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

The court held that clause 3(b) and (c) of the DMC granted only limited rights to the developer (to erect/install/display) which did not comprise all rights amounting to exclusive possession or exclusive right to use/occupy/enjoy the External Walls; therefore the developer is not solely liable under section 34H of...

Source-derived case information.

Citation
聯基新樓業主立案法團 v. YAN YAN MOTORS LTD
Parties
Claimant: 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
HCSA11/2015
Procedural Posture
Appeal From Small Claims Tribunal to Court of First Instance / High Court Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
Deed of Mutual Covenant, Exclusive Possession, Apportionment of Maintenance Costs, Burden of Proof, Statutory Construction, Building Management Ordinance S34 H
Source Language
en
Building Management Property Law Contract Law Civil Procedure Deed of Mutual Covenant Exclusive Possession Apportionment of Maintenance Costs Burden of Proof +2 more

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Parties

The Incorporated Owners of Luen Gay Apartments

Claimant

Motors Limited

Defendant (appellant)

Procedural Posture

Appeal From Small Claims Tribunal to Court of First Instance / High Court Judgment on Appeal

Legal Issues

  1. 1 Whether the developer has exclusive possession or exclusive right to use/occupy/enjoy the external walls and main roof under clause 3 of the DMC
  2. 2 Whether the Deputy Adjudicator wrongly placed the burden on the defendant to prove actual use or occupation by the developer
  3. 3 Whether the Deputy Adjudicator misconstrued or misapplied the Court of Appeal decision in Goa Building

Ratio Decidendi

The court held that clause 3(b) and (c) of the DMC granted only limited rights to the developer (to erect/install/display) which did not comprise all rights amounting to exclusive possession or exclusive right to use/occupy/enjoy the External Walls; therefore the developer is not solely liable under section 34H of the BMO and the Deputy Adjudicator's apportionment and factual findings were correct; the complaint about burden of proof failed because the Deputy Adjudicator's factual finding that no developer structures existed was open to him; appeals dismissed

Court Disposition

Appeal dismissed

Orders

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