The Appeal Committee of the Court of Final Appeal on 26 July 2023 granted leave to appeal in respect of the Court of Appeal’s decision in Donora Company Limited v Incorporated Owners of Tsuen Kam Centre [2023] HKCA 33; [2023] 2 HKC 251. The case concerns the delineation of common parts and the relationship between a first assignment and a deed of mutual covenant. The Appeal Committee was satisfied that the following questions of law were of great general or public importance and granted leave accordingly:

“Question 1: Notwithstanding an earlier reservation of exclusive right to use, occupy and enjoy the external walls in the first assignment by the developer, whether and in what circumstances the grant of rights to co-owners for certain uses of the external walls of a building in a deed of mutual covenant is a sufficient manifestation that the developer does not have such exclusive right?

Question 2: Where a deed of mutual covenant contains a definition that common areas mean, inter alia, parts of the building which are “intended for common use”, whether the fact that the external walls of the buildings serve the functions of (i) holding and supporting the building, (ii) preventing damage to the building’s interior and (iii) enabling the co-owners to have peaceful enjoyment of their respective units of the building means that the external walls are “intended for common use” and hence common areas notwithstanding an earlier reservation of exclusive right to use, occupy and enjoy the external walls in the first assignment by the developer?”

The appeal will be heard on 12 January 2024.

James Man, instructed by Mayer Brown and led by Benjamin Yu SC, acted for the appellant in the leave hearing before the Appeal Committee and previously before the Lands Tribunal in the first instance (led by Bernard Man SC). Bernard Man SC and Jonathan Ng acted for the applicant before the Court of Appeal.

The Appeal Committee’s decision can be viewed here.

The Court of Appeal’s decision can be viewed here.