事件的背景

1. 事件的背景 • 本報告書的目的是與找出康業是否有法律的權力， 用目前的方法，繼續向住戶業主收取費用，我們將會以康業大律師所提交的法律意見，大廈供給的條款以及屋宇管理條例第344章：作為考慮基礎。 • 康業承認他們并沒有按公契上的規定的百分比，向不同的業主收費。 • 康業承認他們向業主 • 收取3%的專業管理費。 • 會所的費用由住戶負責。 • 在有巨大的盈餘下，還向住戶提交過度盈餘的預算。 • 事件從1990 年到現在，連利息估計涉及HK$100,000,000 的金额。 (assuming that Hong Yip has no legal basis for charging the rates currently charged), is about HK$100,000,000, being 20 years management fee inclusive of interest

2. Particulars Of Claim • 4% DMC rate ( 83.5% Vs 87.4%) • Over charged about HK$40,000 per month. • 3% professional charges: over charged about HK$110,000 per month. • Club house: Overcharged: HK$360,000 x 16.5% = HK$59,400. • Over charged 5% on security force expenses ( HY has no ground in charging service fee for an obvious subcontracted service ) 175,000 x 5%= HK$8750 • Subtotal: HK$209,400.00 • Over charged from Remuneration of the above ( the over charge is caused by over payment of management fee that the owners ought not have been paid ) HK$209, 400 x 8%=HK$16,752.00 • Thus the claim of the DMC violation is reasonably estimated to HK$226,152.00. • The wage over charge is left out for prove of evidence. • Thus with the estimated interest rate as average 6% pa, a rather reasonable estimation, for 20 years, or 240 months, it is about HK$80million.

4. The dispute against Hong Yip: the counsel opinion • Hong Yip claimed there is an implied term in the DMC that they could charge the proportion not following the ratio set out in the DMC. The difference of 4% constitutes a significant amount. • 康業聲稱在現有的公契上存在隱含條款，而該隱含條款賦予康業無需按照公契上定名的百分比來徵收不同業主的公共費用分擔，其分別是住宅用戶必須承擔多百分之四的公共開支 • Hong Yip in a meeting of the owners committee claimed that the registered owner does not need to share the club houseloss. • 康業聲稱以早前業委會通過大業主無需分擔會所的開支 • Hong Yip claimed they have the right to charge 3% professional charges, even it is not stated in the DMC. • 康業認為即使公契上沒有規定，他們也有權徵收百分之三的專業費用。 • Hong Yip charged excessively and over-budgeted costs every year. Manager remuneration is charged at12% of this budget, resulting in an excessive benefit of Manager Remuneration. • 康業在每年的經理預算上作出過度支出，因而可以從經理酬金上獲得額外的利益 • Hong Yip’s refusal to provide salaries records for inspection gives owners a belief that the salaries are not charged at cost. • Hong Yip claimed that the owners committee gave consent to the above charges and that there is an established acceptance by conduct and / or silent acquiescence of all owners • 康業及其律師聲稱早年的業委會已經同意以上的費用，因而康業引用業戶已經從行為或默許的情況下接受以上條款 • The cost differential and possible over-charge is approx. 15% of the total management fee starting from 1990. • 費用的相差以及多收取的費用：至1990年開始大概占管理費的15%。

5. The relevant sections of the Deed of Mutual Covenant公契上的相關條款 • The DMC clearly sets out the ratio of common area expenses sharing among the owners of Domestic, car park and Registered owners. • DMC清楚列明：住宅業主，停車場業主及大業主有關公共開支的分擔比率。 • The Domestic Owners share of costs to be borne is only 83.5% common area and club house expense. • 住宅業主的公共開支分擔比率為83.5%。 • The DMC does not provide the authority for HY to charge 3% professional fee of HK$1,100,000 p.a. • DMC並沒有賦予康業任何權利3%的專業服務費，相當于每年HK$1,100,000 p.a。 • The Statue: Building Management Ordinance Cap 344 provides Owners pay according to the shares set out in the DMC. BMO is the authority. • 相關法律，EMOCap 344 規定任何業主只需要按DMC規定交付管理費，EMOCap 344 視其法律的基礎。

6. The Deed of Mutual covenant in Wonderland • 7. (a) The Estate Management Expenses and the Manager's • Remuneration shall be contributed by the Owners of the • Following in the following percentages : • (i) The Car Parks 9.93% • (i) The Commercial Development 6.57% • (ii) The Domestic Development 83.50% • (b) The Owners of the Car Parks shall contribute towards the • aforesaid 9 .93% of the Estate Management Expenses and • the Manager's Remuneration in such manner and in such • proportion as provided in the Sub- Deed governing the Car • Parks. • (c) The Owners of the Commercial Development shall contribute • towards the aforesaid 6.57% of the Estate Management • Expenses and· the Manager's Remuneration in such manner • and in such proportion as provided in the Sub-Deed • governing the Commercial Development. • d. The Owners of Domestic Units shall contribute towards the • aforesaid 83.50% of the Estate Management Expenses and • the Manager's Remuneration in such manner and in such • proportion as provided in the Su b- Deed governing the • Block in which these Domestic Units are situated. • e. The Owner of a Domestic Unit shall， in addition， • contribute towards the Management Expenses of the Block • in which his particular Residential Unit forms part in • accordance with the terms and conditions laid down in the • Sub-Deed governing that Block. • The Owner of a Commercial Unit shall， in addition， • contribute towards the Management Expenses of the • Commercial Development in accordance with the terms and • conditions laid down in such Sub-Deed governing the • Commercial Development. • (c) The Owner of a Car Park shall， in addition， contribute • towards the Car Parks Management. Expenses (if any) in • accordance with the terms and conditions laid down in such • Sub-Deed governing the same (if any).

7. DMC wordings: the draftsman’s intention?DMC的用詞，其草擬者的原意 • The DMC is a well established document so prepared by the register owner and the first buyer. The registered owner, as many other large developers do, planned in advance what will be the possible changes in their master plan. • DMC是一份大發展商與首位買家訂立的商業契約，是一份非常完整確立的文件。 • The lawyers are well experienced in giving the best benefits for the Register, such as appointing their subsidiary company as the manager. • 正如與其他大發展商一樣，大業主一定一早在他們的發展藍圖里考慮到每個可能的改變，大業主的代表律師也就是DMC的草擬者是有豐富經驗的，而且，他們會周全考慮到給予大業主的最佳利益，保障：如指派其附屬公司作為經理人一樣 • There leaves no ground for the HY or the register owner to plead not enough information or no knowledge about the change of the area during their drafting of the DMC in Wonderland. Indeed they have set out a very reasonable and accurate prediction. • 有關土地的用途面積改變，大發展商以沒有足夠的資料或者知識的情況下草擬本DMC，不存在任何的理據。 • Even in the case that there could be some larger commercial area developed, this will in return the domestic owners will bear a higher proportion. This is all about DMC: it is a commercial contract and once signed, all parties will have to follow it fully. • 即使商業用途發展面積比原來的規劃增加了，住戶業主業必須按公契約上的比率繳交公共開支費用，這就是DMC的精神：當其簽署后任何一方都必須完全按公契辦事。 • The DMC once sign off by all parties, shall be executed as it is. The hypothetical suggestion that if the commercial area is increased to 50%, then according to the DMC, all parties will also have to observe it and pay their respective share. But this is not likely as the legal representative of the conveyancing lawyer for the first buyer will identify this issue and necessary actions will be taken to protect the first buyer and subsequently benefit other buyers. • 當公契簽署后，各方只能按其內容執行各項事務，康業大律師在其假設性的問題上提出：假如商業發展面積比原來增加50%，那麼按照公契的精神，所有的業主也必須按公契上的比率分擔費用。但是我們認為這種情況不可能出現：因為買方的律師將會找出此類問題，因而律師將會執行相關的行動，容易保障買家的利益。

8. The counsel opinion from HY康業大律師的意見 • The Sr. Counsel opinion from Mr Lam provided by HY deals with the ratio of the DMC. Despite the admission of the DMC has expressly set out the fix rate that all owners will be charged according to Section IV 7, HY’s lawyer argued even this is expressed provided, there is an implied term could be established in the DMC. • 康業大律師的意見主要分析了DMC上分擔公共開支的比率，即使該份意見承認DMC上已經注明明顯的固定比率，規範業主的分擔比率：也就是Section IV 7，康業的律師認為即使這是一項明顯的注明條款，這裡也可以存在一項隱含條款：既是公共費用是應該按業權的比率分擔，而不是按公契的固定條款分擔。 • This complicated legal argument is made technically and refers to a number of case laws and history. • 以上的負責的法律爭議是以技巧的辯證以及提供了一些案例及其歷史。 • It is not intended here to argue legally with such opinion but from the information and decided cases, HY cannot satisfy the requirement of an implied term for the reasons set out in the coming page. • 雖然我们不打算以法律爭論康業大律師的意見,但是從大量的資料和判例,康業的解釋并不能满足隱含條款成立的條件.

9. Why HY legal opinion is not valid為什麼康業的法律依據不能成立 • The Section IV about share of cost percentage is an expressed term. If there is any expressed term so set out then it is a condition incorporated and agreed with all owners and binding to all owners. It could not be changed without the consent of all owners. Apparently there is no such consent made by all owners. Note that the Estate Owners Committee has no such power to bind all owners on this. • DMC Section IV列明費用分擔是明顯條款,如果合同己清楚列明條款,那麽该條款己是合约上的,雙方承認的係條款,即所有的業主部必需導從.這種條款如要作出任何修改,需要所有業主同意確立,業委會并沒有這種權力.( DMC and BMO authority). Cases:案例:

10. A Decided case: DMC and BMO must be followed • 14. Wong Pun-man一案的案情與本案很相似。在該案中，管理費亦是不依公契計算，各業主每年都有收到增加管理費的通知及支付管理費，但由1995年4月1日起，該案的申請人拒絕再支付不符公契的管理費。高義敦法官在該案中有以下的裁決：- • "This evidence clearly establishes detriment. It is equally clear that it would be quite unconscionable for the accounts for those years to be reopened and the shop owners allowed merely to pay fees in accordance with the original DMC proportions. The owners acquiescence to fees being levied in proportions different to the provisions of the DMC, amounts in equity to a waiver of their right only to pay fees levied in accordance with the DMC. I hold that those levied fees were properly payable. In the event of non-payment they may lawfully be recovered by the respondent." • 15. 可是申請人忽略了高義敦法官以上的裁決是針對在該條例未實行之前的管理費而作出的，對於該條例實行之後的管理費，高義敦法官有以下的裁決：- • "As the relevant provisions of the BMO came into force on 1st June 1994, these fees were also the first that required to be fixed in accordance with both the DMC and the BMO."

11. 法例BMO Cap 344:任何條款不可以與此例抵觸,否則無效 • Section: 22 Recovery of contributions from owners 30/06/1997 • (1) The amount to be contributed by an owner towards the amount determined under section 21 shall be- • (a) fixed by the management committee in accordance with the deed of mutual covenant (if any); • (b) payable at such times and in such manner as the management committee may determine. (Amended • 27 of 1993 s. 22) • (2) If there is no deed of mutual covenant, or if the deed of mutual covenant does not provide for the fixing of • contributions, the amount to be contributed by an owner towards the amount determined under section 21 shall be • fixed by the management committee in accordance with the respective shares of the owners. • (3) The amount payable by an owner under this section shall be a debt due from him to the corporation at the • time when it is payable. • (4) A certificate in writing signed by the chairman of the management committee stating the amount to be • Cap 344 - BUILDING MANAGEMENT ORDINANCE 16 • contributed under this section by an owner and when it is payable shall be

12. Implied term is not valid in a DMC with expressed term that contradicts the alleged implied term • Implied term here is excluded for隱含條款必定無效: • 1. 明顯條款express termof the DMC, Section IV, 7. • 2. 法例不容statutory authority of BMO S.22. If the contract parties intended an implied term be validly uphold and served as a guideline for the charges, the DMC section will be well drafted to accommodate such variation. It will be much like this: the cost of sharing shall be calculated base on their respective share of the building. DMC上并沒有加上費用分擔按業權分配條款,而是固定的比率.

13. Meeting minutes of Owners committee resolution in 1990 • There is a resolution made about the acceptance of change of the management fee contribution ratio and Club house expensesin 1990 between the management company and the Owner’s committee.管理公司與業委於1990年所定的合约. • The resolution made, with an obvious deviation from the capacity granted to the owner’s committee in the DMC, and further in contradiction of the BMO Cap 344, must be voided.该合约與BMO抵觸,必定無效. • Silent Acquiescence of owners will not stop their right once the acceptance of over paying management charges is withdrawn and BMO 344 provides the grounds of claim of those over paid.當業主拒絕多付的管理費後,之前業主沉默接受的行為并不影响他們的追索檢權利.

14. Case reviews of implied term • Implied term: • Classic definition: • The MoorCock case:  Presumed intention of the parties and upon Reasons.  Giving the transaction such efficiency as both parites must have intended that  at all events it shall have, preventing such a failure of consideration as cannot have been within the contemplation of the either side. • Implied term valid if it satisfied the conditions. • Shirlaw V Southern Foundries: Officious Bystander.  Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying.  It seemed that the bystander would say:  you guys share the charges by ratio of your shares, oh, Course.  But in our case, the draftsman put it, here is the deal, the figure will be follow by your, I put it clear in the deed and you two will follow it, agree?  Then it is signed.  The express term so set out overrule any implied term.  And indeed the draftsman could simply put a clause that allow the variation of the charges by NOT FIXING IT. But nevertheless, after considered all the conditions, master plans, possible amendment to by made, the draftsman fix the rates in DMC. • Luxor  V Cooper:  Estate agent commission not a valid implied term. • Reigate V Union Manufacturing  no term implied. In order the term to be implied, it must be necessary to give business efficacy and not just reasonable. • Coutaulds Northern Spinning V Sibson  The court will consider what the parites would have agreed if acting reasonably at the time of the contract was made.  • Eyre V Measday   Decided no implied term. • It is the case of Moorcock case that will attract an implied term and it is certainly not compared in our case as even the DMC is set put the expressed term:  Where there are printed and written words, greater significance should be placed on the written words as more likely to exhibit a true intention＃ • The DMC should also be read in the light of BMO 344 S. 22 and the decided cases I set out earlier. • Conclusion:  the implied term is not a valid ground for modifying Section IV. 7 of DMC and or case.

15. 3% professional charges專業服務費 • It is not valid and must be return to owners for • 這條款必不能成立,因為: • It is not a valid charge in DMC • 其不是DMC付與的合法收取費項目. • It must be failed in BMO 344: not following Section 22. • BMO 344 section 22 認定任何收費都必需按DMC收費. • We have no obligations to pay it. • 固此我們不需要繳付. • HY has 1350 buildings managing in Hong Kong with totally 110 million square feet ( per HY website). Wonderland amounts to 1/1350 in building share of their Headquarter cost or 1.8/ 110 ( where Wonderland has 1.8 million Sq feet ). HY has no right at all to charges and even they have mistakenly think they could charge, 3% could not be consistent. • It must be noted that estates like Ho King Wan ( TsingYi ) and other estates they could not charge this ratio other than those they could do in accordance with BMO.

16. Club house charges會所費用 • Management company does not charged the register owners and charge only the domestic owners by the reason the management company does not want commercial owners to use the club house. • 管理公司以大業主不享用會所為由,在沒有得到所有業主同意下,由住户承擔所有費用. • The statement made is not a valid one and must be rejected as: • 此理由并不成主立: • The intention of the management is to benefit the register owner, their holding company and in return they are benefited further. • 管理公司旨在讓其母公司得益,因而間接得益. • Management company failed to collect the management fee in accordance with the DMC Section I, which defined the common area and club house area and Section IV 7 that the register owners must provide the same contribution ratio. • DMC section 1and IV把會所定為公共地方因而必需按DMC比率由各業主分擔費用. • The club house served any one from guests to renovation works. The suggestion by management company to benefit only the domestic owners is merely an excuse to benefit their holding company. • 一直以來會所及其餐廳接待任何人,管理公司的理由只是為其母公司獲益的借口. • Our commercial complex of Wonderland is a complex of energy ( air con and lighting ) wasting given the empty rooms inside is more than the occupied. • The management company in deciding fees allocation is clearly in conflict of interest. Domestic owners’ interest is taken away for the benefits of them. • 管理公司存在利益沖突因而損害住户利益.

17. 案例Club house: exclusive possession cannot be done公共地方不能私自定為一些業主專用. • Lai Wing Ho and Another v Chan Siu Fong [1993] 1 HKLR 319 ... It was pointed out that a co-owner could not create or carve out a right of exclusive possession so as to bind the other co-owners and assign it separately. The reason for that is quite simply that the right of exclusive possession of any part of the premises could only arise out of the deedofmutualcovenant.”[22] (Our emphasis

18. Excessive management fees過度管理費 • There is positive feed back mechanism in the DMC that in case there is a surplus of the previous year, the manager should reduce the budget and reduce the management fees. • DMC限制管理公司除必要基金外,應以平衡預算,不可以用過度預算而從中多獲利益. • The emergency fund is (?)raised for the benefit of extra benefit of the management company. • Given the large surplus of Wonderland Villas, over HK$40million, a 8% +3%remuneration amounts to a more than HK$5million additional charge on owners. • Again this is in breach of the relevant sections of BMO 344. • 再者,管理公司該行為違反BMO 344有関條文.

19. Our limitations住户業主的限制性 • The owners could not get proper legal advice while the management company has strong resources in litigations. • 住户業主不可以如管理公司得法律意見及保障. • The owners could not take any action or sanctions against the Management company. • 住户業主不可以對管理公司進行集體訴訟. • The owners could not take legal actions, other than • individuals who will bear their the cost themselves. • The power is strongly imbalanced even we are paying all the cost. We are paying the cost and remuneration for the management company and more sadly, encouraged by some owners to take the advantage of the majority of the owners. • 管理公司權力過大,沒有監管,最終導致濫權,利益沖突,住户業主利益被出賣.

20. Conclusion總結 • Hong Yip failed to consider the interest of the domestic owners as one of their main duty as a manager. • 康業并沒有考虑到住户的利益. • Hong Yip is negligent in executing their duty as a manager. • 康業作為公楔经理人梳忽,違反BMO 344 Section 22和DMC IV 7,即是必需完全按公楔條文收費. • Hong Yip is in breach of the statutory provision of BMO Cap 344, Section 22(for ?………) • Hong Yip is in breach of the DMC, inter alia, Section IV,7 and other relevant sub sections. • Hong Yip is further in breach conduct and business ethics by not acting fairly in executing their capacity as the management company. • 康業在利益沖突下違反商業道德. • Damages should be obtained from HY. • 本報告提出應向康業追討損失,禁制繼續違反公楔行為. • Declarative relief should be obtained from court that HY is in breach of DMC. • Injunctive reliefshould be obtained stopping HY from further charge owners not complying with DMC.

21. appendices • Copies of Meeting minutes • Club house: exclusive use of common area authority: not possible • Building Management ordinance Cpa344 could be obtain from Judiciary Web sites.

22. FINAL APPEAL NO. 1 OF 2008 (CIVIL)(ON APPEAL FROM CACV NO. 227 OF 2005)_______________________Between: KUNG MING TAK TONG CO LTDPlaintiff (Appellant) - and -  PARK SOLID ENTERPRISES LIMITED 1st Defendant(1st Respondent) INFO KING LIMITED2nd Defendant(2nd Respondent)_______________________ • 31.  It is unlikely that his Lordship was intending to depart from the view he had earlier expressed, especially since in the same case, Rogers JA also cited Lai Wing-ho v Chan Siu-fong and forcefully reiterated the view (without dissent on the part of Godfrey JA) that exclusive possession was a matter ofmutualcovenant and did not involve the grant of an interest in land: • “Without a deedofmutualcovenant, each co-owner of the property, that is those who hold undivided shares, would be entitled to the full use and enjoyment of the whole property.  The deedofmutualcovenant governs the rights of the co-owners amongst themselves and regulates, amongst other things, the portions of the property in respect of which each owner would have the exclusive right of enjoyment.  That exclusive right of enjoyment cannot be assigned on its own, but it has to be assigned together with a part interest in the legal estate.  This point was discussed in Lai Wing Ho and Another v Chan Siu Fong [1993] 1 HKLR 319 ... It was pointed out that a co-owner could not create or carve out a right of exclusive possession so as to bind the other co-owners and assign it separately. The reason for that is quite simply that the right of exclusive possession of any part of the premises could only arise out of the deedofmutualcovenant.”[22] (Our emphasis)

23. Pls sign here if you support this finding

24. Pls drop your email and contacts to Owners committee mail box • Pls drop you name card or your mail information in the owners committee or to me directly and Blk20 , 17/E. Your opinion will be recorded and summarized in the final solution for the matter.