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 DMC conferred only limited, qualified rights on the developer to use the External Walls for specified purposes which do not amount to exclusive possession or exclusive right to use/occupation/enjoyment; accordingly the Deputy Adjudicator did not err in holding the developer was not solely liable for maintenance of the External Walls, did not misplace the burden of proof, and the appeals are dismissed.

Citation
聯基新樓業主立案法團 v. YAN YAN MOTORS LTD
Parties
Respondent/claimant: The Incorporated Owners of Luen Gay Apartments; Appellant/defendant: MOTORS LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 September 2015
Case Number
HCSA10/2015
Procedural Posture
Appeal From Small Claims Tribunal / Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
Deed of Mutual Covenant, Exclusive Possession, Apportionment of Repair Costs, Burden of Proof, Construction of Contractual Clauses, Building Management Ordinance Section 34 H
Source Language
EN
Property Law Building Management Contract Law Civil Procedure Deed of Mutual Covenant Exclusive Possession Apportionment of Repair Costs Burden of Proof +2 more

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Parties

The Incorporated Owners of Luen Gay Apartments

Respondent/claimant

MOTORS LIMITED

Appellant/defendant

Procedural Posture

Appeal From Small Claims Tribunal / Judgment on Appeal

Legal Issues

  1. 1 Whether the developer under the DMC has exclusive possession or exclusive right to use/occupation/enjoyment of the External Walls and Main Roof
  2. 2 Whether the Deputy Adjudicator wrongly placed the burden of proof on the defendant to show 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 DMC conferred only limited, qualified rights on the developer to use the External Walls for specified purposes which do not amount to exclusive possession or exclusive right to use/occupation/enjoyment; accordingly the Deputy Adjudicator did not err in holding the developer was not solely liable for maintenance of the External Walls, did not misplace the burden of proof, and the appeals are dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs to the claimant, to be taxed if not agreed
  • Deputy Adjudicator's awards upheld