聯基新樓業主立案法團 v. YAN YAN MOTORS LTD

聯基新樓業主立案法團 v. YAN YAN MOTORS LTD

On true construction the DMC granted only limited rights to the developer to erect and display materials on the external walls and did not confer exclusive possession or exclusive right to use/occupation/enjoyment of the external walls for the purpose of s34H BMO; accordingly the developer is not solely liable and...

Source-derived case information.

Citation
聯基新樓業主立案法團 v. YAN YAN MOTORS LTD
Parties
Claimant/respondent: The Incorporated Owners of Luen Gay Apartments; Defendant/appellant: Motors Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 September 2015
Case Number
HCSA12/2015
Procedural Posture
Small Claims Tribunal Appeal / Appeal to Court of First Instance Judgment
Outcome
Appeal dismissed
Legal Topics
Deed of Mutual Covenant, Exclusive Possession/use, Apportionment of Repair Costs, Burden of Proof, Statutory Interpretation of Building Management Ordinance S34 H
Source Language
en
Building Management Property Law Contract Law Civil Procedure Deed of Mutual Covenant Exclusive Possession/use Apportionment of Repair Costs Burden of Proof +1 more

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Parties

The Incorporated Owners of Luen Gay Apartments

Claimant/respondent

Motors Limited

Defendant/appellant

Procedural Posture

Small Claims Tribunal Appeal / Appeal to Court of First Instance Judgment

Legal Issues

  1. 1 Whether the developer has exclusive possession or exclusive right to use/occupation/enjoyment of the external walls and main roof under the DMC
  2. 2 Whether the Deputy Adjudicator wrongly placed the burden on the defendant to prove actual use/occupation by the developer
  3. 3 Whether the Court of Appeal authorities (Goa Building; Shatin New Town) were correctly applied in construction of the DMC and s34H BMO

Ratio Decidendi

On true construction the DMC granted only limited rights to the developer to erect and display materials on the external walls and did not confer exclusive possession or exclusive right to use/occupation/enjoyment of the external walls for the purpose of s34H BMO; accordingly the developer is not solely liable and the Deputy Adjudicator's awards in favour of the claimant stand.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs to claimant, to be taxed if not agreed