HCSA37/2020 LEUNG MOON CHEUNG v. 中國海外物業服務有限公司 - LawHero
HCSA37/2020
高等法院（證券上訴）S T Poon J5/4/2022[2022] HKCFI 937
合併案件：HCSA17/2020HCSA37/2020
HCSA37/2020
A A
HCSA 17/2020 and
B B
HCSA 37/2020
(Consolidated)
C C
[2022] HKCFI 937
D IN THE HIGH COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
COURT OF FIRST INSTANCE
F SMALL CLAIMS TRIBUNAL APPEAL NO 17 OF 2020 and 37 OF 2020 F
(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM
G G
NO 34437 OF 2019)
H H
_______________________
I I
BETWEEN
J LEUNG MOON CHEUNG (Appellant in HCSA 17/2020) Claimant J
K K
and
L L
M 中國海外物業服務有限公司 (Appellant in HCSA 37/2020) Defendant M
N _______________________ N
O O
(Consolidated by the Order of the Honourable Mr Justice Poon dated
27 November 2020)
P P
Q Before: Hon S T Poon J in Court Q
Date of Hearing: 25 March 2021
R R
Date of Judgment: 6 April 2022
S S
_________________
T JUDGMENT T
_________________
U U
V V
- 2 -
A A
INTRODUCTION
B B
1. This is the Claimant’s appeal and the Defendant’s cross appeal
C C
against the decisions of Deputy Adjudicator Ms Ching Wai Ying, Eliza
D
(“Adjudicator”) in SCTC 34437/2019 at the Small Claims Tribunal D
(“Tribunal”). In her decisions, the Adjudicator refused to award part of
E E
the Claimant’s claims for overpayment of management fees and on the
F other hand, rejected the Defendant’s defence of estoppel, acquiescence F
and/or waiver.
G G
2. At the hearing of the present appeal, the parties agreed that the
H H
Adjudicator was mistaken in not properly assessed the overpayments and
I I
the only issue remains for determination is whether the Adjudicator was
J
wrong in rejecting the Defendant’s defence. If the Claimant succeeds, he J
1
shall be awarded the whole sum . And if the Defendant succeeds, the
K K
whole claim of the claimant shall be dismissed.
L L
BACKGROUND
M M
3. At the material times, the Defendant has been the building
N N
manager of the multi-storey building where the Claimant’s property
O (Flat 603, Xing Hua Centre, 433 Shanghai Street, Mong Kok) is situated. O
P P
4. In a previous case of SCTC 23399/2018 at the Tribunal,
Q the Defendant sued the Claimant unsuccessfully for alleged arrears in Q
management fees. In that case, Deputy Adjudicator Mr G T Lung (as he
R R
then was) found that the Defendant had adopted a method of calculation of
S management fees not in accordance with the DMC and the Claimant had in S
fact overpaid in the past.
T T
1
Quantum agreed at $6,822.92
U U
V V
- 3 -
A A
5. As a result of the ruling of Mr Lung, the Claimant brought his
B claim under the present case for management fees overpaid to the B
Defendant during the period between August 2013 and January 2019 and
C C
interests accrued thereon.
D D
THE DEFENDANT’S DEFENCE
E E
6. The Defendant relied on the doctrine of estoppel by
F F
convention as applied by His Honour Judge Lam (as Lam PJ then was) in
G the Lands Tribunal2 and approved by the Court of Appeal in the case 麗苑 G
H
業主立案法團 對 韓炳基及另一人3. H
I
7. This case concerned an amount of “reserved fees” the levy of I
J
which had not been properly resolved in an owners’ meeting. The J
applicant had paid for the said fees for more than 6 years and claimed the
K K
Incorporated Owners (“IO”) for refund. The court held that it would be
L
unjust to the IO and other owners should he be allowed to do so. L
M 8. The same principle has been followed by numerous other M
cases4 in the Lands Tribunal including claims on refund of management
N N
fees calculated not in accordance with the DMC.
O O
9. Ms Becky Wong, counsel for the Defendant, submitted that
P P
the managements fees were paid by all owners on the common assumption
Q between the owners, including the Claimant, and the Defendant that the Q
management fees were charged in accordance with the DMC. The money
R R
2
LDBM 29/2001 dated 16/7/2001, unreported
S 3
CACV 1716/2001 dated 6/8/2002, unreported S
4
Wong Pun-man v Incorporated Owners of Tung Fat Industrial Building [1996] 1 HKDCLR 32, 新基
大廈 E&H 座業主立案法團 對 陳幹轉 LDBM 563/2001 dated 4/7/2002, unreported, Young Kwok Sui
T v Fontana Gardens [2012] 2 HKLRD 195, 崔潔卿及界限街 188-190 號及品蘭街 5-7 號業主立案法團 T
LDBM 15/2015 dated 10/7/2016, unreported
U U
V V
- 4 -
A A
was spent for the benefits of all owners. It would be unjust to allow the
B Claimant to now claim for refunds. B
C DISCUSSION C
D D
10. The Claimant and other owners had all along been paying
E management fees calculated from a wrong footing. It was not until the E
ruling of Mr Lung that the Defendant realized they made a mistake.
F F
Obviously there existed a common assumption between the owners,
G including the Claimant and the Defendant, that the management fees were G
charged in accordance with the DMC.
H H
I 11. Mr Dan Leung, counsel for the Claimant, submitted that the I
present case can be distinguished from the cases relied on by the Defendant.
J J
Mr Leung submitted that the other cases involved Incorporated Owners
K which can represent the owners whereas the Defendant is a property K
manager charging fees.
L L
M 12. Mr Leung also submitted that the Claimant has no knowledge M
of the mistake on calculation of the management fees and hence did not
N N
acquiesce to paying the wrong fees.
O O
13. It is also Mr Leung’s submission that the Adjudicator has
P P
made a finding of fact that the Claimant had not consented, accepted,
Q acquiesced and/or waived the overpayment of management fees which Q
cannot be disturbed on appeal.
R R
14. I disagree with Mr Leung. The principle of estoppel by
S S
convention is that, in simple terms, there existed a common assumption
T T
U U
V V
- 5 -
A A
between the parties which had been acted upon for such time that a party’s
B deviation from which is unjust and unconscionable. B
C C
15. The matters mentioned by Mr Leung have not much relevance
D
on the operation of the principle. D
E 16. Although to arrive at a decision the Adjudicator must make E
certain findings of fact for the principle to operate, the issue as to whether
F F
an estoppel or acquiescence exists is a matter of law and facts. In my
G judgment, the Adjudicator did not have a proper understanding of the law G
in approaching the issue.
H H
I 17. There was a clear common assumption between all owners I
and the Defendant that the management fees were calculated in accordance
J J
with the DMC and such assumption had been acted upon for so many years.
K As submitted by Ms Wong, it would be unjust to the other owners and the K
Defendant to allow the Claimant to, in a sense, deviate from the common
L L
assumption in asking for refund of the management fees.
M M
18. In my judgment, an estoppel by convention had been clearly
N N
made out.
O O
DISPOSITION
P P
19. The appeal of the Defendant sustained. The awards of the
Q Q
Adjudicator quashed.
R R
S S
T T
U U
V V
- 6 -
A A
B B
C 20. As the Claimant succeeded on the issue of quantum of the C
award, I make an order nisi that 50% of the Defendant’s costs of the appeal
D D
be borne by the Claimant, to be taxed if not agreed.
E E
F F
G G
H (S T Poon) H
Judge of the Court of First Instance
I High Court I
J J
Mr Leung, Dan, instructed by Yip, Tse & Tang, for the claimant.
K K
Ms Wong, Becky B.Y., instructed by Chung & Kwan, for the defendant.
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
HCSA 17/2020 and
B B
HCSA 37/2020
(Consolidated)
C C
[2022] HKCFI 937
D IN THE HIGH COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
COURT OF FIRST INSTANCE
F SMALL CLAIMS TRIBUNAL APPEAL NO 17 OF 2020 and 37 OF 2020 F
(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM
G G
NO 34437 OF 2019)
H H
_______________________
I I
BETWEEN
J LEUNG MOON CHEUNG (Appellant in HCSA 17/2020) Claimant J
K K
and
L L
M 中國海外物業服務有限公司 (Appellant in HCSA 37/2020) Defendant M
N _______________________ N
O O
(Consolidated by the Order of the Honourable Mr Justice Poon dated
27 November 2020)
P P
Q Before: Hon S T Poon J in Court Q
Date of Hearing: 25 March 2021
R R
Date of Judgment: 6 April 2022
S S
_________________
T JUDGMENT T
_________________
U U
V V
- 2 -
A A
INTRODUCTION
B B
1. This is the Claimant’s appeal and the Defendant’s cross appeal
C C
against the decisions of Deputy Adjudicator Ms Ching Wai Ying, Eliza
D
(“Adjudicator”) in SCTC 34437/2019 at the Small Claims Tribunal D
(“Tribunal”). In her decisions, the Adjudicator refused to award part of
E E
the Claimant’s claims for overpayment of management fees and on the
F other hand, rejected the Defendant’s defence of estoppel, acquiescence F
and/or waiver.
G G
2. At the hearing of the present appeal, the parties agreed that the
H H
Adjudicator was mistaken in not properly assessed the overpayments and
I I
the only issue remains for determination is whether the Adjudicator was
J
wrong in rejecting the Defendant’s defence. If the Claimant succeeds, he J
1
shall be awarded the whole sum . And if the Defendant succeeds, the
K K
whole claim of the claimant shall be dismissed.
L L
BACKGROUND
M M
3. At the material times, the Defendant has been the building
N N
manager of the multi-storey building where the Claimant’s property
O (Flat 603, Xing Hua Centre, 433 Shanghai Street, Mong Kok) is situated. O
P P
4. In a previous case of SCTC 23399/2018 at the Tribunal,
Q the Defendant sued the Claimant unsuccessfully for alleged arrears in Q
management fees. In that case, Deputy Adjudicator Mr G T Lung (as he
R R
then was) found that the Defendant had adopted a method of calculation of
S management fees not in accordance with the DMC and the Claimant had in S
fact overpaid in the past.
T T
1
Quantum agreed at $6,822.92
U U
V V
- 3 -
A A
5. As a result of the ruling of Mr Lung, the Claimant brought his
B claim under the present case for management fees overpaid to the B
Defendant during the period between August 2013 and January 2019 and
C C
interests accrued thereon.
D D
THE DEFENDANT’S DEFENCE
E E
6. The Defendant relied on the doctrine of estoppel by
F F
convention as applied by His Honour Judge Lam (as Lam PJ then was) in
G the Lands Tribunal2 and approved by the Court of Appeal in the case 麗苑 G
H
業主立案法團 對 韓炳基及另一人3. H
I
7. This case concerned an amount of “reserved fees” the levy of I
J
which had not been properly resolved in an owners’ meeting. The J
applicant had paid for the said fees for more than 6 years and claimed the
K K
Incorporated Owners (“IO”) for refund. The court held that it would be
L
unjust to the IO and other owners should he be allowed to do so. L
M 8. The same principle has been followed by numerous other M
cases4 in the Lands Tribunal including claims on refund of management
N N
fees calculated not in accordance with the DMC.
O O
9. Ms Becky Wong, counsel for the Defendant, submitted that
P P
the managements fees were paid by all owners on the common assumption
Q between the owners, including the Claimant, and the Defendant that the Q
management fees were charged in accordance with the DMC. The money
R R
2
LDBM 29/2001 dated 16/7/2001, unreported
S 3
CACV 1716/2001 dated 6/8/2002, unreported S
4
Wong Pun-man v Incorporated Owners of Tung Fat Industrial Building [1996] 1 HKDCLR 32, 新基
大廈 E&H 座業主立案法團 對 陳幹轉 LDBM 563/2001 dated 4/7/2002, unreported, Young Kwok Sui
T v Fontana Gardens [2012] 2 HKLRD 195, 崔潔卿及界限街 188-190 號及品蘭街 5-7 號業主立案法團 T
LDBM 15/2015 dated 10/7/2016, unreported
U U
V V
- 4 -
A A
was spent for the benefits of all owners. It would be unjust to allow the
B Claimant to now claim for refunds. B
C DISCUSSION C
D D
10. The Claimant and other owners had all along been paying
E management fees calculated from a wrong footing. It was not until the E
ruling of Mr Lung that the Defendant realized they made a mistake.
F F
Obviously there existed a common assumption between the owners,
G including the Claimant and the Defendant, that the management fees were G
charged in accordance with the DMC.
H H
I 11. Mr Dan Leung, counsel for the Claimant, submitted that the I
present case can be distinguished from the cases relied on by the Defendant.
J J
Mr Leung submitted that the other cases involved Incorporated Owners
K which can represent the owners whereas the Defendant is a property K
manager charging fees.
L L
M 12. Mr Leung also submitted that the Claimant has no knowledge M
of the mistake on calculation of the management fees and hence did not
N N
acquiesce to paying the wrong fees.
O O
13. It is also Mr Leung’s submission that the Adjudicator has
P P
made a finding of fact that the Claimant had not consented, accepted,
Q acquiesced and/or waived the overpayment of management fees which Q
cannot be disturbed on appeal.
R R
14. I disagree with Mr Leung. The principle of estoppel by
S S
convention is that, in simple terms, there existed a common assumption
T T
U U
V V
- 5 -
A A
between the parties which had been acted upon for such time that a party’s
B deviation from which is unjust and unconscionable. B
C C
15. The matters mentioned by Mr Leung have not much relevance
D
on the operation of the principle. D
E 16. Although to arrive at a decision the Adjudicator must make E
certain findings of fact for the principle to operate, the issue as to whether
F F
an estoppel or acquiescence exists is a matter of law and facts. In my
G judgment, the Adjudicator did not have a proper understanding of the law G
in approaching the issue.
H H
I 17. There was a clear common assumption between all owners I
and the Defendant that the management fees were calculated in accordance
J J
with the DMC and such assumption had been acted upon for so many years.
K As submitted by Ms Wong, it would be unjust to the other owners and the K
Defendant to allow the Claimant to, in a sense, deviate from the common
L L
assumption in asking for refund of the management fees.
M M
18. In my judgment, an estoppel by convention had been clearly
N N
made out.
O O
DISPOSITION
P P
19. The appeal of the Defendant sustained. The awards of the
Q Q
Adjudicator quashed.
R R
S S
T T
U U
V V
- 6 -
A A
B B
C 20. As the Claimant succeeded on the issue of quantum of the C
award, I make an order nisi that 50% of the Defendant’s costs of the appeal
D D
be borne by the Claimant, to be taxed if not agreed.
E E
F F
G G
H (S T Poon) H
Judge of the Court of First Instance
I High Court I
J J
Mr Leung, Dan, instructed by Yip, Tse & Tang, for the claimant.
K K
Ms Wong, Becky B.Y., instructed by Chung & Kwan, for the defendant.
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V