In Tai Fat Development (Holding) Co Ltd v Gold King Industrial Building (IO) ([2014] HKEC 2130, CA) the question was whether 13 car parking spaces in a building in multiple ownership were common areas or whether they had been retained by the first owner of the entire building. Barma JA referred to the principles of contractual interpretation in Jumbo King ([15]). Commercial common sense can be an aid to construction where the words used are capable of differing, but equally plausible, meanings ([16]). Here the relevant documents were the first assignment of a unit in the building, the DMC, the Special Conditions of Grant and the Approved Building Plans ([17]). The wording of the first assignment gave primacy to the DMC when it came to defining the common areas. The DMC identified the car parking spaces in question as common areas ([23]). A number of other factors supported this conclusion. First, the DMC did not attach ownership shares to the spaces in question ([25]). Second, the DMC referred to ‘Parking Spaces’ (which were not common areas) as being spaces to be allocated to individual buyers; that these spaces had never been assigned was telling ([26]). If the spaces were in private ownership there would be no loading or unloading areas available to non-owners and the accessway would have to be used for this purpose ([27]).
Michael Lower
