陳炳華及另一人 v. 家利物業管理有限公司

陳炳華及另一人 v. 家利物業管理有限公司

The Court dismissed the appeal because the DMC was executed before CECO's effective date and thus CECO did not apply (s19); in any event s8(1) conditions for CECO to apply were not satisfied on these facts; Clause B6, fairly construed, exempted or limited the Manager's liability except for criminality, dishonesty or wilful negligence and is wide enough to cover ordinary negligence; there was no actionable nuisance attributable to the Manager on the facts; factual findings that the Manager arranged regular cleaning and was only negligent in not issuing reminders were upheld; the appellant as an Owner is bound by the DMC, so Ground 14 fails.

Citation
[2020] HKCFI 3010
Parties
1st Claimant (appellant): 陳炳華; 2nd Claimant: 况抒; Defendant (respondent): 家利物業管理有限公司
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 December 2020
Case Number
HCSA20/2019
Procedural Posture
Small Claims Tribunal Appeal / Judgment on Appeal (leave Granted)
Outcome
Appeal dismissed
Legal Topics
Exemption Clauses, Control of Exemption Clauses Ordinance Cap 71 (ceco), Reasonableness Test, Contra Proferentem, Nuisance, Delegation of Duties to Contractors, Deed of Mutual Covenant
Source Language
EN
Contract Law Tort Property Law Statutory Interpretation Building Management Law Exemption Clauses Control of Exemption Clauses Ordinance Cap 71 (ceco) Reasonableness Test +4 more

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Parties

陳炳華

1st Claimant (appellant)

况抒

2nd Claimant

家利物業管理有限公司

Defendant (respondent)

Procedural Posture

Small Claims Tribunal Appeal / Judgment on Appeal (leave Granted)

Legal Issues

  1. 1 Whether CECO applies to the Deed of Mutual Covenant (DMC)
  2. 2 Whether the Adjudicator applied the reasonableness test under CECO and contra proferentem
  3. 3 Whether Clause B6 of the DMC excludes liability for ordinary negligence

Ratio Decidendi

The Court dismissed the appeal because the DMC was executed before CECO's effective date and thus CECO did not apply (s19); in any event s8(1) conditions for CECO to apply were not satisfied on these facts; Clause B6, fairly construed, exempted or limited the Manager's liability except for criminality, dishonesty or wilful negligence and is wide enough to cover ordinary negligence; there was no actionable nuisance attributable to the Manager on the facts; factual findings that the Manager arranged regular cleaning and was only negligent in not issuing reminders were upheld; the appellant as an Owner is bound by the DMC, so Ground 14 fails.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • 1st Claimant to pay the costs of the appeal to the Defendant