THE INCORPORATED OWNERS OF PO HANG BUILDING v. SAM WOO MARINE WORKS LTD

THE INCORPORATED OWNERS OF PO HANG BUILDING v. SAM WOO MARINE WORKS LTD

The Tribunal adopts the interpretation in DCCJ 1271/2011: Clause 3(i) concerns total monthly payments by all owners and does not require exhaustion of any class's surplus before levying further contributions; Clause 3(j) allows surplus to be held and applied at the IO's discretion for building expenses within the scope of Clause 3(f); there is no express or implied term in the DMC requiring separate carry‑forwards or class‑specific application of surplus, so the reliefs sought by Sam Woo fail; because the IO validly adopted revised budgets and accounts and is empowered by the BMO to demand management fees, Sam Woo is liable for outstanding fees of HK$237,884 plus interest, while claims...

Citation
[2020] HKLdT 56
Parties
Applicant (ldbm 252/2014); Respondent (ldbm 255/2018): Sam Woo Marine Works Ltd; Respondent (ldbm 252/2014); Applicant (ldbm 255/2018): The Incorporated Owners of Po Hang Building
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
24 December 2020
Case Number
LDBM255/2018
Procedural Posture
Building Management Application / Judgment
Outcome
LDBM 252/2014: all declaratory and accounting reliefs (Reliefs 1,2,3,5) refused as unnecessary, academic or unsupported; Relief 4 (refund) abandoned. LDBM 255/2018: IO's claim for outstanding management fees 1.9.2012–12.2018 allowed in part; claim for post‑January 2019 fees disallowed as not yet accrued.
Legal Topics
Deed of Mutual Covenant, Management Fees, Accounts and Surplus Allocation, Res Judicata, Acquiescence, Costs
Source Language
EN
Building Management Property Law Contract Interpretation Civil Procedure Statutory Interpretation Deed of Mutual Covenant Management Fees Accounts and Surplus Allocation +3 more

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Parties

Sam Woo Marine Works Ltd

Applicant (ldbm 252/2014); Respondent (ldbm 255/2018)

The Incorporated Owners of Po Hang Building

Respondent (ldbm 252/2014); Applicant (ldbm 255/2018)

Procedural Posture

Building Management Application / Judgment

Legal Issues

  1. 1 Whether the Deed of Mutual Covenant (Clauses 3(h),(i),(j)) implies a duty on the Incorporated Owners to keep separate accounts and to allocate surplus by classes of owners
  2. 2 Whether surplus attributable to a class must be exhausted for that class before further contributions/management fees can be demanded
  3. 3 Whether the plaintiffs are estopped/res judicata barred from re‑arguing the interpretation decided in DCCJ 1271/2011

Ratio Decidendi

The Tribunal adopts the interpretation in DCCJ 1271/2011: Clause 3(i) concerns total monthly payments by all owners and does not require exhaustion of any class's surplus before levying further contributions; Clause 3(j) allows surplus to be held and applied at the IO's discretion for building expenses within the scope of Clause 3(f); there is no express or implied term in the DMC requiring separate carry‑forwards or class‑specific application of surplus, so the reliefs sought by Sam Woo fail; because the IO validly adopted revised budgets and accounts and is empowered by the BMO to demand management fees, Sam Woo is liable for outstanding fees of HK$237,884 plus interest, while claims...

Court Disposition

LDBM 252/2014: all declaratory and accounting reliefs (Reliefs 1,2,3,5) refused as unnecessary, academic or unsupported; Relief 4 (refund) abandoned. LDBM 255/2018: IO's claim for outstanding management fees 1.9.2012–12.2018 allowed in part; claim for post‑January 2019 fees disallowed as not yet accrued.

Orders

  • Sam Woo Marine Works Ltd to pay The Incorporated Owners of Po Hang Building HK$237,884 outstanding management fees (period Sept 2012–Dec 2018)
  • Interest on HK$237,884 at judgment rate from date of judgment (24 December 2020) until payment