THE INCORPORATED OWNERS OF VIKING GARDEN v. GOLDEN BRAINS LTD AND ANOTHER

[When these is no dispute as to the material facts, the court will (if the parties agree) be prepared to treat an application for an interlocutory injunction as the trial of the action]

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. This is an application for an interlocutory injunction; but there is no dispute as to the material facts and, prompted by a suggestion from the bench, the parties have very sensibly agreed to treat this application as the trial. of the action.

2. The plaintiff is a body corporate, incorporated under the provisions of the Multi-Storey Buildings (Owners Incorporation) Ordinance, Cap. 344 ("the Ordinance"). The 1st defendant is the owner of 16/4200th shares in Viking Garden, being the shares allocated, by a Deed of Mutual Covenant dated 28th March 1977 ("the DMC") to the Main Roofs A and B of Viking Garden. The 2nd defendant is a company to whom the 1st defendant has granted a licence to use the roof space for the erection of an illuminated advertising sign.

3. Viking Garden, in Causeway Bay, was built about 15 years ago. It is a multi-storey residential development comprising 2 identical concrete framed blocks (Blocks "A" and "B"), with 25 floors each. A typical floor consists of 8 flats and a central core space housing the lifts, staircases and a lobby/corridor. At roof level above the two blocks there is a concrete structure housing the lift shafts, staircases and passage, the lift machine room and (at the top) the water tanks serving the buildings (I shall call this "the roof structure").

4. Under the DMC the owner of the roofs of Viking Garden has the sole uninterrupted and exclusive right to erect, construct and install one or more sign, signboards or advertisements (whether illuminated or otherwise) or other structures on the said roofs (see Clause 5 of the DMC).

5. On 30th March 1977, the 16/4200th shares (together with other property) allocated to the roof space by the DMC were assigned by the first owner to Boomland Housing Ltd. ("Boomland") which, on 21st November 1986, assigned them on to the 1st defendant. The 1977 assignment carried with it (among other rights) the right to "the use occupation and enjoyment of .... the whole of the main roofs A and B of the said building which are shown and coloured pink .... on .... the roof plan hereto annexed". The roof plan annexed to the 1977 assignment shows coloured pink the whole of the roofs of Blocks A and B excluding the roof structure, which is shown uncoloured. The result, in my judgment, was that Boomland took under the 1977 assignment the 16/4200th shares allocated to the roofs and a right to the use, occupation and enjoyment of the roofs at roof level, but no right to the use, occupation or enjoyment of any part of the roof structure. The 1st defendant, as Boomland's assignee, is in the same position as Boomland.

6. The plaintiff has the right to the control, management and administration of the roof structure : see section 15(1) of the Ordinance.  This follows from the fact that, for the purposes of the Ordinance, the roof structure forms part of the "common parts" of Viking Garden : see the definition section, section 2, of the Ordinance, where the expression "common parts" is defined as including the whole of the building, except such parts as are specified as being for the exclusive use, occupation and enjoyment of an owner.  The roof structure is part of Viking Garden, but no owner has the benefit of any grant of the exclusive use, occupation and enjoyment of the roof structure. The result, in my judgment, is that the defendants are not (as they have claimed to be) entitled to anchor an illuminated advertising sign to the roof structure without the consent of the plaintiff.

7. Counsel for the defendants pointed to the fact that, on the plan annexed to the DMC, no part of the premises at roof level is shown coloured at all, whereas the common parts, at other levels, are shown coloured blue. Therefore, he said, the roof structure, or at least the external skin of the walls of that structure, which is part of the boundary of the roof spaces, must be included in the premises of which the 1st defendant has the exclusive use, occupation and enjoyment. But this does not at all seem to me to follow, and I reject this argument. He also argued that the 1st defendant must have an implied right to anchor an illuminated advertising sign to the roof structure, for the better enjoyment of the right granted to it under the DMC to erect an illuminated advertising sign on the roof space. Certainly, if the, refusal of the plaintiff to consent to the proposed sign being annexed to the roof structure would render nugatory the right to erect it, there would be no answer to this argument. But, in my opinion, it is not sufficient to show that the affixing of this illuminated advertising sign to the roof structure would merely be convenient.

8. For these reasons, I have come to the conclusion that the defendants are not entitled to affix to the roof structure the illuminated advertising sign which they propose to erect on the roof space. I will therefore make a declaration to that effect; and, if necessary, I shall grant an injunction accordingly

9. I shall make an order that the costs of this action be taxed and paid by the defendants to the plaintiff. I am indebted to both counsel for their careful arguments; I have not. Referred to the various authorities cited to me because, since the question is simply one of the true construction of the DMC and the 1977 assignment, authority is of no assistance.