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 various arguable points of law concerning the construction of the deed of mutual covenant and the effect of section 34H of the Buildings Management Ordinance, including whether the developer had exclusive use (and thus sole liability) for two external walls and the main roof; those points warrant full appellate consideration and the defendant may amend its leave application 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
HCSA13/2015
Procedural Posture
Small Claims Tribunal Appeal / Application for Leave to Appeal Under Section 28 (leave Granted)
Outcome
Leave to appeal granted to the defendant on points of law relating to apportionment of repair and maintenance costs; leave to amend permitted; costs in the cause.
Legal Topics
Deed of Mutual Covenant, Apportionment of Repair and Maintenance Costs, Jurisdiction of Small Claims Tribunal, Buildings Management Ordinance Section 34 H, Leave to Appeal
Source Language
EN
Building Management Property Law Civil Procedure Appeal Deed of Mutual Covenant Apportionment of Repair and Maintenance Costs Jurisdiction of Small Claims Tribunal Buildings Management Ordinance Section 34 H +1 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 / Application for Leave to Appeal Under Section 28 (leave Granted)

Legal Issues

  1. 1 Proper apportionment of costs of repairs and maintenance of the external walls and main roof
  2. 2 Construction and effect of clause 3 of the Deed of Mutual Covenant
  3. 3 Burden of proof as to developer's use/occupation of parts of the building

Ratio Decidendi

Leave to appeal was granted because the defendant raised various arguable points of law concerning the construction of the deed of mutual covenant and the effect of section 34H of the Buildings Management Ordinance, including whether the developer had exclusive use (and thus sole liability) for two external walls and the main roof; those points warrant full appellate consideration and the defendant may amend its leave application to include the main roof.

Court Disposition

Leave to appeal granted to the defendant on points of law relating to apportionment of repair and maintenance costs; leave to amend permitted; costs in the cause.

Orders

  • Leave to appeal granted to Yan Yan Motors Limited to appeal the Deputy Adjudicator's decision dated 23 February 2015 on points of law including apportionment of costs for the external walls and the main roof of the building
  • Defendant is permitted to amend the applications for leave to appeal on point of law as may be necessary to include the main roof