WONG TAK KEUNG STANLEY v. FPD SAVILLS PROPERTY MANAGEMENT LTD.

LDBM 104 and 107 OF 2002
(Consolidated)

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NOS. 104 AND
107 OF 2002 (CONSOLIDATED)

_______________

_______________

_________________________________

DECISIONS ON REVIEW

_________________________________

1. On 3rd October 2002, I dismissed all the Applicant's applications in two consolidated cases, namely, LDBM Nos. 104 and 107 of 2002, and LDBM Nos. 105 and 106 of 2002. On 22nd October 2002, the Applicant took out the present summons to review my decisions.

2. LDBM No. 104/2002

In this case the Applicant complained of the "failure of the management committee to comply with the Fifth Schedule, Seventh Schedule and Section 44 of the Building Management Ordinance in respect of continued and recurring of non-budgeted expenses, particularly relating to legal expenses, without any reference to the budgeted amounts and without seeking the consent of the owners."

2.1 I ruled that since Section 44 of the Building Management Ordinance ("the Ordinance") does not impose any statutory obligation on the management committee to comply with, therefore, there cannot be any issue on the failure of the management committee to comply with this section.

2.2 I also ruled that there is no specific provision in the Ordinance which imposes a statutory duty on the management committee to seek the consent of the owners when the money spent on a particular item of expenditure exceeds the budgeted sum for that particular item of expenditure.

2.3 In his review application, the Applicant asked the Tribunal "to confirm that the decision of the Lands Tribunal is also applicable for all items in a Budget and not only legal and professional fees i.e. that the management committee is not obligated to operate within the confines of the budgeted sums for a particular expenditure". The Applicant is in effect seeking clarifications of my judgment. It is not within my jurisdiction to confirm or to make clarifications of the judgment for the benefit of the Applicant's understanding. Since the Applicant did not state that I had committed any error in my judgment. I dismiss the review application.

3. LDBM 107/2002

In this case the Applicant complained that the Respondent appointed FPD Savills Property Management Ltd. as manager of Grenville House for a consideration in excess of HK$542,000 per annum without the approval of the owners in out AGM/EGM and without compliance with Section 20A and Section 44 of the Ordinance. I ruled that these two sections do not impose any statutory obligations for the Respondent to comply with. Therefore the issue that the Respondent was in breach of these sections in the appointment of FPD Savills as the manager of Grenville House simply does not arise.

3.1 In his application the Applicant challenged the authority of the Management Committee to appoint FPD Savills as manager the Grenville House without approval of owners and without compliance of the two sections hereinbefore mentioned. I ruled that under section 14 of the Ordinance, there is no requirement to seek the approval of the owners' consent before the Management Committee can appoint a manager. The Applicant asked me to make clarifications on some matters referred to in my judgment regarding section 14. I have no power to do so. The Applicant did not specifically point out what errors I made in my judgment regarding section 14.

3.2 In the review application the Applicant made allegations relating to the signing of the Management Agreement dated 12th April 2000, and to the terms of the Management Agreement which violated the Deed of Mutual Covenant. These allegations do not form part of the original application, and therefore I am unable to review my decision against such allegations.

4. LDBM 105/2002

In this application the Applicant complained that the Respondent was in breach of paragraph 10(4B) of the Second Schedule of the Ordinance, which reads: -

"The minutes certified in accordance with subparagraph (4A) shall, within 28 days of the date of the meeting of the management committee to which they relate, be displayed by the secretary in a prominent place in the building."

4.1 I ruled that the proper person to be sued is the secretary of the management committee, and not the manager. Therefore the Applicant wrongfully made the Respondent a party to this case.

4.2 The Applicant submitted that Mr. Donald Ngan serves as Secretary of the Management Committee by virtue of the fact that he is Senior Property Manager of the Respondent.

4.3 Irrespective of the circumstances leading to the appointment of Mr. Donald Ngan as the Secretary of the Management Committee, once he was appointed to be in this position, he became a member of the Management Committee. When in this position he is not an agent of the Respondent, and accordingly the Respondent is not responsible for his acts done in this capacity as the Secretary of the Management Committee. Therefore the Applicant wrongfully made the Respondent to this case.

5. LDBM No. 106/2002

In this case the Applicant complained that the Respondent as Manager failed to comply with the requirements of the Seventh Schedule of the Ordinance to prepare a revised budget and display it.

5.1 I ruled that paragraph 1(4) of the Seventh Schedule does not impose an obligation on the Manager to revise a budget. Therefore there cannot be any issue that the Respondent failed to comply with the requirements of the Seventh Schedule. I also ruled that the Ordinance does not impose any obligation on the Manager to seek the approval of the owners in respect of substantial increases in legal and professional expenses as compared with the approved annual budget.

5.2 In his review application, the Applicant asked me to make clarifications and confirmations of various parts of my judgment. I do not have power to ascertain such requests.

5.3 The Applicant has failed to point out specifically any error I made in my judgment.

6. I therefore dismiss all the Applicant's review applications.

7. I further order that the Applicant do pay to the Respondents costs of these review applications, to be taxed, if not agreed.