FLYWAY INVESTMENT LTD v. THE INCORPORATED OWNERS OF GOLDEN COURT AND ANOTHER

FLYWAY INVESTMENT LTD v. THE INCORPORATED OWNERS OF GOLDEN COURT AND ANOTHER

The 1st respondent failed to prove the lift landing at 1/F was created by the applicant or was unauthorised such that an injunction to reinstate the wall was justified; the DMC (clause 2) supports 1/F owners' entitlement to use lifts and no evidence existed that the 1st respondent or OTIS held the requested Fire Resistance Proof to compel disclosure; damages were unproven, so the applicant's claims and the 1st respondent's counterclaim for reinstatement fail.

Citation
[2023] HKLdT 17
Parties
Applicant (owner of 1/f Flats): Applicant; 1st Respondent (incorporated Owners of the Building): 1st Respondent (Incorporated Owners); 2nd Respondent (chairman of Management Committee, Owner): 2nd Respondent (Chairman)
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
28 February 2023
Case Number
LDBM111/2018
Procedural Posture
Application for Declaratory Relief, Injunctive Relief, Discovery and Damages Under Deed of Mutual Covenant and Building Management Ordinance / Judgment (lands Tribunal)
Outcome
Application partly dismissed and partly unnecessary; injunction/counterclaim by 1st respondent dismissed; applicant's application to compel disclosure of Fire Resistance Proof refused; damages claim dismissed for lack of evidence; costs ordered nisi (no order as to costs) to become absolute in 14 days.
Legal Topics
Declaratory Relief, Injunction, Common Parts, Unauthorised Building Works, Disclosure/discovery of Technical Documents, Fire Safety Certification, Damages, Acquiescence
Source Language
EN
Property Law Building Management Law Administrative/building Control Law Civil Procedure Equity and Remedies Declaratory Relief Injunction Common Parts +5 more

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Parties

Applicant

Applicant (owner of 1/f Flats)

1st Respondent (Incorporated Owners)

1st Respondent (incorporated Owners of the Building)

2nd Respondent (Chairman)

2nd Respondent (chairman of Management Committee, Owner)

Procedural Posture

Application for Declaratory Relief, Injunctive Relief, Discovery and Damages Under Deed of Mutual Covenant and Building Management Ordinance / Judgment (lands Tribunal)

Legal Issues

  1. 1 Whether owners of 1/F have right under the DMC to access and use Lift No.1 at 1/F
  2. 2 Whether 1st respondent breached DMC by refusing to provide or instruct OTIS to provide Fire Resistance Proof and/or by complaining to FEHD
  3. 3 Whether the wall with the opening at 1/F is a common part within the meaning of the BMO

Ratio Decidendi

The 1st respondent failed to prove the lift landing at 1/F was created by the applicant or was unauthorised such that an injunction to reinstate the wall was justified; the DMC (clause 2) supports 1/F owners' entitlement to use lifts and no evidence existed that the 1st respondent or OTIS held the requested Fire Resistance Proof to compel disclosure; damages were unproven, so the applicant's claims and the 1st respondent's counterclaim for reinstatement fail.

Court Disposition

Application partly dismissed and partly unnecessary; injunction/counterclaim by 1st respondent dismissed; applicant's application to compel disclosure of Fire Resistance Proof refused; damages claim dismissed for lack of evidence; costs ordered nisi (no order as to costs) to become absolute in 14 days.

Orders

  • The 1st respondent's counterclaim for injunctive relief and reinstatement of the wall is dismissed
  • Applicant's application to compel the 1st respondent or OTIS to provide Fire Resistance Proof is refused