中紀投資有限公司 v. 青山道國際工業大廈業主立案法團

LDBM 118/2017

[2021] HKLdT 2

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 118 OF 2017

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D E C I S I O N

(Leave to appeal)

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1.  By a summons dated 6 August 2020, the applicant applies for leave to appeal against the Tribunal’s Decision on Review handed down on 9 July 2020 (“Leave Application”).  As directed by the Tribunal on 17 August 2020, the Leave Application shall be dealt with on paper without oral hearing.

2.  In the said Decision on Review, the Tribunal ordered that:-

(a) the applicant’s application for review of the Judgment of the Tribunal dated 24 January 2020 (“Original Judgment”) be dismissed; and

(b) the Original Judgment be confirmed (“Decision on Review”).

3.  Unless otherwise stated, the same abbreviations as used in the Original Judgment and the Decision on Review will be adopted below.

4.  By the Original Judgment, the Tribunal dismissed the applicant’s claims for, inter alia, an order that the respondent do take such actions, including legal actions, to enforce the DMC and the BMO against the owner of Flat 9A, for the removal of the Window Frames and the reinstatement of the external wall, and to restrain the owner of Flat 9A from installing further similar structures.

Applicable legal principles

5.  It is beyond dispute that an appeal from the Lands Tribunal can only be brought on the ground that the decision is erroneous in point of law (section 11(2) of the Lands Tribunal Ordinance (Cap 17) (“LTO”)).  Leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard (LTO, section 11AA(6)).

6.  As to appeals from review decisions of the Tribunal, in CLP Power Hong Kong Ltd v Commissioner of Rating and Valuation [2013] 4 HKLRD 535, Au J (as he then was) held at paras 29 to 30 that, once the Tribunal has made a review decision:- (1) a party is no longer entitled to seek leave to appeal against the original decision, which would have by then been superseded by the review decision; (2) the party can seek leave to appeal the review decision under the statutory time period on points of law; and (3) in seeking to appeal against the review decision, the party is not limited to relying on only those grounds that have been raised in the review itself, and one may still challenge the review decision on the basis of errors of law of the Tribunal’s original reasons which have not been reviewed.

Grounds of Appeal

7.  The applicant’s intended grounds of appeal (as set out in the draft Notice of Appeal) are based on the following:-

Ground 1 -  The Tribunal erred in law in finding that at the time of passing the 2017 Resolution, it was the intention of the MC to treat the Post-Window Frames as the structures then existing at the external wall of the Building and that the 2017 Resolution on its true construction covered the Post-Window Frames;

Ground 2 -  The Tribunal erred in law in failing to find that the Post-Window Frames were likewise illegal structures and that it was beyond the power of the MC to permit their construction or retention;

Ground 3 -  The Tribunal erred in law in failing to find that the installation of the Post-Window Frames was in breach of Clause 10(g) of the DMC;

Ground 4 -  The Tribunal erred in law in holding that the MC had the power to approve of breaches of Clauses 10(e) and 10(g) of the DMC by the 2017 Resolution.

Discussion

8.  I am of the view that most of the Grounds have been dealt with in either the Original Judgment or the Decision on Review.  In the circumstances, I will only discuss these Grounds briefly below.

9.  For Ground 1 which concerns the true construction of the 2017 Resolution, the applicant complains about the Tribunal’s finding on the intention of the MC in passing the 2017 Resolution and submits that the finding is contradicted or not supported by the evidence.

10.  In my view, the applicant ignored the factual bases relied upon by the Tribunal in concluding that it was the MC’s intention to treat the Post-Window Frames as being covered by the 2017 Resolution.  Such factual bases have been eminently set out in paras 35 and 36 of the Decision on Review, viz the mere technical difference between the Pre- and Post-Window Frames, the respondent’s position throughout the proceedings, the MC members’ not being lawyers, the MC’s concern in passing the 2017 Resolution, the fact that the Window Frames would not affect the structure of the Building, and the consistency in rationale between the 2017 Resolution to the regularization of the Pre-Window Frames.

11.  I consider that Ground 1 actually involves no point of law and has no reasonable prospect of success.

12.  For Ground 2 which concerns the illegality of the Post-Window Frames, the applicant is in fact complaining that the Tribunal refused to allow this new point to be argued in the review.  The Tribunal has set out the approach in paras 24 to 29 of the Decision on Review in rejecting the applicant’s attempt to argue the alleged illegality of the Post-Window Frames, which is not specifically pleaded in the Notice of Application or the Reply, in particular the definition of signboard under section 2(1) of the BO.  Ground 2 does not amount to a point of law and has no reasonable prospect of success.

13.  For Ground 3, as to the question whether the Post-Window Frames should have been regarded as de minimus is a matter of fact finding for the Tribunal.  Having found that “as a matter of fact that [the Post-Window Frames] were so not prominent that a reasonable man would conclude that the external appearance of the Building has been altered” by relying on the size of the Post-Window Frames as shown in the photos (para 49 of the Original Judgment), I consider that there is utterly no room for the applicant to argue that the Tribunal has committed any error of law in concluding that there is no breach of Clause 10(g) of the DMC.

14.  In my view, Ground 3 has no reasonable prospect of success.

15.  For Ground 4, the applicant argued that it was the statutory duty of the respondent under section 18(1)(c) of the BMO to do all things reasonably necessary for the enforcement of the obligations contained in the DMC, including those imposed by Clauses 10(e) and 10(g) of the DMC, and the 2017 Resolution would be a clear dereliction of such duty.  In paras 43 and 46 of the Original Judgment, the Tribunal has explained and taken the view that it was within the power of the respondent to approve the breaches of Clauses 10(e) and 10(g) of the DMC by the 2017 Resolution.  In other words, I disagree that Clauses 10(e) and 10(g) of the DMC impose complete and absolute prohibitions to regulate against the use of the exterior or the exterior wall of the Building by the owners.

16.  Ground 4 has no reasonable prospect of success.

Conclusion

17.  To conclude, the applicant has failed to demonstrate any reasonable prospect of success in its intended appeal and there is no other reason in the interests of justice why the appeal should be heard.  The Leave Application should be dismissed with costs.

18.  Parties have lodged and served their respective statements of costs.  On board brush basis, I summarily assessed costs of the respondent at $80,000 payable by the applicant forthwith.

Mr Lawrence K F Ng and Mr Henry Cheng, instructed by S K Lam, Alfred Chan & Co, for the applicant

Mr Lewis Law and Mr Lok Ho, instructed by Leung, Tam & Wong for the respondent

LDBM 118/2017

[2020] HKLdT 25

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 118 OF 2017

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DECISION ON REVIEW

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Introduction

1.  By the application for review and the affirmation of Chan Chun Wa (“Supporting Affirmation”), both dated 17 February 2020 and filed on 17 March 2020[1], the applicant asks the Tribunal to review the judgment handed down on 24 January 2020 (“Judgment”), pursuant to section 11A of the Lands Tribunal Ordinance, Cap. 17 (“LTO”) and LTPD: Review No. 1/2009 (“LTPD”).

2.  Unless otherwise stated, the same abbreviations as used in the Judgment will be adopted in this decision.

3.  By the Judgment, the Tribunal dismissed the applicant’s claims for, inter alia, an order that the respondent do take such actions, including legal actions, to enforce the DMC and the BMO against the owner of Flat 9A, for the removal of the Window Frames and the reinstatement of the external wall, and to restrain the owner of Flat 9A from installing further similar structures.

Principles regarding application for review

4.  The review process under section 11A of the LTO and the LTPD is a two-stage process.  First, the Tribunal has to decide whether there should be a review. Second, if the Tribunal decides to entertain the application, then pursuant to para 5(6) of the LTPD, “a hearing date will be fixed to deal with the second stage of the review process”.

5.  On 17 March 2020, I directed that “According to LTPD: Review No. 1/2009, the application for review taken out by the applicant shall be fixed for argument on a date in consultation with Counsel’s diaries before the Listing Officer”. Subsequently, I further ordered this application for review be fixed on 18 June 2020 for argument before me.

6.  Mr Law together with Mr Ho for the respondent submitted that the Tribunal has not made any actual ruling on whether the applicant has succeeded in stage 1, ie there should be a review.  With respect, I disagree.  By ordering a hearing date be fixed for review, it must mean that the application for review is entertained and has proceeded to the second stage.  It is unnecessary to have actual ruling on stage 1. 

7.  In the second stage of the review process, the Tribunal may review its decision and “on such grounds as it may think sufficient” may set aside, reverse, vary or confirm it pursuant to section 11A(1) of the LTO and the Tribunal may hear and receive any evidence it thinks fit for the purpose of determining the issue between the parties under section 11A(4) of the LTO.

8.  Mr Ng together with Mr Cheng for the applicant submitted that this application for review is made in accordance with the principle stated by the Court of Appeal in Group Leader Ltd & Ors v Hui Sun Fat [2016] 2 HKLRD 625 (at para 13 per Lam VP) that where a party wishes to run “additional substantive grounds not argued at the trial”, the proper procedure is to make an application for review to canvass the arguments.  Lam VP said in the Group Leader’s case as follows:

“13. This court has said previously that applications for leave are not the proper occasion for giving supplemental reasons for a judgment. It follows that generally it is not proper for additional substantive grounds not argued at the trial to be raised on such occasion. In the present case, we are of the view that the Director should have made an application for review to canvass the arguments based on section 8 so that the point could have been determined by the Tribunal on a proper footing. Be that as it may, the Tribunal accepted that the point, being one going to jurisdiction, could be canvassed on appeal and proceeded to consider its merits. For our part, we are grateful for the Tribunal’s view in that regard and we have no objection to the section 8 point being taken in the appeal. However, as for the future, we expect parties to adopt the proper procedure for the running of a fresh argument.”

9.  Mr Law for the respondent disagreed and submitted that Lam VP’s comments are obiter only since the appeal mainly concerns the issue of the Lands Tribunal’s jurisdiction and the locus standi of the Director of Lands in the Compulsory Sale Application.

10.  In my view, where a party wishes to run additional substantive grounds not argued at the trial of the Lands Tribunal proceedings, he or she may make an application for review to canvass the new arguments but it does not mean that such arguments will be entertained or accepted after hearing.  No doubt, the Tribunal retains very wide discretion whether to accept or reject the new arguments at the review process under section 11A of the LTO.  Nonetheless, this party is obliged to give good explanation as to why the new arguments not argued at the trial, especially if he or she is all along legally represented.  Furthermore, if the relevant issue under which the new arguments are to canvass is not raised or pleaded in the notice of application[2] etc, it is very likely that the new arguments will be rejected; otherwise, it will be against the fundamental principle of litigation which is the finality of trial. 

Grounds of Review

11.  The factual background of the present case has been summarised in paras 1 to 17 of the Judgment, which will not be repeated here.

12.  The grounds of review (the “Grounds of Review”) raised by the applicant are as follows:

Ground 1 -  The Pre-Window Frames were illegal structures and the respondent could not by the 2017 Resolution permit them to be constructed or retained.

Ground 2 -  The Post-Window Frames should in any event be regarded as illegal structures.

Ground 3 -  The Post-Window Frames were in any event never approved by any resolution of the MC.

Ground 4 -  The Window Frames were illegal structures also by reason of the breach of section 30B(8) of the Buildings Ordinance (“BO”).

Ground 1

13.  It is not in dispute that the incorporated owners are not capable to permit illegal structures to be constructed or to acquiesce in the retention of illegal structures.

14.  In IO of Champion Court v Pang Ping Fan Peter & Anor [2008] 5 HKC 312, the Court of Appeal held (at paras 15 and 17 per Yuen JA, with whom Yeung JA and Lam J, as they then were, agreed) that:

“15. … it is the statutory duty of the [incorporated owners] to enforce the provisions of the DMC and unlike the breach of a covenant which incorporated owners are capable of acquiescing in … the [incorporated owners] cannot acquiesce in the retention of illegal structures.

…

17. … that incorporated owners cannot acquiesce in the retention of illegal structures is by now well-established.  The rationale is that since it is not within the power of incorporated owners to expressly permit illegal structures to be constructed, it is consequently not within their power to acquiesce in their retention…” [Emphasis added]

15.  Mr Ng for the applicant submitted that the 2017 Resolution was simply ultra vires the power of the respondent or the MC to permit the retention of the Pre-Window Frames, which are illegal structures.  However, he agreed that the 2017 Resolution is not void entirely.

16.  As said in para 33 of the Judgment, I consider that the affixation of the Pre-Window Frames is no longer in issue as it has been uninstalled and immediately thereafter, the Post-Window Frames were affixed by Tiff as prescribed registered contractor under the minor works scheme.  I accept that if the Pre-Window Frames were illegal structures, the respondent or the MC could not by the 2017 Resolution permit them to be retained.  However, in my view, it is an academic question to be determined by the Tribunal since the ultimate question is whether the Post-Window Frames are illegal structures.  If yes, it must follow that the respondent or the MC is not capable to permit them to be constructed or to acquiesce in their retention.  If not, the next question is whether the 2017 Resolution on its true construction covers the Post-Window Frames.  In the circumstances, I do not see how Ground 1 alone will affect the outcome of the review decision.

Ground 2

17.  In relation to this Ground, the applicant relies on the supplemental report prepared by the applicant’s expert, Mr Tony CK Wong (“Mr Wong”), on 17 February 2020 (“New Report”) which is exhibited as “CCW-10” to the Supporting Affirmation.  In gist, the New Report supports the applicant’s contention that the Post-Window Frames are illegal structures.

18.  Before the preparation of the New Report, Mr Wong had prepared his own report dated 8 December 2017 and a joint report with the respondent’s expert dated 4 May 2018.  It is important to note that according to the order dated 7 February 2018, leave was granted only to the filing of the joint expert report but not any other reports pursuant to Order 38 rule 38 RHC.  According to the index of the Trial Bundle, the joint expert report dated 4 May 2018 was adduced as evidence at the trial.

19.  Order 38 rule 36(1) RHC states that:

“(1) Except with the leave of the Court or where all parties agree, no expert evidence may be adduced at the trial or hearing of any cause or matter unless the party seeking to adduce the evidence—

(a) has applied to the Court to determine whether a direction should be given under rule 37 or 41 (whichever is appropriate) and has complied with any direction given on the application.

…..”

20.  RHC is applicable in this case by virtue of section 10 of the LTO.  Needless to say, no leave is granted by the Tribunal and no agreement with the respondent is reached to adduce the New Report as expert evidence at the review hearing. 

21.  In my view, although the proceedings in the Tribunal is informal under section 10(5)(a) of the LTO, it does not mean that the applicant can adduce the New Report as fresh expert evidence at the review by simply exhibiting the same to the Supporting Affirmation.  Mr Law rightly submitted that at least, the respondent’s expert shall be given a chance to comment on the New Report.  I also consider that if such supplemental expert report is really necessary to assist the Tribunal to determine a particular issue, the applicant shall ask for a supplemental joint expert report rather than a report prepared by his own expert.  Unfortunately, no formal application for leave to adduce supplemental joint expert evidence under Order 38 rule 38 RHC is made by the applicant. Even if leave is granted to adduce the supplemental joint expert report upon application by the applicant, the parties’ experts may have to attend the review hearing for examination by the other side if the discrepancy of their opinion is very substantial.  In short, I conclude that it is not fair to the respondent if I allow the New Report to be adduced as evidence.

22.  Further, I consider that the applicant fails to explain why the New Report could not be obtained with reasonable diligence before the trial[3] bearing in mind that the applicant was all along legally represented and with assistance of Mr Wong [4]. 

23.  In the circumstances, I have no doubt to decline to exercise my discretion to adduce the New Report as fresh evidence under section 11A(4) of the LTO.

24.  Mr Ng for the applicant also argued that since the respondent fails to show that the works for re-affixing the Window Frames carried out by Tiff in March 2018 fell within the meaning of item 2.19 of the List of Class II Minor Works (“said item 2.19”) as stated in the relevant notice[5] and certificate[6], such works did not qualify under the minor works scheme as prescribed by the BO.  Hence, consent and approval of the Building Authority (“BA”) has to be obtained.

25.  To start with, it is a completely new issue which is not raised at the trial bearing in mind that the applicant is represented by Counsel not only at the trial but also at a lot of direction hearings including the pre-trial review on 31 July 2019.  If it is one of the issues in dispute, the parties shall set it out in the agreed list of issues dated 23 July 2019 which was signed by the parties’ solicitors[7] and filed pursuant to para 4 of the order dated 29 May 2019.  The applicant’s solicitors gave no or reasonable explanation for their failure to do so. 

26.  Mr Ng for the applicant argued that this issue is pleaded in para 6.1B of the Re-amended Reply filed by the applicant.  With respect, I disagree.  The issue whether the works for re-affixing the Window Frames carried out by Tiff in March 2018 fell within the meaning of the said item 2.19 is not pleaded.  Para 6.1B of the Re-amended Reply only pleads that the applicant denies that the relevant notice together with the relevant certificate is equivalent to the approval of BD.  The said item 2.19 is never mentioned in the Re-amended Reply or anywhere.  The respondent will be taken by surprise if this issue is allowed at the review hearing.

27.  Besides, this issue is not a pure question of law but a mixed question of law and facts. The Tribunal requires not only the submission by the parties’ lawyers but also factual evidence from the parties and their witnesses such as the owner of Flat 9A, Tiff etc or even the assistance from the parties’ experts.  In my view, the applicant at least shall seek to direct the parties’ experts to conduct a joint site inspection and then prepare a joint report on this issue before the trial.  However, no application for such direction is taken by the applicant. It is too late to do so at the review in view of the fundamental principle of the finality of trial.

28.  Mr Ng cited a decision of the Appeal Tribunal (Buildings), City Season Limited v Building Authority (case no. 336-2016), in which the BD received a complaint about the structures purportedly constructed under the minor works scheme and the Appeal Tribunal (Buildings) ruled that consent of the BA has to be obtained.  I consider that this case is distinguished as the parties to that case are the maker of the subject structures as appellant and the BA as respondent. Certainly, the applicant may lodge a complaint to the BD about the illegality of the Post-Window Frames and see the reply from the BD.

29.  Needless to say, the respondent will suffer prejudice[8] in the present case as it has been deprived of the right to call the owner of Flat 9A, Tiff or other relevant expert to give evidence on this issue at the trial.

30.  As said in para 14 of the Judgment, it was opined by KHP that the Pre-Window Frames (i) were non-structural; (ii) did not cause immediate danger; and (iii) could be regularized, eg by the “Signboard Validation Scheme” (違例招牌檢核計劃). The applicant did not adduce any evidence to challenge the opinion of KHP at both the trial and this review.  This opinion had been accepted by the Tribunal in the Judgment.  It is my understanding that after “regularization”, the relevant structures will not be regarded as illegal structures under the BO. Nonetheless, Mr Ng is in effect making the legal submission that the Pre-Window Frames could not be regularized on the ground that the relevant structures, namely the Window Frames are not “signboards” as defined in the said item 2.19. 

31.  Apart from the legal submission made by Mr Ng in this review, there is no specific evidence from the applicant in the witness statement or oral evidence at the trial regarding the meaning of the said item 2.19. I doubt very much that Mr Ng can make the legal submission without any factual basis from his client.  More importantly, no explanation as to why the issue regarding the meaning of the said item 2.19 cannot be raised earlier, is given by the applicant.  Based on the fundamental principle of the finality of trial, I do not think that I shall allow the applicant to have a second bite of the cherry[9].  I refuse to allow the applicant to canvass this new argument in the review process.

32.  Furthermore, the burden of proving the illegality of the Post-Window Frames must be on the part of the applicant but not the respondent.  I conclude that in any event, the applicant fails to discharge the burden.  Hence, Ground 2 must fail.

Ground 3

33.  As mentioned earlier, the real issue is whether the 2017 Resolution on its true construction covers the Post-Window Frames.

34.  Mr Ng for the applicant submitted that from the wording of the 2017 Resolution[10] itself, it was expressly stated to only approve of the structures then existing at the external wall of the Building (“批准本大廈外牆上現有的非結構性設施”) and there was no further resolution passed by the MC after the works for re-affixing the Post-Window Frames. 

35.  It is not in dispute that the Pre-Window Frames and the Post-Window Frames are in fact the same structures. The difference between the Pre-Window Frames and the Post-Window Frames is very technical, in that it is unknown as to how the Pre-Window Frames were affixed whilst the Post-Window Frames were affixed by Tiff as prescribed registered contractor under the minor works scheme in March 2018.  Obviously, it must be the intention of the owner of Flat 9A to “regularize” the Pre-Window Frames according to the opinion of KHP.  The owner of Flat 9A had notified the respondent about the minor works in March 2018 and the respondent raised no objection[11]. This evidence is not challenged by the applicant.  Mr Law for the respondent submitted that throughout the proceedings, the respondent has adopted the position that the scope of the 2017 Resolution covers the Post-Window Frames.

36.  In my view, the works done by Tiff undoubtedly improve the position of the Window Frames after March 2018.  The members of the MC are not lawyers when drafting the text of the 2017 Resolution.  If the MC in the 2017 Resolution expressly permitted, rightly or wrongly, the retention of the Pre-Window Frames even they may be illegal structures, there is no reason why the MC will not permit the re-affixation of the same structures (ie the Window Frames) in March 2018 or retention of the Post-Window Frames after “regularization”.  According to the 2017 Resolution, the main concern of the MC was whether the structures then existing at the external wall of the Building affects the structure of the Building.  If yes, they must be reinstated and if no, they will be permitted. There is no evidence that the Post-Window Frames affects the structure of the Building.  Hence, I consider that at the time of passing the 2017 Resolution, it is the intention of the MC to treat the Post-Window Frames as the structures then existing at the external wall of the Building and I come to the conclusion that the 2017 Resolution on its true construction covers the Post-Window Frames.

37.  Ground 3 is without merit.

Ground 4

38.  There is no dispute that the respondent was served with the BA Notices by which the respondent was required to carry out a prescribed inspection in respect of the common parts of the Building.  Part of the “prescribed repair” set out by KHP in the inspection report was for the removal and reinstatement of the unauthorized building works as identified therein, which included the Window Frames.

39.  Mr Ng submitted that the failure to remove and reinstate the Window Frames as a part of the prescribed repair was and continues to be a breach of the requirement under section 30B(8) of the BO on the part of the respondent.  Mr Ng further argued that re-affixing works by Tiff under the minor works scheme could not be regarded as “prescribed repair” within the meaning of section 30B(8) of the BO since they were not carried out under the supervision of KHP or a registered inspector, which is contrary to the requirements under section 30D(1)(b) and (4) of the BO.

40.  In my view, it is again a completely new issue, which is not raised at the trial. No explanation is given as to why this new issue cannot be raised earlier.  As mentioned above, if it is one of the issues in dispute, the parties shall set it out in the agreed list of issues dated 23 July 2019.  Mr Ng for the applicant conceded that this issue is not even raised or pleaded in the Amended Notice of Application or the Re-amended Reply filed by the applicant.  I therefore refuse to allow the applicant to canvass this new argument in the review process.

41.  In any event, I have great reservation that as a result of the breach of the BA Notices to carry out the prescribed repairs by the respondent, it will then render the Post-Window Frames to be illegal structures.  I consider that this Ground is without merit.

Conclusion

42.  Except Ground 1, all other grounds of review are rejected.  As said Ground 1 is academic, I order that the applicant’s application for review be dismissed and that the Judgment be confirmed.

43.  As costs shall follow event, I order that the applicant do pay costs of this application to the respondent with certificate for one counsel.  Parties have lodged and served their respective statements of costs and made respective oral submissions at the review hearing.  I summarily assess the respondent’s costs at $120,000 payable forthwith.

Mr Lawrence K F Ng leading Mr Henry Cheng, instructed by SK Lam, Alfred Chan & Co, for the applicant

Mr Lewis Law leading Mr Lok Ho, instructed by Leung, Tam & Wong, for the respondent

LDBM 118/2017

[2020] HKLdT 5

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 118 OF 2017

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JUDGMENT

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Introduction

1.  The applicant is the registered owner of Flat 2A of an industrial building located on Castle Peak Road known as International Industrial Building (青山道國際工業大廈) (“the Building”). 

2.  The respondent is the incorporated owners of the Building.

3.  There are 2 window frame structures (“the Window Frames[1]”) installed at the external wall of the Building by the owner of Flat 9A of the Building (“Flat 9A”). The applicant’s case is that the Window Frames are installed in breach of the deed of mutual covenant of the Building (“DMC”) and the Building Management Ordinance (“BMO”).

4.  The applicant commenced the claims against the respondent in the Tribunal on 22 June 2017 seeking for, inter alia, an order that the respondent do take such actions, including legal actions, to enforce the DMC and the BMO against the owner of Flat 9A, for the removal of the Window Frames and the reinstatement of the external wall, and to restrain the owner of Flat 9A from installing further similar structures.

5.  It is not in dispute that the Tribunal has the jurisdiction to compel the respondent to take necessary actions as sought[2].

Background

6.  The Window Frames are made of aluminium and the dimensions were 1.33 metres tall and 1.5 metres wide.  Photographs of the Window Frames as they appear on the external wall can be found at the appendices of the Re-amended Reply and several reports as mentioned below. 

7.  There is no dispute that the external wall of the Building is the common part of the Building[3].

8.  On 20 July 2015, the Building Authority issued 2 Notices under sections 30B(3) and 30C(3) of the Buildings Ordinance in respect of the Building (“the BA Notices”) to the respondent, under which the respondent were required to:-

(a)  appoint a registered inspector/qualified person within 3 months to carry out prescribed inspection of the common parts and windows of the Building;

(b)  complete the prescribed inspection within the period of time as specified; and

(c)  complete the prescribed repairs (if any were found necessary under sections 30B(8) or 30C(6) of the Buildings Ordinance) within the period of time as specified. 

9.  Pursuant to the BA Notices, 2 inspections of the Building have been carried out. On 14 April 2016, the 1^st inspection was carried out by the 1^st appointed inspector, AHL Contract Management Co Ltd (藝建工程顧問有限公司), and in its report (“the 1^st Inspection Report”), the Window Frames were identified as “UBW” or “unauthorized building works”.

10.  On 19 April 2017 and 2 May 2017, the applicant wrote to the respondent regarding the Window Frames and requested the respondent to take action to require the owner of Flat 9A to reinstate the same.

11.  In response to the applicant’s letters, the management committee (“MC”) of the respondent passed a resolution on 27 July 2017 (“the 2017 Resolution”) pursuant to section 34I of the BMO – common parts, approving the non-structural affixations on the external wall of the Building such as the Window Frames affixed outside Flat 9A etc until the repair of the external wall of the Building in the future and then be resolved by the respondent in respect of the external appearance of the Building and its effects. It was specifically resolved if the affixations affect the structure of the Building, they must be reinstated, furthermore, the respondent might seek to homogenize the appearance of the Building’s exterior walls in the said future renovation.  

12.  The relevant extract of the 2017 Resolution[4]is as follows:-

“(九) 根據「物業管理條例34I – 公用部分」，管理委員會議決批准本大廈現有在外牆上的非結構性設施，包括冷氣架，例如9A單位外的裝飾窗框、等等，直至將來大廈外牆維修時，如決定統一大廈外觀，法團再作議決另行通知業主;

在商討及議決此項議程時，伍顯中先生及茅幼方先生避席。

就上述事宜，管委會商討在大廈外牆上現有之設施及裝飾，如對大廈結構造成影響者必須還原，而非結構性者就可批准。

根據「物業管理條例34I –公用部分」，管理委員會議決以6票贊成批准本大廈外牆上現有的非結構性設施，包括冷氣架，例如9A單位外的裝飾窗框、等等，直至將來大廈外牆維修時，由法團再作議決大廈外牆之外觀以及影響外牆外觀的設施及裝飾。” (後加強調)

13.  Subsequently, in August 2017, a 2^nd inspection was carried out by the 2^nd appointed inspector, Kwok, Hauser and Partners Limited (“KHP”).  It was acknowledged by KHP that the prescribed inspection was completed on 29 August 2017.  At the request of the respondent, KHP was also tasked with providing professional opinion in relation to the Window Frames affixed by the owner of Flat 9A. The Window Frames existing on the wall outside Flat 9A before early March 2018 will be referred to as the “Pre-Window Frames”. 

14.  On 22 December 2017, it was opined by KHP that the Pre-Window Frames (i) were non-structural; (ii) did not cause immediate danger; and (iii) could be regularized, eg by the “Signboard Validation Scheme” (違例招牌檢核計劃)[5].

15.  In early March 2018, the owner of Flat 9A removed the Pre-Window Frames.  On 9 March 2018, the owner of Flat 9A appointed Tiff Group Limited (天阜 (香港) 設計製作有限公司) (“Tiff”) as prescribed registered contractor to file Notice of Commencement of Minor Works with the Buildings Department (“BD”) for its application to affix the Window Frames (Submission No.: MW180301185).  The Window Frames existing on the wall outside Flat 9A on and after 18 March 2018 will be referred to as “Post-Window Frames”.

16.  Upon affixation of the Post-Window Frames on 18 March 2018, Tiff filed Certificate of Completion of Minor Works on 22 March 2018 for the owner of Flat 9A.  On the same day, BD issued to Tiff an acknowledgment letter in respect of the Certificate of Completion (“the said Certificate of Completion”).

17.  According to the inspection report dated 13 July 2018 (“the 2^nd Inspection Report”) prepared by KHP under section 12(2) of the Building (Inspection and Repair) Regulation, it was said that the external wall outside 9^th floor facing Castle Peak Road was altered[6].

Relevant clauses of the DMC and provisions of BMO

18.  Under Clause 10 of the DMC, each owner of the Building entered into various covenants with the other owners of the Building.  The relevant clauses are set out as follows:-

  (a)  Clause 10(c)

“Not to do anything whereby any insurance of the said building or any part thereof against fire may be rendered void or voidable or whereby the premium for any such insurance may be liable to be increased and to indemnify the other owners against any increased or additional premium which by reason of any act or default of his may be required for effecting or keeping up such insurance and that in the event of the said building or any part or parts thereof being damaged or destroyed by fire at any time and the insurance money under any insurance against fire effected thereon being wholly or partially irrecoverable by reason solely or in part of any act or default of his then and in every such case he shall forthwith pay to the other owners the whole or (as the case may require) a fair proportion of the cost of completely rebuilding or reinstating the same.”

  (b)  Clause 10(e)

“Not to erect or affix or permit or suffer to be erected or affixed any signboard, signs, notices posters, signal, advertisement, illumination flag or sunshade bracket fitting or thing to the exterior of the said building or to common areas whithin [sic] the said building or any part thereof or to any exterior wall door or window of the said building.”

  (c)  Clause 10(g)

“Not to change the colour of the painting or alter the appearance of the exterior of the said building or any part thereof.”

19.  In addition to the aforesaid clauses of the DMC, section 34I of the BMO further provides that:-

“(1) No person may-

(a) convert any part of the common parts of a building to his own use unless such conversion is approved by a resolution of the owners’ committee (if any);

(b) use or permit to be used the common parts of a building in such a manner as-

(i) unreasonably to interfere with the use and enjoyment of those parts by any owner or occupier of the building; or

(ii) to cause a nuisance or hazard to any person lawfully in the building.

(2)  Any person who contravenes subsection (1) shall be deemed to be in breach of an obligation imposed on him by the deed of mutual covenant in respect of the building.”

Applicant’s case

20.  Apart from the above mentionedclauses of the DMC and provisions of BMO, the applicant further referred the Tribunal to the insurance policies of the Building issued by China Ping An Insurance (Hong Kong) Co Ltd (“Ping An Insurance”) for the periods of 2018-2019[7]and 2019-2020[8](the terms of which are largely identical).  The following are the pertinent terms of the policies:-

(a)  Under the “Remarks” section of the policy schedule, it was provided that:-

“Special Exclusion:

- Liability in connection with breach of Buildings Ordinance (Cap. 123) essentially concerning but not limited to illegal structure

-  This policy excludes any liability arising out of or in connection with illegal / unauthorized structure”

(b)  Under Clause (b) of the “General Conditions” section of the policy, it was also provided that:-

“Precautions. The Insured shall take reasonable precautions … to comply with all obligations and regulations set out in any legislation applicable or imposed by any authority and to maintain all buildings furnishings ways and works machinery and plant in sound condition. The Insured at his own expense shall cause any defect or danger to be made good or remedied as soon as possible after the discovery and in the meantime shall cause such additional precautions to be taken as the circumstances may require.”

21.  Mr Cheng for the applicant submitted that the respondent has continuously failed to comply with the BA Notices by failing to take action for the removal and reinstatement of the Window Frames, which amounts to a breach of Clause (b) of the “General Conditions”.  There is a real risk that the insurance of the Building may be rendered void or voidable, or that the premium may be liable to be increased (see: Incorporated Owners of Hong Yuen Court v Dugar Shishir and Dugar Saroj & Ors (unrep LDBM 89 & 90/2012, 30 Jun 2015) at paras 102-111).

22.  Mr Cheng further submitted that the MC simply cannot by the 2017 Resolution approve the breaches of the DMC and the BMO in this case and that the 2017 Resolution should also not be valid on the ground that:

  (a)  the owner of Flat 9A who took part in the deliberation and voting of the 2017 Resolution was privately interested in the matter; and

  (b)  the MC acted unreasonably in exercising their discretion under section 34I(1)(a) of the BMO to pass the 2017 Resolution.

Respondent’s case

23.  Mr Law leading Mr Ho for the respondent submitted that the affixation of the Window Frames was not an act in breach of different provisions of the DMC and the BMO relied on by the applicant; and in any event, the MC has passed a valid and reasonable resolution under BMO section 34I(1)(a), namely the 2017 Resolution to temporarily approve the existence of the Window Frames after careful consideration of the prevailing situation of the Building.

Witnesses

24.  The applicant has one factual witness, 伍顯中 (“Mr Ng”) who is the director of the applicant, gave oral evidence at the trial apart from filing his 2 witness statements.

25.  The respondent also has one factual witness, who was the chairman of the respondent at the material time, 莫泮光 (“Mr Mok”) who also filed his 2 witness statements and gave oral evidence at the trial.

Issues in dispute

26.  There are the following issues for the Tribunal’s determination:-

  (a)  Whether the 2017 Resolution is reasonable and/or valid on the ground of failure to disclose interest of the owner of Flat 9A?

  (b)  Whether the installation of the Post-Window Frames at the external wall of the Building by the owner of Flat 9A was in breach of Clauses 10(c), 10(e) and/or 10(g) of the DMC, section 34I(1)(a) and/or section 34I(1)(b) of the BMO? 

  (c)  Whether the 2017 Resolution is effective in approving of the aforesaid breach or breaches of the DMC and/or the BMO? 

  (d)  If the answer to (b) above is “no”, whether the respondent had taken reasonable action against the owner of Flat 9A to enforce the terms of the DMC and the BMO?

Alleged unreasonableness and invalidity of the 2017 Resolution

27.  I shall deal with the question of the reasonableness of the 2017 Resolution first.  It was held in 383HK Limited v the Incorporated Owners of Tak Bo Building[2018] HKCA 164 at paras 34-36 that in terms of the exercise of discretion by the management committee to grant or refuse consent by resolution in relation to the use of a common part of a building, whether as a matter of the construction of the DMC or the interpretation of BMO section 34I(1)(a), there is no place to imply and/or import any requirement of reasonableness. Such a proposition is followed in 有利工業貨倉大廈業主立案法團 v 怡豐興業有限公司[2019] HKLdT 10 at paras 66-67.  Relying on these authorities, I am of the view that the applicant’s contention of the reasonableness requirement is entirely misconceived. 

28.  Another complaint of the applicant against the procedure of the MC meeting on 27 July 2017 is that while Mr Ng was asked to excuse from the meeting, the owner’s representative of Flat 9A 孔玉貞 (“Ms Kung”) did not declare her interest in the meeting and was allowed to vote.

29.  The Building has 25 units only. There were 9 members in the MC at the material time, 8 of which attended the meeting on 27 July 2017 and 6 voted in favour of the agenda item 9 for approving the non-structural affixations on the external wall of the Building including the Window Frames.  That is to say, even if Ms Kung was not allowed to vote on the ground that the owner of Flat 9A has private interest in the matter, the outcome is 5 votes in favour of the said agenda item 9 and the same resolution would still be passed.  Hence, I find that the applicant’s complaint has no merit.

30.  Further, when Mr Ng was asked to excuse from the meeting, he never raised that Ms Kung should also be excused.  Indeed, I find that all 8 MC members who attended the meeting must know very well or ought to know that Ms Kung was representing the owner of Flat 9A and that the said agenda item 9 was expressly to approve the Window Frames affixed by the owner of Flat 9A. Indeed, nowhere in the witness statements of Mr Ng complained that Ms Kung did not declare her interest in the meeting.  Again, Mr Cheng for the applicant was making some legal submissions without the support of the evidence of his client.  I am of the view that the applicant’s complaint has no merit.

31.  Mr Cheng for the applicant refers to Tam Lai King v Incorporated Owners of Malahon Apartments [2010] 5 HKLRD 63, which concerns an action by an owner against the IO and its chairman, the owner claimed that a resolution passed by the IO without the chairman making full and frank disclosure was invalid.  At paras 85-88 of the judgment, Thomas Au J (as he then was) held that the resolution was not obtained properly and fairly and was therefore invalid.  In view of the specific findings of facts in the present case, it is unnecessary for me to discuss Tam Lai King’s case.  Just for the sake of completion, I would disagree with Mr Cheng’s submission.  This case shall be distinguished on its own facts, in that it was the chairman who asked for the consent under the owners’ resolution failed to discharge his duty to make full and frank disclosure.  Nonetheless, Ms Kung was not the chairman of the MC and there is no evidence before me that she or the owner of Flat 9A had ever asked for approval of the Window Frames bearing in mind that the resolution also approved other non-structural affixations on the external wall of the Building by other owners who may be and very likely are one or some of the 8 MC members attending the meeting on 27 July 2017.

32.  To sum up, I conclude that the 2017 Resolution is valid.  

Whether the installation of the Post-Window Frames was in breach of Clause 10 (c) of the DMC?

33.  The affixation of the Pre-Window Frames is no longer in issue as it has been uninstalled and immediately thereafter, the Post-Window Frames were affixed and the said Certificate of Completion from the BD was obtained on the same day.  Mr Cheng for the applicant contended that the 2^nd Inspection Report by KHP still identified the Post-Window Frames as “unauthorized building works”.  With respect, I do not entirely agree. The 2^nd Inspection Report did not explained why they were described as “unauthorized building works” but only suggested that the external wall outside 9^th floor facing Castle Peak Road was altered[9].  In any event, based on the said Certificate of Completion, I fail to see how the Post-Window Frames can be described by KHP as “unauthorized building works” at least under the Buildings Ordinance.

34.  As to whether the Post-Window Frames can be treated as “unauthorized building works” under any clauses of the DMC, I doubt very much that KHP is in the position to make any comments even though KHP is regarded as a building expert engaged by the respondent.  Eventually, it must be a legal question for the Tribunal to determine.

35.  For the interpretation of Clause 10 (c) of the DMC, Mr Cheng for the applicant indeed made no submission as to the important words “insurance …against fire” and “in the event of the said building or any part or parts thereof being damaged or destroyed by fire at any time and the insurance money under any insurance against fire…”. 

36.  In my view, Clause 10(c) was plainly drafted to protect an insurance against a specific type of risk, namely fire, made available to the Building and to prevent the relevant premium from escalating by reason of an individual owner’s act.  In both opening and closing, Mr Cheng for the applicant has just presented the argument and evidence concerning structural safety (ie the risk of falling down) and legal compliance of the Window Frames (whether Pre- and/or Post-Window Frames).  There is not a scintilla of evidence on how the Window Frames (whether Pre- and/or Post-Window Frames) are going to increase the risk of fire or how likely the Building or any part thereof will be damaged by fire due to the affixation of the Window Frames.

37.  For the insurance policies of the Building issued by Ping An Insurance, I consider that it is a comprehensive insurance covering almost all kinds of risks but not just an insurance against fire. Although I accept that this comprehensive insurance should also cover the risk of fire, the burden remains on the applicant to prove that by affixing the Post-Window Frames, either the relevant part that against fire in this comprehensive insurance may be rendered void or voidable, or the premium for such insurance in respect of the part that against fire may be liable to be increased.  In my view, it is a matter of evidence or a question of fact instead of a pure legal question.  Hence, the reliance by Mr Cheng for the applicant on the Incorporated Owners of Hong Yuen Court’s case is of very little assistance. Indeed, I consider that Ping An Insurance is the most suitable party to give evidence in this regard or that at least, the applicant should try to obtain some written comments or response from Ping An Insurance.  Unfortunately, no evidence in this regard is given although the witness of the applicant, Mr Ng, did mention in his witness statement that some other experienced insurance brokers generally advised that the unauthorised structures would not be covered by the insurance.  That is certainly not sufficient.  In the circumstances, I am not satisfied that the applicant is able to discharge the burden to prove that the respondent is in breach of Clause 10(c).   

Any breach of Clause 10 (e) of the DMC and section 34I(1)(a) of the BMO?

38.  The respondent accepts that the installation of the Post-Window Frames may be in breach of Clause 10(e) of the DMC and section 34I(1)(a) of the BMO. However, Mr Law for the respondent argued that the MC (on behalf of the respondent) has approved to waive, temporarily and until the large-scale renovation, the relevant breach(es) of the DMC and the BMO under the 2017 Resolution.  The MC’s power is derived from an implied power under the DMC and express power under the BMO.

39.  To start with, I accept the submission of Mr Law for the respondent that the proper approach to reconcile the inconsistencies between the DMC and BMO is set out in 383HK Limitedv The Incorporated Owners of Tak Bo Building[2018] HKCA 164 at para 19:

“If the matter is not empowered under the DMC, section 34I(1)(a) is determinative of the issue and everything turns on whether a resolution by the management committee authorising the act in question can be obtained. To this extent, section 34I(1)(a) modifies the common law on ouster, as a resolution passed by a simple majority of the votes of the members of the management committee present at a meeting (per section 34D(2)) can now approve what under common law cannot be done without unanimous agreement of all co‑owners.” (emphasis added)

40.  It is further provided under section 34C(2) of the BMO that where there is any inconsistency between provisions contained in Part VIA of the BMO and a DMC, that part shall prevail. 

41.  As to the question of whether the MC or the respondent is legally capable of granting approval or waiver of the breach(es) of the DMC or the BMO in this case, the most relevant authority is Hollywood Shopping Centre Owners Committee Limited v Incorporated Owners of Wing Wah Building Mongkok Kowloon (unrep HCA 1582/2007, 16 Aug 2010).  In the context of acquiescence, waiver and laches by IOs of breaches of DMC and after going through two lines of authorities, as well as other authorities relating to estoppel, Recorder Rimsky Yuen SC (at para 65) summarised the position as follows:-

“(1) whether or not acquiescence can be set up as a defence to a claim for breach of mutual covenants (whether express or implied by reason of section 34I(2) of the BMO) depends on the nature or type of breach in question;

(2) if the breach of mutual covenants in question is within the power of the incorporated owners to acquiesce, acquiescence can be a valid defence provided all the requisite elements giving rise to acquiescence are established; and

(3) on the other hand, if the breach of mutual covenants in question is beyond the power of the incorporated owners to acquiesce, the defence of acquiescence will not be available since the incorporated owners cannot acquiesce in acts which they in law cannot do”[10](emphasis added)

42.  In the present case, the issue whether the respondent is in a position to approve the installation of the Window Frames would depend on the nature or type of the breach.  First, the size of the Window Frames is not huge, only 1.33 metres tall and 1.5 metres wide.  Secondly, the affixation of the same cannot be regarded as illegal upon issuance of the said Certificate of Completion and there is no evidence that it contravenes any other rules and regulations. In FrederCentre (IO) v Gringo Ltd [2016] 2 HKLRD 190, the Court of Appeal held that IO could approve and acquiesce to the trade names affixed to the external wall of the building.

43.  Accordingly, I am of the view that it is within the power of the respondent to approve the affixation of the Window Frames (whether the Pre- and/or Post-Window Frames) under the DMC and under section 34I(1)(a) of the BMO.

44.  Mr Cheng for the applicant relied on my recent judgment Incorporated Owners of Shatin 33 v Lee Wong Tim & Pang Chui Kuen[2018] HKLdT 91 (unrep LDBM 107/2017, 3 Dec 2018), in which I considered that upon proper construction of the relevant clause (i.e. Clause 38) in the subject DMC, it contains a prohibition which the Manager would have no power to grant to owners the right to keep dogs in contravention of the clause since it is the duty of the Manager under such clause to ensure no dog to be kept except for security only[11]. However, in my view, as there is no similar prohibition or express duty on the part of the manager in the DMC in the present case and the Incorporated Owners of Shatin 33’s case concerns dog keeping but not structure erected on the external wall, this case is distinguished.  

45.  Based on the reasons above, I find that the installation of the Post-Window Frames was not in breach of Clause 10 (e) of the DMC and section 34I(1)(a) of the BMO.

Any breach of Clause 10 (g) of the DMC?

46.  Similarly, I find that the installation of the Post-Window Frames was not in breach of Clause 10 (g) of the DMC as MC has passed the 2017 Resolution which is wide enough to approve and cover the breach of Clause 10 (g).

47.  Mr Cheng for the applicant referred me to a recent District Court case, Incorporated Owners of Hong Sing Garden v Cheung Chan Kau & Anor[2019] HKDC 342 (unrep DCCJ 161/2016, 13 Mar 2019), which concerns the issue of alteration of external appearance by an owner’s installation of window frames and window guards[12]and the court held that the IO had no authority to approve of or acquiesce in the breach of the relevant clause of the DMC[13].  With due respect, this case is not binding on me, especially it is noteworthy that the defendants in that case were unrepresented and that the learned judge may not have the sufficient opportunity to hear the legal arguments from the defendants.

48.  If I am wrong, I am of the view that the de minimus principle has application to the present case which was not considered in the Incorporated Owners of Hong Sing Garden’s case.  In Metro City Management Limited v Tsui Fee Hung Vincent and Lam Wai Fun (unrep HCA 4327/2003, 13 Jan 2005) at paras 39-40, Recorder Edward Chan SC said that a “reasonable latitude” should be allowed when considering whether the external appearance may be altered namely, the de minimus rule.

49.  Judging from the photos produced[14]and the size of the Post-Window Frames, I accept that the Post-Window Frames could easily be observed by neighbouring buildings at about the same level, but not so obviously noticed by the ordinary man at the street level.   Thus, I find as a matter of fact that they were so not prominent that a reasonable man would conclude that the external appearance of the Building has been altered.  Hence, applying the de minimus principle, I find that the installation of the Post-Window Frames was not in breach of Clause 10 (g) of the DMC.

Any breach of section 34I(1)(b) of the BMO?

50.  This subsection consists of 2 limbs and imposes a separate and distinct prohibition as to the common parts of a building, ie the prohibition of any person’s use or permission to use the common parts in such manner as:

(a)  to unreasonably interfere with the use and enjoyment of those parts by any owner or occupier of the building; or

(b)  to cause a nuisance or hazard to any person lawfully in the building. 

51.  Mr Cheng for the applicant submitted that the installation of the Post-Window Frames should be in breach of both “unreasonably interference” and “nuisance” limbs. Mr Cheng said that the only reason provided by the respondent for the installation of the Window Frames was for “feng shui”.  In my view, the reason for affixing the Window Frames is irrelevant to the issue as to breach of section 34I(1)(b) of the BMO.  That is to say, even if the reason given is good, it does not mean no breach of the said section.

52.  The burden remains on the applicant to prove his allegation.  In this connection, as stated by Mr Ng in his witness statement, there is a risk of the Window Frames falling off from the external wall, thereby causing injury to pedestrians or owners of the Building, and the compensation for which would not be covered by the insurance of the Building.

53.  For the alleged risk of falling off, I consider that it is a bare assertion made by the applicant without support of any expert opinion.  On the other hand, since the Post-Window Frames were installed by a prescribed registered contractor, Tiff under the “Signboard Validation Scheme” (違例招牌檢核計劃) subsequently and the said Certificate of Completion was issued by the BD, I am not satisfied that the applicant has proved the alleged risk.  I also consider that Mr Cheng is not entitled to make legal submissions without support of the direct evidence from the applicant, in particular the alleged disturbance of the peace of mind of the owners and occupiers etc.

54.  Hence, I find that the installation of the Post-Window Frames was not in breach of both limbs of section 34I(1)(b) of the BMO.

Conclusion

55.  Based on my findings that the installation of the Post-Window Frames was not in breach of Clauses 10(c), 10(e) and/or 10(g) of the DMC, section 34I(1)(a) and/or section 34I(1)(b) of the BMO and that even if any of the aforesaid breach or breaches of the DMC and/or the BMO is/are proved, the 2017 Resolution is effective in approving them (except section 34I(1)(b) of the BMO), all the applicant’s claims must be dismissed.

56.  As costs shall follow event, I therefore make an order nisi that the applicant shall pay costs of these proceedings including all costs reserved, if any, with certificate for one Counsel on the District Court scale, to be taxed if not agreed, which shall become absolute unless any of the parties apply to vary the same by summons within 28 days.  

57.  Lastly, it remains for me to thank all Counsel for their very helpful assistance to the Tribunal.

[1] the Window Frames are further classified as “Post-Window Frames’ and “Pre-Window Frames” in paras 13 and 15 below

[2] See paras 22-24 of the Court of Appeal judgment in See Wah Fan v Incorporated Owners of Ki Tat Garden (Phase I) [2003] 3 HKLRD 1

[3] see section 2 and para 1 of Schedule 1 of the BMO

[4] Trial bundle B, p 415

[5] Trial bundle B, p 431

[6] Trial bundle A, pp 335 and 343

[7] Trial Bundle A, pp356-366

[8] Trial Bundle B, pp 544-556 

[9] Trial Bundle A, pp 335, 343 and 354

[10] This summary was upheld by the Court of Appeal [2011] 4 HKLRD 623 at para 21

[11] See para 26 of the judgment

[12] See paras 5, 12-15 of the judgment

[13] See paras 26 of the judgment

[14] Trial Bundle A, pp 13-14, 39-43, Bundle B, pp 423, 431, 525-526