WILMES LAI SHIM v. NG JESS

WILMES LAI SHIM v. NG JESS

Court held that (1) Clause 14(a) requires proof of damage or interference to others' rights and allegations A–D and E did not establish such damage or interference; (2) whether parts are common depends on the registered Assignment and DMC and the boundary survey, and portions within the assigned lot are exclusive to the G/F proprietor while external wall is a common part under Clause 1(b); (3) breaking up the external wall under the window converted a common part in breach of Clause 26(a); (4) the glass roof structures on the roof interfered with the co-owner's right of access to the antenna and breached Clause 7; and (5) despite established breaches the court refused mandatory...

Citation
WILMES LAI SHIM v. NG JESS
Parties
Applicant (ldbm 266/2013) and Respondent (ldbm 280/2013): Wilmes Lai Shim; Respondent (ldbm 266/2013) and Applicant (ldbm 280/2013): Ng Jess
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
3 December 2014
Case Number
LDBM266/2013
Procedural Posture
Building Management Application (lands Tribunal) / Judgment
Outcome
No mandatory injunction granted; no order made in LDBM 266/2013 and LDBM 280/2013 except specified costs directions
Legal Topics
Deed of Mutual Covenant, Common Parts, Mandatory Injunction, Structural Alteration, Costs
Source Language
EN
Property Building Management Equity Civil Procedure Deed of Mutual Covenant Common Parts Mandatory Injunction Structural Alteration +1 more

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Parties

Wilmes Lai Shim

Applicant (ldbm 266/2013) and Respondent (ldbm 280/2013)

Ng Jess

Respondent (ldbm 266/2013) and Applicant (ldbm 280/2013)

Procedural Posture

Building Management Application (lands Tribunal) / Judgment

Legal Issues

  1. 1 Whether alleged structural alterations breached Clauses 7, 14(a), 18(d) and 26(a) of the Deed of Mutual Covenant
  2. 2 Whether parapet walls, external walls and fences are common parts or within the ground floor proprietor's exclusive area under the Assignment
  3. 3 Whether drilling/repairing holes constituted a structural alteration

Ratio Decidendi

Court held that (1) Clause 14(a) requires proof of damage or interference to others' rights and allegations A–D and E did not establish such damage or interference; (2) whether parts are common depends on the registered Assignment and DMC and the boundary survey, and portions within the assigned lot are exclusive to the G/F proprietor while external wall is a common part under Clause 1(b); (3) breaking up the external wall under the window converted a common part in breach of Clause 26(a); (4) the glass roof structures on the roof interfered with the co-owner's right of access to the antenna and breached Clause 7; and (5) despite established breaches the court refused mandatory...

Court Disposition

No mandatory injunction granted; no order made in LDBM 266/2013 and LDBM 280/2013 except specified costs directions

Orders

  • No order is made for LDBM 266/2013 and LDBM 280/2013
  • In LDBM 266/2013 there shall be no order as to costs except that the applicant shall bear the costs incurred by the respondent in the engagement of Mr Fok, to be taxed if not agreed at District Court scale