THE INCORPORATED OWNERS OF FU YAU BUILDING v. TANG SAM

DCCJ 4161/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4161 OF 2007

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ASSESSMENT OF DAMAGES

1.  The Incorporated Owners (the Plaintiff) in the present action claims against Tang’s estate (the Defendant) for management fee and maintenance charges in arrears.  In default of notice of intention to defend, interlocutory judgment for damages to be assessed was entered against Tang’s estate on 20 November 2007.  The judgment was amended on 31 March 2008.

2.  The administrator of Tang’s estate has always been absent from the previous hearings.  On the basis of the affirmations of service and the court’s notice of today’s hearing, I have no reason to doubt whether notice of today’s hearing has been brought to the attention of Tang’s estate.  The Incorporated Owners may proceed today.

3.  Tang was the registered owner of Flat H of the building in question at Po Kong Village Road, Kowloon.  According to the deed of mutual covenants (DMC) in respect of the building, owners are obliged to pay management fees and charges (clauses 1(f); 2(h); and 2(i) of the DMC).  The manager has the power to demand and to receive such management fee and charges (clause 2(l)(i) of the DMC).  The owners shall also pay such legal or other fees, costs and expenses incurred by the manager in the performance of its duty and exercise of its power (clause 2(f)(ix) of the DMC).  If any owner fails to pay his share of such fees and charges, the manager has the power to register a charge upon his property in the building (clause 14(a) of the DMC) and to commence proceedings to recover unpaid amounts (clause 14(c) of the DMC).

4.  In 1998, the management fee payable by Tang was let into arrears.  For management fee in arrears since 1 June 1998, the Incorporated Owners filed its claim against Tang’s estate in the Small Claims Tribunal (SCTC 51074/1998) and was awarded the amount in arrears for the 5 months until October 1998 together with HK$200 costs.

5.  For the above amounts and the continuing outstanding management fee until March 2004, the manager registered a charge on Tang’s property on 22 March 2004.

6.  The Incorporated Owners now claims the amount of the management fee in arrears until September 2006 as follows:

(1)	From November 1998 to October 2001
	HK$255 x 36 months	HK$ 9,180.00
(2)	From November 2001 to September 2006
	HK$280 x 59 months	HK$16,520.00
		HK$25,700.00

7.  Pursuant to the resolutions of the special owners’ meeting on 26 March 2006, the owners of the building were required to pay charges for the maintenance of the building.  The amounts payable by Tang’s estate were:

(1)	Phase I: due in May 2006	HK$7,364.00
(2)	Phase II: due in June 2006	HK$7,364.00
(3)	Phase III: due in July 2006	HK$3,672.20
		HK$18,400.20

8.  The total amount of management fee and maintenance charges in arrears was HK$(25,700 + 18,400.20) = HK$44,100.20.

9.  Apart from relying on the documents, Mr Tai, property manager of the management company, gave evidence on behalf of the Incorporated Owners.  He confirmed the above facts.  He also confirmed that for the registration of the charge on 22 March 2004, costs in the sum of HK$3,000 has been paid to the solicitors handling the matter.  As far as the administrative fee claimed in the sum of HK$1,000 is concerned, Mr Tai said this represented the fee charged by the manager for recovering the amounts in arrears from Tang’s estate.  Such work included issuing monthly written demands and several demands over the telephone.  His superior fixed the amount.  I accept Mr Tai’s evidence.  I also find the administrative charge by the manager in the sum of HK$1,000 pursuant to clause 2(f)(ix) of the DMC to be reasonable.

10.  As to the HK$200 costs awarded by the Small Claims Tribunal, I find that including this amount in the present claim would amount to double recovery.  Miss Kan agreed that this item should be excluded from the present claim.

11.  In summary, the amounts are as follows:

(1)	Management fee	HK$25,700.00
(2)	Maintenance charges	HK$18,400.20
(3)	Costs of the charge (22/3/2004)	HK$  3,000.00
(4)	Administrative fee	HK$  1,000.00
		HK$48,100.20

12.  Accordingly, I order that Tang’s estate shall pay damages to the Incorporated Owners in the amount of HK$48,100.20.  I am prepared to award interest at the judgment rate for the items of claim.  For the management fee and maintenance charges in arrears, such interest from their respective due dates up to the day before the issuing of the writ has been calculated.  The amount is HK$14,520.34.  Until payment, there shall be interest at the judgment rate on the sums of HK$44,100.20 and HK$1,000 from the date of writ; and on the sum of HK$3,000 from 22 March 2004.

[Solicitors submits on costs.]

13.  Miss Kan for the Incorporated Owners asks for costs on an indemnity basis.  There is no agreed or sufficient basis for this.  I therefore simply order that the Incorporated Owners shall have costs of this action including these assessment proceedings and any costs reserved.  Costs shall be taxed, if not agreed.

Representation: