Wong Sui Fung and Another v. Yip Siu Keung

LDBM 248/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Lands Tribunal Application No. LDBM 248 of 2000

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DECISION

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1. As pleaded in the Notice of Application, the Applicant is and was the registered owner of House D of Greenland Villas erected on Sha Tin Town Lot No. 195 situated at Nos. 8-12 Ma Yeung Path, Shatin, N.T. ("the Estate"), whereas the Respondent is and was the registered owner of House E of the Estate.

2. On 24.10.2000 the Applicant Wong Sui Fung ("the Applicant") took out an inter-partes summons under Order 19, Rule 18(1)(b) of the Rules of High Court and Rules 11 and 12 of the Lands Tribunal Rules for various applications. Item 5 of the summons is an application in the following terms :-

'The words "It was built at the time when the Applicant was the chairman of the owner's committee of the Estate" contained in Paragraph 5(d) of the Respondent's Notice of Opposition filed herein be struck out as they are scandalous, frivolous and vexatious.'

3. O. 18, r.19 provides as follows :-

"19.-(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that -

(a) ............

(b) it is scandalous, frivolous or vexatious; or

(c) ............

(d) ............

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be."

4. Paragraph 5(d) of the Notice of Opposition reads :-

"The original fences referred to in sub-paragraphs (c), (d) and (e) of paragraph 4 were built by the Respondent's immediate predecessor in title. It was built at the time when the Applicant was the chairman of the owner's Committee of the Estate. The original fence between point P and point Q was built as a result of the agreement between the Applicant and the Respondent's immediate predecessor in title and the Applicant contributed to half of the construction cost of this original fence"

(Underline provided)

5. In Sub-paragraphs (c), (d) and (e) of Paragraph 4 of the Notice of Application, the Applicant alleged that certain parts of the original fences along the boundaries of House D and House E had been modified by the Respondent in breach of the Deed of Mutual Covenant of the Estate.

6. The strike out application was heard on 1.11.2000. Both parties advanced their arguments, in the course of which the Respondent's Counsel admitted that there was a mistake in the pleading in that the words "the Applicant" should read as "the Applicant's husband".

7. I then granted an application made by the Respondent's Counsel for the hearing to be adjourned to 17.11.2000, in order to allow the Respondent to amend Para. 5(d), with costs reserved. I also ordered that the Respondent was to serve and file the proposed amended Para. 5(d) in 7 days' time. But the Respondent only filed and served the amended Para. 5(d) on 16.11.2000. By the time the Applicant received the proposed amended Para. 5(d), she had already filed in her submissions.

8. On 17.11.2000, whilst maintaining that the proposed amendments to Para. 5(d) are not relevant to the pleadings, the Applicant's legal representative (Mdm. Courbet) would not pursue the strike out application any further, but she asked for costs incurred in taking out the strike out application.

9. In her submissions, Mdm. Courbet's referred to the further and better particulars provided by the Respondent in respect of the sentence ("the Sentence") to be struck out. On 28.9.2000, the Applicant requested the Respondent to provide the following further and better particulars in respect of the Sentence :-

(a) the exact date or period during which the said original fence was built; and

(b) the time during which the Applicant was alleged to be the chairman of the owner's committee of the Estate.

10. On 4.10.2000, the Respondent provided the following particulars :-

(1) The exact date or period when the fence was built is unknown to and could not be traced by the Respondent since the same was built well before the Respondent came into possession of his own premises in December 1999.

(2) The husband of the Applicant, Mr. LI Ka-chun, had claimed himself to be the chairman of the owner's committee of the Estate for a long time before the incorporation of the owners of the Estate on 17th July 2000. Therefore it in the said Mr. LI who is the one who knows the hast.

11. I do not accept such submission. In Para. 5(d) the Respondent was pleading the time when the original fences were built, by referring to the occurrence of an event, namely, when the Applicant was the chairman of the owner's committee of the Estate. The fact that Respondent did not know the exact date or period as to when the original fences were built is no bar for him to plead such a time by referring to an occurrence of event.

12. The fact that he did not know when the Applicant was the chairman does not preclude him from pleading this piece of fact. In fact he did indirectly refer to such a time by referring to the building of the original fences.

13. Mdm. Courbet contended that the matters relating to the original fences had no bearing whatsoever in this case because the wrongs complained of were the modifications of the original fences. But that would be a matter of irrelevancy. She submitted that to include the Sentence in the pleading is scandalous, frivolous and vexatious, when the Respondent had no knowledge when the original wall was built or when the Applicant was chairman of the owner's committee, and these matters had no bearing to the case.

14. The issue here is whether the Sentence is scandalous, frivolous and vexatious. The Shorter Oxford English Dictionary provides the meanings of these key words :-

Scandalous:	"Of the nature of a scandal; grossly disgraceful, outrageous, shameful; improper."
Frivolous:	"(of a claim, charge, etc.) having no reasonable grounds."
Vexatious :	"Of an action: instituted without sufficient grounds for winning purely to cause trouble or annoyance to the defendant."

15. In Stroud's Judicial Dictionary (5th edition), at P.2339, it is stated that 'A pleading is "scandalous" (R.S.C., Ord. 19, r. 27, now Ord. 18, r. 19) which alleges anything unbecoming the dignity of the court to hear, or is contrary to good manners, or which creates a crime immaterial to the issue. But the statement of a scandalous fact that is material to the issue is not a scandalous pleading.'

16. It is very clear that according to the definitions set out herein before the Sentence itself is not scandalous, frivolous or vexatious. The inclusion of the Sentence in the Notice of Opposition is also not scandalous, frivolous or vexatious. Therefore r.19(1)(b) does not apply here.

17. The test for r. 19(1)(b) does not include "irrelevancy". If "irrelevancy" is the test, the legislation could have clearly evinced its intention by including such a word in the rule. Take for instance the provisions of 0.41, r. 6 which provide that "The Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive". The Legislature clearly intends that the element of irrelevancy has to be considered. But the word "irrelevant" is absent in O.18 r.19. Therefore "irrelevancy" is not the test under O.18 r.19.

18. Para. 5 refers to who built the original fences, when the original fences were built and the circumstances the original fences came to be built. Therefore the Sentence forms part and partial of the whole paragraph. The Applicant singled out this sentence and asked it to be struck out. In the circumstances, even if the Sentence infringes O.18 r.19, I would not exercise my discretion to order it to be struck out.

19. By reasons of the above-said matters, I dismiss the Applicant's application.

20. I make the following orders nisi as to costs, to be made absolute in 14 days' time :

(1) The Respondent is to pay the Applicant's costs for preparation of the submission for the hearing on 17.11.2000. Subject to that the Applicant is to pay the Respondent the costs for the strike out application.

(2) The Respondent is to pay the Applicant the costs for the adjournment granted on 1.11.2000 for the purpose of amending Para. 5(d) of the Notice of Opposition.