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

Leave to appeal was granted because the defendant raised arguable points of law concerning the construction of the deed of mutual covenant and the effect of section 34H of the Buildings Management Ordinance, and whether the Deputy Adjudicator misallocated the burden of proof and misapplied binding authority; these issues require appellate determination and justify permitting an appeal and amendment to include the main roof.

Citation
聯基新樓業主立案法團 v. YAN YAN MOTORS LTD
Parties
Claimant (respondent): 聯基新樓業主立案法團; Defendant (appellant): YAN YAN MOTORS LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 April 2015
Case Number
HCSA7/2015
Procedural Posture
Small Claims Tribunal Appeal / Leave to Appeal Granted (application Under S28)
Outcome
Leave to appeal granted
Legal Topics
Deed of Mutual Covenant, Apportionment of Maintenance Costs, Jurisdiction of Small Claims Tribunal, Buildings Management Ordinance S34 H, Burden of Proof, Precedent Application
Source Language
EN
Property Law Building Management Civil Procedure Statutory Interpretation Deed of Mutual Covenant Apportionment of Maintenance Costs Jurisdiction of Small Claims Tribunal Buildings Management Ordinance S34 H +2 more

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Parties

聯基新樓業主立案法團

Claimant (respondent)

YAN YAN MOTORS LIMITED

Defendant (appellant)

Procedural Posture

Small Claims Tribunal Appeal / Leave to Appeal Granted (application Under S28)

Legal Issues

  1. 1 Proper construction of clause 3 of the deed of mutual covenant and its effect on liability for external walls and main roof repairs
  2. 2 Whether defendant as co‑owner should share costs of repairs and maintenance or the developer alone is liable
  3. 3 Whether the Deputy Adjudicator misallocated the burden of proof regarding exclusive use by the developer

Ratio Decidendi

Leave to appeal was granted because the defendant raised arguable points of law concerning the construction of the deed of mutual covenant and the effect of section 34H of the Buildings Management Ordinance, and whether the Deputy Adjudicator misallocated the burden of proof and misapplied binding authority; these issues require appellate determination and justify permitting an appeal and amendment to include the main roof.

Court Disposition

Leave to appeal granted

Orders

  • Leave to appeal granted under section 28 Small Claims Tribunal Ordinance
  • Defendant permitted to amend applications for leave to appeal to include the main roof issue