Yu Kam Lan and Another v. Goodwell Property Management Ltd.

LDBM000124/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 124 of 2000

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Coram: Deputy Judge LEE

Dates of Hearing: 5 June 2000 & 4 July 2000

Date of Judgment: 2 August 2000

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J U D G M E N T

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1. The first applicant, Ms Yu Kam Lan, resides at Vista Paradiso, 2 Hang Ming Street, Ma On Shan (the estate). Her car parking space is No. 647 on floor B2 of Vista Paradiso.

2. The second applicant is the owner of a vehicle DX770. The first applicant, as a director of the second applicant, is allowed to use the vehicle DX770.

3. The respondent is the manager of Vista Paradiso.

4. This application is for the costs of repairs to DX770, which was damaged while parked at the first applicant's car parking space. The applicants' application was based on the Deed of Mutual Covenant, registered under Memorial No. 1055405 at the Sha Tin New Territories Land Registry (DMC). The applicants considered the manager, being negligent, to be in breach of its duty under the DMC.

The applicants' case

5. The applicant's evidence was that in the beginning of November 1999, the first applicant found there was water leakage from the drains passing over her car parking space, with damage to DX770. Some instant photographs were taken and handed over to the respondent. On 23rd January 2000, there was further leakage. The applicant took further photographs. On 1st April 2000, it happened again. On 13th April 2000, the respondent informed the first applicant that her car parking space would be closed for repairs. Arrangements were made to provide the first applicant with an alternative parking space. The respondent caused a drip pan to be placed under the dripping drain.

6. Under the DMC, parking is only allowed in the owner's designated area. Section V Clause D 1. : "All Car Park Owners shall park their licensed motor vehicles within their own designated Car Parking Spaces in accordance with the car park layout plans.."

7. Until the manager made provision for parking in another space, the first applicant cannot do so.

8. The applicants contended that the respondent should do more than just placing a drip pan under the drain or the cracked cement. Proper repairs should have been carried out. Even if the respondent was not at first aware of the problem in November 1999, after receiving the first complaint, it could no longer be in ignorance.

9. The applicants further relied on the provisions in the Unconscionable Contracts Ordinance Cap. 458, to say that the manager could not rely on Section VI Clause B 4 of the DMC, to escape from it liabilities.

The respondent's case

10. The respondent denied that it had been negligent in its duties. Its evidence was that the dripping was caused by contraction in the cement of the ceiling over the first applicant's parking space. The respondent was not to know when the cement would crack or the drains leak. After each report of leakage, the respondent arranged alternative parking for the applicant's vehicle. The matter had to be reported to the respondent's contractor to undertake repairs. The respondent did not deny that the remedy undertaken was the installation of a drip pan under the leakage. When there was further report of leakage, the drip pan was changed to a bigger size.

11. The respondent agreed that, the second applicant's vehicle was corroded by the dripping from the ceiling over the first applicant's car parking space, on the various occasions shown by the applicants' photographs.

12. The respondent relied on Section VI Clause B 4. The clause reads as follows:

"Neither the Manager nor any servant agent or other person employed by the Manager shall be liable to the Owners for or in respect of (i) any act, deed, matter or thing done or omitted in pursuance or purported pursuance of the provisions of this Deed and any Sub-Deed not being an act, deed, matter or thing done or omitted involving criminal liability or dishonesty or negligence or wilful default and the Owners shall fully and effectually indemnify the Manager and all such persons from and against all actions, proceedings, claims and demands whatsoever arising directly or indirectly out of or in connection with the management of the Estate or any such act, deed, matter or thing done or omitted as aforesaid and all costs and expenses in connection therewith; (ii) any interruption in any of the services hereinbefore mentioned by reason of necessary maintenance of any installations, apparatus, equipment, or damage thereto or destruction thereof by fire, water or act of God or by reason of mechanical or other defect or breakdown or inclement weather conditions or unavoidable shortage of fuel, materials, water or labour, or other cause beyond the Manager's control. The Manager shall be liable and responsible for the remedy of all damage caused by the negligence or wilful acts of the Manager."

13. The respondent contended that since there was no negligence or willful acts on its part, it should not be liable for the damage to the second applicant's vehicle.

Judgment

14. Under the DMC, Section VI Clause A 1 & 2, the manager undertakes the management of the estate, and is bound by the DMC. The manager is further required to, under Clause B 1:

"(3) carry out all works required under the Grant and other works necessary to maintain the Estate and every part thereof in a good, clean satisfactory and safe condition,"

"(10) keep clear and in good working conditions all the common sewers, drains, watercourses and pipes in the Estate:"

15. Clearly the manager is under a duty to maintain the estate.

16. The respondent did not dispute the applicants' evidence of the four occasions when leakage and damage to the vehicle DX770 was complained of. On the respondent's own admission, nothing much was done to remedy the situation in a permanent manner.

17. On the facts of the case, the Tribunal finds that there is clearly negligence on the part of the respondent.

18. The respondent did not dispute the quantum.

19. There is judgment for the applicants in the sum of $15,000.

20. The respondent is to pay the applicant's costs in the sum of $2,000.

Representation:

Mr. MAK Kam-hung, Andrew representative of the 1st & 2nd Applicants, in person.

Mr. CHAN Chiu-ki, representative of the Respondent, in person.