SINO CHANNEL HOLDINGS LTD v. VAST FAITH INVESTMENT LTD

SINO CHANNEL HOLDINGS LTD v. VAST FAITH INVESTMENT LTD

The Tribunal held that, on a purposive and contextual construction of the DMC and Walls Assignment, the term 'exterior side walls' includes all four exterior sides of the building including the facades (front and back). The DMC was poorly drafted and inconsistent terminology must be read in the commercial and factual matrix prevailing at execution; therefore Sino Channel is entitled to exclusive use, occupation and enjoyment of those exterior walls and associated rights in the DMC; late evidence was admitted and used in construing the instrument.

Citation
[2018] HKLdT 95
Parties
Applicant (ldbm 211/2015) and Respondent (ldbm 117/2016): Sino Channel Holdings Limited; Respondent (ldbm 211/2015) (3/f Owner): 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
LDBM211/2015
Procedural Posture
Building Management Applications (lands Tribunal) Heard Together: LDBM 211/2015 and LDBM 117/2016 / Final Judgment (14 December 2018)
Outcome
Declarations granted in favour of Sino Channel that 'exterior side walls' include all four exterior sides including facades; IO's application dismissed; injunction granted against the 3/F Owner; new evidence admitted; costs awarded to Sino Channel (order nisi).
Legal Topics
Construction of Deed of Mutual Covenants, Ownership of Common Parts, Exclusive Use and Enjoyment, Injunctive Relief, Admission of Late Evidence
Source Language
EN
Property Law Building Management Contract Law Civil Procedure Equity Construction of Deed of Mutual Covenants Ownership of Common Parts Exclusive Use and Enjoyment +2 more

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Parties

Sino Channel Holdings Limited

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

Vast Faith Investment Limited

Respondent (ldbm 211/2015) (3/f Owner)

The Incorporated Owners of Grandmark

Applicant (ldbm 117/2016)

Procedural Posture

Building Management Applications (lands Tribunal) Heard Together: LDBM 211/2015 and LDBM 117/2016 / Final Judgment (14 December 2018)

Legal Issues

  1. 1 What is the meaning of 'exterior side walls' in the DMC and the Walls Assignment?
  2. 2 Whether the facades (front and back) are common parts or part of the 'exterior side walls' owned by Sino Channel
  3. 3 Whether 'walls' excludes windows such that rights are limited to architectural fins

Ratio Decidendi

The Tribunal held that, on a purposive and contextual construction of the DMC and Walls Assignment, the term 'exterior side walls' includes all four exterior sides of the building including the facades (front and back). The DMC was poorly drafted and inconsistent terminology must be read in the commercial and factual matrix prevailing at execution; therefore Sino Channel is entitled to exclusive use, occupation and enjoyment of those exterior walls and associated rights in the DMC; late evidence was admitted and used in construing the instrument.

Court Disposition

Declarations granted in favour of Sino Channel that 'exterior side walls' include all four exterior sides including facades; IO's application dismissed; injunction granted against the 3/F Owner; new evidence admitted; costs awarded to Sino Channel (order nisi).

Orders

  • Declaration 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) pursuant to the DMC and Walls Assignment
  • Declaration granted to Sino Channel by counterclaim in LDBM 117/2016; the Incorporated Owners' application dismissed