FANINGTON CO LTD AND OTHERS v. UNITE PATRON LTD AND OTHERS

FANINGTON CO LTD AND OTHERS v. UNITE PATRON LTD AND OTHERS

The DMC's Part 3 and Part 4 confer management powers to incur and recover legal costs and expressly include legal fees as management expenses; therefore the taxed costs awarded to the Applicants are management expenses to be apportioned according to management shares under the DMC (s.39 BMO), the Tribunal will exercise its s.17(1)(b) discretion to grant leave to issue execution against all owners (excluding 2nd and 4th Applicants from apportionment as successful parties), and owners who have paid may be pursued internally for contribution but may be required to contribute to the judgment by leave of the Tribunal.

Citation
FANINGTON CO LTD AND OTHERS v. UNITE PATRON LTD AND OTHERS
Parties
1st Applicant: Fanington Company Limited; 2nd Applicant: Linson Company Limited; 3rd Applicant: Vincent Limited; 4th Applicant: Wing Sheung Land Investment Company Limited; 1st Respondent: Unite Patron Limited; 2nd Respondent: Chu Kam Tong; 3rd Respondent: Summax Company Limited; 4th Respondent: Winning Resources Limited; 5th Respondent: Neson Investments Limited; 6th Respondent: Tsui Wan Shu; 7th Respondent: Fill Joy Limited; 8th Respondent: Max Smart Asia Limited; 9th Respondent: Zhou Yaoguang; 10th Respondent: V Made Holding Company Limited; 11th Respondent: Lisa House International Company Limited
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
19 October 2010
Case Number
LDMP2/2010
Procedural Posture
Application for Leave to Issue Execution Under the Building Management Ordinance (miscellaneous Proceedings Application No. 2 of 2010) / Decision on Originating Summons (lands Tribunal)
Outcome
Leave granted to issue execution against all Respondents (with 2nd and 4th Applicants excluded from apportionment) to recover outstanding balance.
Legal Topics
Leave to Issue Execution, Apportionment of Management Expenses, Construction of Deed of Mutual Covenant, Joint and Several Liability, Exoneration From Contribution
Source Language
EN
Building Management Property Law Civil Procedure Costs Leave to Issue Execution Apportionment of Management Expenses Construction of Deed of Mutual Covenant Joint and Several Liability +1 more

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Parties

Fanington Company Limited

1st Applicant

Linson Company Limited

2nd Applicant

Vincent Limited

3rd Applicant

Wing Sheung Land Investment Company Limited

4th Applicant

Unite Patron Limited

1st Respondent

Chu Kam Tong

2nd Respondent

Summax Company Limited

3rd Respondent

Winning Resources Limited

4th Respondent

Neson Investments Limited

5th Respondent

Tsui Wan Shu

6th Respondent

Fill Joy Limited

7th Respondent

Max Smart Asia Limited

8th Respondent

Zhou Yaoguang

9th Respondent

V Made Holding Company Limited

10th Respondent

Lisa House International Company Limited

11th Respondent

Procedural Posture

Application for Leave to Issue Execution Under the Building Management Ordinance (miscellaneous Proceedings Application No. 2 of 2010) / Decision on Originating Summons (lands Tribunal)

Legal Issues

  1. 1 Whether contributions should be apportioned by management shares under the DMC or by undivided shares under the BMO
  2. 2 Whether 2nd and 4th Applicants should be exonerated from contribution despite being owners
  3. 3 Whether leave should be granted against respondents who have already made contributions

Ratio Decidendi

The DMC's Part 3 and Part 4 confer management powers to incur and recover legal costs and expressly include legal fees as management expenses; therefore the taxed costs awarded to the Applicants are management expenses to be apportioned according to management shares under the DMC (s.39 BMO), the Tribunal will exercise its s.17(1)(b) discretion to grant leave to issue execution against all owners (excluding 2nd and 4th Applicants from apportionment as successful parties), and owners who have paid may be pursued internally for contribution but may be required to contribute to the judgment by leave of the Tribunal.

Court Disposition

Leave granted to issue execution against all Respondents (with 2nd and 4th Applicants excluded from apportionment) to recover outstanding balance.

Orders

  • Leave granted to issue execution to recover the balance sum of HKD 724109.68 together with interest at judgment rate from 3 August 2010 until satisfaction
  • Order nisi that the Respondents pay the Applicants' costs of the originating summons including certificate for counsel to be taxed on High Court Scale if not agreed; order nisi to become absolute if no further application for costs within 14 days