THE INCORPORATED OWNERS OF HONG LEONG INDUSTRIAL COMPLEX AND ANOTHER v. HL RESOURCES LTD AND ANOTHER

bjbj HCA 2572/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 2572 OF 2005 BETWEEN THE INCORPORATED OWNERS OF HONG LEONG INDUSTRIAL COMPLEX 1st Plaintiff WING KEE PRODUCE LIMITED on behalf of itself and all other owners of HONG LEONG INDUSTRIAL COMPLEX except HL RESOURCES LIMITED formerly known as HONG LEONG INVESTMENT COMPANY LIMITED and BRAND PROPERTY MANAGEMENT LIMITED formerly known as HONG LEONG INDUSTRIAL COMPLEX LIMITED 2nd Plaintiff HL RESOURCES LIMITED formerly known as HONG LEONG INVESTMENT COMPANY LIMITED 1st Defendant BRAND PROPERTY MANAGEMENT LIMITED formerly known as HONG LEONG INDUSTRIAL COMPLEX LIMITED 2nd Defendant Before : Hon Sakhrani J in Court Date of Hearing : 8 and 10 July 2009 Date of Judgment : 28 July 2009 J U D G M E N T Introduction AUTONUMOUT The 1st plaintiff is the body corporate of the owners of the building known as Hong Leong Industrial Complex ( the building ) at 4, Wang Kwong Road, Kowloon. The 1st plaintiff was incorporated under the Building Management Ordinance Cap. 344 ( the Ordinance ) on 30 May 2002. AUTONUMOUT The building is an 8 storey industrial building consisting of workshops and godowns. AUTONUMOUT At all material times the 2nd plaintiff was the owner of workshop B on the ground floor of the building since 15 April 1997. The 2nd plaintiff brings this action against the defendants on behalf of itself and all other owners of the building except the 1st and 2nd defendants. The 2nd plaintiff has joined as a plaintiff in this action as the 1st plaintiff was not incorporated until 30 May 2002. AUTONUMOUT The 1st defendant was the developer of the building. The 2nd defendant was at all material times until 1 November 2002 the manager of the building responsible for the management, operation, servicing, maintenance and repair and insurance of the building. AUTONUMOUT Being dissatisfied with the 2nd defendant s performance as manager of the building, the 1st plaintiff removed the 2nd defendant as manager with effect from 1 November 2002. AUTONUMOUT The 2nd defendant, whilst being the manager of the building, was in possession and control of the management fund of the building consisting of funds collected from and contributed by all the owners of units in the building. AUTONUMOUT The 1st and 2nd defendants are related companies. The 1st defendant and HL Asia Ltd at all material times were the only directors and shareholders of the 2nd defendant each holding one of the two issued shares of the 2nd defendant. At all material times HL Asia Ltd was also the majority shareholder of the 1st defendant holding 20,399,999 shares of its 20,400,000 issued shares. AUTONUMOUT By a deed of mutual covenant dated 10 March 1987 ( the DMC ) entered into amongst the 1st defendant of the first part, the 2nd defendant of the second part, the Kwangtung Provincial Bank of the third part and Wong Ching Fai and Yeung Wai Lin ( the second owner ) of the fourth part, the 1st defendant and the second owner agreed with the 2nd defendant for the 2nd defendant to undertake the management, operation, servicing, maintenance, repair and insurance of the building on the terms and conditions mentioned therein and the parties to the DMC further agreed to enter into the DMC for the purposes of making provision for such management and of defining their respective rights interests and obligations in the building in the manner therein appearing. AUTONUMOUT Under the DMC the land and the building standing on the land were notionally divided into 9,560 equal undivided parts or shares. AUTONUMOUT The allocation of shares was set out in the Second Schedule to the DMC. 3 shares were allotted to the roof. 58 shares were allotted to the items under The Developer s Shares which included : (G) Roof : - Upper parts of Water Tanks, Flat Roof(s) (not specifically assigned). AUTONUMOUT The plaintiffs case is that the 1st defendant as the developer was the owner and had the right of exclusive possession and/or the exclusive right to the use, occupation or enjoyment of : (1) the roof of the building ( the roof ) in respect of which 3 of the 9,560 equal undivided parts or shares of the building were allotted; and (2) the external wall of the building ( the external wall ) which is and at all material times was included in the developer s shares allotted to the 1st defendant. AUTONUMOUT The defendants deny that the 1st defendant owned the roof and had the right to the exclusive possession or the right to the exclusive use, occupation or enjoyment of the same. They also deny that the 1st defendant had the right to the exclusive use, occupation or enjoyment of the external wall. AUTONUMOUT During the period between about December 1999 and July 2000 the 2nd defendant as the manager of the building applied a total sum of $2,180,000 out of the management fund towards the repair and maintenance of the roof. AUTONUMOUT During the period between about November 1999 and May 2000 the 2nd defendant as the manager of the building applied a total sum of $121,000 out of the management fund towards the repair and maintenance of the external wall. AUTONUMOUT By clause (a) of the Fourth Schedule to the DMC the owner for the time being of each undivided share in the building was obliged to keep the interior of his own part of the building in good and tenantable repair and condition and to maintain the same in a manner so as to avoid any loss, damage, nuisance or annoyance to the owners or occupiers of any other part of the building. AUTONUMOUT The plaintiffs case is that the 1st defendant failed in its obligation under clause (a) of the Fourth Schedule to the DMC to keep the roof and the external wall in good and tenantable repair and condition and to maintain the same in a manner so as to avoid any loss, damage, nuisance or annoyance to the owners or occupiers of other parts of the building. Alternatively, the plaintiffs case is that the said failure on the part of the 1st defendant to maintain the roof and the external wall was a breach of the statutory duty under section 34H of the Ordinance on the part of the 1st defendant to maintain the roof and the external wall in good repair and condition. AUTONUMOUT The plaintiffs claim the total sum of $2,301,000 ($2,180,000 + $121,000) as damages against the 1st defendant with interest thereon. AUTONUMOUT The plaintiffs also claim against the 2nd defendant for wrongly applying the said sums of $2,180,000 and $121,000 out of the management fund towards the repair and maintenance of the roof and external wall respectively. The plaintiffs claim against the 2nd defendant for an order that the 2nd defendant do compensate the plaintiffs in equity by payment of the said sums with interest and for an account of all sums misappropriated by the 2nd defendant out of the management fund and an order for payment of all sums found due on the taking of the account. AUTONUMOUT The plaintiffs also claim damages for conspiracy against both defendants. No damages are claimed in addition to the said sums and nothing turns on the additional claim based on conspiracy. The Issues AUTONUMOUT The issues have been agreed. AUTONUMOUT As regards the sum of $2,180,000 expended by the 2nd defendant for repair and maintenance of the roof, it is common ground that the whole of this sum was incurred for the repair and maintenance of the waterproofing layer or system of the roof. AUTONUMOUT Mr Tang, for the defendants, submitted, correctly in my view, that the crucial issue in relation to the roof is : Issue 1 : Is the waterproofing layer in the floor slab of the roof a common part of the building? If it is a common part of the building, then the 2nd defendant was obliged to incur expenses for the repair and maintenance of the same and that is the end of the plaintiffs claim in relation to the sum of $2,180,000. Issues 2 and 3 do not arise. If it is not a common part of the building, then it is necessary to consider Issues 2 and 3. Issue 2: Was the 1st defendant at the material time the owner of the roof? Sub-issues (a) : Were 3 undivided shares allotted to the roof? (b) : Was the roof allotted part of the developer s shares? (c) : Was the roof allotted any shares at all? (d) : Did the 1st defendant, by the assignment dated 26 April 1988 assign to the 2nd defendant the right to the exclusive use, occupation and enjoyment of the roof? Issue 3: Did the 1st defendant at the material time have the right to the exclusive possession of the roof or have the exclusive right to the use, occupation or enjoyment of the roof? AUTONUMOUT In relation to the external wall, the issues are : Issue 4: Did clause (j) of the Fourth Schedule to the DMC confer on the 1st defendant the exclusive right to the use, occupation and enjoyment of the external wall for the purposes of section 34H of the Ordinance. Issue 5: Was the external wall part of the main walls under clause 6(ii)(e) of the DMC? The witnesses AUTONUMOUT By the order of Master Au-Yeung (as she then was) made on 2 May 2007 it was directed that the affirmations filed in court for the purpose of Order 14 proceedings do stand as witness statements. These included the affirmations of Chung Siu Ping ( Chung ) a director of the 2nd plaintiff and Kwan Wai Leung ( Kwan ) the general manager of the 1st and 2nd defendants. AUTONUMOUT Both Chung and Kwan gave evidence. AUTONUMOUT There is little dispute between them on factual matters. AUTONUMOUT On Kwan s evidence, which I accept, I find that the 2nd defendant received complaints relating to the leakage of water to workshops on the 8th floor of the building in or about October 1999. Inspections were carried out on the workshops and the roof to investigate the water leakage and it was discovered that there was water leakage due to defects in the waterproofing layer of the roof. The 2nd defendant did advertise and invited tenders for the repair and maintenance works to be carried out on the roof and the lowest tender price was accepted. I accept Kwan s evidence on this. Issue 1 AUTONUMOUT Section 2 of the Ordinance defines common parts as meaning (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 unless so specified or designated, those parts specified in Schedule 1. AUTONUMOUT The parts specified in Schedule 1 of the Ordinance includes items 10 and 11 which are 10. Lighting apparatus .. and installations intended for the use and benefit of all of the owners generally 11. Fixtures situated in a flat which are used in connection with the enjoyment of any other flat or other portion of the building. AUTONUMOUT The questions to consider are whether the installation of the waterproofing layer or system in the roof is an installation intended for the use and benefit of all of the owners generally. If so, it is a common part of the building; whether the waterproofing layer or system in the roof is a fixture within the meaning of item 11 in Schedule 1 of the Ordinance. If so, it is a common part of the building. AUTONUMOUT There is no doubt that the waterproofing layer or system has not been specified or designated in an instrument registered in the Land Registry as being for the exclusive use, occupation or enjoyment of an owner. AUTONUMOUT It is important to consider the unchallenged expert evidence contained in the affirmation of Cheng Lai Fai. He gives his opinion on the functions of each layer of materials in a roof slab. Paragraphs 3 to 5 of his affirmation are important. There he says 3. There are different layers of materials in roof slab of each building in Hong Kong, including, at least, from the top to the bottom, roof tiles, 3 ply bitumen felt and cement screed. The 3 ply bitumen is the waterproofing layer. The Schedule of Works of the Repair Contract shows that the repair was made in accordance, inter alia, with two drawings nos. HKIC-SK2(A) and 3(A). Drawing no. HIC-SK3(A) shows the typical layers of materials in roof slabs, the descriptions and functions of which are listed out below:- Cement roofing tiles - as finish and protection for the waterproofing materials underneath; Rendering - to level the floor to receive and bond with the cement roofing tiles; mastic asphalt - insitu cast waterproofing materials, the asphalt would be melted and poured in the form of a viscous fluid to the required thickness; 3-ply bitumen felt - factory made waterproofing sheetings which are usually lapped to cover bigger area; black sheathing felt - underlayer for the 3-ply bitumen felt; and cement screed - to level the floor for the topplings. The mastic asphalt, the 3-ply bitumen felt and the sheathing felt are the waterproofing layers and are situated underneath the surface of the roof. Along the lower part of the parapet walls, such waterproofing layer curves upward to avoid wetting or damping by capillary action to the wall stem or roof slab when the floor is wet. The tuck in holds the waterproofing layers together and also avoids surface water from the wall stem from getting into any gap between the waterproofing layers. If there are cracks or defects at the roofing tiles but the waterproofing layer is not defective, water will not penetrate from the roof to the floor below. However, if there is defect in the waterproofing layer on a certain part of the roof, water will get into the tiles and flow around to reach the part of the roof where the waterproofing layer has defect, and seep through the screed and the roof slab underneath. The waterproofing layer is considered as a continuous layer covering the whole exposed area of roof although there are laps in the felt to form the required area. It is necessary for the whole of the waterproofing layer to remain intact to serve its function. AUTONUMOUT On his unchallenged evidence, the mastic asphalt, the 3 ply bitumen felt and the sheathing felt are the waterproofing layers situated underneath the surface of the roof. It is also clear from his evidence that the waterproofing layer is considered as a continuous layer covering the whole exposed area of the roof. AUTONUMOUT Mr Lo, for the plaintiffs, submitted that the waterproofing layer was part and parcel of the roof and was not intended to form a common part of the building. He further submitted that since 3 undivided shares were allotted to the roof, such part of the building was not intended to form a common part of the building. AUTONUMOUT Mr Lo relied on Regulation 48 of the Building (Construction) Regulations under the Buildings Ordinance Cap. 123 where it is provided that every roof shall be weatherproof. It was submitted that as a waterproofing layer is one of the ways of making a roof weatherproof, the waterproofing layer was part and parcel of the roof and, therefore, not a common part of the building. AUTONUMOUT I am unable to accept Mr Lo s submissions. AUTONUMOUT In my view the plaintiffs can derive no assistance from Regulation 48 of the Building (Construction) Regulations. AUTONUMOUT The Building (Construction) Regulations provide for the construction of buildings in Hong Kong including, inter alia, the materials to be used. Regulation 48 simply provides that every roof shall be weatherproof. It is a requirement in the construction of the building that the roof shall be weatherproof. Regulation 48 does not deal with whether a waterproof layer in a roof slab is or is not a common part of a building. AUTONUMOUT In Kung Shing Investment Ltd v The Sunbeam Manufacturing Co. Ltd (DCCJ 4093 of 2002, 28 October 2004, Judge Chow), the main issue turned on whether the waterproofing layer in the roof was a common part of the building in that case. The judge considered the question whether the waterproofing layer was installed for the use and benefit of all the owners of the building. He relied on the decision of the Lands Tribunal in LDBM 249 of 2000 and held that the waterproofing layer or system was a common part of the building. AUTONUMOUT I have been provided with an agreed translation of paragraph 48 of the judgment in Chinese in LDBM 249 of 2000 which makes it plain that the Lands Tribunal in that case considered that the waterproofing layer of the building should cover the entire roof and that the waterproofing layer was a common part of the building. AUTONUMOUT In Tai Fong Trade Ltd v The Incorporated Owners of Nos 167 and 169 Hoi Bun Road and another [2009] 2 HKC 399 the roof was owned by the developer. The layers making up the floor slab of the roof cum ceiling slab included a concrete tile layer, a cement/sand screeding layer and waterproof membrane. The applicant was the owner of the 5th floor of the building in that case. The applicant s predecessor had built structures on the roof that penetrated the waterproof membrane. Serious water leakage problems occurred. AUTONUMOUT It was held by the Lands Tribunal that the water leakage problem was a result of the defective waterproof membrane. The waterproof membrane was there to protect the interior of the whole building and such waterproofing layer was a common part of the building as it fell within the definition of section 2 of the Ordinance. AUTONUMOUT I respectfully agree with the decisions reached in the cases referred to above which, in my view, were correctly decided. AUTONUMOUT Mr Lo relied on Hope Brothers Ltd v Cowan [1913] 2 Ch 312 where it was held that a demise of a floor or a room or an office bounded in part by an outside wall prima facie included both sides of that wall. It was held that there was nothing in the lease to exclude the operation of the general rule and that the demise included the outside of the outer wall of the office. AUTONUMOUT It was thus submitted by Mr Lo that as the 1st defendant was the owner of the roof and the person entitled to the exclusive use, occupation and enjoyment thereof the 1st defendant was liable to repair and maintain the entirety of the roof including both sides of the roof slab. AUTONUMOUT I am unable to accept Mr Lo s submission. AUTONUMOUT In Incorporated Owners of Elite Garden v Profit More Co. Ltd [2002] 2 HKLRD 518 the incorporated owners of a building brought successful proceedings against the registered owner of a first floor unit in the building for breach of the deed of mutual covenant by making a structural alteration after the owner had opened windows by making holes in the exterior walls and installed windows in the unit. AUTONUMOUT It was held that the term alteration was something which altered the form of structure of a building and that the opening of the windows was unarguably an alteration to the building. It was also held that that whilst the registered owner of the first floor unit was the owner of the surface of the exterior walls, that was not to be equated to the exterior walls themselves. Thus the exterior walls of the building were not owned by the owners of the relevant unit. AUTONUMOUT When dealing with Hope Brothers Ltd which had been cited in support of the proposition that the owner of a unit or flat also owned the exterior walls of that unit or flat, Le Pichon JA said at page 523: That decision is of no assistance when one is here dealing with the system of landholding in multi-storey buildings, which is peculiar to Hong Kong. When analysed, what is owned are undivided shares in the land with exclusive possession to a particular unit. True it is that the respondent is the owner of the surface of the exterior walls, but that is not to be equated to the exterior walls themselves. AUTONUMOUT Mr Lo can derive no assistance from Hope Brothers Ltd. AUTONUMOUT Suffiad J in Lily Tse Lai Yin and others v The Incorporated Owners of Albert House (also known as The Owner Incorporation of Albert House) and others (HCPI 828 of 1997, 23 December 1999) at page 18 of his judgment also held that Hope Brothers Ltd can have no application in Hong Kong. AUTONUMOUT Suffiad J was dealing with whether a canopy was a common part of the building. At page 18 of his judgment he was dealing with the submission that had been made that because canopy was not mentioned either in the deed of mutual covenant or in the First Schedule to the Ordinance this effectively shows that the canopy was never intended to be and could not be part of the common area of the building. AUTONUMOUT Suffiad J rejected that submission and said: The flaw in this argument is that Part ( 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 the First Schedule of the Building Management Ordinance is an exhaustive list of the common parts of a building. Indeed, it cannot be an exhaustive list, otherwise Part (a) becomes unnecessary. Therefore the fact that canopy is not mentioned in the DMC or in the First Schedule does not, in my view, determine the issue. AUTONUMOUT Mr Lo also relied on Let s Go Investments Ltd v Yeung Sau Hing (DCCJ 4585 of 2004, 5 December 2005, Judge C. B. Chan) where the defendant was the owner of a flat on the 4th floor and its adjacent flat roof situated immediately above the plaintiff s premises on the 3rd floor of the building. Water seeped into the plaintiff s premises from the defendant s premises. At issue was whether the water seepage was caused by the state of disrepair of the defendant s premises and whether the defendant should be responsible to repair it. AUTONUMOUT The judge found that the plaintiff had established that the water seepage into the ceiling of the plaintiff s premises was due to the defect of the flat roof surface of the defendant s premises as a result of aging and that the defendant had the obligation to repair the flat roof of the defendant s premises but failed to do so. AUTONUMOUT I would observe that the judge in that case did not have the assistance of legal arguments on behalf of the defendant as the defendant acted in person. Also, it does not appear that the judge had the benefit of considering the cases of Kung Shing Investment Ltd, LDBM 249 of 2000, Incorporated Owners of Elite Garden and Lily Tse Lai Yin. AUTONUMOUT In my view the plaintiffs can derive no assistance from Let s Go Investments Ltd. AUTONUMOUT I am satisfied that a waterproofing layer or system is an installation intended for the use and benefit of all the owners generally within the meaning of item 10 in Schedule 1 of the Ordinance. The waterproofing layer is designed to and does protect the building from rainwater seeping inside, in particular the units in the floors below the roof. It also protects the lift shafts (which is for the benefit of all the owners generally) from rain water seeping in. AUTONUMOUT In my judgment the waterproofing layer or system is a common part of the building. AUTONUMOUT I am also of the view that the waterproofing layer or system was a fixture used in connection with the enjoyment of any other flat or other portion of the building within the meaning of item 11 in Schedule 1 of the Ordinance. The word flat is widely defined in section 2 of the Ordinance as meaning any premises in a building which are referred to in a deed of mutual covenant whether described therein as a flat or by any other name and whether used as a dwelling, shop, factory, office or for any other purpose, of which the owner, as between himself and owners or occupiers of other parts of the same building, is entitled to the exclusive possession; AUTONUMOUT Issues 2 and 3 do not arise in view of my findings on Issue 1. AUTONUMOUT The costs for the maintenance and repair of the common parts are to be borne by the owners generally and the 2nd defendant as the manager was empowered to use the management fund under clause 6(ii)(e) of the DMC for the repair and maintenance of the waterproofing layer and system of the roof. Issue 4 AUTONUMOUT There is no dispute that the 1st defendant was and is the owner of the part of the developer s shares allotted to the external wall under the Second Schedule to the DMC. AUTONUMOUT Section 34 H of the Ordinance provides : (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. (2) The obligation in subsection (1) shall be deemed to be an obligation owed to all owners of the building under the deed of mutual covenant. AUTONUMOUT The plaintiffs case is that by clause (j) of the Fourth Schedule of the DMC ( clause (j) ) the 1st defendant had the exclusive right to use, occupy and enjoy the external wall. AUTONUMOUT Clause (j) provides No owner other than the First Owner shall exhibit or paint or permit any person or persons to exhibit or paint any advertisement of any description or design whether or not illuminated or otherwise or affix any thing or structure on in or at any portion of the roof, the upper roof (if any) or the external walls of the said building. AUTONUMOUT The clause does not say that the exclusive right to use, occupy and enjoy the external wall is given to the 1st defendant. Mr Tang submitted, correctly in my view, that the question to consider is whether clause (j) has in effect given to the 1st defendant the exclusive right to use, occupy and enjoy the external wall. AUTONUMOUT In Incorporated Owners of Goa Building v Wui Tat Co Ltd [2004] 1 HKC 348 it was held that the respondent vendor, who was the developer, was not given under the terms of the deed of mutual covenant in that case either the exclusive possession of the external walls or the exclusive right to the use, occupation or enjoyment thereof that would invoke section 34 H of the Ordinance. AUTONUMOUT At page 350 Rogers VP said : 3. A claim could thus be made against the respondent if it were shown that it had the right to the exclusive possession of any part of the building or had the exclusive right to the use, occupation or enjoyment of that part. Any such right would inevitably stem from the deed of mutual covenant. In this respect reference has to be made to cl 1.01 thereof I shall set out in full. The Vendor shall for the residue of the term of years set out in the said Schedule have the sole and exclusive right and privilege (A) to the use occupation and enjoyment of all the said units of the said Building and the appurtenances thereto and the entire rents and profits thereof save and except the said Flat on the First Floor and Portion of the Flat Roof on the first floor level of the said Building and the appurtenances thereto and the entire rents and profits thereof and (B) Subject to any necessary approval of the Government Authority or Department to erect, construct, install, affix, fit up, paint and maintain any signs, signboards, advertisements, placards, posters or any other structures whatsoever of such size and design whether illuminated or otherwise and at to or on such position or positions of the external walls of the said Building and of any part of the said Building in common use as the Vendor shall in its absolute discretion think expedient or desirable and to remove replace or repair the same and to enter upon any unit at all reasonable times with or without workmen for the purpose of so doing and (C) Subject to any necessary approval of the Government Authority or Department to erect, construct, install, affix or fit up one or more flu pipes or smoke stacks or chimneys at to or on such part or parts of the open yard or yards and of the external walls of the said Building as the Vendor shall in its absolute discretion think fit and to remove replace or repair the same and to enter upon any unit at all reasonable times with or without workmen for the purpose of so doing. (emphasis added) It is important to note that although the respondent (ie the vendor) 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. Indeed, such rights as cl 1.01 gave the respondent extended not only to the external walls but also to any part of the building that was in common use. AUTONUMOUT Clearly under section 34 H of the Ordinance a person could only be held liable for the expenses for the maintenance of a certain part of the building if it were shown that it had the right to the exclusive possession of that part of the building or had the exclusive right to the use, occupation or enjoyment of that part. AUTONUMOUT There was evidence that the 1st defendant had granted a licence to New World PCS Ltd to use, inter alia, the external wall for the installation of antenna for mobile phone systems. The fact that it had granted a licence to New World PCS Ltd to use the external wall for that purpose does not mean that it had the right to the exclusive possession of the external wall or had the exclusive right to the use, occupation or enjoyment of the same. AUTONUMOUT As Suffiad J said at page 22 of Lily Tse Lai Yin : having found the canopy to be a part of the common area of Albert House ere a party has such exclusive right to any part of the building. In the absence of any such exclusive right on the part of the 3rd and 4th defendants, section 34H can have no application to the present case. AUTONUMOUT I respectfully agree with the observations of Suffiad J in that case. AUTONUMOUT In my judgment clause (j) did not confer on the 1st defendant the exclusive right to the use, occupation and enjoyment of the external wall of the building. Section 34 H of the Ordinance can have no application. Issue 5 AUTONUMOUT By clause 6(ii)(e) of the DMC the 2nd defendant was empowered to determine the amount of a monthly management fee payable in respect of each workshop, godown or parking space in the building reasonably estimated to be sufficient to cover the cost of maintenance, repair, painting and decorating the main walls, structure and beams of the building and, inter alia, the common parts of the building. AUTONUMOUT The question to consider is whether the main walls of the building included the external wall of the building. AUTONUMOUT It seems to me that the main walls under clause 6(ii)(e) of the DMC would clearly be included in the meaning of the external wall of the building and I so find. Conclusion AUTONUMOUT I dismiss the plaintiffs claims against the defendants. I also make an order nisi that the costs of the action are to be paid by the plaintiffs to the defendants. (Arjan H. Sakhrani) Judge of the Court of First Instance, High Court Mr Henry Lo, instructed by Messrs Poon Yeung & Li, for the 1st and 2nd Plaintiffs Mr David W. K. Tang, instructed by Messrs Yau and Lau, for the 1st and 2nd Defendants PAGE - A B C D E F G H I J K L M N O P Q R S T U V 1udk 1udk S T U V A B C D E F G H I J K L M N O P Q R S T U V (#p# (#p# (#p# ypypy (#p# (#p# r p# r p# "@AB9D = ,0 = ,0 7 ,M +w6. / Jz @m2z ]C]6 9r8,1 %gVl^ uxB26I ]C]6 %gVl +w6. J(0T & 6" abc-Sak-HCA.dot Administrator Microsoft Word 9.0 Title Microsoft Word Document MSWordDoc Word.Document.8