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Urban Property Management Ltd And Another v Tsang Wing Lam

Judgment Cited in Precedent Map Related
Vincent
Judgment Date03 November 2009
CourtDistrict Court (Hong Kong)
Judgement NumberDCMP2185/2004
Subject MatterMiscellaneous Proceedings
DCMP002185G/2004 URBAN PROPERTY MANAGEMENT LTD AND ANOTHER v. TSANG WING LAM

DCMP 2185/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2185 OF 2004

____________

IN THE MATTER of a Deed of Mutual Covenant dated 13th October 1983 and registered in the Shatin New Territories Land Registry with Memorial No. 239788 (“the DMC”)
and
IN THE MATTER of the property known as All Those 19/27,772nd parts or shares of and in All Those piece or parcel of ground registered in the Shatin New Territories Land Registry as SHATIN TOWN LOT NO. 230 And of and in the messuages erections and buildings thereon known as “King Tin Court” Together with the full and exclusive right and privilege to hold use occupy and enjoy All That Flat 5, 23rd Floor Block C (Bing Sam House), King Tin Court, 12 Chui Tin Street, Shatin, New Territories, Hong Kong, comprised in a Memorandum of Charge dated 11th September 2001 made pursuant to the DMC and in favour of Urban Property Management Limited and registered in the Shatin New Territories Land Registry with Memorial No. 1244690
and
IN THE MATTER of section 19 of the Building Management Ordinance (Cap.344)
and
IN THE MATTER of Order 88 Rules 1 and 5A of the Rules of the District Court (Cap.336)

______________________

URBAN PROPERTY MANAGEMENT LIMITED 1st Plaintiff
THE INCORPORATED OWNERS OF KING TIN COURT 2nd Plaintiff
and
TSANG WING LAM (曾榮林) Defendant

______________________

Coram: His Hon Judge Leung in chambers (open to public)

Date of hearing: 10 September 2009

Date of decision: 3 November 2009

D E C I S I O N

1. This case has a long history. Tsang, the Defendant, is the registered owner of the captioned property at Flat 5, 23rd Floor, Block C, King Tin Court, Shatin, New Territories (“the Property”). The 1st Plaintiff is the manager and the 2nd Plaintiff is the owners’ corporation of the building. On 11 September 2001, the manager registered in the Land Registry the captioned Memorandum of Charge against the Property for the management expenses owed by Tsang (“the MOC”).

2. In 2004, the manager commenced the present originating proceedings to recover the amount due and owed by Tsang as well as to enforce the MOC by seeking an order for possession and sale of the Property. The owners’ corporation was subsequently joined as a plaintiff. Since then, many court hearings have taken place. As a matter of fact, there are still pending applications at the time of this decision. Besides this decision, I am also handing down my decision in respect of another appeal by Tsang against the Master’s decision.

3. On 23 December 2008, Tsang applied for an order for the release of the Property from the security constituted by the MOC. The Plaintiffs opposed. The Master dismissed the application on 8 June 2009. Tsang now appeals against the Master’s decision.

The MOC

4. To begin with, there is the deed of mutual covenant in respect of the building (“DMC”). Clause 6 of the DMC provides for the owners’ obligation to pay management expenses and the enforcement provisions including the following:

“(e) All amounts which may be or become payable by any owner …… together with interest thereon …… and the said collection charge and all other expenses in or in connection with the recovery or attempting to recover the same shall be recoverable by civil action at the suit of the Authority. The claim in any such action may include a claim for the solicitor and own client costs …… and the defaulting owner shall in addition to the amount claimed in such action be liable for such costs……

(f) In the event of an owner failing to pay any sum due and payable by him in accordance with the provisions of this Deed within seven days from the date on which such sum becomes payable -

(i) the Authority may serve upon that owner a notice specifying the amount due which shall include any interest payable thereon up to the date of the notice and any collection charge and all costs and expenses which may be incurred in recovery or attempting to recover the same including the legal expenses referred to in paragraph (e) above.

(ii) Upon the service of a notice under (i) above the owner upon which whom such notice has been served shall be deemed to have entered into an agreement for a charge in favour of the Authority for the amount specified in the notice together with interest thereon at the rate stated and upon the terms and conditions therein set forth.

(iii) The Authority may register in the District Land Office Sha Tin a copy of the said notice against the undivided share and interest in the said land of the owner upon whom the notice has been served and the said agreement to enter into a charge shall remain valid and enforceable as hereinafter mentioned notwithstanding that judgment may be obtained for the amount thereof unless such judgment has been fully satisfied.

(g) Any notice registered in accordance with paragraph (f)(iii) of this Clause shall be enforceable as an equitable charge by action at the suit of the Authority for an order for the sale of the undivided share and interest of the defaulting owner of and in the said land together with the right to the exclusive use and occupation of the flat held and enjoyed therewith and the provisions of paragraph (e) of this Clause shall apply equally to any such action.”

(Emphasis added)

5. According to the MOC, service and management fees in the total sum of HK$12,870.00 (calculated from July 1999 up to August 2001) were then due and owing by Tsang. The MOC is in the following terms:

“NOW THIS MEMORADUM gives notice …… that the said sum of HK$12,870.00 is outstanding and unpaid and that the said sum or further moneys that may be due by the said owner to the Manager under the said Deed of Mutual Covenant shall stand charged on the said premises until the same shall have been settled in full by the said owner.” (Emphasis added)

6. By the time of the MOC, no civil action has been taken against Tsang for the unpaid management expenses pursuant to clause 6(e) of the DMC.

These proceedings

7. These originating proceedings were commenced by the Plaintiffs for dual purposes: (1) to recover the amounts payable pursuant to clause 6(e); and (2) to enforce the MOC pursuant to clause 6(g) of the DMC.

8. After numerous hearings, this case came to be heard before H H Judge HC Wong who made the following order on 4 August 2006 (“the 4/8/06 Order”):

“1. The 1st and the 2nd Plaintiffs do recover against the Defendant all sums secured by the Memorandum of Charge dated 11th September 2001 made pursuant to the DMC in favour of the 1st and 2nd Plaintiffs and registered in the Sha Tin New Territories Land Registry by Memorial No. 1244690 (“the Memorandum of Charge”);

2. Unless the Defendant do within 28 days from the date of the Order to be made herein pay to the 1st and 2nd Plaintiffs all sums due to the 1st and 2nd Plaintiffs and secured by the Memorandum of Charge, the 1st and 2nd Plaintiffs may sell the property …… (“the Property”) to any purchaser in the open market or by way of private sale;

3. The Defendant do within 28 days, after service upon him of the Order to be made herein deliver vacant possession of the Property to the 1st and 2nd Plaintiffs ……

4. Upon such sale of the Property, the solicitors for the 1st and 2nd Plaintiffs appointed to conduct the sale and the Principal of the 1st and 2nd Plaintiffs may execute the necessary agreement for sale and purchase, conveyance and/or assignment to give effect to the Order to be made herein;

5. The money arising from such sale of the Property be applied in the following manner and priority:-

(a) ……

(b) ……

(c) ……

(d) to pay the sums due and owing by the Defendant to the 1st and 2nd Plaintiffs under the Memorandum of Charge, i.e., the sum of HK$12,870.00 together with interest thereon and collection charge and all other expenses incurred in or in connection with the recovering or attempting to recover the said sum;

(e) ……

(f) ……

6. Upon the Defendant paying to the 1st and 2nd Plaintiffs the money ordered to be paid and all other moneys secured to the 1st and 2nd Plaintiffs by the Memorandum of Charge, the 1st and 2nd Plaintiffs (subject and without prejudice to the due exercise of any power of sale of the time being vested in it) do deliver to the Defendant possession of the Property and release to the Defendant the security constituted by the Memorandum of Charge as the Defendant may agree or this Honourable Court may direct;

7. The Counterclaim by the Defendant be dismissed with costs;

8. The parties hereto do have liberty to apply;...

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