THE INCORPORATED OWNERS OF PO HANG BUILDING v. SAM WOO MARINE WORKS LTD

THE INCORPORATED OWNERS OF PO HANG BUILDING v. SAM WOO MARINE WORKS LTD

Leave to appeal was refused because the proposed grounds lacked a reasonable prospect of success; the Tribunal accepted the prior construction that Clause 3(i) refers to total monthly payments by all owners and rejected the contention that surplus in a class account prevents IO from levying contributions or revised monthly payments; Sam Woo's interpretation would require impermissible rewriting of the DMC and is unarguable.

Citation
[2021] HKLdT 35
Parties
Applicant in LDBM 252/2014; Respondent in LDBM 255/2018: Sam Woo Marine Works Ltd; Respondent in LDBM 252/2014; Applicant in LDBM 255/2018: The Incorporated Owners of Po Hang Building
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
27 May 2021
Case Number
LDBM255/2018
Procedural Posture
Building Management Application / Leave to Appeal Application Before the Lands Tribunal
Outcome
Leave to appeal refused
Legal Topics
Interpretation of Deed of Mutual Covenant, Management Fees and Contributions, Res Judicata and Estoppel, Allocation of Surplus and Separate Accounts, Leave to Appeal Standard
Source Language
EN
Property Law Contract Law Building Management Civil Procedure Appeal Interpretation of Deed of Mutual Covenant Management Fees and Contributions Res Judicata and Estoppel +2 more

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Parties

Sam Woo Marine Works Ltd

Applicant in LDBM 252/2014; Respondent in LDBM 255/2018

The Incorporated Owners of Po Hang Building

Respondent in LDBM 252/2014; Applicant in LDBM 255/2018

Procedural Posture

Building Management Application / Leave to Appeal Application Before the Lands Tribunal

Legal Issues

  1. 1 Proper construction of Clauses 3(h), 3(i) and 3(j) of the DMC
  2. 2 Whether prior decision DCCJ 1271/2011 and its interpretation is binding or preclusive
  3. 3 Whether surplus in a class account prevents levying of further contributions from that class

Ratio Decidendi

Leave to appeal was refused because the proposed grounds lacked a reasonable prospect of success; the Tribunal accepted the prior construction that Clause 3(i) refers to total monthly payments by all owners and rejected the contention that surplus in a class account prevents IO from levying contributions or revised monthly payments; Sam Woo's interpretation would require impermissible rewriting of the DMC and is unarguable.

Court Disposition

Leave to appeal refused

Orders

  • Applicant Sam Woo Marine Works Ltd to pay the Incorporated Owners of Po Hang Building's costs of the leave application, to be taxed on the District Court scale if not agreed, certificate for Counsel granted