Gallium Development Ltd. and Another v. Winning Properties Management Ltd. and Another

Gallium Development Ltd. and Another v. Winning Properties Management Ltd. and Another

The summons under Rule 18 was dismissed because there were no agreed or admitted facts that the listed resolutions had in fact been passed; without such factual foundation the Tribunal could not apply clause 4(5) of the Seventh Schedule or clause 27(1) of the DMC and therefore Rule 18 was inapplicable.

Citation
Gallium Development Ltd. and Another v. Winning Properties Management Ltd. and Another
Parties
Applicant: Gallium Development Limited; Applicant: Len Tong Holdings Limited and 22 Others; 1st Respondent: Winning Properties Management Limited; 2nd Respondent: Winning Properties Holdings Limited
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
11 May 2001
Case Number
LDBM121/2000
Procedural Posture
Building Management Application LDBM 121/2000 / Rule 18 Preliminary Hearing (point of Law Application)
Outcome
Summons dismissed; Rule 18 inapplicable for lack of agreed or admitted facts
Legal Topics
Sinking Fund, Resolutions, Deed of Mutual Covenant, Preliminary Hearing, Rule 18, Point of Law, Construction of Statutory/dmc Clauses
Source Language
EN
Building Management Property Law Civil Procedure Administrative Law Land Law Sinking Fund Resolutions Deed of Mutual Covenant +4 more

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Parties

Gallium Development Limited

Applicant

Len Tong Holdings Limited and 22 Others

Applicant

Winning Properties Management Limited

1st Respondent

Winning Properties Holdings Limited

2nd Respondent

Procedural Posture

Building Management Application LDBM 121/2000 / Rule 18 Preliminary Hearing (point of Law Application)

Legal Issues

  1. 1 Whether the purported resolutions dated 9 Mar 1996, 15 Apr 1996, 16 Dec 1996 and 20 Dec 1997 were contrary to clause 4(5) of the Seventh Schedule of the Building Management Ordinance and therefore did not empower use of the sinking fund
  2. 2 Whether those purported resolutions were null or void under clause 27(1) of the Deed of Mutual Covenant and therefore did not empower approval/rectification of Renovation Works or use of the sinking fund
  3. 3 Whether the Lands Tribunal may decide the point(s) of law under Rule 18 in the absence of agreed or admitted facts as to the existence of the purported resolutions

Ratio Decidendi

The summons under Rule 18 was dismissed because there were no agreed or admitted facts that the listed resolutions had in fact been passed; without such factual foundation the Tribunal could not apply clause 4(5) of the Seventh Schedule or clause 27(1) of the DMC and therefore Rule 18 was inapplicable.

Court Disposition

Summons dismissed; Rule 18 inapplicable for lack of agreed or admitted facts

Orders

  • Summons dismissed with costs to the Respondents (Certificate for Counsel)