Jones Lang Lasalle Management Services Ltd. v. Ho Kwai Yee

LDBM000161/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 123 of 2000

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IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 161 of 2000

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(Consolidated pursuant to the Order of Deputy Judge Lee dated 30th May 2000)

Coram: Deputy Judge LEE

Date of Hearing: 3 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 applicants brought the applications against the respondent for the arrears of management fees from 23rd October 1995.

2. The applicant in LDBM 161/2000, is the present manager of the building known as Yan's Tower, 25-27 Wong Chuk Hang Road, Hong Kong (the building). It was the sub-manager since 25th August 1995. It changed its name from JLW Management Services Limited to Jones Lang LaSalle Management Services Limited, on 10th March 1999. The applicant in LDBM 123/200 was the ex-manager of the building, from 14th April 1994, to 1st October 1998. The applications are consolidated and heard together.

3. The respondent became the owner of Workshop G on 20th Floor of the building, by an assignment dated 23rd October 1995.

4. These are not in dispute and are found as facts of the case.

5. A Deed of Mutual Covenant, dated 14th April 1994, was registered in the Lands Registry under Memorial number 5983109, in relation to the building (DMC).

6. The applicants' case was that, under the DMC, the management fee was payable by all owners. The respondent's unit, assigned with 58 management shares under the DMC, must pay according to the unit rate.

7. The applicants referred to the relevant clause 1.1 in the DMC, in which defines:

"Common Areas" to include "entrances, lobbies,..halls, landings" and "passages".

"Common Facilities" includes "central air-conditioning".

"Management Expenses" as "all costs, charges, expenses and outgoings reasonably and necessarily incurred for management and maintenance of the Building" provided in the DMC.

8. Under clauses 5.32, 5.33 and 5.34 of the DMC, the installation or alteration to the air-conditioning and electricity supply must be carried out with the approval of the manager or by a contractor approved by the manager.

9. The manager is empowered under the DMC, clause 6.2, to demand and collect management fee. It should also keep the common facilities in good repairs and working condition.

10. Under clause 6.2 (a)(xxxvii) the manager must supply air-conditioning to the workshops between 9:00 a.m. and 6:00 p.m. on a working weekday, and between 9:00 a.m. and 1:00 p.m. on Saturdays. On special arrangement with the manager, owners could ask for supply of air-conditioning outside of these hours. Extra charges would have to be paid.

11. The management fee for respondent's unit from October 1995 to October 1996 was $2,726 per month. The respondent made partial payment of $1319.50 per month from November 1995, up to October 1996. There was an outstanding balance of 1406.50 per month. There was also a balance of 747.22 for October 1995.

12. From November 1996 to January 1997, the respondent paid $1,321.50 per month, leaving an outstanding balance.

13. From February 1997 to March 1998, the respondent paid none of the $2,813 management fee per month.

14. The respondent had persistently failed to make full payment of the management fee.

15. As at June 2000, the respondent's outstanding management fee amounts to $111,576.42.

16. The applicants rely on clauses 6.5(b) to demand interest on the outstanding management fee. The applicants rely on clause 6.5(c) to ask for costs on a solicitor and client's basis.

The respondent's case

17. The respondent considered that, since she was not able to enjoy the supply of central air-conditioning in her unit, she was not liable to pay the part of the management charges representing the air-conditioning charges. The respondent paid only the part that she considered being the management fee. She based her calculation on data obtained at the time of the completion of the assignment of her unit. The respondent relied on the sales brochure, and the alleged difference in the information obtained from the developer's sales office and from the ex-manager, to say that she had been misled. She considered that there should be separate items of charge for management and air-conditioning.

18. The respondent contended that at the time when she paid the deposit, in February, the DMC was not yet drafted. She was of the opinion that, if the central air-conditioning were a common facility, there should be no need for the owners to pay for further installation to obtain the supply in each individual unit.

19. The respondent complained that neither the developer's solicitors, the ex-manager, nor her own solicitors explained to her the details of DMC.

Judgment

20. The DMC stated clearly that the management expenses included "all costs, charges, expenses and outgoings reasonably and necessarily incurred for management and maintenance of the building provided in" the DMC. Central air-conditioning was provided under the DMC. The applicants always have the duty to provide the service under the DMC. It was part of the management expenses. There is no ground of opposition available to the respondent.

21. Under the Building Management Ordinance, an ex-manager has no locus standi to bring any application in the Lands Tribunal.

22. The application of the ex-manager is dismissed.

23. There is judgment for the present manager, Jones Lang LaSalle Management Services Ltd. in the sum of $106,513.02 together with further management fees at the rate of $2,531.70 per month from 1st May 2000 until the date of full payment.

24. Interest on the said sums at $1.50 per month for each $100 or part thereof or such other amount for each period of 30 days for which it remains unpaid.

25. The Respondent is to pay Collection charge of $500.

26. There is costs to the Applicant on a solicitor and own client basis, to be taxed if not agreed.

Representation:

Mr. Andrew Ng of M/S Andrew W.Y. Ng & Co., for the Applicants

Ms Ho Kwai Yee, the Respondent, in person