聯基新樓業主立案法團 v. YAN YAN MOTORS LTD

HCSA 7/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 7 OF 2015

(On appeal from Small Claims Tribunal Claim No. SCTC 30000 of 2014)

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HCSA 8/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 8 OF 2015

(On appeal from Small Claims Tribunal Claim No. SCTC 30001 of 2014)

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HCSA 9/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 9 OF 2015

(On appeal from Small Claims Tribunal Claim No. SCTC 30002 of 2014)

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HCSA 10/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 10 OF 2015

(On appeal from Small Claims Tribunal Claim No. SCTC 30003 of 2014)

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HCSA 11/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 11 OF 2015

(On appeal from Small Claims Tribunal Claim No. SCTC 30004 of 2014)

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HCSA 12/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 12 OF 2015

(On appeal from Small Claims Tribunal Claim No. SCTC 30005 of 2014)

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HCSA 13/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. HCSA 13 OF 2015

(On appeal from Small Claims Tribunal Claim No. SCTC 30554 of 2014)

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D E C I S I O N

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1.  On 16 January 2015, the Deputy Adjudicator made a total of 7 awards in SCTC 30000, 30001, 30002, 30003, 30004, 30005 and 30554/2014 in favour of the claimant and ordered the defendant to pay to the claimant various sums representing the defendant’s share of the costs of repairs and maintenance of a building known as Luen Gay Apartments at Belcher’s Street, Kennedy Town, Hong Kong as well as the claimant’s costs incurred in the proceedings before him.

2.  On 23 February 2015, the Deputy Adjudicator dismissed the defendant’s application for review of the said awards.

3.  These are the defendant’s applications for leave to appeal against the decision of the Deputy Adjudicator given on 23 February 2015 pursuant to section 28 of the Small Claims Tribunal Ordinance.

4.  Two points are raised in the defendant’s applications for leave to appeal on point of law dated 25 February 2015, namely:-

(1)     the proper apportionment of the costs of repairs and maintenance of the external walls of the building;

(2)     the jurisdiction of the Small Claims Tribunal over the matters in dispute between the parties.

5.  As made clear in the written submissions of Mr Lam (acting for the defendant), the defendant intends to pursue only ground (1) above in support of the applications for leave to appeal.

6.  As I understand from Mr Lam’s submissions, it is contended that the Deputy Adjudicator erred in law in three aspects in making his awards:-

(1) The Deputy Adjudicator misconstrued clause 3 of the relevant deed of mutual covenant in failing to find that the developer had the exclusive right to use two external walls and the main roof of the building, and hence should be solely responsible for the costs of repairs and maintenance of the said external walls and main roof of the building.

(2) The Deputy Adjudicator wrongly placed the burden on the defendant to prove that the external walls were, as a matter of fact, used or occupied by the developer.

(3) The Deputy Adjudicator misunderstood or misapplied the decision of the Court of Appeal in The Incorporated Owners of Goa Building v Wui Tat Company Limited, CACV 349/2002 (17 July 2003).

7.  The question of the proper apportionment of the costs of repairs and maintenance, in particular whether the defendant, being a co-owner of the building, should be partly responsible for the costs of repairs and maintenance of the external walls and main roof of the building, depends on the true construction of the deed of mutual covenant as well as the effect of section 34H of the Buildings Management Ordinance, Cap 344.

8.  It would not be appropriate for me to analyse the above issues deeply at this stage.  I consider that the defendant has raised various arguable points of law which make it proper to grant leave to appeal.  Although the defendant, in the applications for leave to appeal on point of law, refers only to the costs of repairs and maintenance of the external walls, but not the main roof, of the building, for the avoidance of doubt, the leave to appeal granted is intended to permit the defendant to argue also that it should not be responsible to share the costs of repairs and maintenance of the main roof of the building.  For this purpose, the defendant is given leave to amend the applications for leave to appeal on point of law as may be necessary.

9.  Lastly, I order that the costs of the present applications be in the cause of the appeal.