Wong Wai Kwan v. Incorporated Owners of Vista Paradiso

LDBM 87/2018

[2018] HKLdT 42

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 87 OF 2018

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REASONS FOR DECISION

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1.By a summons dated 11 May 2018, the respondent (“IO”) is asking for the Notice of Application filed in this case (“NOA”) be set aside on the ground that the Lands Tribunal has no jurisdiction over the subject matter of the claim (“Summons”).

2.Upon considering the submissions from both parties at the hearing on 6 June 2018, it is ordered that the Summons be dismissed with costs to the applicant, summarily assessed at $7,500 (“the Order”).  This is the reason for the Order made.

Background

3.According to the NOA, the applicant alleged that the IO, being the manager responsible for the proper management and maintenance of the Estate, failed in its duty to “keep clear and in good working conditions all the common sewers, drains, watercourses and pipes in the Estate” in breach of Clause B1 of Section VI of the Deed of Mutual Covenant (“DMC”).  Such breach caused sewage backflow and seepage occurred in the premises owned by the applicant who suffered loss and damages.  The relief sought in the NOA is for damages in the sum of $422,900 with interests and costs of the proceedings.

4.The fact that the claim is based on an allegation of breach of the DMC is not in dispute. It is also not in dispute that section 45 and Schedule 10 of the Building Management Ordinance (“the Ordinance”) provided for the jurisdiction of this Tribunal.

5.Mr Suen for the applicant confirmed at this hearing that the applicant is relying on Paragraph 9 Schedule 10 of the Ordinance to confer jurisdiction on this Tribunal.

6.Paragraph 9 Schedule 10 of the Ordinance reads:

“9. Proceedings relating to the enforcement of any contractual or proprietory right referred to in paragraph 7 or any covenant, term or condition referred to in paragraph 8, as the case may be, whether by way of specific performance, injunction, declaration, damages or otherwise”.

Respondent’s Argument

7.In the written submissions, Mr Wan for the respondent argued that “the issues in dispute are concerned about what caused the backflow and whether the Respondent as Manager was negligent in causing the backflow”.  The applicant’s claim has nothing to do with “the interpretation and enforcement of the terms and provisions of the DMC” nor can they be said to be “proceedings relating to any question of law”, hence the claim is outside the jurisdiction of the Lands Tribunal. 

8.At the hearing, Mr Wan further submitted that since Paragraph 7 and 8 of Schedule 10 had been referred to in Paragraph 9, any application based on Paragraph 9 must also involve a question of law and this is missing in the NOA.  Furthermore, unlike the authorities cited by the applicant, since the relief sought is just for damages and not for any injunction, this cannot be an enforcement proceedings but just a mere civil claim.

Applicant’s Reply

9.Mr Suen contended that the wordings of “interpretation and enforcement” of the terms of the DMC in Paragraph 9 is mutually inclusive and damages, absent any other relief, may be sought in the enforcement of a DMC.  No question of law is required to be posed in proceedings categorised under Paragraph 9 since Paragraph 5 to 8 of Schedule 10 already compartmentalize proceedings of those nature.  So Paragraph 9 of Schedule 10 allows for the enforcement simpliciter of terms in a registered DMC for damages alone.

Discussion

10.I find the respondent’s argument misconceived. 

11.Schedule 10 of the Ordinance provides for the kind of proceedings which this Tribunal have jurisdiction to hear and determine.  The wordings in Paragraphs 1-9 of Schedule 10 speaks for itself, it provides for 9 different kinds of proceedings covering different scenarios or basis of claim mutually exclusive from one another.  Paragraph 7 and 8 are mentioned in Paragraph 9, as shown from the wordings, for the purpose of defining the “contractual or proprietory right” or the “covenant, term or condition” to be enforced under Paragraph 9 and apparently not to add the requirement of “question of law” in Paragraph 7 and 8 into Paragraph 9.  If, as submitted by Mr Wan, Paragraph 7-9 are inter-related and the words “any question of law” should be read into Paragraph 9, why would the law draftsman not just add the same words into Paragraph 9 like Paragraph 5 to 8?  The missing out of these words in Paragraph 9 must be intentional.

12.The claim in this case is based on a breach of the DMC by the IO.  The applicant is asking for a determination that the IO had failed to discharge its duty under the DMC in maintaining the sewage pipes.  This must be a proceedings relating to the enforcement of the relevant clause of the DMC.  If this is not an enforcement proceedings, what is it?  Mr Wan also failed to give an answer to this question.

13.The relief sought by the applicant is for damages only is something specifically allowed in Paragraph 9 of Schedule 10.  Nowhere in Schedule 10 of the Ordinance required that an enforcement claim before this Tribunal must include a relief for injunction or specific performance and cannot be for damages only. Whatever relief sought should not be determinative on the question of jurisdiction of this Tribunal but rather should look at the cause or nature of the claim.  I fail to see how the absence of a claim for injunctive relief would render the nature of the proceedings be changed. 

14.I agree with the applicant’s contention and do not accept that a claim under Paragraph 9 Schedule 10 of the Ordinance requires a question of law to be involved.  And I also find that the claim for damages by the applicant, based on an allegation of breach of the DMC, is an enforcement proceedings under Paragraph 9 of Schedule 10 and falls within the jurisdiction of this Tribunal.  Hence, the Summons should be dismissed with costs.

Mr Ivan Suen, instructed by ST Cheng & Co, for the applicant

Mr W Wan, of Fairbairn Catley Low & Kong, for the respondent