YIU MEI LEE v. CB RICHARD ELLIS LTD

YIU MEI LEE v. CB RICHARD ELLIS LTD

Leave to appeal was granted because there is a properly arguable question that the adjudicator misallocated the burden of proof notwithstanding the respondent's contractual duty to maintain drains, and clause B(5)(c) does not clearly exclude liability for the respondent's own negligence; issues on liability and quantum are therefore fit for appellate determination.

Citation
YIU MEI LEE v. CB RICHARD ELLIS LTD
Parties
Claimant/applicant: YIU MEI LEE; Defendant/respondent: CB RICHARD ELLIS LTD
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 October 2012
Case Number
HCSA43/2012
Procedural Posture
Small Claims Tribunal Appeal (high Court CF I) / Application for Leave to Appeal
Outcome
Leave to appeal granted; costs reserved
Legal Topics
Negligence, Burden of Proof, Exclusion Clause, Damages/quantum, Leave to Appeal
Source Language
EN
Tort Property/management Law Contract (deed of Mutual Covenant) Negligence Burden of Proof Exclusion Clause Damages/quantum Leave to Appeal

Case Brief

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Parties

YIU MEI LEE

Claimant/applicant

CB RICHARD ELLIS LTD

Defendant/respondent

Procedural Posture

Small Claims Tribunal Appeal (high Court CF I) / Application for Leave to Appeal

Legal Issues

  1. 1 Whether the adjudicator wrongly placed the burden of proof on the applicant
  2. 2 Whether clause B(5)(c) of the Deed of Mutual Covenant excludes liability for the respondent's own negligence
  3. 3 Whether the applicant produced sufficient evidence on quantum to permit assessment

Ratio Decidendi

Leave to appeal was granted because there is a properly arguable question that the adjudicator misallocated the burden of proof notwithstanding the respondent's contractual duty to maintain drains, and clause B(5)(c) does not clearly exclude liability for the respondent's own negligence; issues on liability and quantum are therefore fit for appellate determination.

Court Disposition

Leave to appeal granted; costs reserved

Orders

  • Leave to appeal granted against the adjudicator's decision dated 31 July 2012
  • Costs of this application reserved for disposal at the conclusion of the appeal