SEE WAH FAN v. THE INCORPORATED OWNERS OF KI TAT GARDEN (PHASE I)

CACV 389/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 389 OF 2002

(ON APPEAL FROM LDBM 429 OF 2000)

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J U D G M E N T

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Hon Cheung JA (giving the judgment of the Court):

Facts

1. This appeal is concerned with a residential development in Yuen Long, New Territories, known as Ki Tat Garden Phase I ("the development"). There are seven blocks of buildings in the development. This appeal is concerned with Block 5. This block consists of three floors, the ground floor, the cockloft and the first floor. There is a roof on the top of the first floor. The applicant is the owner of the ground floor and the cockloft. Mr. Tam Kam Yuk ("Mr. Tam") is the owner of the first floor and the roof. Mr. Tam is not a party to these proceedings but he was present in Court during this appeal. The respondent is the incorporated owners of the development ("the corporation").

2. In order to understand this case properly, it is necessary to refer to the layout and the staircase structure of Block 5. After entering into Block 5 through a common entrance, there is a staircase ("the staircase") leading from the ground floor to the first floor and roof. There is no access to the cockloft from this staircase. It has to be reached by an internal staircase inside the ground floor. The staircase has six flights of stairs and four floor landings :

1) A landing at the ground floor, where the entrances to the block and ground floor are situated;

2) Two flights of steps ("the first and second flights of steps") leading from the landing at the ground floor to the landing at the cockloft level;

3) A landing at the cockloft level (there is no access from the staircase to the cockloft, but immediately outside the cockloft area there is a landing);

4) Two flights of stairs ("the third and the fourth flights of steps") leading from the landing at the cockloft level to the landing at the first floor level;

5) A landing at the first floor level where the entrance to the first floor is situated;

6) Two flights of stairs ("the fifth and the sixth flights of steps") leading from the landing at the first floor level to the landing at the roof level.

7) A landing at the roof level, where exit to the roof level is situated.

3. Mr. Tam had constructed an iron gate at the cockloft landing enclosing the cockloft landing. This iron gate forms the basis of complaint by the applicant. She claimed that the gate was built on the common parts of the development. Mr. Tam had also erected a metal grille along the edge of the third flights of stairs. He also erected two wooden doors, one across the landing at the first floor level and one in the landing at the roof level. He also built a wall to seal off the void space between the flights of stairs above the first floor landing. The wooden door erected across the landing at the first floor level in effect encloses part of the first floor landing and one has to enter this wooden door before one can continue to go on the staircase to reach roof level.

The earlier case

4. The applicant had in an earlier case, namely LDBM No. 300 of 1999 sued Mr. Tam in the Lands Tribunal ("the Tribunal") by alleging that Mr. Tam had converted part of the common parts of Block 5 to his own use. The application was dismissed because the applicant did not have the status to take out the proceedings. Under section 16 of the Building Management Ordinance (Cap. 344) ("the Ordinance"), the corporation was given the exclusive power to exercise the rights of the owners of the building in relation to the common parts.

The present case

5. In the present proceeding, the orders sought by the applicant, as identified by the Tribunal, was to compel the respondent to enforce the provisions of the Deed of Mutual Covenant ("DMC") of the development and the Ordinance to, among other things, stop Mr. Tam from continuing to the staircase to his own use. The application was dismissed by Deputy Judge Tong. The applicant now appeals against the decision.

The Ordinance

6. Section 2 of the Ordinance defines common parts as meaning "the whole of a building except such parts as had 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 unless so specified or designated, those parts specified in the First Schedule". The First Schedule consists of a list of the common parts, such as external walls, roofs etc. Staircases are listed as common parts.

The Assignment plans

7. Each of the owners of Block 5 acquired their ownership by way of an assignment. They are also bound by the terms of the DMC governing the development. It is common ground that the DMC does not designate or specify any part of the staircase to be for the exclusive use of any owner. One therefore has to turn to the assignment to see whether the area on which Mr. Tam had installed the iron gate is an area designated for his exclusive use. If it is not, then in accordance with Section 2 and the First Schedule, that area is a common part of the development which all owners are entitled to use. In the assignment of the first floor and roof the property that was assigned was described as follows :

“ i. The Property :-

(a) Description, address, lot number, sections and undivided shares etc.:-

ALL THOSE 640 equal undivided 8,960th parts or shares of and in ALL THAT piece or parcel or ground situate lying and being at Yuen Long, New Territories, Hong Kong and registered in the District Land Office, Yuen Long as LOT NO. 1807RP in DEMARCATION DISTRICT NO. 121 And of and in the messuages erections and buildings erected thereon ("the Building") TOGETHER with the sole and exclusive right and privileges to hold use occupy and enjoy ALL THAT FIRST FLOOR together with the Roof thereover of BLOCK 5 of the Building which said Floor and the Roof are shown on the First Floor Plan and Roof Floor Plan hereto annexed and thereon coloured Pink. "

8. The first floor and the roof floor plans were attached to the assignment. In each of these two plans, the pink area covers not only the interior of the first floor and the flat roof respectively but also a landing and two flights of steps.

9. Likewise for the ground floor the area assigned was described as the area covered in pink on the ground floor plan. Again in the ground floor plan one can see the landing and two flights of steps. They are, however, not coloured pink.

10. It appears that the location of the entrance to Block 5 as shown in the ground floor plan is different from the location shown in the photographs. However, no issue has been taken on this. The three sets of plans show what appears to be another landing between the steps. It is common ground in this appeal that this is not another landing but part of the staircase when it turns the corner. Furthermore this area is in a location different from the landings described in paragraph 2 herein.

11. The judge held that since the roof was the highest point in the building, the two flights of stairs included in the roof floor plan can only mean the two flights of steps going down from the roof and the two flights of steps included in the first floor plan must mean the two flights of steps going down from the first floor. He also referred to the floor areas of the roof and stairs, the first floor and stairs and the ground floor and the fact that the pink area was not extended to the stairs on the ground floor plan. He found that the iron gate was not built on the common parts of the development.

The cockloft landing is a common part

12. In our view, although it is correct that one may start from the roof floor plan and work downwards in order to ascertain what is the area within the exclusive possession of Mr. Tam, what the judge had overlooked is that there is a landing on the cockloft level. While Mr. Tam may have the exclusive right to use the roof landing and the two flights of steps (i.e. the fifth and sixth flights of steps) leading down to the first floor and also the first floor landing and the two flights of steps (i.e. the third and fourth flights of steps) leading to the cockloft landing, these are all Mr. Tam is entitled to by way of exclusive possession. The landing on the cockloft level is not within his exclusive possession. This is a common part of the development. Hence, since Mr. Tam had erected an iron gate at the edge of the cockloft landing and the top of the second flight of steps and enclosed the cockloft landing for his exclusive use, then obviously he had precluded the other owners of Block 5 from using that particular common part.

13. Under section 34I of the Ordinance, no person may convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners' committee or use the common parts in such a manner as unreasonably to interfere with the use and enjoyment of those parts by other owners or to cause a nuisance or hazard to any person lawfully in the building. Any person who contravenes this provision shall be deemed to be in breach of terms of the DMC. Mr. Tam is in breach of the terms of the DMC and the Ordinance. There is no evidence of a resolution being passed pursuant to section 34I.

Access in case of repair and emergency

14. The applicant also raises another issue about the right of access to the roof in case of emergency. This appears from Clause 2 of the DMC which provides that :

“ Each of the parties hereto and his tenants licensees shall in common with his co-owners of the whole of the Land and the Building and their licensees have mutual right of access to and be entitled to use all footpath service lanes the entrance-hall staircases landings and the common passages of and in the Land and the Building together with the portion of land as more particularly shown and coloured yellow on the Plan hereto annexed for all purposes connected with the proper use and enjoyment of the unit of the Building of which he is entitled to the exclusive use occupation and enjoyment for the purpose of ingress to and egress from such unit Provided that the owner for the time being of any unit of or in the First Floor in Block 1, Block 2, Block 3, Block 4, Block 5, Block 6 and Block 7 shall have the right to the exclusive use occupation and enjoyment of the corresponding roof thereover subject to a right of way being conferred upon the owner or occupiers of the other units of the Building or his or their authorized agents to pass and repass for the purposes of carrying cut maintenance, repairing, installation, replacement or other similar works to the common part of the Building, pump room, water tanks, water meters, electricity or gas meters and the television aerials or antenna and for the purposes of escaping from fire or other calamity in case of emergency and necessity and also subject to the right of the owners or occupiers or their authorized agents of other units of the Building to fix or erect television aerials or antenna of the Building as the owner of the related unit of the First Floor in Block 1, Block 2, Block 3, Block 4, Block 5, Block 6 and Block 7 shall decide."

15. Although Mr. Tam has exclusive possession of the first floor and above, he obviously must give a right of way to the applicant to have access to the roof in case of emergency and also to carry out repair. This is clear from the terms of Clause 2. The existing iron gate and the wooden doors would preclude the applicant from using the staircase to reach the roof for the purposes set out in Clause 2. The applicant has a legitimate complaint on which the corporation had also refused to take action.

Right to sue

16. It was accepted at the trial that the issue before the Tribunal was whether the iron gate constructed by Mr. Tam was within the common parts of the building. If it was, then the applicant was entitled to her relief. The question of access was also raised. The respondent now contends that the applicant has no right to bring the proceedings against the respondent. It argues that under section 16 of the Ordinance, only the corporation has the right to take legal action over issues concerning the common parts of the building; there is no provision in the Ordinance for a private owner to bring suit against any party, including the corporation, in connection with the common parts.

17. Although Mr. Oderberg, counsel for the respondent, raised this issue, he did not advance any arguments for it. This issue was no doubt prompted by the concern raised by this Court in an earlier application. The respondent, however, was willing to abide by the decision of this Court in respect of the iron gate and the wooden doors in Block 5 including the questions of whether the area in question is a common area and also access. An undertaking was given by the respondent on these matters. Since the issue has been raised, we will now deal with it.

New issue

18. First, this is a new issue not raised at the Tribunal. In Flywin Co. Ltd. v. Strong & Associates Ltd. [2002] 2 HKLRD 485, Bokhary PJ of the Court of Final Appeal stated that the principle to be applied is this :

“ He will be barred from doing so unless there is no reasonable possibility that the state of evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at the trial."

19. In our view, such a possibility does not exist. Whether the applicant has the right to compel the corporation by legal proceedings to enforce the terms of the DMC and the Ordinance is a matter based entirely on the construction of the DMC and the Ordinance. Factually, according to the applicant's case, the respondent had already resolved not to take action against Mr. Tam.

Power of the Corporation

20. It is clear from the wording of section 16 that the rights and obligations of the owners in respect of the common parts of a building are to be enforced by and against the corporation to the exclusion of the owners. It is in mandatory terms. This Court had been consistent in affirming this position in a series of cases dating back as early as 1978 : see Grenville House Ltd. & others v. The Incorporated Owners of Grenville House [1978] HKLR 253; The Incorporated Owners of Hoi Luen Industrial Centre & another v. Ohashi Chemical Industries (HK) Ltd. [1995] 2 HKC 11 and Chau Mei Lee Fragrance & another v. Ng Yee Tim [1996] 4 HKC 46. However, the Court has not been, until now, concerned with the issue now raised in this case.

21. To start with, of course, there is no provision in the Ordinance either to prohibit or allow a proceeding to be brought to compel the corporation to take action to enforce the DMC or the Ordinance. It is equally clear from the Ordinance that, for example, under clause 6 of the Tenth Schedule, the Tribunal has jurisdiction to hear proceedings relating to any question of law concerning ownership, occupation or possession of the whole or any part of the building. Hence, if there is a dispute between an individual owner and the corporation as to whether a particular part of the building is a common part or not, the owner may seek a determination from the Tribunal.

22. After due consideration, we are also satisfied that the Tribunal has jurisdiction to compel the corporation to take actions on matters relating to the common parts as well. The Tribunal is a statutory creature. Its jurisdiction must be conferred expressly by the legislation. The jurisdiction of the Tribunal to hear and determine any proceedings is specified by section 45 of the Ordinance as those contained in the Tenth Schedule. Clauses 1 and 2 of the Tenth Schedule deal with the proceedings relating to the interpretation and enforcements of the provisions of the Ordinance and the DMC. We are satisfied that these clauses are wide enough to cover the present situation.

23. While the owners may exercise control of the management committee of a corporation in the meetings of the owners and they can also apply to the Tribunal to dissolve the management committee and to appoint an administrator by a resolution passed at a general meeting, the legislation has not expressly prohibited an owner to take action in a situation such as the present one. To take an extreme case, if the majority of the owners had decided to act in bad faith in a matter concerning the management of the common parts, is the minority owner precluded from seeking redress in the court? The answer must be no. This cannot be the intention of the legislation. This being the case, if a minority owner can show he has a legitimate complaint regarding the common parts of the building and yet the management committee had chosen to ignore him, we see no reason why he cannot seek relief from the court. This must be one of the means to ensure that the corporation will observe the intention and requirement of the Ordinance in the proper management of a multi-owner building.

24. As we are satisfied that the applicant has established that Mr. Tam was and still is in breach of the DMC and the Ordinance, the corporation ought to have taken action against Mr. Tam. It had not done so and the application by the applicant is properly made.

Conclusion

25. Accordingly, the appeal is allowed. The following order is made :

1. The judgment of the tribunal be set aside.

2. The Respondent do take such actions, including legal actions, against Mr. Tam or the owner of the first floor and roof of Block 5 of the development, as are necessary for :-

(1) The removal of the iron gate from the landing at the cockloft level.

(2) Restraining, prohibiting and/or preventing him from :-

(a) Erecting or maintaining the iron gate and/or causing or permitting the iron gate to be erected or maintained on the landing at the cockloft level; and

(b) Converting the landing at the cockloft level or any part thereof and/or causing or permitting it or any part thereof to be converted to his own use.

3. The Respondent do take such actions, including legal actions against Mr. Tam or the owner of the first floor and roof of Block 5 of the development, as are necessary for :-

(1) Maintaining free, uninterrupted and unobstructed passage by the other owners or occupiers of the development through the staircase to the roof for the purpose of escaping from fire or other calamity in case of emergency and necessity; and

(2) Restraining, prohibiting and/or preventing him from causing or permitting any interruption and/or obstruction to passage by the other owners or occupiers of the development through the staircase to the roof for the purpose of escaping from fire or other calamity in case of emergency and necessity.

26. There will be no order as to costs on the hearing in the Tribunal. The applicant is to have the costs of the appeal, her own costs is to be taxed in accordance with Legal Aid Regulations.