CACV155/2010 THE INCORPORATED OWNERS OF WESTLANDS GARDEN v. OEY CHIOU LING AND ANOTHER - LawHero
CACV155/2010
上訴法庭（民事）Tang Ag CJHC, Cheung JA and Yuen JA20/2/2011
CACV155/2010
由此
A A
CACV 155/2010
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF APPEAL
D D
CIVIL APPEAL NO. 155 OF 2010
E (ON APPEAL FROM LDBM NO. 159 OF 2009) E
_________________
F F
BETWEEN
G G
THE INCORPORATED OWNERS Applicant
H H
OF WESTLANDS GARDEN
I (惠安苑業主立案法團) I
And
J J
OEY CHIOU LING & Respondents
K WONG FUNG LING K
L
_________________
L
M Before: Hon Tang Ag CJHC, Cheung JA and Yuen JA in Court M
Date of Hearing: 7 January 2011
N N
Date of Written Submission on: 7 February 2011
Date of Judgment: 21 February 2011
O O
______________
P P
JUDGMENT
Q ______________ Q
R R
S S
T T
U U
V V
由此
A -2- A
Hon Tang Ag CJHC (giving the judgment of the Court):
B B
C Introduction
C
D D
1. The Applicant is the incorporated owners of Westlands
E Garden (“the Building”). The Respondents are the registered owners of Flat E
E1803 of Westlands Garden. The first named Respondent is the registered
F F
owner of Flat E1801. Flats E1801 and E1803 are adjoining flats separated
G by a partition wall, which was 4 inches thick and made of reinforced G
H
concrete. In or about August 2008, the Respondents caused the partition
H
wall to be removed and converted the two flats into one. Because the
I I
Respondents refused to reinstate the partition wall, the Applicant applied to
J the Lands Tribunal, inter alia, for an order that the Respondents reinstate J
the partition wall.
K K
L 2. On 18 May 2010, District Judge Wong, Presiding Officer, L
M
Lands Tribunal, gave judgment in favour of the Applicant. He accepted the
M
Applicant’s submission that the partition wall was common parts under the
N N
Deed of Mutual Covenant (“DMC”) and/or the Building Management
O Ordinance, Cap. 344 (“the Ordinance”), and that its removal constituted a O
breach of clause 4 in Schedule 2 of the DMC as well as section 34I(1)(a) of
P P
the Ordinance.
Q Q
R
3. This is the Respondent’s appeal. Leave to appeal was granted
R
by the learned Presiding Officer.
S S
T T
U U
V V
由此
A -3- A
Westlands Gardens
B B
C
4. Westlands Gardens comprises six 26-storey buildings over a
C
ground floor podium, a lower ground floor and a sub-lower ground floor.
D D
The six 26-storey buildings are known as Blocks A, B, C, D, E and F with
E 104 domestic flats in each Block (4 flats on each floor from the 1 st to 26th E
floors). It also comprises 442 Car Parking Spaces, 21 Shops or other non-
F F
domestic units on the ground floor, lower ground floor and sub-lower
G G
ground floor.
H H
5. Westlands Gardens was notionally divided into 6,952 equal
I I
undivided shares whereof 1 such share was allocated to each Car Parking
J Space, a total of 258 such shares between the Shops (each Shop having J
different number of shares), 10 such shares to each flat and 2 such shares to
K K
the Roof of each Block.
L L
M First Assignment M
N N
6. The First Assignment was executed on 28 June 1974 (“the
O First Assignment”). O
P P
7. By the 1st Assignment, Westlands Estates Limited (“the
Q Developer”) as vendor assigned 41/6,952nd undivided shares together with Q
exclusive possession of Shop G1 on the Ground Floor and the Lower
R R
Ground Floor of Westlands Gardens to the Hong Kong and Shanghai
S S
Banking Corporation (“the First Purchaser”), but:
T T
“… EXCEPTING AND RESERVING unto the Vendor and its
assigns (i) the right to the exclusive use occupation and
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enjoyment of all the shops flats flat roofs main roofs open yards
B
and car parking spaces of and in the said buildings [Westlands
B
Gardens] and the said land [the Remaining Portion of Quarry Bay
Inland Lot No.15] other than the said premises [Shop G1] hereby
C specifically assigned ...” C
D DMC D
E E
8. On the same date the Developer, the First Purchaser and
F F
Goodyear Property Management Limited also executed the DMC.
G G
9. Clauses 1 and 2 of the DMC provided that the First Purchaser
H H
was entitled to the exclusive possession of Shop G1 and the Developer all
I the shops, flats and car parking spaces other than Shop G1. I
J J
10. The DMC went on to provide that:
K K
“3. Each undivided share … shall be held by the person or
persons from time to time entitled thereto subject to and with the
L L
benefit of the easements, rights, privileges and obligations set out
in the First Schedule hereto.”
M M
11. The common parts are not defined in the DMC. However,
N N
paras. 1 and 2 under para. A in the First Schedule to the DMC, though not
O O
exhaustive, refer to some of the common parts, for example:
P
“1. … the entrances, approach road, staircases, landings, P
passages, arcades, lobbies and lifts on the said land and
Q any buildings thereon for all purposes connected with the Q
proper use and enjoyment thereof.
R 2. … the recreation and other common areas within the said R
land for the purposes for which they are designed.”
S S
T T
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A -5- A
Assignment of E1801 and E1803
B B
C
12. By an assignment dated 27 March 1975, the Developer
C
conveyed, to Poon Wai Man and Yan Wai Har as joint tenants, Flat E1801
D D
as shown coloured pink on the Floor Plan annexed thereto and together
E with a free and uninterrupted right in common with the Developer and the E
owner or owners for the time being of the other undivided shares in
F F
Westlands Gardens and all persons authorized by them, inter alia, to use the
G G
recreation and other common areas for the purposes for which they are
H designed. The grant was subject to and with the benefit of the DMC. By H
the same Assignment, the Developer excepted and reserved to itself and
I I
other owners of undivided shares for the time being, inter alia, the right to
J the exclusive use occupation and enjoyment of all the shops flats main J
roofs open yards and car parking spaces of and in Westlands Gardens other
K K
than Flat E 1801.
L L
M 13. By an assignment dated 27 March 1975, Flat E1803 as shown M
coloured pink on the Floor Plan annexed thereto was similarly conveyed to
N N
Wong Bo Chi
O O
14. Flats E1801 and E1803 have devolved onto the Respondents
P P
as noted above.
Q Q
R The Building Management Ordinance R
S S
15. Multi-storey Buildings (Owners Incorporation) Ordinance
T (Cap 344) (“MB(OI)O”), the predecessor of the Building Management T
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Ordinance (Cap 344) (“BMO”), was enacted on 19 June 1970 before the
B B
DMC was executed.
C C
16. The definition of common parts in section 2 of MB(OI)O has
D D
been preserved in the BMO. Section 2 and Schedule 1 to the BMO are
E applicable to the present case. E
F F
Common parts under BMO
G G
H
17. Section 2 defines common parts as follows:
H
“ (a) the whole of a building, except such parts as have
I I
been specified or designated in an instrument
registered in the Land Registry as being for the
J exclusive use, occupation or enjoyment of an owner; J
and
K (b) unless so specified or designated, those parts specified K
in Schedule 1.”
L L
18. As we understand para. (a), unless a part has been specified or
M M
designated in an instrument … as being for the exclusive use … of an
N owner, it is common parts. N
O O
19. Essentially, it is a matter of construction whether a part has
P
been “specified or designated … as being for the exclusive use of an P
Q owner”. Q
R R
20. What then is the effect of para. (b)? It may be that Schedule 1
S serves as a non-exhaustive pointer to what might commonly be regarded as S
common parts, such that, for example, if a part has been “specified in
T T
Schedule 1”, the court will require stronger indication before it would come
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to the view that it has been “specified or designated … as being for the
B B
exclusive use … of an owner”.
C C
21. Mr Alan Ng Man Sang, leading Ms Catherine KK Wong,
D D
appearing for the Applicant, submitted that the partition wall has been
E specified in the BMO Schedule 1. E
F F
BMO Schedule 1
G G
H
22. BMO Schedule 1 consists of 15 paragraphs. Paras. 1, 2, 4 and
H
15 refer to walls.
I I
J (i) Para. 1: J
K “External walls and load bearing walls, foundations, columns, K
beams and other structural supports.”
L L
(ii) Para. 2 :
M M
“Walls enclosing passage ways, corridors and staircases.”
N N
(iii) Para. 4:
O O
“Parapet walls, fences and boundary walls.”
P P
(iv) Para. 15:
Q Q
“… retaining walls including sea walls …”
R R
23. Mr Ambrose Ho, SC (with Ms Maggie Wong), appearing for
S S
the Respondents, submitted that none of these paragraphs relates to an
T T
internal non-structural partition wall dividing two adjoining units.
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24. Mr Ng submitted that a partition wall comes under para. 4
B B
because it is a boundary wall. The Presiding Officer did not so hold, and
C there is no Respondent’s notice. C
D D
25. Be that as it may, after the hearing of the appeal, Deputy High
E Court Judge Au-Yeung’s decision in Tam Sze Man and Another v. The E
Incorporated Owners of Shan Tsui Court (HCA 989/2010) was handed
F F
down. Tam Sze Man was also concerned with an internal partition wall
G G
between two flats. The learned judge, on an O. 14A and O. 14 application
H held that the partition wall falls within the common parts, because it was a H
boundary wall, and hence specified in Schedule 1 to BMO and relying on
I I
Elite Garden, that it was structural in the sense that it was part of the fabric
J of the building. On the invitation of the Court, both Mr Ho and Mr Ng J
K
made further (written) submission.
K
L L
26. With respect, we do not believe that the expression “boundary
M wall” covers an internal partition wall. Rather we believe it refers to a wall M
at a boundary of a relevant site or development. The Chinese version of
N N
“boundary wall” in BMO Schedule 1 is “邊界牆” which supports this view.
O O
Moreover given the provisions in paras. 1 and 2, we believe, if an internal
P partition wall was intended to be included, there would have been an P
express reference to it. We do not believe the draftsman would have been
Q Q
content to let it be inferred from the expression “boundary wall”.
R R
27. In our opinion, partition wall has not been specified in
S S
Schedule 1 of the Ordinance.
T T
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Section 2(a)
B B
C
28. Whether the partition wall has been “specified or
C
designated … for the exclusive use … for an owner” is a question of
D D
construction.
E E
29. In Jumbo King Ltd v Faithful Properties Ltd & Others (1999)
F F
2 HKCFAR 279, one of the issues was whether a utility room in the
G building was a common area. The utility room was not specifically G
H identified in the DMC as an area of exclusive use, and so (it was argued) it
H
fell within “the common parts”.
I I
J 30. Lord Hoffmann described the argument thus: J
K “… The Schedule says he took the ‘Shop Spaces’ on the ground K
and first floors, the ‘Offices’ on the second third and fourth floors
and flat roof on the 10th floor level. The right to occupy these
L L
areas was to be attributed to 482 of his 719 undivided shares. But
the ground to fourth floors included more space than could
M literally be described as ‘shop spaces’ and ‘offices’. There were M
corridors, lobbies, lavatories, machine rooms, lift shafts,
staircases and the ‘utility rooms’ of which some are in issue in
N this appeal. To whom did the DMC allocate these? The judge N
said that they were not allocated to anyone. The DMC said Mr
O Hotung took shop spaces and offices. The utility rooms were not
O
shop spaces or offices and that was that. …”
P P
31. Lord Hoffmann rejected the argument and said at page 297H:
Q Q
“… the words (for example) ‘offices on the second floor’ must be
understood to mean the whole floor and the reference to offices
R R
merely describes its general use. I quite agree that this is not the
normal meaning of the words. It is sloppy draftsmanship. But
S having regard to all the surrounding circumstances, I have no S
doubt that it is what the parties intended the words to mean.”
T T
32. Lord Hoffmann further explained:
U U
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“The factual background to the DMC was, as its third
B
schedule said, that the building was new and consisted of two
B
self-contained parts. The upper floors were flats (the domestic
portion) and the lower floors shops and offices (the commercial
C portion). Each had their own staircases and lifts. If, therefore, C
rooms in the commercial portion were left unallocated, Mr Cheng
would continue to enjoy joint rights of occupation. He would be
D D
entitled to occupy the utility rooms and so forth. Mr Hotung
would not have been entitled to let them or re-arrange the
E partitioning of the commercial floors without Mr Cheng’s consent. E
This makes no practical sense. Why should the parties have
intended that Mr Cheng in his flat on the sixth floor should have
F rights of occupation in the commercial portion of the building?” F
at 296J.
G G
33. Under the 1st Assignment in the present appeal, the whole of
H H
the areas designated as flats were reserved to the developer. There was
I nothing in the 1st Assignment to suggest that the partition walls in the I
domestic portion were common areas. Since the 1st Purchaser was a
J J
purchaser only of the G-1 shop, it must be asked what possible interest
K K
would the 1st Purchaser have in making the non-structural partition walls on
L the domestic portion of the building “common areas” at all? Also, if Mr L
Ng is correct, it would mean that as soon as the first assignment and DMC
M M
were made, although it appears from those documents that Westland
N Gardens were still in the course of development, the developers would not N
O
be able to change the size or configuration of any of the domestic flats. It
O
is difficult to see why it should be so.
P P
Q 34. We agree with Mr Ho that the areas occupied by “the flats” in Q
the building - including the partition walls - were designated under the
R R
DMC and the 1st Assignment “for the exclusive use, occupation or
S enjoyment of the owners” of the flats concerned. It follows that the wall in S
T
the present case falls outwith the first limb of the definition of “common
T
parts” under the BMO (i.e. paragraph (a) of the definition).
U U
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35. Metro City Management Limited v Tsui Fee Hung Vincent and
B B
Lam Wai Fun (CACV 328/2005 / HCA 4327/2003) supports this view.
C There, Recorder Edward Chan SC was asked to determine whether the wall C
over a roof to which the impugned canopies were anchored was part of the
D D
“Residential Common Areas”. The learned Recorder noted that the
E description of the property in the assignment did not make express E
F
reference to the wall in question (paragraph 45). In coming to the
F
conclusion that the wall was not part of the “Residential Common Areas”,
G G
he said:
H H
“50. In the circumstances of this case, while it may well be
argued forcefully that the wall in question may be regarded as an
I external of Tower 4, I do not think it right to regard it as an I
external wall of the Defendants’ property. The idea of having a
J
common area within one’s property is an unattractive one. Given
J
that either side of the wall is occupied exclusively by the
Defendants it is difficult to see how any other owners of Metro
K City may properly enjoy and make use of the wall. Hence I am of K
the view that the wall in question is not part of the Residential
Common Areas.”
L L
M 36. On appeal, Rogers VP agreed with the conclusion of the M
learned Recorder and said:
N N
“16. In my view the opening words of that clause are clear.
O The whole of the flat and the flat roof which appertain thereto has O
been assigned for the exclusive use of the defendants. Whereas
the other external walls of the Tower no doubt come within the
P P
term Residential Common Areas the clause should be read as
excluding that for the purpose of considering the common areas.
Q As the judge pointed out, it would almost be absurd to consider Q
that any of the other owners should have a right of access to that
part of the wall which was otherwise clearly bounded by the
R defendants’ property.” R
S S
37. Yuen JA also noted that-
T T
“61. In theory I would agree with the learned Recorder that it
would be an unattractive proposition to have a commonly-owned
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wall between areas exclusively occupied by the same owner as
B
one unit. However the unattractiveness in this case is more
B
theoretical than real. As the Recorder noted, it is difficult to see
how any other owners could enjoy and make use of the walls in
C question (para. 50). In contrast, the Defendants would stand to C
benefit from maintenance of the external walls as a common area
at the cost of the co-owners.”
D D
E 38. Here, for all intents and purposes, the partition wall is for the E
sole use and benefit of the owners of Flats E1801 and E1803. To that
F F
extent, it is indistinguishable from Metro City Management Limited. There,
G as in the present case, there was no specific reference to the wall. There, as G
in this case, although the assignment plan was coloured, the actual wall
H H
itself had not been coloured over. We attach no particular significance to
I I
that.
J J
The DMC
K K
L 39. The Applicant also relied on Clause 4 of Schedule 2 of the L
DMC which required an owner:
M M
“Not to make any structural alteration to any shop, roof, flat or
N car parking space of which he is the owner which may damage, N
or affect or interfere with the use and enjoyment of any other part
O of any building on the said land whether in separate or common
O
occupation or use, nor cut, injure, damage, alter or interfere with
any part or part of any building in common use …”
P P
40. At trial, initially, it was also the Applicant’s case that the
Q Q
partition wall was structural because it was a load-bearing wall. That was
R R
not maintained when both the Applicant’s and the Respondents’ experts
S agreed that the partition wall was not a load-bearing wall. S
T T
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41. However, on the basis (which we respectfully consider to be
B B
erroneous) that the partition wall was common parts, the learned District
C Judge held that the Respondents had breached clause 4 of Schedule 2. C
D D
42. On appeal, Mr Ng sought to argue, relying we think on the
E first limb of Clause 4 of Schedule 2, that the partition wall was structural in E
that it was part of the fabric of the building.
F F
G G
43. In Incorporated Owners of Elite Garden, this Court (Rogers
H VP, Le Pichon and Yeung JJA) was of the view that an external wall was H
part of the fabric of a first floor unit of a building. There, the Respondent
I I
had opened windows (i.e. made holes in the exterior walls and installed
J windows in the first floor unit of a building), the Applicant Incorporated J
Owners relied on a clause in the DMC under which the owners were:
K K
“(d) Not to make any structural alteration to any unit of which
L L
he is the owner [the first limb] nor … alter or interfere
with any … parts of the … Building … [the second
M limb]” M
N 44. This Court, affirming the learned trial judge, held that both N
limbs had been breached. The leading judgment was delivered by
O O
Le Pichon JA who relied on:
P P
“7. … Pearlman v Keepers and the Governors of Harrow
Q School [1979] 1 QB 56 in construing the expression ‘structural Q
alteration’ in Schedule VIII to the Housing Act 1974, (where)
Geoffrey Lane LJ observed (at 72G):
R R
‘“Structural” in this context means, I believe, something
which involves the fabric of the house as opposed to the
S S
provision merely of a piece of equipment. It matters not
whether the fabric in question is load-bearing or otherwise,
T if there is any substantial alteration, extension or addition T
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to the fabric of the house the words of the schedule are
B
satisfied.’”
B
C 45. Le Pichon JA went on to say: C
D “11. For my part, I am not persuaded that the exterior walls of D
the building are ‘owned’ by the owners of the unit bounded by
such exterior wall or walls. … The exterior walls are plainly an
E integral part of the building for the purposes of the second limb E
and the opening of windows was plainly a breach of that part of
F the covenant.” F
G 46. We do not believe Elite Garden has any relevance to an G
internal partition wall. Unlike an external wall, it could not be said, in the
H H
words of Le Pichon JA to be “an integral part of the building”. In this
I I
context we do not believe an internal partition wall is different from an
J internal partition wall making a bedroom. J
K K
Surface only
L L
47. Mr Ng further submitted that the Respondents are only entitled
M M
to use the surface of the partition walls. He relied on Nation Group
N Development Ltd v New Pacific Properties Ltd (2000) 3 HKCFAR 427 N
O O
48. In Nation Group, the purchaser agreed to buy “the entire first
P
floor and its canopy” of a commercial building from vendor. The canopy P
Q was a cantilevered concrete structure at the level of the first floor concrete Q
slab, on three sides of the building, which extended beyond the boundaries
R R
of the lot. The purchaser raised a requisition concerning unauthorised
S structure attached to the underside (soffit) of the canopy. The vendor S
T
responded that it had only contracted to sell rights to the top surface; the
T
rest of the canopy constituted common parts of the building; and thus the
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unauthorized structures were irrelevant. At issue was whether the property
B B
contracted to be sold included the soffit. The decision turned on the
C construction of the Sale and Purchase Agreement and the DMC. C
D D
49. Ribeiro PJ said at 436D:
E E
“… The correct approach again depends on the proper
construction of the agreement. To take the first purchaser as an
F example, what Madam Chow acquired was one equal undivided F
228th share in the Lot together with the right to the exclusive use
G of ‘Flat A1 on [the] Seventh Floor’. The reason why no one G
would suggest that Madam Chow thereby acquired any right to
use the underside of the floor slab is because the words ‘Flat A1
H on the Seventh Floor’ (or even merely the word ‘flat’) do not, as a H
matter of construction, encompass the underside of the 7th floor
I
slab. It may be different if the agreement had been to grant her
I
exclusive use of ‘the concrete floor slab’, but that is not what the
contract was about.
J J
The same is true of exclusive use of the ‘entire first floor’
which the purchaser contracted to acquire in the present case. As
K Godfrey JA pointed out in the Court of Appeal, the parties must K
be taken to have intended that the purchaser was to be given ‘the
L right to the exclusive use of the floor and ceiling surfaces of the
L
First Floor and of the air space between them,’ in other words, of
the entire volume of the first floor space, but not use of the
M underside of the concrete slab. M
However, a grant of exclusive enjoyment of the canopy
N
stands on a very different footing. ‘The canopy’ is a structure N
which protrudes outwards from the external walls of the building
O and so, unlike ‘flats’ or ‘shops’, does not form part of its internal O
volume. No constraint involving any downstairs neighbour arises.
The agreement grants exclusive use of ‘the canopy’ as a specific,
P named structure, without limitation or qualification. Accordingly, P
giving the words their natural meaning, the grant should be
Q construed as comprehending the entire canopy.”
Q
R 50. Nation Group was not concerned with the ownership of a R
partition wall. It drew an analogy with a floor slab. It was sufficient for
S S
the purpose of Nation Group, for illustrative purpose, to refer to the surface
T T
of the floor slab without going on to consider the ownership of the floor
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slab. Indeed, it is clear from passages quoted above that Ribeiro PJ’s
B B
emphasis was that an assignment of a flat on the 7th floor:
C C
“… do not, as a matter of construction, encompass the underside
of the 7th floor slab. …” [Emphasis added]
D D
Central Management
E E
F 51. Central Management Ltd v Light Field Investment Ltd & F
Others, CACV 30/2010 (unreported, 15 December 2010) concerns
G G
No. 41D Stubbs Road, Hong Kong, an extremely tall residential building
H H
known as the Highcliff. The defendants are the registered owners of two
I adjoining flats, namely, Flats 53A and 53B on the 53rd floor of Highcliff. I
In that case, there is no dispute that as the owners of the two adjoining flats,
J J
the defendants were entitled to remove a designated part of the partition
K wall (“the designated part”) constructed between the two units so as to K
L connect the two flats internally. The designated part is made of bricks and
L
is non-structural in nature. The Building Authority had given consent to
M M
the defendants to demolish part of the partition wall to create a larger
N opening between the two units. And the defendants created an opening N
which extended beyond the permitted opening.
O O
P
52. In the plan annexed to the 1st Assignment, in respect of the P
Q non-designated part of the partition wall, the following legend appeared: Q
R “Structural or other elements of construction shall not be
R
removed/altered unless and until it is approved by the Building
Authority”.
S S
53. The issue in that case was whether one could read from this
T T
legend that the entire partition wall had been assigned to the defendants so
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that it could be removed if they had the approval of the Building Authority.
B B
As a matter of construction, Cheung JA (with the agreement of the other
C members of the Court) did not regard that the legend showed that the C
developer had chosen not to reserve the partition wall to itself and had,
D D
instead, assigned the same to the defendants. It was not the decision of the
E Court that the partition wall was common parts. It is of interest to note that E
F
the partition wall was assigned by the developer to the plaintiff as part of
F
the Common Areas and Facilities. See para. 17(1).
G G
H 54. Moreover, Central Management Ltd shows that flats are H
sometimes designed so that they could be combined into a single flat by the
I I
removal of a, or part of a, partition wall. We believe it is not uncommon
J for a person to buy 2 adjoining flats intending to make them into one by J
K
removing a non-structural partition wall.
K
L L
Who owns the partition wall?
M M
55. Now if the partition wall was not common parts and had been
N N
reserved by the Developer, who are the owners of the partition wall now?
O Since the Applicant does not claim to have obtained title to the partition O
wall from the Developer, it probably does not matter who owns the
P P
partition wall. However, we agree with Mr Ho that the partition wall is
Q Q
owned by the owners of E1801 and E1803 by operation of section 17 of the
R Conveyancing and Property Ordinance, Cap. 219 (“CPO”) which provides: R
S “Unless the contrary intention is expressed in the assignment, an S
assignment shall operate to assign all the estate, right and interest
in the land assigned which the assignor has in that land and which
T he has the power to assign.” T
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56. Thus, whatever interest the Developer had in the partition wall
B B
has been conveyed to the owners of Flats E1801 and 1803. Thus, by
C analogy with the law on coownership of the dividing wall as between C
adjoining land owners, the partition wall is “co-owned by” the owner of the
D D
two adjoining flats. The Law of Real Property (by Robert Megarry and Sir
E William Wade, 7th edn.) 30-41. E
F F
Disposition
G G
H 57. For the above reasons, the Applicant’s claim must fail. We
H
would allow the appeal, set aside the order of the learned District Judge and
I I
make an order nisi that the Respondents (the Appellants) are to have the
J costs both here and below to be taxed unless agreed. J
K K
L L
M M
(Robert Tang) (Peter Cheung) (Maria Yuen)
N Ag Chief Judge, High Court Justice of Appeal Justice of Appeal N
O O
Mr. Ambrose Ho, SC & Ms Maggie Wong instructed by Messrs Ho &
P Wong for the Respondents/Appellants
P
Mr. Ng Man Sang, Alan & Ms Catherine KK Wong instructed by Messrs
Q Q
Chung & Kwan for the Applicant/Respondent
R R
S S
T T
U U
V V
THE INCORPORATED OWNERS OF WESTLANDS GARDEN v. OEY CHIOU LING AND ANOTHER
由此
A A
CACV 155/2010
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF APPEAL
D D
CIVIL APPEAL NO. 155 OF 2010
E (ON APPEAL FROM LDBM NO. 159 OF 2009) E
_________________
F F
BETWEEN
G G
THE INCORPORATED OWNERS Applicant
H H
OF WESTLANDS GARDEN
I (惠安苑業主立案法團) I
And
J J
OEY CHIOU LING & Respondents
K WONG FUNG LING K
L
_________________
L
M Before: Hon Tang Ag CJHC, Cheung JA and Yuen JA in Court M
Date of Hearing: 7 January 2011
N N
Date of Written Submission on: 7 February 2011
Date of Judgment: 21 February 2011
O O
______________
P P
JUDGMENT
Q ______________ Q
R R
S S
T T
U U
V V
由此
A -2- A
Hon Tang Ag CJHC (giving the judgment of the Court):
B B
C Introduction
C
D D
1. The Applicant is the incorporated owners of Westlands
E Garden (“the Building”). The Respondents are the registered owners of Flat E
E1803 of Westlands Garden. The first named Respondent is the registered
F F
owner of Flat E1801. Flats E1801 and E1803 are adjoining flats separated
G by a partition wall, which was 4 inches thick and made of reinforced G
H
concrete. In or about August 2008, the Respondents caused the partition
H
wall to be removed and converted the two flats into one. Because the
I I
Respondents refused to reinstate the partition wall, the Applicant applied to
J the Lands Tribunal, inter alia, for an order that the Respondents reinstate J
the partition wall.
K K
L 2. On 18 May 2010, District Judge Wong, Presiding Officer, L
M
Lands Tribunal, gave judgment in favour of the Applicant. He accepted the
M
Applicant’s submission that the partition wall was common parts under the
N N
Deed of Mutual Covenant (“DMC”) and/or the Building Management
O Ordinance, Cap. 344 (“the Ordinance”), and that its removal constituted a O
breach of clause 4 in Schedule 2 of the DMC as well as section 34I(1)(a) of
P P
the Ordinance.
Q Q
R
3. This is the Respondent’s appeal. Leave to appeal was granted
R
by the learned Presiding Officer.
S S
T T
U U
V V
由此
A -3- A
Westlands Gardens
B B
C
4. Westlands Gardens comprises six 26-storey buildings over a
C
ground floor podium, a lower ground floor and a sub-lower ground floor.
D D
The six 26-storey buildings are known as Blocks A, B, C, D, E and F with
E 104 domestic flats in each Block (4 flats on each floor from the 1 st to 26th E
floors). It also comprises 442 Car Parking Spaces, 21 Shops or other non-
F F
domestic units on the ground floor, lower ground floor and sub-lower
G G
ground floor.
H H
5. Westlands Gardens was notionally divided into 6,952 equal
I I
undivided shares whereof 1 such share was allocated to each Car Parking
J Space, a total of 258 such shares between the Shops (each Shop having J
different number of shares), 10 such shares to each flat and 2 such shares to
K K
the Roof of each Block.
L L
M First Assignment M
N N
6. The First Assignment was executed on 28 June 1974 (“the
O First Assignment”). O
P P
7. By the 1st Assignment, Westlands Estates Limited (“the
Q Developer”) as vendor assigned 41/6,952nd undivided shares together with Q
exclusive possession of Shop G1 on the Ground Floor and the Lower
R R
Ground Floor of Westlands Gardens to the Hong Kong and Shanghai
S S
Banking Corporation (“the First Purchaser”), but:
T T
“… EXCEPTING AND RESERVING unto the Vendor and its
assigns (i) the right to the exclusive use occupation and
U U
V V
由此
A -4- A
enjoyment of all the shops flats flat roofs main roofs open yards
B
and car parking spaces of and in the said buildings [Westlands
B
Gardens] and the said land [the Remaining Portion of Quarry Bay
Inland Lot No.15] other than the said premises [Shop G1] hereby
C specifically assigned ...” C
D DMC D
E E
8. On the same date the Developer, the First Purchaser and
F F
Goodyear Property Management Limited also executed the DMC.
G G
9. Clauses 1 and 2 of the DMC provided that the First Purchaser
H H
was entitled to the exclusive possession of Shop G1 and the Developer all
I the shops, flats and car parking spaces other than Shop G1. I
J J
10. The DMC went on to provide that:
K K
“3. Each undivided share … shall be held by the person or
persons from time to time entitled thereto subject to and with the
L L
benefit of the easements, rights, privileges and obligations set out
in the First Schedule hereto.”
M M
11. The common parts are not defined in the DMC. However,
N N
paras. 1 and 2 under para. A in the First Schedule to the DMC, though not
O O
exhaustive, refer to some of the common parts, for example:
P
“1. … the entrances, approach road, staircases, landings, P
passages, arcades, lobbies and lifts on the said land and
Q any buildings thereon for all purposes connected with the Q
proper use and enjoyment thereof.
R 2. … the recreation and other common areas within the said R
land for the purposes for which they are designed.”
S S
T T
U U
V V
由此
A -5- A
Assignment of E1801 and E1803
B B
C
12. By an assignment dated 27 March 1975, the Developer
C
conveyed, to Poon Wai Man and Yan Wai Har as joint tenants, Flat E1801
D D
as shown coloured pink on the Floor Plan annexed thereto and together
E with a free and uninterrupted right in common with the Developer and the E
owner or owners for the time being of the other undivided shares in
F F
Westlands Gardens and all persons authorized by them, inter alia, to use the
G G
recreation and other common areas for the purposes for which they are
H designed. The grant was subject to and with the benefit of the DMC. By H
the same Assignment, the Developer excepted and reserved to itself and
I I
other owners of undivided shares for the time being, inter alia, the right to
J the exclusive use occupation and enjoyment of all the shops flats main J
roofs open yards and car parking spaces of and in Westlands Gardens other
K K
than Flat E 1801.
L L
M 13. By an assignment dated 27 March 1975, Flat E1803 as shown M
coloured pink on the Floor Plan annexed thereto was similarly conveyed to
N N
Wong Bo Chi
O O
14. Flats E1801 and E1803 have devolved onto the Respondents
P P
as noted above.
Q Q
R The Building Management Ordinance R
S S
15. Multi-storey Buildings (Owners Incorporation) Ordinance
T (Cap 344) (“MB(OI)O”), the predecessor of the Building Management T
U U
V V
由此
A -6- A
Ordinance (Cap 344) (“BMO”), was enacted on 19 June 1970 before the
B B
DMC was executed.
C C
16. The definition of common parts in section 2 of MB(OI)O has
D D
been preserved in the BMO. Section 2 and Schedule 1 to the BMO are
E applicable to the present case. E
F F
Common parts under BMO
G G
H
17. Section 2 defines common parts as follows:
H
“ (a) the whole of a building, except such parts as have
I I
been specified or designated in an instrument
registered in the Land Registry as being for the
J exclusive use, occupation or enjoyment of an owner; J
and
K (b) unless so specified or designated, those parts specified K
in Schedule 1.”
L L
18. As we understand para. (a), unless a part has been specified or
M M
designated in an instrument … as being for the exclusive use … of an
N owner, it is common parts. N
O O
19. Essentially, it is a matter of construction whether a part has
P
been “specified or designated … as being for the exclusive use of an P
Q owner”. Q
R R
20. What then is the effect of para. (b)? It may be that Schedule 1
S serves as a non-exhaustive pointer to what might commonly be regarded as S
common parts, such that, for example, if a part has been “specified in
T T
Schedule 1”, the court will require stronger indication before it would come
U U
V V
由此
A -7- A
to the view that it has been “specified or designated … as being for the
B B
exclusive use … of an owner”.
C C
21. Mr Alan Ng Man Sang, leading Ms Catherine KK Wong,
D D
appearing for the Applicant, submitted that the partition wall has been
E specified in the BMO Schedule 1. E
F F
BMO Schedule 1
G G
H
22. BMO Schedule 1 consists of 15 paragraphs. Paras. 1, 2, 4 and
H
15 refer to walls.
I I
J (i) Para. 1: J
K “External walls and load bearing walls, foundations, columns, K
beams and other structural supports.”
L L
(ii) Para. 2 :
M M
“Walls enclosing passage ways, corridors and staircases.”
N N
(iii) Para. 4:
O O
“Parapet walls, fences and boundary walls.”
P P
(iv) Para. 15:
Q Q
“… retaining walls including sea walls …”
R R
23. Mr Ambrose Ho, SC (with Ms Maggie Wong), appearing for
S S
the Respondents, submitted that none of these paragraphs relates to an
T T
internal non-structural partition wall dividing two adjoining units.
U U
V V
由此
A -8- A
24. Mr Ng submitted that a partition wall comes under para. 4
B B
because it is a boundary wall. The Presiding Officer did not so hold, and
C there is no Respondent’s notice. C
D D
25. Be that as it may, after the hearing of the appeal, Deputy High
E Court Judge Au-Yeung’s decision in Tam Sze Man and Another v. The E
Incorporated Owners of Shan Tsui Court (HCA 989/2010) was handed
F F
down. Tam Sze Man was also concerned with an internal partition wall
G G
between two flats. The learned judge, on an O. 14A and O. 14 application
H held that the partition wall falls within the common parts, because it was a H
boundary wall, and hence specified in Schedule 1 to BMO and relying on
I I
Elite Garden, that it was structural in the sense that it was part of the fabric
J of the building. On the invitation of the Court, both Mr Ho and Mr Ng J
K
made further (written) submission.
K
L L
26. With respect, we do not believe that the expression “boundary
M wall” covers an internal partition wall. Rather we believe it refers to a wall M
at a boundary of a relevant site or development. The Chinese version of
N N
“boundary wall” in BMO Schedule 1 is “邊界牆” which supports this view.
O O
Moreover given the provisions in paras. 1 and 2, we believe, if an internal
P partition wall was intended to be included, there would have been an P
express reference to it. We do not believe the draftsman would have been
Q Q
content to let it be inferred from the expression “boundary wall”.
R R
27. In our opinion, partition wall has not been specified in
S S
Schedule 1 of the Ordinance.
T T
U U
V V
由此
A -9- A
Section 2(a)
B B
C
28. Whether the partition wall has been “specified or
C
designated … for the exclusive use … for an owner” is a question of
D D
construction.
E E
29. In Jumbo King Ltd v Faithful Properties Ltd & Others (1999)
F F
2 HKCFAR 279, one of the issues was whether a utility room in the
G building was a common area. The utility room was not specifically G
H identified in the DMC as an area of exclusive use, and so (it was argued) it
H
fell within “the common parts”.
I I
J 30. Lord Hoffmann described the argument thus: J
K “… The Schedule says he took the ‘Shop Spaces’ on the ground K
and first floors, the ‘Offices’ on the second third and fourth floors
and flat roof on the 10th floor level. The right to occupy these
L L
areas was to be attributed to 482 of his 719 undivided shares. But
the ground to fourth floors included more space than could
M literally be described as ‘shop spaces’ and ‘offices’. There were M
corridors, lobbies, lavatories, machine rooms, lift shafts,
staircases and the ‘utility rooms’ of which some are in issue in
N this appeal. To whom did the DMC allocate these? The judge N
said that they were not allocated to anyone. The DMC said Mr
O Hotung took shop spaces and offices. The utility rooms were not
O
shop spaces or offices and that was that. …”
P P
31. Lord Hoffmann rejected the argument and said at page 297H:
Q Q
“… the words (for example) ‘offices on the second floor’ must be
understood to mean the whole floor and the reference to offices
R R
merely describes its general use. I quite agree that this is not the
normal meaning of the words. It is sloppy draftsmanship. But
S having regard to all the surrounding circumstances, I have no S
doubt that it is what the parties intended the words to mean.”
T T
32. Lord Hoffmann further explained:
U U
V V
由此
A - 10 - A
“The factual background to the DMC was, as its third
B
schedule said, that the building was new and consisted of two
B
self-contained parts. The upper floors were flats (the domestic
portion) and the lower floors shops and offices (the commercial
C portion). Each had their own staircases and lifts. If, therefore, C
rooms in the commercial portion were left unallocated, Mr Cheng
would continue to enjoy joint rights of occupation. He would be
D D
entitled to occupy the utility rooms and so forth. Mr Hotung
would not have been entitled to let them or re-arrange the
E partitioning of the commercial floors without Mr Cheng’s consent. E
This makes no practical sense. Why should the parties have
intended that Mr Cheng in his flat on the sixth floor should have
F rights of occupation in the commercial portion of the building?” F
at 296J.
G G
33. Under the 1st Assignment in the present appeal, the whole of
H H
the areas designated as flats were reserved to the developer. There was
I nothing in the 1st Assignment to suggest that the partition walls in the I
domestic portion were common areas. Since the 1st Purchaser was a
J J
purchaser only of the G-1 shop, it must be asked what possible interest
K K
would the 1st Purchaser have in making the non-structural partition walls on
L the domestic portion of the building “common areas” at all? Also, if Mr L
Ng is correct, it would mean that as soon as the first assignment and DMC
M M
were made, although it appears from those documents that Westland
N Gardens were still in the course of development, the developers would not N
O
be able to change the size or configuration of any of the domestic flats. It
O
is difficult to see why it should be so.
P P
Q 34. We agree with Mr Ho that the areas occupied by “the flats” in Q
the building - including the partition walls - were designated under the
R R
DMC and the 1st Assignment “for the exclusive use, occupation or
S enjoyment of the owners” of the flats concerned. It follows that the wall in S
T
the present case falls outwith the first limb of the definition of “common
T
parts” under the BMO (i.e. paragraph (a) of the definition).
U U
V V
由此
A - 11 - A
35. Metro City Management Limited v Tsui Fee Hung Vincent and
B B
Lam Wai Fun (CACV 328/2005 / HCA 4327/2003) supports this view.
C There, Recorder Edward Chan SC was asked to determine whether the wall C
over a roof to which the impugned canopies were anchored was part of the
D D
“Residential Common Areas”. The learned Recorder noted that the
E description of the property in the assignment did not make express E
F
reference to the wall in question (paragraph 45). In coming to the
F
conclusion that the wall was not part of the “Residential Common Areas”,
G G
he said:
H H
“50. In the circumstances of this case, while it may well be
argued forcefully that the wall in question may be regarded as an
I external of Tower 4, I do not think it right to regard it as an I
external wall of the Defendants’ property. The idea of having a
J
common area within one’s property is an unattractive one. Given
J
that either side of the wall is occupied exclusively by the
Defendants it is difficult to see how any other owners of Metro
K City may properly enjoy and make use of the wall. Hence I am of K
the view that the wall in question is not part of the Residential
Common Areas.”
L L
M 36. On appeal, Rogers VP agreed with the conclusion of the M
learned Recorder and said:
N N
“16. In my view the opening words of that clause are clear.
O The whole of the flat and the flat roof which appertain thereto has O
been assigned for the exclusive use of the defendants. Whereas
the other external walls of the Tower no doubt come within the
P P
term Residential Common Areas the clause should be read as
excluding that for the purpose of considering the common areas.
Q As the judge pointed out, it would almost be absurd to consider Q
that any of the other owners should have a right of access to that
part of the wall which was otherwise clearly bounded by the
R defendants’ property.” R
S S
37. Yuen JA also noted that-
T T
“61. In theory I would agree with the learned Recorder that it
would be an unattractive proposition to have a commonly-owned
U U
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由此
A - 12 - A
wall between areas exclusively occupied by the same owner as
B
one unit. However the unattractiveness in this case is more
B
theoretical than real. As the Recorder noted, it is difficult to see
how any other owners could enjoy and make use of the walls in
C question (para. 50). In contrast, the Defendants would stand to C
benefit from maintenance of the external walls as a common area
at the cost of the co-owners.”
D D
E 38. Here, for all intents and purposes, the partition wall is for the E
sole use and benefit of the owners of Flats E1801 and E1803. To that
F F
extent, it is indistinguishable from Metro City Management Limited. There,
G as in the present case, there was no specific reference to the wall. There, as G
in this case, although the assignment plan was coloured, the actual wall
H H
itself had not been coloured over. We attach no particular significance to
I I
that.
J J
The DMC
K K
L 39. The Applicant also relied on Clause 4 of Schedule 2 of the L
DMC which required an owner:
M M
“Not to make any structural alteration to any shop, roof, flat or
N car parking space of which he is the owner which may damage, N
or affect or interfere with the use and enjoyment of any other part
O of any building on the said land whether in separate or common
O
occupation or use, nor cut, injure, damage, alter or interfere with
any part or part of any building in common use …”
P P
40. At trial, initially, it was also the Applicant’s case that the
Q Q
partition wall was structural because it was a load-bearing wall. That was
R R
not maintained when both the Applicant’s and the Respondents’ experts
S agreed that the partition wall was not a load-bearing wall. S
T T
U U
V V
由此
A - 13 - A
41. However, on the basis (which we respectfully consider to be
B B
erroneous) that the partition wall was common parts, the learned District
C Judge held that the Respondents had breached clause 4 of Schedule 2. C
D D
42. On appeal, Mr Ng sought to argue, relying we think on the
E first limb of Clause 4 of Schedule 2, that the partition wall was structural in E
that it was part of the fabric of the building.
F F
G G
43. In Incorporated Owners of Elite Garden, this Court (Rogers
H VP, Le Pichon and Yeung JJA) was of the view that an external wall was H
part of the fabric of a first floor unit of a building. There, the Respondent
I I
had opened windows (i.e. made holes in the exterior walls and installed
J windows in the first floor unit of a building), the Applicant Incorporated J
Owners relied on a clause in the DMC under which the owners were:
K K
“(d) Not to make any structural alteration to any unit of which
L L
he is the owner [the first limb] nor … alter or interfere
with any … parts of the … Building … [the second
M limb]” M
N 44. This Court, affirming the learned trial judge, held that both N
limbs had been breached. The leading judgment was delivered by
O O
Le Pichon JA who relied on:
P P
“7. … Pearlman v Keepers and the Governors of Harrow
Q School [1979] 1 QB 56 in construing the expression ‘structural Q
alteration’ in Schedule VIII to the Housing Act 1974, (where)
Geoffrey Lane LJ observed (at 72G):
R R
‘“Structural” in this context means, I believe, something
which involves the fabric of the house as opposed to the
S S
provision merely of a piece of equipment. It matters not
whether the fabric in question is load-bearing or otherwise,
T if there is any substantial alteration, extension or addition T
U U
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由此
A - 14 - A
to the fabric of the house the words of the schedule are
B
satisfied.’”
B
C 45. Le Pichon JA went on to say: C
D “11. For my part, I am not persuaded that the exterior walls of D
the building are ‘owned’ by the owners of the unit bounded by
such exterior wall or walls. … The exterior walls are plainly an
E integral part of the building for the purposes of the second limb E
and the opening of windows was plainly a breach of that part of
F the covenant.” F
G 46. We do not believe Elite Garden has any relevance to an G
internal partition wall. Unlike an external wall, it could not be said, in the
H H
words of Le Pichon JA to be “an integral part of the building”. In this
I I
context we do not believe an internal partition wall is different from an
J internal partition wall making a bedroom. J
K K
Surface only
L L
47. Mr Ng further submitted that the Respondents are only entitled
M M
to use the surface of the partition walls. He relied on Nation Group
N Development Ltd v New Pacific Properties Ltd (2000) 3 HKCFAR 427 N
O O
48. In Nation Group, the purchaser agreed to buy “the entire first
P
floor and its canopy” of a commercial building from vendor. The canopy P
Q was a cantilevered concrete structure at the level of the first floor concrete Q
slab, on three sides of the building, which extended beyond the boundaries
R R
of the lot. The purchaser raised a requisition concerning unauthorised
S structure attached to the underside (soffit) of the canopy. The vendor S
T
responded that it had only contracted to sell rights to the top surface; the
T
rest of the canopy constituted common parts of the building; and thus the
U U
V V
由此
A - 15 - A
unauthorized structures were irrelevant. At issue was whether the property
B B
contracted to be sold included the soffit. The decision turned on the
C construction of the Sale and Purchase Agreement and the DMC. C
D D
49. Ribeiro PJ said at 436D:
E E
“… The correct approach again depends on the proper
construction of the agreement. To take the first purchaser as an
F example, what Madam Chow acquired was one equal undivided F
228th share in the Lot together with the right to the exclusive use
G of ‘Flat A1 on [the] Seventh Floor’. The reason why no one G
would suggest that Madam Chow thereby acquired any right to
use the underside of the floor slab is because the words ‘Flat A1
H on the Seventh Floor’ (or even merely the word ‘flat’) do not, as a H
matter of construction, encompass the underside of the 7th floor
I
slab. It may be different if the agreement had been to grant her
I
exclusive use of ‘the concrete floor slab’, but that is not what the
contract was about.
J J
The same is true of exclusive use of the ‘entire first floor’
which the purchaser contracted to acquire in the present case. As
K Godfrey JA pointed out in the Court of Appeal, the parties must K
be taken to have intended that the purchaser was to be given ‘the
L right to the exclusive use of the floor and ceiling surfaces of the
L
First Floor and of the air space between them,’ in other words, of
the entire volume of the first floor space, but not use of the
M underside of the concrete slab. M
However, a grant of exclusive enjoyment of the canopy
N
stands on a very different footing. ‘The canopy’ is a structure N
which protrudes outwards from the external walls of the building
O and so, unlike ‘flats’ or ‘shops’, does not form part of its internal O
volume. No constraint involving any downstairs neighbour arises.
The agreement grants exclusive use of ‘the canopy’ as a specific,
P named structure, without limitation or qualification. Accordingly, P
giving the words their natural meaning, the grant should be
Q construed as comprehending the entire canopy.”
Q
R 50. Nation Group was not concerned with the ownership of a R
partition wall. It drew an analogy with a floor slab. It was sufficient for
S S
the purpose of Nation Group, for illustrative purpose, to refer to the surface
T T
of the floor slab without going on to consider the ownership of the floor
U U
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由此
A - 16 - A
slab. Indeed, it is clear from passages quoted above that Ribeiro PJ’s
B B
emphasis was that an assignment of a flat on the 7th floor:
C C
“… do not, as a matter of construction, encompass the underside
of the 7th floor slab. …” [Emphasis added]
D D
Central Management
E E
F 51. Central Management Ltd v Light Field Investment Ltd & F
Others, CACV 30/2010 (unreported, 15 December 2010) concerns
G G
No. 41D Stubbs Road, Hong Kong, an extremely tall residential building
H H
known as the Highcliff. The defendants are the registered owners of two
I adjoining flats, namely, Flats 53A and 53B on the 53rd floor of Highcliff. I
In that case, there is no dispute that as the owners of the two adjoining flats,
J J
the defendants were entitled to remove a designated part of the partition
K wall (“the designated part”) constructed between the two units so as to K
L connect the two flats internally. The designated part is made of bricks and
L
is non-structural in nature. The Building Authority had given consent to
M M
the defendants to demolish part of the partition wall to create a larger
N opening between the two units. And the defendants created an opening N
which extended beyond the permitted opening.
O O
P
52. In the plan annexed to the 1st Assignment, in respect of the P
Q non-designated part of the partition wall, the following legend appeared: Q
R “Structural or other elements of construction shall not be
R
removed/altered unless and until it is approved by the Building
Authority”.
S S
53. The issue in that case was whether one could read from this
T T
legend that the entire partition wall had been assigned to the defendants so
U U
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由此
A - 17 - A
that it could be removed if they had the approval of the Building Authority.
B B
As a matter of construction, Cheung JA (with the agreement of the other
C members of the Court) did not regard that the legend showed that the C
developer had chosen not to reserve the partition wall to itself and had,
D D
instead, assigned the same to the defendants. It was not the decision of the
E Court that the partition wall was common parts. It is of interest to note that E
F
the partition wall was assigned by the developer to the plaintiff as part of
F
the Common Areas and Facilities. See para. 17(1).
G G
H 54. Moreover, Central Management Ltd shows that flats are H
sometimes designed so that they could be combined into a single flat by the
I I
removal of a, or part of a, partition wall. We believe it is not uncommon
J for a person to buy 2 adjoining flats intending to make them into one by J
K
removing a non-structural partition wall.
K
L L
Who owns the partition wall?
M M
55. Now if the partition wall was not common parts and had been
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reserved by the Developer, who are the owners of the partition wall now?
O Since the Applicant does not claim to have obtained title to the partition O
wall from the Developer, it probably does not matter who owns the
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partition wall. However, we agree with Mr Ho that the partition wall is
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owned by the owners of E1801 and E1803 by operation of section 17 of the
R Conveyancing and Property Ordinance, Cap. 219 (“CPO”) which provides: R
S “Unless the contrary intention is expressed in the assignment, an S
assignment shall operate to assign all the estate, right and interest
in the land assigned which the assignor has in that land and which
T he has the power to assign.” T
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由此
A - 18 - A
56. Thus, whatever interest the Developer had in the partition wall
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has been conveyed to the owners of Flats E1801 and 1803. Thus, by
C analogy with the law on coownership of the dividing wall as between C
adjoining land owners, the partition wall is “co-owned by” the owner of the
D D
two adjoining flats. The Law of Real Property (by Robert Megarry and Sir
E William Wade, 7th edn.) 30-41. E
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Disposition
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H 57. For the above reasons, the Applicant’s claim must fail. We
H
would allow the appeal, set aside the order of the learned District Judge and
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make an order nisi that the Respondents (the Appellants) are to have the
J costs both here and below to be taxed unless agreed. J
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L L
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(Robert Tang) (Peter Cheung) (Maria Yuen)
N Ag Chief Judge, High Court Justice of Appeal Justice of Appeal N
O O
Mr. Ambrose Ho, SC & Ms Maggie Wong instructed by Messrs Ho &
P Wong for the Respondents/Appellants
P
Mr. Ng Man Sang, Alan & Ms Catherine KK Wong instructed by Messrs
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Chung & Kwan for the Applicant/Respondent
R R
S S
T T
U U
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