松林置業有限公司 v. 名德大樓業主立案法團

CAMP 26/2018

[2018] HKCA 266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 26 OF 2018

(ON AN INTENDED APPEAL FROM LDBM NO 72 OF 2017)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.  The applicant is the developer of Ming Tak Building, Kwai Chung, New Territories (“the Building”) and the registered owner of shop premises numbers C, D, E and F (“the Shop Premises”) at the ground floor of the Building.  The respondent is the incorporated owners of the Building.

2.  The Building was designed and built in 1966.  The ground floor and 1st floor are commercial floors whereas the 2^nd to 7^th are residential floors. There are provisions of fire service equipment on the 1^st to 7^th floors.  There are water pumps and a water tank on the roof as well.

3.  On 28 February 2014, the Fire Services Department issued a Fire Safety Direction under section 5 of the Fire Safety (Buildings) Ordinance, Cap 572 to the applicant and the respondent, directing them to carry out installation/improvement of fire service equipment of the Building.  Disputes arose between the parties concerning whether the installation of automatic sprinkler and fire hydrant/hose reel system (“the Fire Services Equipment) inside the Shop Premises were to be considered as common parts.  The applicant took out an application before the Lands Tribunal for an order that the costs of such installations were to be contributed by all the owners of the Building in accordance with their respective shares on the basis that the Fire Services Equipment were common parts.

4.  By a judgment handed down on 21 December 2017 (“the Judgment”), Deputy District Judge Eric Tam refused the applicant’s application.  The applicant applied for leave to appeal but it was refused by the Judge by a decision dated 1 March 2018 (“the Leave Decision”). By way of summons take out on 14 March 2018, the applicant renews its application for leave to appeal before the Court of Appeal.

5.  We have duly considered the parties’ written submissions.  We take the view that the applicant’s application can be disposed of on paper without an oral hearing.  We now hand down our judgment.

DISCUSSION

6.  Under section 11AA(6) of the Lands Tribunal Ordinance, Cap 17 (“LTO”) :

“ Leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the registrar hearing the application for leave is satisfied that -

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

7.  We first consider if the appeal has a reasonable prospect of success.

8.  In dismissing the applicant’s application, the Judge reasoned as follows :

(i) The Fire Services Equipment to be installed in the Shop Premises are not common facilities because they are neither for the use and benefit of all owners of the Building nor is used in connection with the enjoyment of any other flat or portion of the Building.  The systems only serve the applicant’s units exclusively, especially when it is to be fixed inside the Shop Premises and it would be physically out of reach for other owners. Further, the Fire Services Equipment is to be installed independently in the Shop Premises and would not form an integral part of the Building’s fire system.

(ii) Clauses 3(b) and 3(d) of Deed of Mutual Covenant of the Building (“DMC”) and did not find them applicable to the present case as both clauses concern the maintenance of existing common facilities.

(iii) The applicant’s reliance on paragraphs 10 and 11 in Schedule 1 of the Building Management Ordinance, Cap 344 (“BMO”) was rejected because “firefighting equipment” refers to common facilities and is “intended for the use and benefit of all of the owners generally” as qualified under paragraph 10.

9.  Mr Wong, counsel for the applicant, advanced 3 grounds of appeal :

(i) The Judge erred in law in failing to consider and properly apply the statutory definition of “common parts” of a building under section 2 of the BMO where the subject DMC has no definition for common parts;

(ii) The Judge erred in law in the interpretation and application of paragraphs 10 and 11 of Schedule 1 of BMO; in particular, his view that the firefighting equipment referred in paragraph 10 is “intended for the use and benefit of all of the owners generally” would be common parts of a building and that the fire service equipment in issue was not intended for the benefit of all of the owners of the building generally; and

(iii) The Judge erred on a point of law in the conclusion that the Fire Services Equipment to be installed in the applicant’s Shop Premises as required by the relevant Fire Safety Directions does not form the common parts of the Building.

10.  As correctly identified by the Judge, the real dispute between the parties is whether the Fire Services Equipment to be installed in the Shop Premises as required under the Fire Safety Directions forms common parts of the Building.

11.  At [10] of the Judgment, the Judge rightly acknowledged that the definition of common facilities/parts should not be confined to its location, whether it is located in the common area or privately owned and designated area, but the facilities/parts should be for the use and benefit of all the owners of the Building.  The Judge went on to find at [11] of the Judgment that :

“ 11. 以此為準則，安放在該地舖內的花灑系統及消防喉轆，祇是供該單位使用，該單位亦無公用部份，所以這些裝置不屬於公用設施。”

12.  On that basis, the Judge considered at [12] of the Judgment that even though the Fire Services Equipment could decrease the risk of fire of the Shop Premises and might be of indirect benefit of the whole Building, it could not be considered as for the use and benefit of all the owners of the Building directly and therefore, would be regarded as common parts of the Building.

13.  The Judge went on to find at [13] of the Judgment that despite the Fire Services Equipment in the Shop Premises was to be connected to the fire service equipment of the Building, it did not form an integral part of the system as it was installed independently in the Shop Premises.  On this matter, Mr Wong argued that the automatic sprinklers to be installed is integrated with all other sprinkler systems of the buildings.  The Judge dealt with this argument at [9] of the Leave Decision :

“ 如判案書第13段所述，申請人的消防設施，雖然有關連，但是可獨立及自行安裝。即使沒有申請人的部份，答辯人仍然可完成其消防裝置的安裝，並作使用。雖然申請人安裝時要接駁至答辯人的系統，但申請人的部份並不是必要部份（an integral part）。”

14.  Based on the evidence before the Judge, we agree with his finding that : (i) the Fire Services Equipment are located inside the Shop Premises which share no common part of the Building, (ii) they are for the exclusive use and benefit of the applicant to decrease the risk of fire of the Shop Premises and (iii) they can be installed independently and do not form an inalienable and integral part of the fire service system of the Building.  We cannot see how the Fire Services Equipment can be regarded as common parts of the Building.

15.  Mr. Wong tried to challenge the Judge’s finding by arguing in ground 1 of the intended appeal that Judge failed to refer to or apply the statutory definition of “common parts” under Section 2 and Schedule 1 of BMO.  The Judge dealt with the matter in [6] and [7] of the Leave Decision :

“6. 本席並不接受王大律師的陳詞。按建築物管理條例第2(b)條， “附表1指明的部份，但上述文書（即土地註冊處註冊的文書所指明或指定專供某一業主使用）的部份除外”。這段的意思，應包括某一業主單位內的固定裝置（fixture）。本案中那些消防設備是安裝在申請人的單位之內的，並且屬於固定裝置，所以並不屬於附表1所寫的消防設備。

7. 如果王大律師對第10段的詮釋正確，不用理會該設施的所在位置，那在大廈內所有的照明設備，空調設備，都會變成公用設施，這明顯是不正確的。所以本席認為，此等設施，必須受「普遍供所有業主使用或為所有業主的利益而設置」的規範。申請人的消防設備安裝在其單位之內，屬於單獨使用。”

16.  As already explained, the Fire Services Equipment to be installed in the Shop Premises does not fall within the definition of commons parts under section 2 of BMO.  We agree with the analysis of the Judge at [6] of the Leave Decision. Thus, we do not consider the provisions under BMO could take the applicant’s case any further.

17.  In our view, the Judge is entitled to find, factually, that the Fire Services Equipment does not form common parts of the Building.  The applicant has failed to satisfy us that the Judge’s finding is plainly wrong.  Accordingly, there is no basis for this Court to intervene.  Ground 1 does not have any reasonable prospect of success.

18.  Grounds 2 and 3 can be dealt with together.  They concern the scope and interpretation of Schedule 1 of BMO.  Mr Wong submitted that, on its proper construction, the term “fire fighting equipment” in paragraph 10 of Schedule 1 is not in any way qualified or restricted by the phrase “intended for the use and benefit of all of the owners generally”.  We disagree.  Paragraph 10 provides :

“ 10. Lighting apparatus, air conditioning apparatus, central heating apparatus, fire fighting equipment and installations intended for the use and benefit of all of the owners generally and any room or chamber in which such apparatus, equipment or installation is fitted or installed.”

In our view, paragraph 10 must be read in its entirety.  Plainly, the phrase “intended for the use and benefit of all the owners generally” applies for all items preceding it.  There is no merit in Grounds 2 and 3.

19.  To complete our discussion, we consider the Judge right in distinguishing the cases cited by the applicant at [20] and [21] of the Judgment :

“ 20. The Incorporated Owners of Tai Fung House Lion Rock Road訴蔡英華及另三十五人LDBM 79–92/2008及95–108/2008一案中，第一段寫明，「這些裝備是安放在商場地下及閣仔的公用地方上，而這些商場的公用部份亦是該大廈的公用部份。」該地舖並無公用地方。

21. 徐偉業訴東廬大樓業主立案法團 LDBM 10/2011一案，第26段指出有部份設施，如自動花灑系統，是先前已有的。第30段指出新加的消防系統，有部份位於個別業主擁有的商舖及車位之內。明顯是有部份不是在私人擁有的地方之內，該案的大廈亦有現存的自動花灑系統。在這些背景下，該判詞才說，「這些消防設施，不論位於該大廈的公用部分或私人物業之內，也屬於該大廈的公用設施，絕非為個別業主而設。」再者，以車位為例，從案中第9段可見，集資包括大廈地庫車場的自動花灑系統的維修工程。該自動花灑系統，一般來說，附設在天花，所安裝的地方不能算是屬於車位業主所擁有。車場亦必有公用通道。該舖位並非商場，上述案例與本案的案情並不相同，所以並不適用。”

20.  For the above reasons, we hold that there is no reasonable prospect of success for the applicant’s intended appeal.

21.  Further, we can see no reason why in the interest of justice the matter has to be heard by the Court of Appeal either.

Conclusion

22.  Accordingly, we refuse to grant leave and dismiss the applicant’s application.  As the application is entirely without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that no party may request our decision to be reconsidered at an oral hearing inter partes.

23.  Costs should follow the event.  We make an order nisi the applicant is to pay the respondent’s costs, which we summarily assess at nisi HK$60,000.