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 proper construction the DMC conferred only limited rights on the Developer to use the External Walls for specified purposes, which did not amount to exclusive possession or exclusive right to use/occupation/enjoyment; the Deputy Adjudicator was entitled to find as a fact that the Developer had not exercised such...

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
HCSA9/2015
Procedural Posture
Small Claims Tribunal Appeal / Determination on Appeal (court of First Instance)
Outcome
Appeal dismissed
Legal Topics
Deed of Mutual Covenant, Exclusive Possession, Apportionment of Repair Costs, Construction of DMC, Burden of Proof, Small Claims Tribunal Appeals, Building Management Ordinance S34 H/s34 C
Source Language
en
Building Management Property Law Contract Law Civil Procedure Deed of Mutual Covenant Exclusive Possession Apportionment of Repair Costs Construction of DMC +3 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 / Determination on Appeal (court of First Instance)

Legal Issues

  1. 1 Whether clause 3 of the DMC conferred exclusive possession or exclusive right to use/occupation/enjoyment of the External Walls and Main Roof on the Developer
  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 Deputy Adjudicator misconstrued or misapplied The Incorporated Owners of Goa Building v Wui Tat Company Limited

Ratio Decidendi

On proper construction the DMC conferred only limited rights on the Developer to use the External Walls for specified purposes, which did not amount to exclusive possession or exclusive right to use/occupation/enjoyment; the Deputy Adjudicator was entitled to find as a fact that the Developer had not exercised such rights in respect of the External Walls; consequently the Developer is not solely liable under section 34H of the BMO and the appeals fail.

Court Disposition

Appeal dismissed

Orders

  • Appeals dismissed with costs to the claimant
  • Costs to be taxed if not agreed