國祥大廈上海街635號業主立案法團 AND ANOTHER v. 陳子坤 AND ANOTHER

國祥大廈上海街635號業主立案法團 AND ANOTHER v. 陳子坤 AND ANOTHER

Schedule 3, which apportions expenses in proportion to owners' undivided shares, is the proper method for apportioning management-related expenses under the DMCs; Schedule 4 does not govern long-term apportionment of management fees and is a historical schedule setting service charge ratios at execution; the applicants' claim is dismissed because there is insufficient evidence to quantify amounts payable under the correct approach.

Citation
[2021] HKLdT 61
Parties
1st Applicant: 國祥大廈上海街635號業主立案法團; 2nd Applicant: 國祥大廈上海街637號業主立案法團; 1st Respondent: 陳子坤; 2nd Respondent: 陳敏聰
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
10 September 2021
Case Number
LDBM242/2018
Procedural Posture
Building Management Application No. 242 of 2018 (lands Tribunal) / Judgment (determination on Apportionment)
Outcome
Application dismissed; declaration that Schedule 3 governs apportionment of management-related expenses under the DMCs
Legal Topics
Apportionment of Management Fees, Interpretation of Deeds of Mutual Covenant, Res Judicata, Costs
Source Language
EN
Property Law Contract Law Building Management Civil Procedure Apportionment of Management Fees Interpretation of Deeds of Mutual Covenant Res Judicata Costs

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Parties

國祥大廈上海街635號業主立案法團

1st Applicant

國祥大廈上海街637號業主立案法團

2nd Applicant

陳子坤

1st Respondent

陳敏聰

2nd Respondent

Procedural Posture

Building Management Application No. 242 of 2018 (lands Tribunal) / Judgment (determination on Apportionment)

Legal Issues

  1. 1 Whether management fees are to be apportioned according to Schedule 3 or Schedule 4 of the DMCs
  2. 2 Whether Schedule 4 governs apportionment beyond the date of execution
  3. 3 Whether prior proceedings bind the parties on the apportionment method

Ratio Decidendi

Schedule 3, which apportions expenses in proportion to owners' undivided shares, is the proper method for apportioning management-related expenses under the DMCs; Schedule 4 does not govern long-term apportionment of management fees and is a historical schedule setting service charge ratios at execution; the applicants' claim is dismissed because there is insufficient evidence to quantify amounts payable under the correct approach.

Court Disposition

Application dismissed; declaration that Schedule 3 governs apportionment of management-related expenses under the DMCs

Orders

  • Declaration that management-related expenses under Clause 5 and related provisions are to be apportioned according to Schedule 3
  • Applicants' claim dismissed without an award for want of sufficient evidence to quantify payable sums