Hong Kong Case Law: Decisions & Judgments

Topic

External walls

Legal area

Court

8 Feb 2024

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

Citation

[2024] HKCFA 3
Court

Court of Final Appeal
Case number

FACV6/2023

On proper construction of the DMC read in its transactional context with the First Assignment, the DMC does not specify or designate the external walls for the exclusive use, occupation or enjoyment of the developer; the external walls are common parts and the manager was entitled under the DMC to apportion repair and maintenance costs into separate budgets for the commercial development, domestic blocks, car port and other parts, so the Lands Tribunal declarations to that effect are restored.
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.
13 Jan 2023

DONORA CO LTD v. THE INCORPORATED OWNERS OF TSUEN KAM CENTRE

Citation

[2023] HKCA 33
Court

Court of Appeal
Case number

CACV345/2021

The Court of Appeal held that the First Assignment was a relevant registered instrument which expressly reserved the outer/external walls to the Developer and that the DMC did not, on its proper construction, supersede that reservation; accordingly the external walls were not common parts for BMO purposes and the Developer (as holder of the exclusive right) is statutorily obliged under s34H BMO to maintain them; the judge's declarations that the walls were common and subdivided were set aside.
6 Jul 2021

DONORA CO LTD v. THE INCORPORATED OWNERS OF TSUEN KAM CENTRE

Citation

[2021] HKLdT 49
Court

Lands Tribunal
Case number

LDBM176/2018

The Tribunal held that on proper construction of the DMC and having regard to the statutory definitions the external walls are common parts and the respondent failed to demonstrate any specification or designation reserving exclusive use to the applicant; the judge's factual finding that the walls could be notionally subdivided for allocation of repair costs under the DMC and section 34H was upheld; although the appeal lacked reasonable prospects leave was granted in the interests of justice to permit appellate consideration of the contested legal principles.
22 Mar 2021

DONORA CO LTD v. THE INCORPORATED OWNERS OF TSUEN KAM CENTRE

Citation

[2021] HKLdT 17
Court

Lands Tribunal
Case number

LDBM176/2018

The external walls are common parts under the DMC and the BMO; they can be validly sub‑divided into Domestic, Commercial, Car Port and Building Common Areas as defined by the DMC and maintenance costs should be charged to the relevant category accounts; limited exclusive rights to affix advertisements or fittings do not give the developer exclusive possession or sole maintenance obligation; the parapet wall is part of the commercial external walls; accordingly Declarations (1), (2) and (4) are granted and Declaration (3) is refused.
24 Feb 2010

THE INCORPORATED OWNERS OF HONG LEONG INDUSTRIAL COMPLEX AND ANOTHER v. HL RESOURCES LTD AND ANOTHER

Citation

THE INCORPORATED OWNERS OF HONG LEONG INDUSTRIAL COMPLEX AND ANOTHER v. HL RESOURCES LTD AND ANOTHER
Court

Court of Appeal
Case number

CACV189/2009

On uncontested expert evidence the waterproofing was a distinct multilayer system beneath the roof surface intended for the use and benefit of all owners and therefore a common part under Schedule 1 items 10 and 11, permitting the Manager to expend common funds; the DMC did not confer exclusive possession of external walls on the First Defendant because such rights were expressly subject to the Manager's approval and conditions, so section 34H did not impose a maintenance obligation on the First Defendant.

Hong Kong Case Law

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

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

DONORA CO LTD v. THE INCORPORATED OWNERS OF TSUEN KAM CENTRE

DONORA CO LTD v. THE INCORPORATED OWNERS OF TSUEN KAM CENTRE

DONORA CO LTD v. THE INCORPORATED OWNERS OF TSUEN KAM CENTRE

THE INCORPORATED OWNERS OF HONG LEONG INDUSTRIAL COMPLEX AND ANOTHER v. HL RESOURCES LTD AND ANOTHER