LUK CHI-WING v. INCORPORATED OWNERS OF MANDARIN BUILDING

Building Management Case No. 137 of 1996

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HEADNOTE

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Building Management - Management Charges - Locus Standi - Right to Commence Action - Meaning of "Owner" - Section 45, Building Management Ordinance, Cap.344 - Section 2, Building Management Ordinance, Cap. 344.

          The applicant paid separate management charges for a flat unit on the top floor and an illegal structure on the roof of the subject building for a number of years. He alleged that he was forced to do so. After the flat unit together with the roof had been sold, the applicant commenced action at the Tribunal under the Building Management Ordinance against the owners incorporated to recover all management charges paid in respect of the illegal structure on the roof. Section 45 of the Building Management Ordinance, Cap. 344 provides that an owner is entitled to commence action under the Ordinance. Section 2 of the Building Management Ordinance, Cap. 344 defines an owner as "a person who for the time being appears from the records at the Land Registry to be the owner". The applicant contended that he is an owner within the meaning of the Ordinance.

Held: On the true construction of Section 2 of the Building Management Ordinance, Cap. 344, an owner must be one who is at the time of commencement of action a registered owner. A previous owner has no right to rely on the Ordinance. Accordingly, the application was dismissed with costs.

L.T. Case No. BM137 of 1996

IN THE LANDS TRIBUNAL OF HONG KONG

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JUDGMENT

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          The applicant was the owner of Flat F on the 12^th Floor and the roof above Block A ("the subject premises") of Mandarin Building ("the building") situated at 42 Yuet Wah Street, Kowloon. The applicant admits that there was an illegal enclosed structure on the roof used by him. There is no dispute that the applicant had sold the subject premises on 16^th July, 1996, i.e. by the time the Application here-in was filed with the Tribunal on 14^th November, 1996 the applicant was no longer the registered owner of the subject premises. It is also agreed fact that the applicant had paid management charges to the respondent separately for the flat on the 12^th Floor and the roof as if they were two independent units. According to the applicant, he was forced to pay monthly management charges for the roof structure totalling approximately $23,000. He says that the respondent had no right to collect management charges for the roof. By this application under the Building Management Ordinance, Cap. 344 ("the Ordinance"), the applicant seeks to recover all maganement charges paid in respect of the roof.

2. In my view, this matter should be disposed of on a preliminary point of law. The jurisdiction of the Tribunal over building management matters is defined by s. 45(1) of the Ordinance. S. 45(2) of the Ordinance also provides that:-

The applicant contends that since he had been the owner of the subject premises, he is "the owner" within the meaning of s.45(4) of the Ordinance as a person to whom the section applies. In this regard, it is important to note the definition of "owner" in s.2 of the Ordinance:-

3. In my view, for the time being must mean at the time the applicant commenced proceedings. It would be different if for instance the words at the material time were used instead. There is a very simple reason for the definition as it is. The Ordinance confers rights to current owners only and deals solely with on-going building management problems. Once a person has ceased to be the registered owner, whatever right of action pertaining to the property he owned cannot be based on the Ordinance, but on general law relating to, say, breach of covenant, money had and received, amount due or tort. In other words, the applicant had no right to commence this application. It may be argued that the Chinese version of the definition leads to a different interpretation. I think the Chinese version is indeed ambiguous, but not entirely inconsistent with the English version. Having compared both language versions and considered the Ordinance as a whole, the true meaning of "owner" as defined should be as I have explained.

4. Accordingly, I dismissed the application with costs fixed at $2,000 to the respondent. The applicant was advised to commence action elsewhere.

          Dated this 28 MAY 1997.