LDBM 104/2001

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
Building Management Application No. LDBM 104 of 2001

_________________
BETWEEN
BARNES & NOBLE PROPERTY
MANAGEMENT LIMITED and
Applicants
RISING CROWN LIMITED
And
THE INCORPORATED OWNERS OF
KWAN YICK BUILDING PHASE III Respondent

_________________

Coram: Deputy Judge WONG, Presiding Officer, Lands Tribunal

Dates of Hearing: 11, 12 & 15 October 2001 and 17 November 2001
Date of Judgment: 19 December 2001

_________________

JUDGMENT
___________________

The Claim

1. The first named Applicant is the Manager of the Basement Car Park
(“the Basement”) in Kwan Yick Building, Phase III, Nos. 271-285 Des
Voeux Road West, Hong Kong (“the Building”). The second named
Applicant is the owner of the Car Parking Space No. 27 in the Basement.
The Applicants are authorized by all the car park owners of the Basement
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to bring the present proceedings against the Respondent.

2. The Respondent is the Incorporated Owners of the Building

incorporated under and pursuant to the Building Management Ordinance,
Cap. 344 (“the BMO”). The Respondent is also the Manager of the
Building.

3. The structural columns at the Basement are in serious dilapidated

and defective conditions. The Applicants contend that the damages were
caused by severe rising damp from the foundation to the structural
columns. A Building Authority Order No. INVO34/HK/98 dated 25th May
1998 was issued in respect of the same.

4. The Applicants further contend that under the Deed of Mutual

Covenant of the Building (“the DMC”) and the BMO, it is the duty and
obligation of the Respondent to repair these structural columns, and hence
seek for the following orders:-

“(1) A declaration that:

(a) The structural columns with dilapidations/defects at the

Basement of the Building as identified in a Water Leakage
Inspection Report dated 25th January 1999 prepared by L C
Surveyors Ltd. form part of the common parts and/or main
structure of the Building;

(b) It is the duty and obligation of the Respondent as the

Incorporated Owners of the Building under the Deed of Mutual
Covenant Memorial No. 1539602 in respect of the Building
and the Building Management Ordinance Cap. 344 to repair
the said defects in the said structural columns as required by a
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Building Authority Order No. INVO34/HK/98 dated 25th May

1998.

(2) An order that the Respondent do indemnify all the owners of all Car
Parks at Basement of the Building against all costs and expenses for
repairing the said defects in the said structural columns as required by the
said Building Authority Order No. INVO34/HK/98.”

The Defence

5. The Respondent, however, contends that:-

(1) The owners of the Basement have exclusive use of the

Basement and the Basement does not form part of the
common parts of the Building;

(2) Some parts of the damages are exclusively inside or

directly above the car parking spaces inside the Basement
and the first named Applicant shall have responsibility for
the repair and maintenance of those parts of the damages;

(3) The damages were not solely caused by the rising damp,
but were caused or contributed to by:-
(a) The rusting of the steel corner guards installed at
the structural columns by the first named Applicant;
(b) The unsatisfactory work of raising the foundation
level of the Basement by the first named Applicant,
which has led to the accumulation of water inside
the Basement; and
(c) The failure of the first named Applicant to install
sufficient ventilation system for the Basement; and
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(4) The steel corner guards were installed for the benefit of
the owners of the car parking spaces of the Basement and
therefore the owners of the Basement shall have the
responsibility to repair and maintain the columns.

The Issues

6. According to the Water Leakage Inspection Report dated 25 th

January 1999 prepared by LC Surveyors Ltd., there are various defects
located at the structural columns, beams and walls of the Basement,
consisting of spalling, detachment of plastering, rusting and detachment of
steel corner guards. Most of the defects, however, are located at the lower
parts of the structural columns. The orders sought by the Applicants
concern only the structural columns, but not the beams and walls of the
Basement. Thus, I shall confine my judgment to the structural columns
only.

7. On the other hand, the Respondent has raised the issues about
whether the owners of the Basement have exclusive use of the Basement
and whether the Basement forms part of the common parts of the Building.
The crux of the matters, however, should be whether the owners of the
Basement have exclusive use of the structural columns, not the Basement,
and whether the structural columns, not the Basement, form part of the
common parts of the Building.

8. The issues before me are therefore as follows:-

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(1) Whether the Applicants and the owners of the car parking
spaces in the Basement own or have exclusive use of the
structural columns;

(2) Whether the structural columns are common parts of the

Buildings;

(3) The cause or causes for the damages of the structural

columns; and

(4) Whose responsibility to repair and maintain the structural

columns.

Exclusive use

9. According to the report of the Applicants’ expert (exhibit “A3”), the

structural columns in the Basement extend up through the entire building
and are integral parts of the structural frame. The Respondent does not
seem to dispute this. In fact, in the report of the Respondent’s expert
(exhibit “R2”), the Respondent’s expert referred these structural columns
as concrete load bearing structures, and he also concluded that if the
conditions of these damaged concrete structural columns supporting the
weight of the residential units on top deteriorated, they could affect the
structural safety of the two blocks of residential units on top of the podium.

10. I therefore accept the evidence of the Applicants’ expert and find
that the structural columns in question are integral parts of the structural
frame for the whole building.
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11. As integral parts of the structural frame for the whole building, the
structural columns cannot be for the exclusive use and enjoyment of the
Applicants or the owners of the Basement. They should be for the use of
all the owners of the Building. It is misconceived for the Respondent to
argue that because the Applicants have exclusive possession of the
Basement and the structural columns are inside the Basement, the
Applicants also have exclusive possession of the structural columns. If the
Respondent’s contention were correct, it would mean that the Applicants
could remove or damage these structural columns as they wished without
having any responsibility towards the other owners of the residential flats
above the podium. This simply cannot be right.

12. Thus, even assuming that the Applicants have exclusive possession
of the Basement, it does not mean that they have exclusive possession of
the structural columns inside the Basement.

13. Moreover, I do not accept the Respondent’s contention that the

Applicants or the owners of car parking spaces in the Basement have
exclusive possession of the Basement as a whole. In the Assignment dated
19th December 1980 (Memorial No. 2024872), the developer of the
Building, China Provident Development Company Limited, assigned to the
first purchaser, Hail Yonge Limited, “ALL THAT the BASEMENT FOR
CAR PARKING of the said building as shown coloured pink and pink
hatched blue on the Basement Floor Plan…EXCEPTING AND
RESERVING unto the Vendor and the other co-owners…the exclusive
right to the use occupation rents and profits of...all other parts of the said
building not intended for common use...SUBJECT to and with the Deeds of
Mutual Covenant”.
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14. There is no specific mentioning that the structural columns were

assigned to the first purchaser. The structural columns were not coloured
pink or pink hatched blue, but marked as solid black lines on the Basement
Floor Plan. The developer has also reserved to his own use those parts of
the Building not intended for common use. I do not accept that by the said
Assignment, the developer has assigned to the first purchaser the Basement
together with those parts of the structural columns in the Basement. By the
same token, the subsequent assignments would not have transferred the
ownership of the structural columns to subsequent owners. Thus, I do not
find that the Applicants or the owners of the car parking spaces in the
Basement own or have exclusive possession of the structural columns.

15. The Respondent also argues that the owners of the car parking
spaces in the Basement have treated the whole area inside the basement as
their own property by relying on the following matters:-

(1) The predecessor-in-title of the owners of the Basement

redesigned and subdivided the Basement into more car parks;

(2) The owners of the Basement have their own management

company;

(3) The owners of the Basement or their agent raised the floor
level of the Basement without informing the Respondent;

(4) The owner of the Basement or their agent mounted the corner
guards on the columns;

(5) The owners of the Basement or their agent erected a tool bar
and a toll-house at the entrance of the Basement;
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(6) The owners of the Basement of their agent put a plate

marking ‘Private Road’ in Chinese characters at the entrance
of the Basement; and

(7) Only the vehicles permitted by the agent of the owners of the
Basement can enter the Basement.

16. However, save for point (4) above, all these matters do not refer to
the possession of the structural columns, but to the possession of the
Basement. As aforesaid, the crux of the matters is not whether the
Applicants or the owners of the car parking spaces have possessed the
Basement but whether they have possessed the structural columns. It is
therefore not necessary for me to deal with these matters save for point (4).

17. From the evidence of the Applicants’ expert, it is clear that there are
2 types of corner guards inside the Basement, Type A and Type B. Type A,
about 360 in number, were most likely to have been installed at the time
when the Building was constructed. Type B, about 80 in number, were
installed by the previous owner of the Basement when additional car
parking spaces were created. I accept the evidence of the Applicants’
expert and find that Type A corner guards are part and parcel of the original
columns and hence they have nothing to do with the Applicants. As to
Type B corner guards, although they were installed by the Applicants’
predecessor-in-title, it is clear and I do accept that they were installed
simply to protect the structural columns from being damaged by cars. I do
not accept that they were installed for the benefit of the owners of the car
parking spaces in the Basement as suggested by the Respondent. I do not
find that by putting up the corner guards to prevent the structural columns
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from being damaged, it would amount to possession of the structural

columns, or that the Applicants and the car park owners have used the
structural columns in any other ways. They remain as structural elements
supporting the entire Building.

18. It is therefore my finding that the Applicants or the owner of the car
parking spaces in the Basement do not have exclusive possession of the
structural columns.

Common parts

19. Section 2 of the BMO defines “common parts” as:-

“(a) the whole of a building, except such parts as have been specified or
designated in an instrument registered in the Land Registry as being
for the exclusive use, occupation or enjoyment of an owner; and

(b) unless so specified or designated, those parts specified in the First

Schedule;”

20. The First Schedule of the BMO stipulates that the following parts,
inter alia, are common parts:-

“1. External walls and load bearing walls, foundations, columns, beam and
other structural supports.”

21. It is clear that the structural columns in question are included in the
First Schedule of the BMO. Since there is no specific mentioning in any of
the instruments registered in the Land Registry that the structural columns
were for the exclusive use, occupation or enjoyment of an owner, the
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structural columns fall within the definition of “common parts” in Section 2

of the BMO.

22. Since it is also my finding that the Applicants or the owners of the
car parking spaces in the Basement do not have exclusive possession of the
structural columns, the structural columns remain as common parts of the
Building.

Cause or causes for the damages

23. The Respondent’s expert gave evidence that it was highly possible
that the fish lugs or wall plugs of the corner guards contacted the
reinforcement bars inside the structural columns which led to the rusting of
the reinforcement bars and that while the corner guards were installed,
some air were trapped inside the structural columns and caused the rusting
of the reinforcement bars. The Respondent’s expert opined that if there
were no such corner guards, there would be no such serious damages inside
the Basement.

24. I do not accept this contention. From the evidence of the

Applicants’ expert, the damages were not confined to the structural
columns. They covered the beams and walls of the Basement as well.
Most of the corner guards, i.e. Type A, were not installed by the Applicants,
but were probably installed at the time when the Building was built. The
explanations offered by the Respondent’s expert fail to explain the damages
caused to these corner guards, the beams or the walls at all.

25. The Applicants’ expert, on the other hand, gave very convincing
evidence that the defects in the structural columns and the rusting of corner
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guards were both caused by the rising damp. In fact, the Respondent’s
expert under cross-examination agreed that the defects in the structural
columns were most serious at the bottom and then lessening upwards. This
confirms with the explanation of the Applicants’ expert that the damages
were caused by rising damp, which went up to the structural columns
through capillary action.

26. The Respondent’s expert also admitted under cross-examination

that he did not actually see the lugs touching the reinforcement bars and
there was no need for the lugs to be joined to the reinforcement bars.
Moreover, if the rusting were passed from the corner guards through the
lugs to the reinforcement bars, the defects of the structural columns would
be most serious at the location of the lugs, but this is not the case here.

27. In the premises, the Respondent cannot prove at all that the
damages at the structural columns were caused or contributed to by the
rusting of the corner guards.

28. As to the raising of foundation level, I accept the evidence of the

Applicants’ expert that the laying of the new concrete floor was
successfully done. The granular layer between the old floor slab and the
new floor slab has in fact the function of stopping or greatly reducing the
capillary action of the rising damp. The Respondent’s expert agreed to this
under cross-examination. Thus, there is absolutely no basis or evidence to
support the Respondent’s contention that the raising of the floor level had
caused damages to the structural columns.

29. The Respondent also contends that there is insufficient ventilation

system in the Basement, but again there is no evidence to support this
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contention. The Applicants have shown that there are 4 ventilation fans in
the Basement, which I accept. The Respondent’s expert was not aware of
these fans but simply opined that they could not be sufficient for the
Basement. I do not think that the opinion of the Respondent’s expert on
this point has any value when he has not actually seen the real fans in
question. Moreover, the evidence that there was no mould growth on the
walls inside the Basement and the peeling off of the paint only confined to
the base portions of the walls and columns clearly indicate that there is no
problem with the ventilation system. Otherwise, there should be moulds
and peeling off of paints all over the walls and columns, rather than just
confining to the base portion.

30. In the circumstances, I find that the cause of damages to the

structural columns were due to the rising damp rather than the rusting of
corner guards, raising of the floor level or insufficiency of ventilation
system as alleged by the Respondent.

Whose responsibility

31. Section 18(1)(a) of the BMO stipulate that:-

“(1) The corporation shall—

(a) maintain the common parts and the property of the corporation in
a state of good and serviceable repair and clean condition;”

32. Clause 9(d)(4) and (5) of the DMC stipulate that the Manager shall
have the following duties:-
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“(4) To keep the common parts of the said building reasonably clean and in
good sanitary state and condition.

(5) To repair and keep in good repair and condition the main structure, the
Main Roof and the Flat roofs and fabric of the said building its
equipment, apparatus and services intended for common use and the
rooms or places allocated for the installation or affixing of such
equipment apparatus, and services and common areas and when
necessary to replace any part or parts thereof which require
replacement.”

33. It is clear that the Respondent, as Incorporated Owners and

Manager of the Building, has a duty under Section 18(1)(a) of the BMO
and Clause 9(d)(4) and (5) of the DMC to maintain and repair the common
parts. As it is my finding that the structural columns are common parts of
the Building and the damages were not caused by the Applicants or the
owners of the car parking spaces as alleged by the Respondent, the
Respondent is clearly under a duty to repair the structural columns.

34. The Respondent, however, relies on the case of Uniland Investment

Enterprises Ltd. v. Incorporated Owners of Sea View Estate & Anor [1999]
33 CPR 33 to say that Section 34H of the BMO confers on a person who
owns any part of the Building or has the right to exclusive possession of
any part of the Building, or has exclusive right to the use, occupation or
enjoyment of that part, the duty to maintain that part in good repair and
condition.

35. In the Uniland’s case, there was no dispute that the plaintiff owned
the outer wall and flat roof in question. As aforesaid, I do not find that the
Applicants or the car park owners own the structural columns, or have
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exclusive possession of them or have any exclusive right to use, occupation

or enjoyment of them. Thus, Section 34H or the case of Uniland has no
relevance in my present situation.

36. The Respondent also relies on the case of Wong Lai Kai v.
Incorporated Owners of Luk Fu Building, Yuen Long [2000] 3 HKC 633,
but that case stands on the same principal, i.e. who has the use or benefit of
a facility bears the responsibility to maintain and repair. The Structural
columns in question, unlike the awning in Wong Lai Kai’s case, are for the
benefit and use of all the owners of the Building because they support the
whole building as parts of the structural frame. Thus, again, I do not think
that the case of Wong Lai Kai can assist the Respondent at all.

37. Although some of the damages are inside or directly above the car
parking spaces, as my finding is that the car park owners do not own or
possess the structural columns, the Respondent is liable to maintain and
repair those structural columns inside or above the car parking spaces.

38. Since it is my finding that the corner guards were for protecting the
structural columns rather than for the benefit of the car park owners and the
cause of the damages was due to the rising damp, the installation of some
of the corner guards by the car park owners or their predecessor-in-title
would not impose any responsibility to repair and maintain the structural
columns as alleged by the Respondent.

Conclusion

39. By reason of the matters aforesaid, I conclude that:-

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(1) The Applicants or the owners of the car parking spaces of

the Basement do not own or have exclusive possession of
the structural columns;

(2) The structural columns are common parts of the Building;

(3) The damages to the structural columns were caused by the

rising damp and not the rusting of the corner guards, raising
of the floor level or insufficient ventilation as alleged by the
Respondent; and

(4) The Respondent is liable to maintain and repair the

structural columns.

Orders

40. In the circumstances, I grant the orders as sought by the Applicants

in this Application.

41. I also make an order nisi that the Respondent shall pay the
Applicants their costs of this Application, to be taxed, if not agreed. If
there is no further application in relation to costs within 14 days from the
date hereof, the costs order nisi shall become absolute.

Deputy Judge WONG

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Presiding Officer
Lands Tribunal

Mr. J. LAI of M/S J. Chan & Lai, for the Applicants.

Mr. Steven W.H. SO, instructed by M/S Day & Chan, for the Respondent.