The Incorporated Owners of Jade Mansion 訴 Ho Lo Kwai Fong

LDBM000088/2001

LDBM 88 OF 2001

香港特別行政區

土地審裁處

建築物管理申請編號2001年第88號

主審法官：周兆熊法官

宣判日期：2001年10月24日

______________

判 案 書

______________

1.2001年2月19日，申請人向土地審裁處（“審裁處”）提出本訟案的申請。申請的主要內容後列如下 ：

"1. The Applicant applies for an order relating to the enforcement of the terms and provisions of a Deed of Mutual Covenant dated 3rd March 1975 registered in the Land Registry by Memorial No. 1150903 ("the DMC") under paragraph 2 of the Tenth Schedule.

2. At all material times: -

(a) the Applicant was and is an owners' incorporation of the Building known as Jade Mansion, Nos. 28, 30, 32, 34 and 34A Fort Street, Hong Kong ("the Building").

(b) the Respondent was and is the registered owner of the property known as Car Park Space No. 14 on Upper Ground Floor, Jade Mansion, No. 32 Fort Street, Hong Kong ("the Unit").

3. The Respondent was and is at all material times bound by the covenants provisions and restrictions of the DMC.

4. The following clauses of the DMC are material to these proceedings: -

(a) Clause 4 of the DMC provides, inter alia, that each owner shall be bound by and shall observe and perform the covenants provisions and restrictions set out in the Third Schedule thereto.

(b) Clause 13 of the DMC provides, inter alia, that from time to time there shall be meetings of the owners to discuss and decide matters concerning the Building.

(c) Clause 14 of the DMC provides that if any of the owners shall fail to contribute his due proportion of any expenses to be incurred in accordance with a resolution validly passed under clause 13 thereof within two weeks from the date of a notice from the other owners or any of them requiring the same to be paid then the owner serving such notice may proceed to carry out the work so resolved to be done and the defaulting owner shall on demand repay to the other owner his due proportion of the costs and expenses thereof ...........................

5. ..............................

6. On the 24th day of April 1999, the duly convened meeting of the owners of the Building passed a resolution that certain repair, maintenance and decoration works ("the said Works") were to be done in the Building.

7. On the 13th day of September 1999, a written demand for the Respondent's contributions to the costs, charges and expenses of the said Works ("the Repairs and Maintenance Fund") in respect of the Building was duly served on the Respondent.

Particulars
(i)	1st instalment payable on or before 20th September 1999	HK$2,690.00
(ii)	2nd instalment payable on or before 1st November 1999	HK$2,690.00
	Total	HK$5,380.00

8. ..................................

9. Pursuant to Clause 14 of the DMC, a Memorandum of Charge dated the 12th day of October 2000 was registered in the Land Registry by Memorial No.8214316 against the share and interest of the Respondent of and in the Unit.

10. As at the date hereof, the Respondent is liable to pay to the Applicant the sum of HK$14,080.00, details of which are set out as follows: -

Particulars
(i)	Respondent's contribution under paragraph 7 above	HK$5,380.00
(ii)	Legal costs and expenses in preparing and registering the Memorandum of Charge under paragraph 9 above	HK$8,500.00
(iii)	Search fee	HK$200.00
	Total	HK$14,080.00"

2.申請人的申索是要求答辯人繳付上述的14,080元以及其利息。

3．與訟雙方同意下列的事實 ：

"1. That costs for maintenance and decoration works of carpark space no. 14 U/G of Jade Mansion were incurred by the Applicant in the year of 1999 at the amount of $5,380.00;

2. That legal costs and expenses in preparing and registering the Memorandum of Charge Memorial No.8214316 were incurred by the Applicant at the amount of $8,500.00;

3. That search fees at the amount of $200.00 were incurred by the Applicant;

4. That by Assignment Memorial No. 3386538 the carpark in question was assigned by the Respondent to Mr. Fung Hung Fai and a Ms. Fung Man Wah on 6.5.1987

5. That the Applicant was and is the owners' incorporation of Building known as Jade Mansion, Nos. 28, 30, 32, 34 and 34A Fort Street, Hong Kong."

4．本席首先要裁決審裁處對本案是否有司法管轄權。這要視乎答辯人在有關的時候是否第14號停車位的業主。就業主“Owner”一 詞，大廈公契第16(g)條有以下的釋義 ：

'The word "Owner" shall include each person in whom for the time being the legal estate in any undivided share in the said premises and the said building is vested ....................'

5．《建築物管理條例》第45(1)條賦予審裁處聆訊及裁決附表10所指明的任何法律程序的司法管轄權。附表10的第2段是與公契條款及條文的釋義及執行有關的法律程序。申請人既藉公契的第4、第13以及第14條的條文作為向答辯人追討款項的依據，附表10的第2段便是本席需要考慮的條文。就上述 "Owner" 一詞的釋義而言，自 1987年5月6日開始，答辯人已不是第14號停車位的業主，故此公契的條文對他已無約束力，而申請人亦無權針對他而提出有關執行公契條文的法律程序，所以附表10第2段的條文對本案並不適用。本席裁決審裁處對申請人的申請並無司法管轄權；本席撤銷申請人的申請。

6．訟費

申請人須支付答辯人本案的訟費，但申請人無須支付答辯人於2001年10月19日聘用大律師的費用，以及與“Skeleton For Respondent”（日期為2001年10月18日）有關的費用。申請人亦須支付答辯人就有關2001年5月11日聆訊的訟費。如與訟雙方未能議定 訟費的款額，則該款額由法庭訂定。

申請人：缺席。

答辯人：由何梁律師樓代表。