黎偉雄 v. 信和物業管理有限公司

CACV 222/2019

[2021] HKCA 51

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 222 OF 2019

(ON APPEAL FROM LDBM 142/2017)

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BETWEEN

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This Court handed down the substantive judgment in this appeal on 11 June 2020. The appeal was allowed and a declaration was granted to the effect that Great Land did not have exclusive right to use and occupy the PPW[1] and the PPW is an Estate Common Area under the DMC.

2.  On 8 July 2020, the Respondent applied by a Notice of Motion for leave to appeal against the judgment of 11 June 2020 to the Court of Final Appeal.  Subsequently, the Respondent sought to amend the Notice of Motion by a summons of 31 August 2020.  The amendments sought were to reformulate the questions for determination by the Court of Final Appeal as per the advice of counsel of the Respondent.

3.  Though the amendments were opposed by the Applicant, the real issue is whether leave should be granted on the grounds as reformulated.  We grant leave to amend with an order that the Respondent should pay the costs of the summons of 31 August 2020.

4.  The re-formulated questions (as set out in the Amended Notice of Motion) are as follows (“the GPI Questions”):

“ (1) Whether a 24-hour free public pedestrian way (‘PPW’) as built in a development according to the conditions of the Government Grant of the land on which the development is erected is a ‘common area’ of the development when the same is physically situated within the part of the development reserved/owned by the developer/first owner because of:-

(a) ‘commonly contemplated function’ of the PPW to the other owners of the development and

(b) the public use of the PPW as ordained by the conditions of the Government Grant must include use of the PPW by the other owners;

as said by the Court of Appeal at §§19, 39, 41 of the Judgment (‘Question (1)’);

(2) Whether such PPW is a ‘common area’ of the development because by the physical layout and features of the development, the owners of the other parts of the development, other than the owner of the Commercial Development at where the PPW is situated, could have use of it as said in §§20, 21, 22, 32 of the Judgment of the Court of Appeal (‘Question (2)’); and

(3) Whether there would be ‘common areas / facilities’ of a distinct part of a development when the whole of that part of the development is being held by an owner in single ownership, notwithstanding there are provisions in the deed of mutual covenant for the development defining / relating to ‘common areas / facilities’ of such distinct part of the development (‘Question (3)’).”

5.  These are said to be questions of great general and public importance. 

6.  In addition, the Respondent also sought leave pursuant to the “or otherwise” limb on the following grounds:

“ (1) The identification of a part of area within multi-storey buildings as to whether it forms part of the common areas (be it the common areas of the entire development or of a distinct part of the development), where the instrument that governs the relationship of the co-owners such as the deed of mutual covenant dates back to the time when there was no guideline promulgated by the Lands Department to require a plan to be attached to the deed of mutual covenant for the purpose of identifying different categories of the common areas, is a perennial problem that grips most of the building managers or owners or owners corporations. Question (1) and Question (2) have arisen in the management of the subject development against the aforesaid background. The determination of Question (1) and Question (2) would impact on the future management of the PPW, which would in turn affect not only the owners of the subject development but also the members of the public who would be using the PPW.

(1A) Question 3 raises an issue on which there is no authoritative decision.

(2) In the circumstances, it is most desirable and of utmost importance for the Court of Final Appeal to explain, clarify and develop the jurisprudence on these important issues.”

7.  With respect, the way in which the GPI Questions were formulated presented a distorted view on our reasons for allowing the appeal.  As we have emphasized in the substantive judgment, the construction exercise is an iterative process and all relevant pointers are to be taken into account.  As it should be clear from a fair reading of the judgment, we did not concentrate on the two factors (referred to in Questions 1 and 2) in coming to our conclusion.  It should also be clear from the judgment that we have taken account of the factual and legal context of the DMC in the process (which counsel failed to address in the present application).  We have also analysed the related provisions in the DMC and the Grant (as part of the contextual material which, in our view, are highly relevant given the nexus between the DMC and the Grant).

8.  In the submissions of Mr Li SC and Mr Lee, there is no disagreement with the general approach adopted by this Court in the construction exercise as set out at [26] of the judgment.  Such approach is well supported by authorities (cited at footnotes 7 to 10 in the judgment).

9.  Nor do we understand counsel to be arguing that the common contemplated use of the PPW (as part of the layout of the Estate) cannot be a relevant factual context for the court to consider in the construction exercise.  Given the specific stipulations under the Grant (in particular Special Conditions 13 and 24(a)), the approved building plan and the layout plan attached to the sale brochures, we cannot see any basis for suggesting that we erred in taking the contemplated user of the PPW into account in order to identify if it falls within the definition of Estate Common Area (which includes any corridor and passages of a communal nature) in the DMC.  Thus, the contemplated user of the PPW must be relevant in order to see if it falls within the concept of corridor and passages in that definition.

10.  The same applies to the provisions in the DMC itself concerning Commercial Common Areas and Commercial Common Services and Facilities which were the focus under Question 3.

11.  As we have also emphasized, the construction of a DMC is a unitary exercise.  In this particular case, we considered these matters significant in light of the overall factual and legal context discussed in the judgment.  The significance of similar factors could vary in different cases.  To highlight this point, the physical layout of the PPW, its connection with the residential units through the lift lobby and its access to the MTR station are all special features in the present case.

12.  Viewed in that light, it is difficult to see how the questions could be of great general public importance.  Put it in other way, we do not see how the Court of Final Appeal can give general guidance on such matters.

13.  In the end, the arguments of Mr Li revolved around the weight to be attached to these matters.  As it should be clear from our substantive judgment, these arguments had all been duly considered by us. In that regard, in light of the holistic analysis set out in our judgment, we do not find such arguments to carry any reasonable prospect of success.

14.  For these reasons, we would not grant leave on the GPI grounds.

15.  As for the otherwise limb, it is a matter for the Appeal Committee to decide.  However, we note that the Applicant is acting in person.  Further, given the unitary nature of the exercise in question, we are not convinced that much purpose will be served by having an appeal to the Court of Final Appeal solely on the ground canvassed in the Notice of Motion under this limb.  Against such background, this may not be a suitable case for ventilating issues highlighted in the Notice of Motion under this ground.

16.  Accordingly, we dismiss the Amended Notice of Motion with costs, such costs are to be taxed if not agreed.