Archive for the ‘Land Tribunal’ Category

Land Tribunal’s jurisdiction

October 19, 2012

InĀ Chan Wah Chuen William v Director of Housing ([2012] HKEC 1294, LT) the appellant had bought a flat from the Hong Kong Housing Authority under the Home Ownership Scheme at a substantial discount to market value. The Housing Ordinance provided that buyers could only sell their flats if they paid a premium to the Authority. The formula for calculating the premium took account of the prevailing market value at the time when the premium was to be calculated, the initial purchase price and the market value at the time of the initial purchase from the Authority. The appellant wanted to sell but was dissatisfied with the premium that the Authority proposed to charge.

The appellant appealed to the Tribunal because he argued that the Authority had used the wrong figure for the market value at the time of his initial purchase and the effect was to inflate the premium to be paid. The Director of Housing sought to strike out the appeal on the ground that the Tribunal had no jurisdiction to hear it. The Tribunal agreed and struck out the application.

Paragraph 5 of the Schedule to the Housing Ordinance gave the Tribunal jurisdiction to hear appeals concerning the prevailing market value (the value at the time the premium was to be assessed). The appellant, however, was appealing against the initial market value used in the premium calculation. The Tribunal was a creature of Ordinance and only had the jurisdiction given by Ordinance. It had no jurisdiction to hear the appeal in question.

The appellant urged the Tribunal to take a purposive approach to the construction of the provision dealing with its jurisdiction. The Tribunal was willing to do so but it had no impact on its interpretation of the plain and literal meaning of the words employed in the Ordinance.

Lands Tribunal has no jurisdiction to determine the amount of the management fee

January 9, 2011

Where the Lands Tribunal finds that the amount of management fee payable by an owner has not been calculated in accordance with the terms of the DMC it has no jurisdiction to substitute its own finding as to the amount payable. Rather, it should make an apropriate declaration.

In Harvest Top Development Ltd v Incorporated Owners of Harbour View Garden ([2011] HKEC 32, LT) the applicant owned 72 car parking spaces in Harbour View Garden and the associated undivided shares. It complained, inter alia, that it was paying an unfairly high proportion of the management expenses for the complex. Deputy Judge Lee found that the method of calculation did fall within the terms of the DMC. Obiter, he said that even if he had reached the contrary conclusion the appropriate remedy would be a declaration. The court had no jurisdiction to determine the amount of management fee payable.