunction and reinstatement. The trial only serve the purpose of interpreting a clause in the DMC. On the balance, I believe a fair order on costs should be no order as to costs. I grant a costs order nisi that there be no order as to costs to become absolute within 14 days.