KONG WAI HSIEN AND OTHERS v. THE INCORPORATED OWNERS OF TAI WAI GLAMOUR GARDEN AND OTHERS

KONG WAI HSIEN AND OTHERS v. THE INCORPORATED OWNERS OF TAI WAI GLAMOUR GARDEN AND OTHERS

On construction of the Subject DMC as a whole the external walls were designated common parts; Clauses 8(b)-(c) reserved limited, qualified rights (installation/advertising/chimneys) subject to statutory and manager approvals and indemnities and did not confer exclusive possession or exclusive right under s34H; therefore plaintiffs' claim failed and issues of IO duties and relief did not avail them; claim dismissed.

Citation
[2018] HKCFI 1887
Parties
1st Plaintiff: KONG WAI HSIEN AND FUNG LAI SHEUNG; 2nd Plaintiff: SUNPARK LIMITED; 3rd Plaintiff (discontinued): CIBA TECHNOLOGY LIMITED; 4th Plaintiff: SHE KAM HING; 5th Plaintiff: FOCUS HONOUR DEVELOPMENT LIMITED; 6th Plaintiff: NICE JOY LIMITED; 7th Plaintiff (discontinued): TUNG FONG HUNG LIMITED; 8th Plaintiff: MUI LAI SZE; 9th Plaintiff (discontinued): D & S LIMITED; 10th Plaintiff (discontinued): GLORY HOVER LIMITED; 11th Plaintiff: HUGE TIME INVESTMENT LIMITED; 12th Plaintiff: CHENG WING YAN ANITA and CHENG KEI TSI DANIEL; 13th Plaintiff (discontinued): HIT SMILE LIMITED; 14th Plaintiff: JOY FULL TRADING LIMITED; 1st Defendant: THE INCORPORATED OWNERS OF TAI WAI GLAMOUR GARDEN; 2nd Defendant: AVANTE COMPANY LIMITED; 3rd Defendant (discontinued): CIBA TECHNOLOGY LIMITED; 4th Defendant (discontinued): TUNG FONG HUNG LIMITED; 5th Defendant (discontinued): D & S LIMITED; 6th Defendant (discontinued): GLORY HOVER LIMITED; 7th Defendant (discontinued): HIT SMILE LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
15 August 2018
Case Number
HCA1442/2013
Procedural Posture
High Court Action (civil) / Judgment (trial of Liability; Damages Split for Later Assessment)
Outcome
Claim dismissed
Legal Topics
Deed of Mutual Covenant, Building Management Ordinance, Common Parts Vs Exclusive Use Areas, Assignment of Common Parts, Statutory Override of DMC, Duty of Io/manager, Interpretation of Contractual Documents
Source Language
EN
Property Law Building Management Law Contract Law Administrative Law Equity and Fiduciary Duties Deed of Mutual Covenant Building Management Ordinance Common Parts Vs Exclusive Use Areas +4 more

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Parties

KONG WAI HSIEN AND FUNG LAI SHEUNG

1st Plaintiff

SUNPARK LIMITED

2nd Plaintiff

CIBA TECHNOLOGY LIMITED

3rd Plaintiff (discontinued)

SHE KAM HING

4th Plaintiff

FOCUS HONOUR DEVELOPMENT LIMITED

5th Plaintiff

NICE JOY LIMITED

6th Plaintiff

TUNG FONG HUNG LIMITED

7th Plaintiff (discontinued)

MUI LAI SZE

8th Plaintiff

D & S LIMITED

9th Plaintiff (discontinued)

GLORY HOVER LIMITED

10th Plaintiff (discontinued)

HUGE TIME INVESTMENT LIMITED

11th Plaintiff

CHENG WING YAN ANITA and CHENG KEI TSI DANIEL

12th Plaintiff

HIT SMILE LIMITED

13th Plaintiff (discontinued)

JOY FULL TRADING LIMITED

14th Plaintiff

THE INCORPORATED OWNERS OF TAI WAI GLAMOUR GARDEN

1st Defendant

AVANTE COMPANY LIMITED

2nd Defendant

CIBA TECHNOLOGY LIMITED

3rd Defendant (discontinued)

TUNG FONG HUNG LIMITED

4th Defendant (discontinued)

D & S LIMITED

5th Defendant (discontinued)

GLORY HOVER LIMITED

6th Defendant (discontinued)

HIT SMILE LIMITED

7th Defendant (discontinued)

Procedural Posture

High Court Action (civil) / Judgment (trial of Liability; Damages Split for Later Assessment)

Legal Issues

  1. 1 Whether the external walls formed part of the common parts or were exclusive use areas of the developer
  2. 2 Whether the incorporated owners (IO) owed fiduciary/agency/statutory duties to individual owners in respect of the Assignment and renovation works and whether any duties were breached
  3. 3 Relief available to plaintiffs if liability established

Ratio Decidendi

On construction of the Subject DMC as a whole the external walls were designated common parts; Clauses 8(b)-(c) reserved limited, qualified rights (installation/advertising/chimneys) subject to statutory and manager approvals and indemnities and did not confer exclusive possession or exclusive right under s34H; therefore plaintiffs' claim failed and issues of IO duties and relief did not avail them; claim dismissed.

Court Disposition

Claim dismissed

Orders

  • Claim dismissed against 1st defendant (and as pleaded)
  • Costs nisi: Plaintiffs to pay 1st defendant\'s costs of the action on High Court scale to be taxed if not agreed