The Incorporated Owners of Po Hang Building v. Sam Woo Marine Works Ltd

HCMP 275/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 275 OF 2012

(ON AN INTENDED APPEAL FROM DCCJ NO. 1271 OF 2011)

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BETWEEN

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Before: Hon Tang VP and Kwan JA

Date of Judgment: 20 March 2012

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JUDGMENT

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Hon Tang VP (giving the judgment of the Court):

1.This is the Defendant's application for leave to appeal from the judgment of Deputy District Judge Kent Yee of 8 December 2011, when he dismissed the Defendant's appeal against the order of Master Tracy Chan dated 28 October 2011 giving summary judgment in favour of the Plaintiff.

2.The Defendant is the owner of Shop 1 ("the Shop") of the ground floor of Po Hang Building, Mongkok ("the Building") in respect of which the Plaintiff is the Incorporated Owners ("the IO").  The background has been set out in the reasons for judgment dated 19 December 2011.  As the learned Deputy Judge explained the defence of the Defendant is that:

"11.   … on a proper construction of Clause 3(i) of the DMC, each of the individual owners' accounts should be considered separately and if there is sufficient unused fund in his account, no further contribution should be demanded from him. …"

3.That submission has been, if I may say so, with respect, clearly and correctly dealt with by the learned Deputy District Judge.  For the reasons given by him, I do not believe that the contention is reasonably arguable. That being the case, the application must be refused.

4.We also make an order under O 59 r 2A(8) that the Defendant may not require this determination to be reconsidered at an oral hearing inter partes.