Syndicat Des Co-Proprietaires, Residence Koenig v Bocquee J.

Transcription

1 Syndicat Des Co-Proprietaires, Residence Koenig v Bocquee J INT 334 Cause Number 2249/11 IN THE INTERMEDIATE COURT OF MAURITIUS In the matter of: Syndicat Des Co-Proprietaires, Residence Koenig Plaintiff v. Jocelyne Bocquee Defendant Judgment In this Plaint, it is common ground that Residence Koenig is a co-propriété set up under article et seq of the Civil Code and that Defendant is the owner of Flat number 14 within the said Residence and Plaintiff is the Syndicat Des Co- Proprietaires represented by its Syndic. Plaintiff has averred that as per the law and by virtue of the reglement de copropriété, Defendant must contribute monthly to the common expenses and maintenance and upkeep of the lots of the co-owners of that Residence. As at November 2012, Defendant is indebted to the Syndic of the said Residence in the sum of Rs.58,271.80/- as common expenses as alleged. Although amicably requested to pay same, Defendant has failed and neglected to do so.

2 Plaintiff is therefore claiming the sum of Rs.58,271.80/- together with all sum or sums that may become due at the time of judgment together with interest and costs from Defendant. Defendant s plea is that no proper maintenance and upkeep have been effected on her flat number and Syndic fees were meant for those purposes and that although she amicably requested for an explanation for the increase in Syndic fees, Plaintiff failed to provide same. Furthermore, Plaintiff failed in its duties in not bringing remedial solutions to the common parts which are in a lamentable situation and which have a direct bearing over Defendant s property. The Syndic and the Plaintiff were bound to perform otherwise there was no use for their existence. The prejudice and damage caused by the Plaintiff towards Defendant are disproportionate to the alleged debt which is denied and thus Defendant has moved that Plaintiff s action be dismissed. Mr. Yannick D Argent, in his representative capacity as Syndic of Plaintiff, gave evidence in Court. Defendant was the owner of lot no.14 of Residence Koenig and the Plaintiff was the Syndicat of the co-owners of that building. He produced an extract of the reglement de co-propriété as per Doc. A. which concerned les charges communes. Each co-owner had to pay Syndic fees monthly for example for the gardening and the cleaning of the staircase. As at November 2012 the Defendant owed the Syndic the sum of Rs.58, cs as per a statement of account as per Doc. B. and as at to date it has reached the sum of Rs.115, 373 as per Doc. B1. Despite requests having been made to Defendant by way of letters dated , , and 2 letters on the same page dated and and letter dated as per Docs. C, C1, C2 and C3 respectively to pay the said sum, she failed to do so. Each assemblée générale had a budget and each coowner had to pay the Syndic fees monthly for its expenses and Defendant attended and was aware of same. To his knowledge Defendant did not bring a case to court as regards her grievances against the assemblée générales or the Syndic. Thus, he was claiming the sum of Rs cs with interest and costs from Defendant for the unpaid charges communes. In cross-examination, he stated that the Syndic fees concerned the maintenance of the parties communes. Before him, a long time ago there was one complaint from Defendant in relation to her flat no.14 as water came into her premises. But he was not aware whether it was still the case. He was not aware that Defendant did not pay Syndic fees as she had a water problem which rendered her flat

3 uninhabitable which was the result of an absence of maintenance by the Syndic as the co-owner/defendant had to cater for the parties privées and not the Syndic. There were 6 buildings and each building had 9 flats and the top of the building had to be maintained by the Syndic but it was the co-owners that had to provide by the paying of the Syndic fees. If such fees were not paid, repairs could not be effected. Defendant gave evidence in Court. She stopped paying the Syndic fees as despite the fact that she had been paying the said fees and that the previous Syndic accepted to repair her roof slab which was leaking as water came from outside and that she continued to pay, the said Syndic refused to repair it but intimated to her that he was only there to collect the fees and which were used for the gardening. Then, she told him that if he was not going to repair the external facet of her roof slab, she would stop paying the fees as she could neither rent nor sell her flat and could not live there. In fact the Syndic replied by saying that it was concerned with the gardening and cleaning of the steps having nothing to do with the owners. Thus, she stopped paying as the Syndic did not maintain and repair the block of flats and which was its responsibility and that for about two years, there were no assemblée générales. Her flat was still leaking and no maintenance work had been done and there was accumulation of water inside. She had taken photographs more than two years ago as per Docs. D, D1 to D15 and engineers had inspected her flat. In cross-examination she conceded that there was a reglement de co-propriété which she had partly read. But she had stopped paying as no repairs were made. She had made several complaints but she had nothing in writing in her possession to that effect. She was aware that there was a budget for all the expenses and the budget was voted and decided by all co-owners and if the latter did not include the outer slab of a block of flats as an expense, the Syndic could not repair it. But she agreed that if the co-owners did not pay the Syndic fees, no repairs could be effected through shortage of money. At each assemblée générale she did not have the right at all to bring forward her problem as no one would listen to her. She had never brought an action in court concerning the budget or assemblée générale. She did not voice out her problem at the assemblée générale but by way of letter which she did not bring in Court. I have duly considered all the evidence put forward before me and the submissions of both learned Counsel. It is common ground that Plaintiff s flat was leaking and that the budget was voted by all co-owners so that any complaint had to be agreed upon by all the co-owners for the expenses to be disbursed from the

4 Syndic fees to address that complaint and that should there be no payment, no repairs could be effected. Thus, it is abundantly clear that because Defendant had stopped paying the Syndic fees, she did not attend the assemblée générales and thus, could not bring to the attention of the assemblée générale or that of the Syndic of her water problem in writing. But it is imperative to note that it has not been averred in the plaint for which months Defendant failed to pay Syndic fees until November 2012 and what was the monthly fee for the Syndic and how it was calculated the more so as the Defendant claimed in her plea that it was increased. Moreover, in Court, Plaintiff stated that it was claiming the sum of Rs.115, 373 as per Doc. B1 and then decided that it was Rs cs and not the sum averred as Rs.58, cs to be due together with all the sum or sums that may become due at the time of judgment which means that the claim is a variable one and it remained uncontested that Defendant did pay for some time. Thus, the totality of the claim as made in the plaint as averred is uncertain. Clearly the Plaintiff by trying to reap the benefit of a variable claim does so at its own risk and as a matter of principle it is appropriate to refer to the learned author Odgers on High Court Pleading and Practice 23 ed. at page 145 at para.(iv) : In the first place, material facts must be stated clearly and definitely. Be as concise as you can, provided you do not thereby become obscure. Pleadings are useless unless they state facts with precision. Now more importantly, the jurisdiction of the Intermediate Court is determined by the totality of the sum claimed in the plaint and not by the sum awarded by the Court (see Johaheer R. v. The Municipal Council of Curepipe & Anor. [2012 SCJ 335]; Narain P. v. Mon Tresor & Mon Desert Ltd. [2013 SCJ 309] and Premchand I. & Ors.v Jagoo A.R. & Ors. [2013 SCJ 184]).

5 Hence, given that it has not been conclusively established what precise amount has remained unpaid and what precise amount is being claimed as a totality in the plaint, the case for the Plaintiff should fail. Accordingly, the plaint is dismissed with costs. S.D. Bonomally (Mrs.) (Magistrate)