Hong Kong Case Law: Decisions & Judgments

Topic

Common areas

Legal area

Court

26 Jul 2023

DONORA COMPANY LIMITED v. THE INCORPORATED OWNERS OF TSUEN KAM CENTRE (荃錦中心業主立案法團)

Citation

[2023] HKCFA 21
Court

Court of Final Appeal
Case number

FAMV177/2023

The Court was satisfied that the legal questions raised are of sufficient importance to warrant consideration by the Court of Final Appeal and therefore granted leave to appeal; the core legal issue for determination is whether rights granted to co-owners in a deed of mutual covenant can displace an earlier reservation of exclusive rights by the developer and whether external walls can be common areas by virtue of being intended for common use.
20 Jan 2022

ROXY MANAGEMENT CO LTD v. HOOPESTON LTD

Citation

[2022] HKDC 75
Court

District Court
Case number

DCCJ364/2019

The defendant was only liable to restore the 14th floor lobbies to their Pre-breach State as defined by the affirmation supporting the injunction application and writ endorsement; the court assessed reasonable costs for identified restoration items (HK$20,000 for ceiling/wall works and HK$139,080 for floor works) and entered judgment for the plaintiff for HK$159,080 plus interest and costs nisi.
25 May 2021

KWOK SHU v. THE INCORPORATED OWNERS OF KENT BUILDING

Citation

[2021] HKDC 632
Court

District Court
Case number

DCCJ1572/2017

The court found the roof (Roof B) to be the cause of the continuing water leakage, rejected the defendant's contribution allegations for lack of evidence, and held that the Incorporated Owners failed to take all reasonable and practicable steps to eradicate the persistent leakage despite knowledge and repeated remedial attempts; accordingly the IO breached duties under s18(1) BMO and the DMC and was liable in nuisance and negligence, entitling the plaintiff to damages for loss of rental income and repair costs and to a mandatory injunction compelling comprehensive repairs within specified tim…
14 Jan 2021

黎偉雄 v. 信和物業管理有限公司

Citation

[2021] HKCA 51
Court

Court of Appeal
Case number

CACV222/2019

The Court granted leave to amend the Notice of Motion but refused leave to the Court of Final Appeal because the reformulated questions presented a distorted view of the Court of Appeal's reasons, were fact‑sensitive rather than of great and general public importance, and lacked reasonable prospects of success given the Court's holistic, contextual construction of the DMC and Grant.
11 Jun 2020

黎偉雄對信和物業管理有限公司

Citation

[2020] HKCA 448
Court

Court of Appeal
Case number

CACV222/2019

The Court held the PPW is an Estate Common Area under the DMC because (i) the definitions in the DMC and the Government Grant required common treatment of passageways unless expressly designated for exclusive use, (ii) the physical layout and intended use at the date of the DMC indicated the PPW served both residential and commercial users, (iii) shares and rights in respect of Common Areas were allocated and assigned to the Manager and therefore the PPW could not form part of Great Land's exclusive Commercial Accommodation, and (iv) a plan made after the DMC (L8 Plan) cannot conclusively det…
25 Sept 2015

WING HONG INVESTMENT CO LTD v. FUNG SOK HAN AND OTHERS

Citation

WING HONG INVESTMENT CO LTD v. FUNG SOK HAN AND OTHERS
Court

Court of First Instance
Case number

HCA2075/2009

The court held that the first assignments had reserved to the developer/plaintiff the exclusive occupation of the bulk of the three sections and that the DMCs only converted the specifically described ingress/egress areas (entrance-hall, staircases, landings, common passages) into common parts. Areas landlocked and not coloured for rights of way remained plaintiff's exclusive property subject only to co-owners' access rights for maintenance; the plaintiff acquired possessory title to the two staircase shop areas by long exclusive occupation; defendants' removals of certain gates, inner gates,…
23 Dec 2014

TAI FAT DEVELOPMENT (HOLDING) CO LTD v. THE INCORPORATED OWNERS OF GOLD KING INDUSTRIAL BUILDING

Citation

TAI FAT DEVELOPMENT (HOLDING) CO LTD v. THE INCORPORATED OWNERS OF GOLD KING INDUSTRIAL BUILDING
Court

Court of Appeal
Case number

CACV22/2014

The DMC, read with the First Schedule, defines common areas to include loading and unloading areas and expressly lists the 13 disputed spaces under that heading; the definition of Parking Spaces in the DMC limits 'parking spaces' to those actually assigned for separate ownership, and the absence of management shares for the 13 spaces further indicates they were intended as common areas; consequently the 13 spaces form part of the Building's common areas and the Judge's construction was correct.
28 Nov 2014

LEUNG NAI HANG AND ANOTHER v. THE INCORPORATED OWNERS OF SUCCESS INDUSTRIAL BUILDING (SHEUNG HEI STREET

Citation

LEUNG NAI HANG AND ANOTHER v. THE INCORPORATED OWNERS OF SUCCESS INDUSTRIAL BUILDING (SHEUNG HEI STREET
Court

Court of First Instance
Case number

HCA1570/2010

Clause 3 of the DMC permits laying of pipes 'in, under or passing through the Land and Building' and therefore plaintiffs were partially correct on construction, but the specific declaration sought was not available because installation remained subject to management committee approval; exercising its discretion on costs the court departed from the simple 'costs follow the event' rule and ordered the plaintiffs to pay 60% of the defendant's costs of the action, to be taxed if not agreed, with no order as to costs on the submissions on costs.
31 Oct 2014

LEUNG NAI HANG AND ANOTHER v. THE INCORPORATED OWNERS OF SUCCESS INDUSTRIAL BUILDING (SHEUNG HEI STREET

Citation

LEUNG NAI HANG AND ANOTHER v. THE INCORPORATED OWNERS OF SUCCESS INDUSTRIAL BUILDING (SHEUNG HEI STREET
Court

Court of First Instance
Case number

HCA1570/2010

Clause 3 of the DMC guarantees owners the free and uninterrupted passage of essential services through an agreed system but does not give an individual owner an unfettered right to unilaterally install private gas pipes over common areas; installation of a system for gas supply requires the collective decision‑making process under the DMC and manager's routing approval did not bind the incorporated owners; accordingly plaintiffs were not entitled to the declaration sought and their claim is refused.
15 Jan 2014

TAI FAT DEVELOPMENT (HOLDING) CO. LTD v. THE INCORPORATED OWNERS OF GOLD KING INDUSTRIAL BUILDING

Citation

TAI FAT DEVELOPMENT (HOLDING) CO. LTD v. THE INCORPORATED OWNERS OF GOLD KING INDUSTRIAL BUILDING
Court

Court of First Instance
Case number

HCA104/2006

The DMC, read as a whole including its definitions and First Schedule which lists the 13 parking spaces under 'Loading and Unloading Areas', shows the parties intended those 13 spaces to be common areas for loading/unloading; accordingly the main claim for possession by Tai Fat fails, the IO's primary declaration that the 13 parking spaces are common areas succeeds, but claims to set aside tenancies and recover prior rents fail (no mutual mistake affecting indivisible contracts and limitation/locus obstacles).