CHAN WAH-SUN v. CHINACHEM INVESTMENT CO LTD
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HCSA000004/1976
| IN THE COURT OF APPEAL | |
| 1976 No. 4 | |
| (Small Claims) |
| BETWEEN | ||
| CHAN Wah-sun | Appellant | |
| and | ||
| Chinachem Investment Company Limited | Respondent |
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Coram: Briggs, C.J., Huggins, J.A., and McMullin, J.
Date of Judgment: 15th March 1977.
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JUDGMENT
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Huggins, J.A.:
1. It is now common ground that the trial proceeded upon the false premiss that the claim was for a contribution under the Multi-storey Buildings (Owners Incorporation) Ordinance. In fact the provisions of that ordinance were not applicable and the claim was a claim brought under the deed of mutual covenant for payment for services rendered. There was a dispute whether the services had been rendered. Such a dispute would have been irrelevant had the claim been that which the adjudicator understood it to be. He therefore did not go into it and made no findings upon it.
2. Mr. Niamatullah did suggest that, as the Appellant had merely alleged that he himself was not satisfied with the management of the building and as the deed of mutual covenant provided that the manager should continue to act as such until it resigned or was removed by a meeting of owners in the manner laid down in Clause 13 of the deed, the services ought to be assumed to have been rendered to the satisfaction of the majority of the owners, for the owners would otherwise have removed the manager. The deed does not appear to bind an owner to pay his due proportion of any expenses paid or claimed regardless of whether the work has been properly done, although no doubt it could have done. Even if it does, and in consequence the Appellant has no valid defence, he would have a counterclaim and I agree with my Lord that the case should be remitted to the adjudicator to reconsider the claim and, if necessary, to take appropriate action on the counterclaim which was implicit in the allegation that the claimant did not fulfil its duty to maintain the building.
15th March 1977.
Representation: