GREEN & GRACE LTD v. INCORPORATED OWNERS OF WANG LUNG INDUSTRIAL BUILDING AND ANOTHER

LDBM 158/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 158 OF 2014

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J U D G M E N T

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Undisputed Facts

1.  The applicant is the owner of Workshop No 4 on 23^rd floor (“the Workshop”) of the Wang Lung Industrial Building (“the Building”).

2.  The 1^st respondent is the Incorporated Owners of the Building (“IO”) and the 2^nd respondent is the developer of the Building (“the Developer”). 

3.  On 9 July 2012, the IO received letters from the Fire Services Department and the Buildings Department requiring repair work to be conducted to the Building.

4.  The IO passed a resolution in the general meeting of the owners held on 17 January 2013 for maintenance and renovation works to be conducted for the Building, including inter alia, work to the external walls of the Building.  At the general meeting of the owners held on 25 July 2013, the respective share each owner should contribute to the repair costs was also determined.  The applicant should be liable to pay its share of $124,712 (“A’s Share”).

5.  Despite demand letter and warning letters being sent, the applicant failed to pay for the shared contribution of the maintenance and renovation works.  A Memorandum of Charge dated 31 March 2014 (“the Charge”) was registered by the IO against the Workshop.

6.  The applicant had paid a cheque dated 31 May 2014 in the sum of $38,432.10 and another cheque dated 4 June 2014 in the sum of $48,866.30 representing 70% of the A’s Share to the IO.  A cheque dated 4 June 2014 was also sent to the IO in settlement of the legal costs for the Charge and asked for the Charge to be discharged upon receipt of the same.  The 2 cheques supposed to be payment of A’s Share had been returned by the IO.

7.  On 23 June 2014, the applicant issued the Notice of Application (“NOA”) in this case against the IO asking for a declaration that the obligation to maintain the external walls should lie on the Developer of the Building and for the discharge of the Charge.  The IO had filed its Notice of Opposition on 20 August 2014.  At the hearing on 12 September 2014, leave is granted for the applicant to add the developer of the Building as the 2^nd respondent in this case with consequential directions concerning amendment of the pleadings.

8.  On 17 February 2015, the applicant discontinued its claim against the Developer and re-amended the NOA on 6 March 2015 to seek for a discharge of the Charge only.

Relevant Provisions in the BMO and DMC

9.  Section 34H of Building Management Ordinance (“BMO”)

“34H (1) Where a person who 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.”

10.  Clause 7(c) and (d) Section I of the Deed of Mutual Covenant (“DMC”) (page 67-69 of Bundle A)

“7. Notwithstanding any provision to the contrary herein, there is reserved unto the Registered Owner its successors and assigns the following rights and privileges :-

(a) …

(b) …

(c) the exclusive right and privilege to hold use occupy and enjoy or otherwise dispose of or deal with the external walls of the Building.

(d) the exclusive right and privileges to, and to permit its or their licensees to, display, install, erect, affix, attach, dismantle, remove, repair, service and maintain to, in, on or from the Upper Roof … and/or the external walls of the Building or any part or parts thereof (i) signboards, neon signs … Provided Always that the Registered Owner and its successors and assigns having such exclusive right and privilege shall not be required to repair and maintain the … external walls of the Building or any part or parts thereof … save as provided in the following proviso and Provided that in displaying, installing … or maintaining any such signboards, neon signs … as aforesaid, the Registered Owner … shall at its or their own costs and expenses :-

(A) obtain the requisite approval of the Director of Buildings and Lands and other Government Authorities concerned,

(B) observe and comply with all the laws and regulations for the time being in force and applicable thereto,

(C) make good all damage done to the Building occasioned thereby,

(D) remove, dismantle or replace the same if and whenever the same shall constitute any danger or hazard to the safety of the other Owners and/or occupiers of the other parts of the Building and/or any other person, and

(E) indemnify and keep indemnified the other Owners and occupiers for the time being of the other parts of the Building against all loss, damage, injury, costs, expenses, actions, claims and demands whatsoever arising out or on account thereof or of any defects therein or of the failure to maintain the same in proper repair and condition.”  

11.  Clause 16 to 18 Section IV of the DMC (page 72-73 of Bundle A)

“16. No owner shall be entitled to connect to any aerial installed by the Manager except with the permission of the Manager and in accordance with any House Rule relating to the same. No owner shall affix or install his own private aerial outside any part of the Building.

17. Subject to the provisions of Clause 7 of Section I, no external sign, signboard, notice, advertisement, flag, banner, pole, cage or other projection or structure whatsoever extending outside the exterior of the Building shall be erected, installed or otherwise affixed or projected from the Building or any part thereof except with the prior permission of the Manager.

18. Subject to the provisions of Clause 7 of Section I, no Owner shall do or permit to be done any act or thing which may or will alter the external appearance of the Building without the prior consent in writing of the Manager.”

12.  Clause 25 Section IV of the DMC (page 73-74 of Bundle A)

“25. Subject to the provisions of Clause 7 of Section I, no Owner shall erect, affix, install, attach to or in or on or display from the interior or exterior of any Workshop or permit or suffer to be so erected, affixed, installed, attached to or in or on or displayed from the interior or exterior of any Workshop any advertising or other sign of any description … without the previous written approval of the Manager…”

13.  Clause B1(4) Section V of the DMC (page 78-79 of Bundle A)

“B. Powers and Duties of Manager

1. The Manager will manage the Building in a proper manner and in accordance with the provisions of this Deed and… Without in any way limiting the generality of the foregoing the Manager shall have the following duties :-

(1) (a) At such times as circumstances require to employ a competent and qualified person or persons to inspect the entire Building…

(2) …

(3) …

(4)     To paint, white-wash, tile or otherwise treat as may be appropriate the exterior walls of the Building and the Common Area at such intervals as the same may reasonably be required to be done.”

Applicant’s Contention

14.  According to the Re-Amended NOA, the applicant alleged that the resolution passed on 17 January 2013 was ultra vires since the exclusive right to hold use occupy and enjoy or otherwise dispose of the external walls of the Building is reserved unto the Developer according to Clause 7(c) Section I of the DMC.  Hence, under Section 34H of the BMO, costs of the renovation work to the external walls shall be borne by the Developer and not the other owners of the Building.

15.  It is the submission of Mr Lee for the applicant that the whole case turns on whether Section 34H of the BMO (“S34H”) is applicable in this case.  If S34H is applicable, the resolutions of 17 January 2013 and 25 July 2013 requiring all owners to share the costs of repair of the external walls shall be null and void and the IO is not empowered to demand payment from the applicant.  Hence, the Charge should be discharged.  

16.  It is submitted that both the 1^st Assignment (page 127-143 of Bundle A) and Clause 7(c) Section I of the DMC gives the Developer exclusive use and enjoyment of the external walls.  This means the external walls is not a common part of the Building and Schedule 1 of the BMO is not applicable.  Even though the Developer is having the exclusive use and enjoyment of the external walls, Clause 7(d) Section I provided that the Developer is not required to shoulder the obligation of repair and maintenance of the external walls.  This is what S34H is targeted at so irrespective of Clause 7(d) Section I of the DMC, S34H should be applicable which have the effect that the Developer should be responsible for the renovation costs of the external walls. 

17.  Mr Lee relied on the judgment of Uniland Investment Enterprises Ltd v IO of Sea View Estate & Anor [1999] 4 HKC 141 which found that the words “that person” in S34H is “specifically aimed at redressing the situation where a developer creates for itself, its successor, or anybody, in the DMC a right to exclusive possession of any part of the building without a corresponding obligation to maintain that part of the building” (at 145B) to support his contention. 

18.  Mr Lee also submitted that whilst the provision under Clause 16 of DMC does not touch upon the external walls and irrelevant, Clause 17, 18 and 25 Section IV of the DMC have the opening words of “Subject to the provisions of Clause 7 of Section I”. This means the Developer’s use and enjoyment of the external walls is not affected by these provisions, ie no consent of the Manager is required for the Developer’s use of the external walls.  So the exclusive right of the Developer is intact.

19.  And even though it is the duty of the Manager under Clause B Section V of the DMC to carry out the management of the Building, this does not mean that the repair costs have to be borne by the Manager or all the owners.

20.  Mr Lee also relied on the following judgment in support of his contention that nothing in Clause 7(d) Section I of the DMC had the effect of depriving the exclusive right granted to the Developer under Clause 7(c).

IO of Goa Building v Wu Tat Co Ltd [2004] 1 HKC 348

IO of Hong Leong Industrial Complex & Anor v HL Resources Ltd & Anor [2010] 4 HKC 463

Wong Lai Kai v IO of Lok Fu Building, Yuen Long [2000] 3 HKC 633

Respondent’s Reply

21.  Ms Yip for the IO submitted that the costs of repair and maintenance for the external walls of the Building should be borne by all owners including the applicant and such a contention is based on 3 grounds:

(a) the rights conferred to the Developer is not exclusive so S34H is not applicable ;

(b) the external walls is a common part of the Building; and

(c) the obligation imposed on the Developer to maintain the external walls is limited.

No exclusive right

22.  No undivided share is allocated to the external walls, therefore the Developer does not own the external walls.  Clause 7(c) and (d) Section I of the DMC conferred on the Developer the right to use and enjoy the external walls but such a right is subject to various limitations and qualifications including :

(a) Clause 17 and 18 Section IV where consent have to be obtained from the Manager of the Building before any action specified involving the external or exterior of the Building including the external walls can be taken and any other owner has the same right as long as the Manager so approves and the Developer has no right to veto;

(b) Clause 16 and 25 Section IV where the Manager has the managerial power and right to manage the exterior of the workshop, this should include the external walls;

(c) Clause B1(4) Section V specifically imposed the duty to maintain the external walls on the Manager and such should also couple with an equal extent of right to control.

23.  In support of the contention that the Developer’s right to the external walls cannot be full and exclusive, Ms Yip relied on the case of IO of Hong Leong Industrial Complex (supra) in which the finding of the court is that “whatever possession and right to exclusive use that the first defendant had in relation to the external wall, it necessarily was subject to anything that the Manager may permit” (at §15). 

24.  Given the restrictive right of the Developer in the external walls, S34H should not be applicable.

External Walls is a common part of the Building

25.  Common areas is defined in Clause (1)(a) of the DMC and the external walls is not amongst it but this clause does not provide an exhaustive list of the common parts since the word “includes” is being used.  And if there is ambiguity and uncertainty found in the DMC, it is necessary to turn to the definition in the BMO (as per Tong J in The IO of Kimberley House v Peace Book Company Limited unreported HCA 19452/1999 12 January 2001 at §17 and 22).  

26.  It is submitted that Clause 7(a) to (c) Section I of the DMC are of similar nature, ie referring to the exclusive right of the Developer to use and enjoy certain parts of the Building.  Clause 7(a) refers to the Upper Roof, Clause 7(b) refers to the Flat Roofs, both parts are defined in the DMC as “Common Areas”. By grouping the provisions in respect of the Upper Roof, the Flat Roof and the external walls under Clause 7 suggests that the Developer intended to treat all these parts as having the same status as common parts.  As found by Rogers VP (as he then was) in Goa (supra) that “it is impossible to ignore the fact that clause 1.01 refers not only to the external walls but also to the parts of the building in common use.  To suggest that the common parts of the building were thus either in the exclusive possession of the respondent or that the respondent had the exclusive right to the use, occupation or enjoyment thereof would be self-contradictory and absurd” (at §6). 

27.  In Schedule 1 of the BMO, common parts include external walls.  In view of the ambiguity as to the Developer’s right to exclusive use of the common area in Clause 7, the definition of common parts in the BMO should apply.

28.  In any event, Ms Yip agreed that should this Tribunal find that the Developer has the exclusive use and enjoyment of the external walls, the argument that the external walls is part of the common area cannot stand.

Duty of the Developer to maintain

29.  The obligations of the Developer in the repair and maintenance of the external walls are governed by Clause 7(d) Section I and not S34H of BMO.  Pursuant to Clause 7(d), the Developer will only be required to repair and maintain the external walls for a condition caused by its exercising of rights under the DMC and not the whole of the external walls in all circumstances.  Clause 7(d) provides for the only use the Developer can make of the external walls and the duty to indemnify the other owners as to damages to the external walls only.  Where the condition of the external walls was caused by fire and natural wear and tear as in the present case, this does not fall within the situation stated in Clause 7(d) Section I.  The applicant cannot rely on S34H to absolve itself from the obligation to contribute to the repair costs of the external walls.

Discussion

30.  I shall deal with the 1^st respondent’s contention in seriatim.

Exclusive Use

31.  Clause 7(c) Section I of the DMC had unreservedly conferred on the Developer the exclusive use and enjoyment of the external walls.  The gist of the argument of the 1^st respondent is that there are other terms in the DMC which showed that the rights granted to the Developer under Clause 7(c) is not exclusive and is restricted. 

32.  I found such a contention misconceived.  The other terms of the DMC is either irrelevant or had specifically reserved the Developer’s right under Clause 7.

33.  There is a common feature in Clause 17, 18 and 25 Section IV in that each clause, on the face of it imposed some restrictions on the owners, commenced with the words “Subject to the provisions of Clause 7 of Section I”.  Ms Yip had also agreed in her submission that such a clause reserved the rights of the Developer who requires no consent of the Manager to do anything stipulated in these 3 clauses.  So, the Developer’s right under Clause 7 Section I had been specifically preserved and had not been affected by Clause 17, 18 and 25 Section IV.

34.  I found the case of IO of Hong Leong Industrial Complex (supra) relied upon by Ms Yip does not assist the 1^st respondent.  In Hong Leong, Sakhrani J found at first instance that para (j) 4^th Schedule of the questioned DMC does not grant exclusive right of use and enjoyment of the external walls to the defendants.  On appeal, such a finding was upheld and it is also found that although Clause 2(b)(i) of the questioned DMC appeared to grant exclusive right to use and enjoyment of the external walls to the defendants, para (k) 4^th Schedule and Clause 12(a) and (b) of the questioned DMC points to the contrary since the Manager could permit other owners to make use of the external walls.

35.  Ms Yip is trying to rely on the findings about the Manager’s power to permit in Hong Leong and submitted that Clause 17, 18 and 25 Section IV of the DMC in this case have the same effect of riping the Developer whatever exclusive right granted under Clause 7.  However, from the reading of the judgment of Hong Leong (both at first instance and on appeal), even though there were other terms in the DMC that empowered the Manager to give permission for any use of the external walls in a particular way, the exact wordings of these terms are unknown to the reader.  It is not clear whether similar words having the effect of reserving the developer’s right (like “subject to Clause 7 of Section I” in the present case) is part of the terms in the questioned DMC.  Judging from the findings of the Court of Appeal, the reasonable inference must be that there was no such provisions, otherwise the Court of Appeal would not have missed out such material part in its consideration.  Given the difference in the wordings of the term of the DMC, the finding in Hong Leong can be distinguished and is not applicable.

36.  I found Clause 16 Section IV of the DMC is irrelevant and does not touch upon the external walls of the Building.  Clause 16 talks about “outside any part of the Building”.  I do not accept that the external walls can be considered a portion “outside” the Building; rather the external walls should be the exterior of the Building instead.

37.  As for Clause B1(4) Section V which imposed on the Manager the duty to maintain the external walls in terms of painting and white-washing, I agree with Mr Lee that such a term should be void as being inconsistent with S34H.

38.  And I found the judgment of Uniland is more relevant to our case.  The plaintiff in Uniland (supra) is the owner of the outer and flat roof of a building.  Under the DMC, the plaintiff was entitled to the exclusive possession, use and enjoyment of the outer wall and flat roof while the management company was responsible for the maintenance with costs to be shared by the other owners of the building.  The issue for the determination of the court was whether the provisions of the DMC as to liability for maintenance of the outer wall and flat roof had been rendered void by the combined effect of SS34H and 34C(2) of the BMO.  Deputy Judge A To (as he then was) found that :

(a) The purpose of S34H was to provide that ‘that person’ who owned any part of a building, had the right to the exclusive possession or exclusive right to the use, occupation or enjoyment of any part of a building, had the duty to maintain that part in good repair and condition (at 144H-145D);

(b) The obligation to pay in discharge of one’s duty goes with the duty to maintain; to divorce the obligation to maintain from the obligation to pay for the discharge of that obligation would render that subsection nugatory, if the owners to whom the obligation is owed have to pay for the discharge of that obligation (at 145D-145G);

(c) S34H is aimed at redressing the imbalance or inequity built into the DMC by the developer and the purpose of S34H is to impose on the owner, occupier or user of a particular part of the building the obligation to maintain that part of the building, even if he is released from such obligation under the provisions in the DMC (at 145H-146C), and

(d) Clause 8 of the DMC is therefore void as being inconsistent with S34H (146E-146F).

39.  I agree with the findings in Uniland quoted above.  And applying such findings into this case, since the Developer is having the exclusive right to use and enjoy the external walls, it should be responsible for the maintenance of the same in accordance with S34H.  Clause B1(4) Section V of the DMC which imposed the duty on the Manager must be inconsistent with S34H and void.

40.  Furthermore, Section 34C(2) of BMO (“S34C(2)”) provided that “In the event of any inconsistency between this Part and the terms of a deed of mutual covenant or any other agreement, this Part shall prevail”.  S34H is a provision under Part VIA, the Part mentioned in S34C(2).  So, given the fact that Clause B1(4) Section V of the DMC in this case is inconsistent with S34H, the provision of S34H should be the prevailing provision rendering Clause B1(4) Section V not applicable and should not be relied upon.

41.  I have drawn the parties’ attention to the judgment of 鄭惠娟對永利中心業主立案法團及另一人 CACV137/2006 14 March 2007 which is a case involving similar fact as in Uniland.  The Court of Appeal found that the obligation to maintain under S34H does not confine to only those who had exclusive possession or use and enjoyment of the external walls but anyone who is required to shoulder the same by contractual agreement including by way of agreed terms in a DMC (at §§18-20).  It is the finding of the Court of Appeal that even though the developer do have exclusive possession and enjoyment of the external walls, the relevant provision in the DMC imposed the duty on the management company to repair the same, so both the IO and the management company bear the responsibility to repair and maintain the external walls as well (at §§21-28).

42.  Ms Yip submitted that the case of 鄭惠娟 is directly on the point and Clause B1(4) Section V of the DMC in this case specifically imposed the duty of maintaining the external walls on the manager, so the sole responsibility towards the external walls falls on the IO and not the Developer.  And even though S34C(2) of the BMO had not been mentioned in the discussion part of the judgment, this had in fact been raised in counsel’s submission (§14 of the judgment) so the Court of Appeal should be aware of this provision and should have considered the same in its decision.

43.  Mr Lee for the applicant submitted that the case of鄭惠娟 should not be relied upon because should S34C(2) of the BMO have been considered by the Court of Appeal, S34H should prevail imposing obligation on the owner only and a finding of concurrent obligation could never stand.

44.  From reading the judgment of 鄭惠娟, one can see that the case of Uniland had not been brought to the attention of the Court of Appeal hence such had not been considered.  And even though S34C(2) had been raised in counsel’s submission, the Court of Appeal had not touched upon the same in its reasoning.  With S34C(2) specifically dealing with the inconsistencies between “a deed of mutual covenant or any other agreement” with S34H and the provisions of S34H should prevail, I agree with Mr Lee that the Court of Appeal in 鄭惠娟  must have not considered the effect of S34C which specifically disallowed any concurrent liability to be imposed by way of the DMC or any other agreement.  I found the judgment of 鄭惠娟should not be followed.

45.  I found Clause 7(c) Section I of the DMC did confer on the Developer exclusive right to the use, occupation and enjoyment of the external walls of the Building and such a right had not been affected by any other provisions in the DMC.

Common Parts

46.  According to Section 2 of the BMO, common parts 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

(b) unless so specified or designated, those parts specified in Schedule 1.”

47.  As rightly found by Suffiad J in the case of Lily Tse Lai Yin & Ors v The Incorporated Owners of Albert House & Ors HCPI 828/1997 (23 December 1999) :

“Part (a) of the definition of “common parts” under the Building Management Ordinance is worded such that the common part of any building can only be determined by a process of elimination — eliminating all those parts of the building specified or designated in an instrument registered in the Land Registry as being for the exclusive use, enjoyment or occupation by an owner.  Moreover, Part (b) of the definition must be read in conjunction with Part (a) and nothing in the Ordinance suggests that those parts listed in First Schedule of the Building Management Ordinance is an exhaustive list of the common parts of a building,” (at page 18)

48.  Applying the reasoning in Lily Tse Lai Yin quoted above, to determine whether the external walls in this case is a common part of the Building, one should start with the DMC and the assignment, being instrument registered in the Land Registry, to see if there is anything in these instruments which provided that the external walls of the Building is for the exclusive use, enjoyment or occupation by an owner.

49.  It is beyond argument that Clause 7(c) Section I of the DMC had specifically provided that the external walls are to the exclusive use and enjoyment of the Developer. And from the assignment produced in this case, such an exclusive right towards the external walls was also specifically reserved in the Schedule of the assignment.  Under such circumstances, I can’t see how the 1^st respondent can argue otherwise that the external walls are common parts of the Building.

50.  I found the argument by Ms Yip that, since the external walls was being mentioned with other common parts of the Building in Clause 7 Section I, this rendered the external walls a common parts as well, cannot stand.  As can be seen from the starting words of Clause 7 Section I, the purpose of the section is to state the rights and privileges assigned to the 2^nd respondent as the developer.  To suggest that the mentioning of other common parts in this section together with the external walls connotes the inference that all mentioned must be common parts as well is in ignorance of the specific provisions in the definition section of the DMC which defined “Common Areas” of the Building.  Whilst the Flat Roof and the Upper Roof of the Building are included in the definition, the external walls are not amongst the list.  Had the external walls been a common area of the Building, one would wonder why it was not mentioned in the definition of common areas in the DMC.  And in the definition of common areas, not all Flat Roofs are common areas since the definition said “all the Flat Roofs in the Building except those Flat Roofs designated for the exclusive use and occupation of an individual Owners or occupier”.  So to say that the Flat Roofs mentioned in Clause 7 Section I is a common area of the Building is a fallacy.

51.  As for the case of Goa, I found the quotation in this judgment relied upon by Ms Yip (quoted at §26 above) is irrelevant.  In Goa, it is the findings of the court that “the respondent was given rights in respect of various matters such as the erection of signs and signboards and flu pipes, it was not given either the exclusive possession of the external walls or the exclusive right to the use, occupation or enjoyment thereof” (at §4) (emphasis added).  This is apparently not the situation in the present case given my findings above.  So I cannot see how the findings in Goa can assist the 1^st respondent.

52.  I found the external walls is not a common part of the Building.

Developer’s Duty to Maintain

53.  Ms Yip relied on Clause 7(d) Section I of the DMC to argue that the Developer should have no duty in maintaining the external walls and the duty imposed on the Developer over the external walls is only confined to the situation stipulated in this clause.  Having said so, Ms Yip also accepts that should this court find the Developer had exclusive right to use and enjoy the external walls, her argument under Clause 7(d) Section I cannot stand.

54.  Given the findings above that the Developer did enjoy exclusive right of use and enjoyment over the external walls which is not a common part of the Building, applying the reasoning in Uniland, Clause 7(d) Section I which provided that the Developer had no duty to maintain the external walls must be considered inconsistent with S34H and thus void.

55.  As for the other proviso in Clause 7(d) Section I under sub-paragraph (A) to (E), I found these are specific obligations imposed on the Developer on its exercising the right to “display, install, erect, affix … signboards” on the external walls, including compliance with the relevant laws and regulations, duty to maintain such signboards etc and to indemnify the other owners against any loss arising from the failure to maintain such signboards.  This is not a duty to maintain the external walls as such.

Conclusion

56.  I found the Developer do have exclusive right to hold, use, occupy and enjoy the externals walls of the Building, hence S34H of BMO is applicable in the sense that the Developer should shoulder the obligation in the repair and maintenance of the external walls.  Under such circumstances, the Developer should also bear the costs and expenses to maintain the same and the other owners of the Building should not be required to pay for the repair costs concerning the external walls.

57.  Given such findings, the applicant should not be required to pay for the costs and expenses in the repair and maintenance of the external walls.  It is accepted by Ms Yip for and on behalf of the IO that should the court find that the applicant is not required to pay for the repair of the external walls, the attempted payment by the applicant by way of the 2 cheques should be more than sufficient to discharge the applicant’s liability towards the other renovation costs of the Building, and the Charge should be discharged. 

58.  It is ordered that :

(a) The Memorandum of Charge Memorial No 14040200820066 dated 31 March 2014 be discharged; and

(b) Costs order nisi that costs of this application be to the applicant, to be taxed if not agreed at District Court scale.  Unless any of the parties apply by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.