Read the full judgment text of LDBM 000006/2008 on BabelCite. This Lands Tribunal judgment was delivered on 18 March 2009 before Leung DJ.
Building management – incorporated owners – management fees – apportionment – deed of mutual covenant (DMC) – sub-deed of mutual covenant (Sub-DMC) – Building Management Ordinance (Cap 344) – ss 2, 21, 22, 34D(1), 34E and Schedules 1 and 7th Schedule – Gold Mine Building at Chai Wan – Ground Floor shops, 1st Floor shopping arcade and 3 blocks of residential units – 36 applicants are owners of Ground Floor shops – DMC executed 1978 – clause 7(c) Ground Floor owners not liable for lift maintenance – 1st Floor sub-divided into 50 units in 1980 – Sub-DMC – clause 2 common parts of 1st Floor – clause 3(i) 1st Floor owners share Building management expenses – clause 5 1st Floor owners responsible for maintenance and management of 1st Floor – 2007 budget first time management expenses apportioned among four categories – 21 January 2007 resolution – management fees apportioned in accordance with DMC – manager undertook to provide four separate accounts for owners' reference – management committee approved budget January and February 2007 – revised fees effective 1 March 2007 – whether 2007 budget contravenes DMC, Sub-DMC and resolution – purposive approach – whether budgeted expenses solely for 1st Floor common parts – fire safety direction by Buildings Department dated 7 February 2005 addressed to co-owners of 1/F – works include replacing fire doors, reinstating ceiling slabs, enclosing electrical meters, removing concrete curbs and store rooms – held items (2), (3), (4) and (7) of works should be apportioned to 1st Floor owners solely – Tai Fung House and Wing Hong Court distinguished because present case involves Sub-DMC clause 5 – water charges for 1st Floor lavatories – 2 lavatories on 1st Floor – manager failed to show water consumption below Water Services Department threshold – water charges should be borne solely by 1st Floor owners – energy saving system – replacement of fluorescent tubes – 2004 agreement with contractor – remaining costs should be apportioned under clause 5 of Sub-DMC – caretakers' wages – 1st Floor owners bear share based on patrol time – challenges failed – cleaning charges – 5% allocated to 1st Floor owners – challenges failed – metal tools and ware – included in building maintenance and repair – challenge failed – door phone system (CCTV) – not for 1st Floor only – challenge failed – whether manager required to keep four separate books and accounts – no agenda item on 21 January 2007 – resolution only required manager to present four separate accounts – challenge failed – whether manager can be sued personally – section 34D(1) and 34E of Ordinance – manager can be sued personally whether or not IO is sued – Pun Kwok Kei distinguished – counterclaim for outstanding fees dismissed – budget declared invalid – applicants not obliged to pay management fees fixed by budget – applicants to pay fees in amounts approved prior to budget until budget is revised – applicants awarded 40% of costs against respondents – costs taxed on District Court scale if not agreed with certificate for counsel.
Legal issues: Validity of the 2007 management budget · Apportionment of fire service system maintenance and repair costs · Apportionment of water charges · Apportionment of energy saving system costs · Obligation to keep four separate books and accounts · Personal liability of the manager
Outcome: Application partly succeeded; the 2007 budget declared invalid; the applicants declared not obliged to pay the management fees fixed by the budget; counterclaim by the IO dismissed.
Cited by 2 cases · Cites 3 cases