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 (eg for erection and display of signboards etc) which did not amount to exclusive possession or the exclusive right to use, occupy or enjoy the External Walls for the purposes of section 34H of the Building Management...

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
HCSA7/2015
Procedural Posture
Small Claims Tribunal Appeal (court of First Instance) / Judgment
Outcome
Appeal dismissed
Legal Topics
Deed of Mutual Covenant, Exclusive Possession, Apportionment of Maintenance Costs, Burden of Proof, Statutory Interpretation, Small Claims Tribunal Appeal
Source Language
en
Property Law Building Management 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/respondent

Motors Limited

Defendant/appellant

Procedural Posture

Small Claims Tribunal Appeal (court of First Instance) / Judgment

Legal Issues

  1. 1 Whether the developer has exclusive possession or exclusive right to use/occupation/enjoyment of the External Walls under clause 3(b) and (c) of the DMC
  2. 2 Whether the developer has exclusive possession or exclusive right to use/occupation/enjoyment of the Main Roof under the DMC
  3. 3 Whether the Deputy Adjudicator wrongly placed the burden on the defendant to prove actual use/occupation by the developer

Ratio Decidendi

The court held that clause 3(b) and (c) of the DMC granted only limited rights to the developer (eg for erection and display of signboards etc) which did not amount to exclusive possession or the exclusive right to use, occupy or enjoy the External Walls for the purposes of section 34H of the Building Management Ordinance; consequently the developer is not solely liable for maintenance costs of the External Walls, the Deputy Adjudicator did not err in burden allocation or in applying authority, and the appeal was dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs to the claimant, to be taxed if not agreed