Hong Kong Case Law: Decisions & Judgments

Topic

Construction of deed of mutual covenant

Legal area

Court

1 Sept 2022

THE INCORPORATED OWNERS OF HUNG WAI BUILDING v. SUNNY ELEGANT LTD AND OTHERS

Citation

[2022] HKLdT 42
Court

Lands Tribunal
Case number

LDBM76/2019

The Tribunal held there was no reasonable prospect of success on appeal because the proposed expert evidence on issues (2),(4) and (5) was unnecessary or speculative given the issues were principally documentary construction and within the Tribunal's competence; the Order permitting a single joint expert was confined to a narrow factual task (identifying electrical equipment in the 1/F room) and appropriate; granting leave to appeal was refused and costs ordered.
19 Apr 2022

SPM LTD v. APPEAL TRIBUNAL (BUILDINGS ORDINANCE)

Citation

[2022] HKCFI 1105
Court

Court of First Instance
Case number

HCAL1574/2021

On proper construction of the DMC the allocation of 1 undivided share to the External Walls combined with clause D1(i) confers the full and exclusive right and privilege to hold, use and occupy that part on the registered holder of the share, so the 5/F–30/F External Walls are not common parts under s.2 of the BMO; the Appeal Tribunal's contrary construction was an error of law, the Determination is quashed and the obligation to repair lies on the registered owner (Wideland) under the DMC (clause F7(a)).
17 Aug 2015

莫炎熙 v. 香港房屋委員會

Citation

莫炎熙 v. 香港房屋委員會
Court

Court of Appeal
Case number

CACV147/2015

The Court of Appeal held the Tribunal judge erred in barring HKHA from relying on its limitation defence where the limitation point had been raised in evidence and dealt with at the subsequent hearing, and where the Tribunal has statutory power and directions permitting flexible procedure; the formal judgment improperly fixed a commencement date outside the scope of the first hearing and must be amended and the limitation issue remitted to the Tribunal for determination on the merits.
19 Oct 2010

FANINGTON CO LTD AND OTHERS v. UNITE PATRON LTD AND OTHERS

Citation

FANINGTON CO LTD AND OTHERS v. UNITE PATRON LTD AND OTHERS
Court

Lands Tribunal
Case number

LDMP2/2010

The DMC's Part 3 and Part 4 confer management powers to incur and recover legal costs and expressly include legal fees as management expenses; therefore the taxed costs awarded to the Applicants are management expenses to be apportioned according to management shares under the DMC (s.39 BMO), the Tribunal will exercise its s.17(1)(b) discretion to grant leave to issue execution against all owners (excluding 2nd and 4th Applicants from apportionment as successful parties), and owners who have paid may be pursued internally for contribution but may be required to contribute to the judgment by l…
6 May 2009

THE INCORPORATED OWNERS OF KELLY HOUSE v. LAW HAN YING

Citation

THE INCORPORATED OWNERS OF KELLY HOUSE v. LAW HAN YING
Court

Lands Tribunal
Case number

LDBM224/2008

Clause 4(h) of the DMC only prescribes monthly payments on account and does not fix ultimate apportionment. Clause 4(f)(I) contains no formula for apportioning costs; therefore section 22(2) of the Building Management Ordinance applies and the Tribunal correctly fixed contributions according to the respective undivided shares of the owners. Accordingly the respondent was liable for the outstanding contribution and the IO's claim succeeded; the counterclaim was dismissed.
16 Feb 2007

YEUNG CHUNG LAU v. INCORPORATED OWNERS OF CENTURY INDUSTRIAL CENTRE AND OTHERS

Citation

YEUNG CHUNG LAU v. INCORPORATED OWNERS OF CENTURY INDUSTRIAL CENTRE AND OTHERS
Court

Court of Appeal
Case number

CACV381/2006

There was a serious question to be tried on construction of clause 15 of the DMC and s14 and s18 of the BMO as to whether the Incorporated Owners could legitimately use management funds to indemnify or fund the defence of management committee members acting in management matters; the judge erred in concluding no arguable case and, on balance of convenience, the injunction should be refused; therefore the appeal succeeds and the injunction is set aside.
26 Jul 2006

TAI FAT DEVELOPMENT (HOLDING) CO LTD v. THE INCORPORATED OWNERS OF GOLD KING INDUSTRIAL BUILDING

Citation

TAI FAT DEVELOPMENT (HOLDING) CO LTD v. THE INCORPORATED OWNERS OF GOLD KING INDUSTRIAL BUILDING
Court

Court of First Instance
Case number

HCA104/2006

The court construed the DMC and First Schedule to mean the 13 spaces listed under "Loading and Unloading Areas" with allocated ownership shares were reserved to the first owners and therefore not common areas; the storeroom was expressly reserved to the first owner; accordingly the plaintiff (authorised by first owners) was entitled to recover possession, arrears and mesne profits and the defendant's defence and counterclaim founded on common area status failed.
10 Jun 1987

FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. LEE YUEN YAU

Citation

FAIRVIEW PARK PROPERTY MANAGEMENT LTD v. LEE YUEN YAU
Court

Court of First Instance
Case number

HCMP703/1987

Provisional leave to appeal was granted because the points on whether legal costs can be recovered as damages under the deed and whether the English rule applies without a prior adjudication on costs were arguable and raised issues of general public importance; the Court therefore directed provisional procedural steps rather than dismissing the application.