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

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

The Tribunal adopted the prior construction that Clauses 3(i) and 3(j) relate to total monthly payments by all owners and that the obligation to contribute is collective; Sam Woo's construction requiring strict class-level apportionment and insufficiency as a perpetual precondition was rejected as inconsistent with...

Source-derived case information.

Citation
[2021] HKLdT 35
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
27 May 2021
Case Number
LDBM252/2014
Procedural Posture
Building Management Application / Leave to Appeal Application
Outcome
Leave to appeal refused
Legal Topics
Interpretation of Deed of Mutual Covenant, Res Judicata, Leave to Appeal, Management Fees Recovery, Surplus Apportionment, Obligation to Contribute
Source Language
en
Property Law Building Management Contract Interpretation Civil Procedure Appeals Interpretation of Deed of Mutual Covenant Res Judicata Leave to Appeal +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 / Leave to Appeal Application

Legal Issues

  1. 1 Whether Clauses 3(h), 3(i) and 3(j) of the DMC require apportionment of surplus by class of owners and that contributions can only be levied where a particular class shows insufficiency
  2. 2 Whether the prior decision in DCCJ 1271/2011 on the same DMC provisions is binding or precludes re-litigation (res judicata/estoppel)
  3. 3 Whether the audited accounts support Sam Woo's allegation of systematic unfair use of ground floor surplus to subsidise others

Ratio Decidendi

The Tribunal adopted the prior construction that Clauses 3(i) and 3(j) relate to total monthly payments by all owners and that the obligation to contribute is collective; Sam Woo's construction requiring strict class-level apportionment and insufficiency as a perpetual precondition was rejected as inconsistent with the DMC and impracticable; prior decision DCCJ 1271/2011 is applicable and the intended appeal has no reasonable prospect of success, therefore leave to appeal is refused.

Court Disposition

Leave to appeal refused

Orders

  • Leave to appeal refused
  • Applicant Sam Woo Marine Works Ltd ordered to pay the costs of the leave application to The Incorporated Owners of Po Hang Building, to be taxed on the District Court scale if not agreed