THE INCORPORATED OWNERS OF GRANDMARK v. SINO CHANNEL HOLDINGS LTD

THE INCORPORATED OWNERS OF GRANDMARK v. SINO CHANNEL HOLDINGS LTD

The Tribunal held that on a purposive, contextual construction of the DMC and Walls Assignment, taking account of the factual matrix and the Developer's commercial objective, the term "exterior side walls" includes all four exterior sides of the building including the front and rear facades; Sino Channel is entitled to the exclusive use, occupation and enjoyment of those walls and the injunction sought against the 3/F Owner is granted.

Citation
[2018] HKLdT 95
Parties
Applicant (ldbm 211/2015); Respondent (ldbm 117/2016): Sino Channel Holdings Limited; Respondent (ldbm 211/2015): Vast Faith Investment Limited; Applicant (ldbm 117/2016): The Incorporated Owners of Grandmark
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
14 December 2018
Case Number
LDBM117/2016
Procedural Posture
Building Management Application (lands Tribunal) / Judgment
Outcome
Declarations granted to Sino Channel that "exterior side walls" includes all four exterior walls including facades; IO's application dismissed; injunctive relief granted against the 3/F Owner; costs ordered nisi in favour of Sino Channel
Legal Topics
Interpretation of Deed of Mutual Covenant, Exclusive Use and Enjoyment, Declaratory Relief, Injunction, Admissibility of Late Evidence
Source Language
EN
Property Law Contract Law Building Management Interpretation of Deed of Mutual Covenant Exclusive Use and Enjoyment Declaratory Relief Injunction Admissibility of Late Evidence

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Parties

Sino Channel Holdings Limited

Applicant (ldbm 211/2015); Respondent (ldbm 117/2016)

Vast Faith Investment Limited

Respondent (ldbm 211/2015)

The Incorporated Owners of Grandmark

Applicant (ldbm 117/2016)

Procedural Posture

Building Management Application (lands Tribunal) / Judgment

Legal Issues

  1. 1 Proper construction of the phrase "exterior side walls" in the DMC and Walls Assignment
  2. 2 Whether the facades (front and rear) form part of the "exterior side walls" and are therefore owned exclusively by Sino Channel
  3. 3 Whether windows are excluded from the meaning of "walls" for the purpose of rights to affix signs

Ratio Decidendi

The Tribunal held that on a purposive, contextual construction of the DMC and Walls Assignment, taking account of the factual matrix and the Developer's commercial objective, the term "exterior side walls" includes all four exterior sides of the building including the front and rear facades; Sino Channel is entitled to the exclusive use, occupation and enjoyment of those walls and the injunction sought against the 3/F Owner is granted.

Court Disposition

Declarations granted to Sino Channel that "exterior side walls" includes all four exterior walls including facades; IO's application dismissed; injunctive relief granted against the 3/F Owner; costs ordered nisi in favour of Sino Channel

Orders

  • Declare that Sino Channel Holdings Limited is entitled to the exclusive use, occupation and enjoyment of the four sides of the exterior walls of Grandmark including the facades (declarations granted in LDBM 211/2015 and by counterclaim in LDBM 117/2016)
  • Dismiss the Incorporated Owners of Grandmark's application in LDBM 117/2016