The Incorporated Owners of Tung Lo Court v. Leung May Chun Alison Aliance

HCMP 2038/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2038 OF 2013

(ON AN INTENDED APPEAL FROM DCMP 1381/2011)

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BETWEEN

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AND

HCMP 2067/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2067 OF 2013

(ON AN INTENDED APPEAL FROM DCMP 1381/2011)

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BETWEEN

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(DEALT WITH TOGETHER)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

1.By a careful judgment dated 29 May 2013, Deputy District Judge Reuden Lai gave judgment for the defendant in her counterclaim to the extent stated in the judgment, and dismissed the rest of her counterclaim. Both parties unsuccessfully sought leave to appeal before the deputy district judge, and they have therefore respectively applied to this court for leave to appeal.

2.Regarding the Incorporated Owners/plaintiff’s intended appeal concerning their authority to close the basement carpark for four months for repair and renovation purposes, we are prepared to give leave to appeal.

3.However, as regards the Incorporated Owners’ refusal to issue the defendant with a smart card for accessing the basement carpark after the completion of the renovation and repair work before the defendant settled all outstanding payments due to the Incorporated Owners, we are of the view that the deputy district judge was entirely correct in finding that the Incorporated Owners were not entitled to do so.  There simply was nothing in the Deed of Mutual Covenants (“DMC”), or the Building Management Ordinance (Cap 344), or anything in the evidence, which would entitle the Incorporated Owners to do so.  We are not prepared to give leave to appeal on this ground.  Pursuant to Order 59, rule 2A(8), we make an order that the Incorporated Owners may not request our determination on this ground to be reconsidered at an oral hearing inter partes.

4.As for the defendant’s intended appeal, we take the view that the deputy district judge was right in finding, on the facts, that the installation of the security system comprising the electric bars and rolling shutters at the entrance to the basement carpark, and the implementation of a registration system and a smart cards system to govern access to the carpark, were all within the management powers of the Incorporated Owners over the common parts of the building, both pursuant to the DMC and the Building Management Ordinance.  Ms Tsang’s arguments, for the defendant, particularly her arguments regarding the house rules, are not accepted.  In another careful judgment of the deputy district judge, he rejected those arguments when refusing leave to appeal.  In our view, he was right to do so.

5.For the same reasons, the deputy district judge was also right in finding that the Incorporated Owners were not liable to the defendant in relation to her refusal to collect the smart card because she did not agree to abide by the new rules of control and management regarding the use of the basement carpark.  As said, we take the view that the Incorporated Owners were entitled to manage the carpark in the way they chose.

6.As for the two awards of nominal damages, the deputy district judge’s awards were based on the evidence before him and the findings he made based on such evidence.  We see no ground for interfering with his findings of fact.  On those findings, the awards of nominal damages cannot be challenged.

7.Leave to appeal is therefore refused.  We also make an order that the defendant may not request our determination to be reconsidered at an oral hearing inter partes.

8.As for costs, for the Incorporated Owners’ intended appeal, we order that the relevant part of the costs relating to the ground on which we give leave to appeal shall be in the cause of the appeal, whereas the remainder thereof shall be paid to the defendant, which we summarily assess at $15,000.  As for the defendant’s intended appeal, we award costs to the Incorporated Owners, which are summarily assessed at $20,000.

Mr YL Cheung, instructed by Tang, Wong & Chow, for the plaintiff

Ms Kitty Tsang, instructed by Tang & Lee, for the defendant