THE INCORPORATED OWNERS OF BELVEDERE GARDEN PHASE III v. LING FUNG DEVELOPMENT LTD AND OTHERS

Date of Hearing : 19 January 2007

Date of Decision : 19 January 2007

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DECISION

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1. The matter today has been, I must say, very ably argued by both sides and I appreciate that counsel from both sides must have put a lot of efforts into it.  However, there is only one winner in a litigation and, in this case, I agree with the submissions of Mr Bernard Man for the defendants.

2. The defence in paragraph 15 of the original defence pleaded the so-called “no loss” defence.  That is : what the defendants had paid at 72 cents per square foot was more than what the defendants should pay for the commercial common area or commercial services expenses.  By that pleading, it would be incumbent upon the defendants to prove two things :

(1)     there were actual expenses incurred as a matter of fact but, due to the large number of documents and accounts over a long period of time, an accountant report is necessary; and

(2)     they have to prove that these were reasonable expenses and a surveyor would then be necessary to support that contention.

3. For the aforesaid reason, I would have allowed the appeal even on the original defence.  Consequently, I think the defendants are entitled to the costs of the appeal and in the court below.  The order I am making is costs of the appeal in the last hearing and today and the costs before Master Au Yeung should be to the defendants, to be taxed if not agreed.

Mr Victor Dawes, instructed by, Messrs Leung & Wan, for the Plaintiff

Mr Bernard Man, instructed by Messrs Simmons & Simmons, for the Defendants