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, properly construed, does not confer on the Developer exclusive possession or the exclusive right to the use, occupation or enjoyment of the External Walls; the rights in clause 3 are limited to erection/installation/display purposes and do not amount to the full set of rights constituting exclusivity, so the Developer is not solely liable under BMO s34H and the Deputy Adjudicator did not err in law or in placing burden of proof; accordingly the appeals are dismissed.

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
HCSA13/2015
Procedural Posture
Small Claims Tribunal Appeal to High Court (court of First Instance) / Judgment on Appeal (dismissal)
Outcome
Appeals dismissed
Legal Topics
Deed of Mutual Covenant, Apportionment of Maintenance Costs, Exclusive Possession/use/occupation, Building Management Ordinance S34 H and S34 C, Burden of Proof on Appeal
Source Language
EN
Building Management Property Law Contract Law Statutory Interpretation Civil Procedure Deed of Mutual Covenant Apportionment of Maintenance Costs Exclusive Possession/use/occupation +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 to High Court (court of First Instance) / Judgment on Appeal (dismissal)

Legal Issues

  1. 1 Whether the Developer has exclusive possession or exclusive right to use/occupation/enjoyment of the External Walls under the DMC
  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 Court of Appeal decision in Goa Building

Ratio Decidendi

The DMC, properly construed, does not confer on the Developer exclusive possession or the exclusive right to the use, occupation or enjoyment of the External Walls; the rights in clause 3 are limited to erection/installation/display purposes and do not amount to the full set of rights constituting exclusivity, so the Developer is not solely liable under BMO s34H and the Deputy Adjudicator did not err in law or in placing burden of proof; accordingly the appeals are dismissed.

Court Disposition

Appeals dismissed

Orders

  • Appeals dismissed with costs to the claimant, to be taxed if not agreed
  • Deputy Adjudicator's seven awards totalling HK$130,569.40 upheld