FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. LEE YUEN YAU

FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. LEE YUEN YAU

Because the District Court writ was never served and thus there was no adjudication or taxation of costs, the appellants could recover reasonable legal fees reasonably incurred to enforce the covenants as damages under clause 1(k) of the deed; legal fees and damages are not conceptually mutually exclusive; accordingly the adjudicator's award in the Small Claims Tribunal was correct and was restored on appeal.

Citation
FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. LEE YUEN YAU
Parties
Claimant/applicant/appellant (managers): Fairview Park Property Management Ltd.; Defendant/respondent (owner): Lee Yuen-Yau
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
14 October 1987
Case Number
HCMP703/1987
Procedural Posture
Civil Appeal From Small Claims Tribunal (origins in District Court Writ) / Court of Appeal Judgment After Grant of Leave Under S.29 a
Outcome
Appeal allowed; judgment of the adjudicator in the Small Claims Tribunal restored; leave granted under s.29A
Legal Topics
Recoverability of Legal Fees as Damages, Construction of Contractual Remedy Clause, Jurisdiction and Remedies in Small Claims Tribunal, Effect of Prior Unserved Proceedings on Costs Recovery
Source Language
EN
Civil Procedure Costs Law Contract (deed of Mutual Covenant) Property Law Recoverability of Legal Fees as Damages Construction of Contractual Remedy Clause Jurisdiction and Remedies in Small Claims Tribunal Effect of Prior Unserved Proceedings on Costs Recovery

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Parties

Fairview Park Property Management Ltd.

Claimant/applicant/appellant (managers)

Lee Yuen-Yau

Defendant/respondent (owner)

Procedural Posture

Civil Appeal From Small Claims Tribunal (origins in District Court Writ) / Court of Appeal Judgment After Grant of Leave Under S.29 a

Legal Issues

  1. 1 Whether legal fees incurred to enforce deed covenants are recoverable as damages under clause 1(k) of the Third Schedule
  2. 2 Whether legal costs are conceptually distinct from damages and thus cannot be recovered as damages
  3. 3 Whether the Small Claims Tribunal may award solicitor/client legal expenses as damages where no adjudication on costs has occurred

Ratio Decidendi

Because the District Court writ was never served and thus there was no adjudication or taxation of costs, the appellants could recover reasonable legal fees reasonably incurred to enforce the covenants as damages under clause 1(k) of the deed; legal fees and damages are not conceptually mutually exclusive; accordingly the adjudicator's award in the Small Claims Tribunal was correct and was restored on appeal.

Court Disposition

Appeal allowed; judgment of the adjudicator in the Small Claims Tribunal restored; leave granted under s.29A

Orders

  • Leave to appeal granted under Section 29A of the Small Claims Tribunal Ordinance (Cap. 338)
  • Appeal allowed and judgment of the adjudicator restored