BUAPHAN WANLAYAPHOL AND ANOTHER v.THE INCORPORATED OWNERS of the FOREMOST BUILDING situate at 19-21 Jordan Road, Kowloon, Hong Kong AND ANOTHER

BUAPHAN WANLAYAPHOL AND ANOTHER v.THE INCORPORATED OWNERS of the FOREMOST BUILDING situate at 19-21 Jordan Road, Kowloon, Hong Kong AND ANOTHER

The Tribunal found the external walls were not common parts because Clause 3(b) of the Deed of Mutual Covenant granted exclusive rights to the First Owner(s), and the Applicants failed to discharge the onus of showing the judgment arose from common parts; alternatively, even if the external walls were common parts, the Tribunal would refuse to exercise its discretion to grant leave because Applicants had not taken reasonable steps (notably winding up the incorporated owners) and it would be unjust to enforce the entire judgment against a single minor co-owner who was not culpable.

Citation
BUAPHAN WANLAYAPHOL AND ANOTHER v.THE INCORPORATED OWNERS of the FOREMOST BUILDING situate at 19-21 Jordan Road, Kowloon, Hong Kong AND ANOTHER
Parties
1st Applicant: BUAPHAN WANLAYAPHOL (deceased) by her personal representatives PILAIMART HO and NENG A NUWAT WANLAYAPHOL; 2nd Applicant: BERNT LARS-OLOF WANLAYAPHOL; 1st Respondent: THE INCORPORATED OWNERS of the FOREMOST BUILDING (19-21 Jordan Road, Kowloon); 2nd Respondent: DBS KWONG ON BANK LIMITED (formerly KWONG ON BANK LIMITED)
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
31 March 2003
Case Number
LDMP12/2002
Procedural Posture
Application Under Section 17 of the Building Management Ordinance Cap.344 to Enforce High Court Judgment / Hearing and Decision in the Lands Tribunal (application for Leave to Enforce)
Outcome
Application dismissed
Legal Topics
Section 17 Building Management Ordinance, Common Parts of Building, Deed of Mutual Covenant Interpretation, Discretionary Leave to Enforce Judgment, Winding Up of Management Corporation
Source Language
EN
Building Management Property Law Civil Procedure Enforcement of Judgment Tort (personal Injury) Section 17 Building Management Ordinance Common Parts of Building Deed of Mutual Covenant Interpretation +2 more

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Parties

BUAPHAN WANLAYAPHOL (deceased) by her personal representatives PILAIMART HO and NENG A NUWAT WANLAYAPHOL

1st Applicant

BERNT LARS-OLOF WANLAYAPHOL

2nd Applicant

THE INCORPORATED OWNERS of the FOREMOST BUILDING (19-21 Jordan Road, Kowloon)

1st Respondent

DBS KWONG ON BANK LIMITED (formerly KWONG ON BANK LIMITED)

2nd Respondent

Procedural Posture

Application Under Section 17 of the Building Management Ordinance Cap.344 to Enforce High Court Judgment / Hearing and Decision in the Lands Tribunal (application for Leave to Enforce)

Legal Issues

  1. 1 Whether the High Court judgment arose from matters relating to the common parts of the building
  2. 2 Whether the Tribunal should exercise its discretion to grant leave under s17(1)(b) to enforce the whole judgment against one co-owner

Ratio Decidendi

The Tribunal found the external walls were not common parts because Clause 3(b) of the Deed of Mutual Covenant granted exclusive rights to the First Owner(s), and the Applicants failed to discharge the onus of showing the judgment arose from common parts; alternatively, even if the external walls were common parts, the Tribunal would refuse to exercise its discretion to grant leave because Applicants had not taken reasonable steps (notably winding up the incorporated owners) and it would be unjust to enforce the entire judgment against a single minor co-owner who was not culpable.

Court Disposition

Application dismissed

Orders

  • Application by Originating Summons dated 20 July 2002 dismissed
  • Applicants to pay the costs of the Application to the 2nd Respondent with certificate for counsel, to be taxed at the High Court Scale if not agreed (costs order nisi)