Press Summary (English)

Press Summary (Chinese)

FACV No 6 of 2023

[2024] HKCFA 3

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 6 OF 2023 (CIVIL)

(ON APPEAL FROM CACV NO 345 OF 2021)

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J U D G M E N T

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Chief Justice Cheung:

1. I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Ribeiro PJ:

2. I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Fok PJ:

3. I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Lam PJ:

4. Building land is a scarce resource in the urban areas of Hong Kong. Making good use of such resource, we have many property developments by way of blocks of residential units constructed upon a commercial podium. In the podium, there are shop units as well as car-parking spaces. Such developments have been popular amongst homebuyers who enjoy the convenience that a commercial podium offers. Tsuen Kam Centre is one such development. This appeal concerns the incidence of the cost of the repair and maintenance of the external walls of Tsuen Kam Centre as between the co-owners of the building. As explained below, the answer depends on whether the Appellant has the exclusive right to use, occupy and enjoy the external walls in the context of the Building Management Ordinance [1] (“the BMO”) and the deed of mutual covenant [2] (“the DMC”) governing the mutual rights and obligations of the co-owners of Tsuen Kam Centre.

A. Tsuen Kam Centre

5. Tsuen Kam Centre (“the Building”) is a development next to the Tsuen Wan MTR station erected on Tsuen Wan Town Lot No.293 in Castle Peak Road, Tsuen Wan, New Territories. The Appellant, a subsidiary of Sun Hung Kai Properties Limited, was the developer. The development was completed in 1986. Two residential blocks [3] were built on top of a three-storey podium (“the Podium”). There are shop units on the Ground Floor and the Second Floor of the podium whilst the First Floor and the Basement are Car Port with many car parking spaces. The Third Floor is a garden on the roof of the podium which also serves as the entrance level for each residential tower. Residents in the domestic units have access to the street level through the Podium.

6. The design of the residential blocks is such that the exterior of each block is largely made up of the windows and window bays of the residential units. Though the Second Floor of the Podium also have large window panels, some of them are blocked by advertisement panels.

7. The Appellant only retained the “ownership” of one shop on the Ground Floor and the Arcade and Escalator as identifie