聯基新樓業主立案法團 v. Yan Yan Motors Ltd
Read the full judgment text of HCSA 7/2015 on BabelCite. This High Court CFI judgment was delivered on 18 September 2015.
1. On 16 January 2015, the Deputy Adjudicator made a total of 7 awards in SCTC 30000, 30001, 30002, 30003, 30004, 30005 and 30554/2014 in favour of the claimant and ordered the defendant to pay to the claimant various sums representing the defendant’s share of the costs of repairs and maintenance of a building known as Luen Gay Apartments (“the Building”) situated at 124-134 Belcher’s Street, Kennedy Town, Hong Kong, together with interest and costs.
Cited by 1 case · Cites 3 cases
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HCSA 7/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 7 OF 2015 (On appeal from Small Claims Tribunal Claim No. SCTC 30000 of 2014) _______________
_______________ HCSA 8/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 8 OF 2015 (On appeal from Small Claims Tribunal Claim No. SCTC 30001 of 2014) _______________
_______________ HCSA 9/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 9 OF 2015 (On appeal from Small Claims Tribunal Claim No. SCTC 30002 of 2014) _______________
_______________ HCSA 10/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 10 OF 2015 (On appeal from Small Claims Tribunal Claim No. SCTC 30003 of 2014) _______________
_______________ HCSA 11/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 11 OF 2015 (On appeal from Small Claims Tribunal Claim No. SCTC 30004 of 2014) _______________
_______________ HCSA 12/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 12 OF 2015 (On appeal from Small Claims Tribunal Claim No. SCTC 30005 of 2014) _______________
_______________ HCSA 13/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 13 OF 2015 (On appeal from Small Claims Tribunal Claim No. SCTC 30554 of 2014) _______________
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________________________ D E C I S I O N ________________________ INTRODUCTION 1.On 16 January 2015, the Deputy Adjudicator made a total of 7 awards in SCTC 30000, 30001, 30002, 30003, 30004, 30005 and 30554/2014 in favour of the claimant and ordered the defendant to pay to the claimant various sums representing the defendant’s share of the costs of repairs and maintenance of a building known as Luen Gay Apartments (“the Building”) situated at 124-134 Belcher’s Street, Kennedy Town, Hong Kong, together with interest and costs. 2.On 23 February 2015, the Deputy Adjudicator dismissed the defendant’s application for review of the said awards. 3.On 22 April 2015, this court granted leave to the defendant to appeal against the Deputy Adjudicator’s said decision made on 23 February 2015. 4.As mentioned in this court’s written decision dated 22 April 2015, the defendant argues that that the Deputy Adjudicator erred in law in three aspects in making his awards, namely, that :-
5.Before I turn to consider these 3 grounds of complaint raised by the defendant, I shall first set out the background facts relevant to the present appeals. Background facts 6.The Building, erected upon Section L of Inland Lot No 906, has twenty four floors. The ground floor consists of shops or non-domestic units, the first floor consists of business and/or domestic units, and the second to twenty fourth floors consist of domestic flats. 7.The deed of mutual covenant (“the DMC”) relevant to the Building was entered into on 27 July 1972 amongst Realty Development Corporation Limited (“the Developer”), Wong Hong Chon (“the First Purchaser”), and Kennedy Town Service Company Limited (“the Management Company”). 8.Clause 3 of the DMC, which forms the focus of the parties’ arguments in these appeals, states as follows:-
9.In what follows, the external walls of the Building referred to in clause 3(b) and (c) of the DMC shall be referred to as “the External Walls”, and the main roof of the Building shall be referred to as “the Main Roof”. 10.On 15 December 2013, a meeting of the owners of the Building was held. At that meeting, the owners resolved to carry out certain works of repairs and maintenance in relation to the Building, including (i) general repairs and maintenance, and (ii) fire services installation works. The total costs for these works came to HK$16,813,784 and HK$1,265,022 respectively. 11.The Incorporated Owners of Luen Gay Apartments (ie the claimant) decided that the said costs ought to be borne by the co-owners of the Building on a pro-rata basis by reference to the number of undivided shares of and in the relevant building and land held by the co-owners. 12.The defendant was at all material times, and is, one of the co-owners of the Building. It objected to the claimant’s decision regarding the apportionment of the said costs. In particular, the defendant considered that under the DMC, the Developer was given the exclusive possession, or exclusive right to the use occupation or enjoyment, of the External Walls and Main Roof of the Building, and therefore ought to be solely responsible for the relevant portions of the costs incurred in the repairs and maintenance of those parts of the Building. The claimant disagreed with the defendant’s contention. 13.On 8 August 2014, the claimant brought 7 actions in the Small Claims Tribunal against the defendant to recover the apportioned costs which the claimant considered to be due and payable by the defendant. 14.As earlier mentioned, the Deputy Adjudicator eventually found in favour of the claimant, and ordered the defendant to pay the total sum of HK$130,569.40 to the claimant by 7 separate awards. The Developer does not have exclusive possession, or exclusive right to the use occupation OR enjoyment, of the External Walls of the Building under the DMC 15.The main debate between the parties at the hearing of the appeals relate to the question of whether, upon the true construction of the DMC, the Developer is entitled to the exclusive possession, or exclusive right to the use occupation or enjoyment, of the External Walls and Main Roof of the Building. If the answer to this question is “yes”, the Developer would be under an obligation to maintain the External Walls and the Main Roof in good repair and condition by virtue of section 34H of the Building Management Ordinance (“the BMO”), notwithstanding any inconsistent provision in the DMC (by the operation of section 34C of the BMO). 16.In The Incorporated Owners of Goa Building v Wui Tat Company Limited, CACV 349/2002 (17 July 2003), the Court of Appeal held that a provision in the deed of mutual covenant which merely gave the developer the exclusive right to erect signs, signboards, flu pipes, etc on the external walls did not give to the developer either the exclusive possession of the external walls or the exclusive right to the use occupation or enjoyment thereof for the purpose of section 34H of the BMO, and accordingly the developer was not responsible for the whole costs for the maintenance of the external walls. The reasoning of the Court of Appeal can be found in the following passages in the judgment of Rogers VP (with whom Le Pichon JA and Waung J agreed):-
17.In respect of this decision of the Court of Appeal, Mr Soloman Lam (for the defendant) placed emphasis on the fact that the relevant clause (ie clause 1.01 of the deed of mutual covenant in that case) referred not only to the external walls but also to other parts of the building in common use. I accept that this was a matter which Rogers VP referred to in his judgment, but it is clear from my reading of his Lordship’s judgment as a whole that the conclusion reached was primarily on the basis that the rights accorded to the developer under clause 1.01 did not comprise all the rights which would amount to the exclusive possession or the exclusive right to the use occupation or enjoyment of the external walls. The fact that clause 1.01 referred not only to the external walls but also other parts of the building in common use was an additional point which Rogers VP considered put the contrary position “self-contradictory and absurd”. 18.A similar conclusion was reached in a subsequent decision of the Court of Appeal in The Incorporated Owners of Shatin New Town v Yeung Kui, CACV 45/2009 (10 December 2009). In that case, the relevant deed of mutual covenant gave the developer the exclusive right to erect pipes on the exterior walls and also to use the exterior walls for advertising purposes. Cheung JA (with whom Stone and Lunn JJ agreed) held that the conferring of such exclusive right to use the exterior walls for limited purpose did not give the developer exclusive possession of the exterior walls. The following passages in the judgment of Cheung JA are relevant for the present purpose:-
19.Again, although the Court of Appeal in The Incorporated Owners of Shatin New Town case took into account other considerations in coming to the conclusion that the developer did not have the exclusive possession of the exterior walls (including the fact that the developer’s right to use the exterior wall was “qualified” by the need to obtain the prior approval of the manager, the exercise of the developer’s advertising right was subject to the approval of government authorities and must not unnecessarily interrupt the enjoyment of the residential units, and the exterior walls were specifically designated as a common area), in my view the consideration central to the decision of the Court of Appeal was that stated in paragraph 18 of the judgment of Cheung JA, namely, whether the rights conferred on the developer comprised “all the rights which would amount to the exclusive possession or the exclusive right to the use, occupation or enjoyment of a part of the building”. 20.In the present case, the Developer’s exclusive right to use the External Walls under clause 3(b) and (c) of the DMC is limited to the erection, installation and display of signboards, advertisements, decorations, lights, lanterns, articles and other display materials. Such right cannot be regarded as comprising all the rights which would amount to the exclusive possession or the exclusive right to the use occupation or enjoyment of the External Walls. 21.Support for this conclusion can also be found in clause 4(a) of the DMC, which confers on the Management Company the “exclusive right to use the external and internal walls …. for signboards, advertisements, decorations, lights, lanterns and other display material as the Management Company may think fit”. Although this right is, as stated at the beginning of clause 4(a), “[s]ubject to the reservation in favour of [the Developer] under Clause 3”, it seems to me that if the Developer is to be regarded as having the right to the exclusive possession of the External Walls or the exclusive right to the use occupation or enjoyment thereof, the right given to the Management Company under clause 4(a) would be largely meaningless. In my view, the two clauses ought to be read together such that, subject to the Developer’s right (which shall have priority) to use the External Walls for the limited purposes mentioned in clause 3(b) and (c), the Management Company is also entitled to use External Walls for some limited purposes. Neither can be regarded as being entitled to the exclusive possession of the External Walls or the exclusive right to the use occupation or enjoyment thereof. 22.In all, I am of the view that, upon the true construction of the DMC, the Developer does not have the exclusive possession, or exclusive right to the use occupation or enjoyment, of the External Walls for the purpose of section 34H of the BMO. Accordingly, the responsibility to maintain the External Walls in good repair and condition does not fall solely on the Developer. Whether the Developer has the exclusive possession, or exclusive right to the use occupation OR enjoyment, of the Main Roof does not arise for consideration 23.Although, in the decision granting leave to appeal, I granted leave to the defendant to amend the applications for leave to appeal so that the defendant could raise the argument that it should not be responsible to share the costs of repairs and maintenance of the Main Roof, as pointed out by Mr Alexsander Wong (for the claimant) and as can be seen from the Deputy Adjudicator’s written reasons for decision, the defendant did not, apparently, raise any issue in respect of the costs of repairs or maintenance of the Main Roof in the proceedings below. For this reason, there is no specific finding by the Deputy Adjudicator regarding the Developer’s liability to pay the costs of repairs and maintenance of the Main Roof. 24.Under section 28 of the Small Claims Tribunal Ordinance, an appeal against a decision of the tribunal lies only on a ground involving a question of law alone or on the ground that the claim is outside the jurisdiction of the tribunal (which is not relevant here). 25.In the absence of any decision by the Deputy Adjudicator regarding the Developer’s right (if any) to the exclusive possession, or exclusive use occupation or enjoyment, of the Main Roof under the DMC and having regard to the fact that this was not even an issue raised by the defendant before him, the issue cannot, in my view, form the proper subject matter of an appeal under section 28 of the Small Claims Tribunal Ordinance. 26.In any event, both Mr Lam and Mr Wong have taken me to a document described by counsel as a “tender analysis” which set out the scope of the works intended to be carried out by the claimant. There is nothing in that tender analysis to show that works relating to the repairs or maintenance of the Main Roof were to be carried out. The works which may conceivably be relevant to the present discussion are item 17 (relating to the repairs and separation of the flushing water tank and fire services water tank on the roof) and item 24 (relating to the replacement of the cover of a water tank on the roof). They do not, in my view, constitute works of repairs or maintenance of the Main Roof itself. The only other item which may potentially be relevant is item 18 relating to water proofing works. There is, however, nothing in the tender analysis to suggest that the water proofing works were intended to be carried out at or on the Main Roof. 27.Further, even if the Developer is entitled to the exclusive possession, or exclusive right to the use occupation or enjoyment, of the Main Roof under the DMC, there is the further question of whether the Developer should be solely responsible for the maintenance in good repair and condition of the water-proofing layer in the Main Roof which, prima facie, would be for the benefit and enjoyment of all the co-owners of the Building (see Wing Ming Garment Factory Ltd v Wing Ming Industrial Centre [2014] 4 HKLRD 52 at paragraphs 90 to 99, per Godfrey Lam J). 28.For the above reasons, I consider that the defendant has failed to lay a proper foundation for raising the argument that the Developer should be held solely responsible for the costs of repairs and maintenance of the Main Roof. 29.Having reached the above conclusions, I reject the defendant’s grounds of complaint against the Deputy Adjudicator’s decision mentioned in paragraph 4(1) and (3) above. Burden of proof 30.That leaves the defendant’s complaint mentioned in paragraph 4(2) above, namely, that the Deputy Adjudicator wrongly placed the burden on the defendant to prove that the External Walls were, as a matter of fact, used or occupied by the Developer. 31.The question of whether the Developer actually used or occupied by the Main Roof is relevant because, under clause 3 of the DMC, “so long as the erection installation or display [by the Developer of signboards, advertisements, decorations, lights, lanterns, articles and other display materials] shall remain, [the Developer is under an obligation to] maintain and repair the part or parts of the main roof, the external walls and of the flat roof so taken up by such erection installation or display”. 32.The Deputy Adjudicator accepted the evidence given by the claimant’s witness (Ms Wong), and found as a fact, that there was no signboard, advertisement or other structure erected, installed or displayed by the Developer on the External Walls (save that there was apparently a banner which was once erected, installed or displayed by an elderly centre), and no works of repairs or maintenance of the External Walls related to or were caused by any such signboard, advertisement or structure. The Deputy Adjudicator was, in my view, entitled to make this finding of fact. Further, I do not read the Deputy Adjudicator’s reasons for decision (including in particular paragraphs 36 and 37 thereof relied upon by the defendant) as placing on the defendant the burden of proof that the External Walls were, as a matter of fact, used or occupied by the Developer. 33.I therefore reject the defendant’s grounds of complaint against the Deputy Adjudicator’s decision mentioned in paragraph 4(2) above. Disposition 34.In all, I dismiss the defendant’s appeals with costs to the claimant, to be taxed if not agreed.
Mr Soloman Lam, instructed by Messrs Cheung & Liu, for the appellant/defendant Mr Alexsander S T Wong, instructed by Adrian Yeung & Cheng, for the respondent/claimant |
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