Read the full judgment text of FACV 000002/2003 on BabelCite. This FACV judgment was delivered on 6 November 2003 before Li CJ, Bokhary PJ, Chan PJ, Litton NPJ and Millett NPJ.
Property law – multi-storey building – Deed of Mutual Covenant – common parts – exclusive use – parking spaces – Building Management Ordinance, Cap.344 – rights of owners' corporation – Whether an owner has the right to the exclusion of co-owners to charge fees for use of an area within the lot for parking – Whether the manager is liable under the DMC for collecting parking fees on behalf of one owner and not depositing them in the Management Sink Fund – Whether the owners' corporation can enforce the rights of co-owners arising prior to incorporation – The Disputed Area was an open area on the ground floor of a 26-storey industrial building in Tsuen Wan used for parking of container trucks and lorries in addition to designated parking spaces – The 1st appellant acquired virtually all undivided shares in the development by the end of 1988 – The 2nd appellant as manager collected parking fees for all ground floor spaces from May 1989 and remitted them to the 1st appellant rather than the Management Sink Fund – Held: The Disputed Area was within the Common Parts under the DMC; the developer had no right of exclusive possession; the assignment of 7 July 1989 could not override the DMC – The 2nd appellant was in breach of clause 8(b) of the DMC by failing to deposit parking fees into the Management Sink Fund – Upon incorporation under s.16 of the Building Management Ordinance, the existing equitable right of the owners to require an accounting for parking fees passed to the corporation and became exercisable by it – Koo Sun Yiu v. Victorison Delivery Ltd and Hang Yick Properties Management Ltd v. Incorporated Owner of Winner Building distinguished as the cause of action was wholly different – Exoneration defence under clause 9(cc) of the DMC not entertained for the first time in this Court – Appeal dismissed with order nisi as to costs.
Legal issues: Right of an owner to charge fees for exclusive use of an area within the lot for parking · Liability of manager for collecting parking fees on behalf of one owner and not accounting to all co-owners · Whether the owners' corporation can enforce co-owners' rights arising prior to incorporation under s.16 BMO
Outcome: Appeal unanimously dismissed.