SPM LTD v. APPEAL TRIBUNAL (BUILDINGS ORDINANCE)

SPM LTD v. APPEAL TRIBUNAL (BUILDINGS ORDINANCE)

On proper construction of the DMC the allocation of 1 undivided share to the External Walls combined with clause D1(i) confers the full and exclusive right and privilege to hold, use and occupy that part on the registered holder of the share, so the 5/F–30/F External Walls are not common parts under s.2 of the BMO; the Appeal Tribunal's contrary construction was an error of law, the Determination is quashed and the obligation to repair lies on the registered owner (Wideland) under the DMC (clause F7(a)).

Citation
[2022] HKCFI 1105
Parties
Applicant: SPM Limited; Putative Respondent: Appeal Tribunal (Buildings Ordinance); Putative Interested Party: Building Authority
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 April 2022
Case Number
HCAL1574/2021
Procedural Posture
Judicial Review of Appeal Tribunal (buildings Ordinance) Determination Concerning a Building Order / Judgment Following Rolled Up Hearing on Leave and Substantive Judicial Review (final Judgment)
Outcome
Application for leave granted; substantive judicial review allowed; Appeal Tribunal Determination quashed; declaration that External Walls 5/F–30/F are not common parts; Building Order quashed
Legal Topics
Common Parts Under Building Management Ordinance, Construction of Deed of Mutual Covenant, Allocation of Undivided Shares, Liability to Carry Out Remedial Works, Judicial Review of Tribunal Error of Law
Source Language
EN
Constitutional and Administrative Law Property Law Building and Construction Law Land Registry/deed Interpretation Common Parts Under Building Management Ordinance Construction of Deed of Mutual Covenant Allocation of Undivided Shares Liability to Carry Out Remedial Works +1 more

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Parties

SPM Limited

Applicant

Appeal Tribunal (Buildings Ordinance)

Putative Respondent

Building Authority

Putative Interested Party

Procedural Posture

Judicial Review of Appeal Tribunal (buildings Ordinance) Determination Concerning a Building Order / Judgment Following Rolled Up Hearing on Leave and Substantive Judicial Review (final Judgment)

Legal Issues

  1. 1 Whether the external walls of 5/F to 30/F of The Sun's Group Centre constitute common parts under s.2 of the Building Management Ordinance Cap 344
  2. 2 Whether the Deed of Mutual Covenant (DMC) confers exclusive rights of use, occupation and enjoyment of those external walls on the registered owner of the 1 share
  3. 3 Whether the Appeal Tribunal erred in law in construing the DMC and applying the statutory definition of common parts

Ratio Decidendi

On proper construction of the DMC the allocation of 1 undivided share to the External Walls combined with clause D1(i) confers the full and exclusive right and privilege to hold, use and occupy that part on the registered holder of the share, so the 5/F–30/F External Walls are not common parts under s.2 of the BMO; the Appeal Tribunal's contrary construction was an error of law, the Determination is quashed and the obligation to repair lies on the registered owner (Wideland) under the DMC (clause F7(a)).

Court Disposition

Application for leave granted; substantive judicial review allowed; Appeal Tribunal Determination quashed; declaration that External Walls 5/F–30/F are not common parts; Building Order quashed

Orders

  • Order of certiorari quashing the Appeal Tribunal's Determination dated 19 August 2021
  • Declaration that the External Walls 5/F to 30/F do not form part of the common parts of the Building