YU YUK KWAN and Others v. THE INCORPORATED OWNERS OF TAI ON BLDG. and Others

IN THE COURT OF APPEAL OF THE HIGH COURT

1997, No. 45

(Civil)

______________

______________

______________

J U D G M E N T

______________

Liu JA:

1. Tai On Building has 2,094 units, which is situated at Shau Kei Wan, Hong Kong. In June 1996, these appellants filed with the Lands Tribunal a Building Management Application for an order

(1) that the existing management committee of the building be declared invalid; and

(2) that a General Meeting be convened for the election of a new management committee together with consequential directions for appointing a person or persons to call and convene such a General Meeting.

The appellants were not satisfied with the legal basis for the constitution of the management committee and less with its management. They asked from the Lands Tribunal for a General Meeting and they insisted on their own nominee for convening the General Meeting and their own nominee to be the first man to chair it. Many proceedings were brought before Judge Cruden. On the 3 January 1997, Judge Cruden refused to grant an extension to review his earlier order dated 4 October 1996. And from this order of the 3 January 1997 of the Judge, the appellants appeal.

2. The grounds of appeal given in their Notice of Motion may be shortly stated as follows: (1) the judge failed to consider all the points raised on behalf of the appellants; (2) The judge failed to adjudicate on the valid or invalid constitution of existing management committee; (3) The judge failed to oversee the respondents' implementation of his earlier order for production and inspection. Lastly, (4) the judge failed to offer sufficient opportunity to the appellants to make full submissions. In the course of this appeal, the appellant's through Madam Wu and Madam Koo seek to enlarge upon these grounds. They are not entitled to do so, and although we did not stop these ladies, we are not prepared to go beyond the stated grounds of appeal.

3. On 3 January 1997, the judge refused to extend time for reviewing an order made by him on 4 October 1996 which ordered the holding of a General Meeting with Lo Kwok Chau chairing it when the General Meeting was convened by the existing management committee. As the date previously earmarked for holding a General Meeting had passed, a new date had to be and was in fact fixed with the same man to chair it and the same entity to convene it. In essence, the decision of 3 January 1997 was one of a refusal to extend time for review. It would not be impertinent to refer to the application of the 2^nd appellant, Madam Wu Kit-yee on 14 February 1997, whereby she sought to challenge the same reliefs granted in the previous order of 4 October 1996. Her application was dismissed by Judge Cruden as frivolous and vexatious. I repeat: on 3 January 1997, Judge Cruden refused to grant an extension of time for hearing an intended review; he refused to grant an extension of time for reviewing his earlier decision as to who was to convene the General Meeting and who was to chair it. At the same hearing, Judge Cruden gave further directions pursuant to his order of the 4 October 1996 so as to enable the General Meeting to be called and convened. I have placed emphasis on the essence of what was truly decided by the judge on 3 January 1997. It is reasonably clear, therefore, that the ambit of the order as well as that of this appeal is very narrow. It would be wholly absurd to allow the appellants to raise the same complaints in the instant appeal, which they were not even allowed an extension to review when the judge made his order on 3 January 1997. I repeat again, the order of 3 January 1997 is merely a refusal to extend time to review.

4. It would be helpful to refer to the summary so succinctly given by Judge Cruden in the application of the 2^nd appellant Madam Wu Kit-yee, dated 13 January 1997. It was heard the next day, on 14 January 1997. This chronological summary of the proceedings before him given in his written reasons handed down on 25 February 1997 would illustrate the narrow compass of the decision he gave on 3 January 1997 and consequently the narrow compass within which this appeal could be prosecuted. This is what the judge recounted : the appellants challenged that the existing management committee was legally elected, and they sought a declaration that the existing management committee was not validly constituted. They asked for an order from Judge Cruden in the Lands Tribunal that a new management committee be appointed at a meeting to be duly called. When the appellants and the respondent first appeared before the judge in the Lands Tribunal on 17 September 1996, the appellants were then legally represented by a firm of solicitors. The respondent was similarly represented by a firm of solicitors. Despite the accusations and criticisms of the appellants, both solicitors approached Judge Cruden with an agreement. The judge was categorically told that consensus had been reached for a meeting to be held to elect a new management committee. The judge was expressly assured that the District Officer had given his consent to act as an administrator in the meantime and thereafter to call the General Meeting. All disputes were, so to speak, water under the bridge. By consent, I emphasise by consent, an order was made in these terms.

(1) the District Officer (Eastern) be appointed as administrator of the Incorporated Owners of Tai On Building; and

(2) The same District Officer be appointed by the Tribunal to call and convene a general meeting of the Incorporated Owners of Tai On Building on 2 October 1996.

The judge gave liberty to apply with costs reserved.

Unfortunately the District Officer did not live up to his promise. The parties found it necessary to return to Judge Cruden on 4 October 1996. Regret was expressed for having misinformed the judge. Judge Cruden was assured that the parties were still in agreement to have the General Meeting held. The General Meeting that was agreed and ordered to be convened was to be held not later than 15 November. Apparently, these directions were issued under "liberty to apply". But parties were not of one mind when it came to the identity of the chairman for the meeting and the entity to convene it. Judge Cruden rejected the proposal for two joint chairpersons, one to be appointed by each side. The judge took upon himself to decide that Mr. Lo Kwok Chau was to be the chairman and that the existing management committee was to convene the General Meeting. An order was accordingly made. The judge further ordered that a full list of owners was to be posted on the notice board and supplied free of charge to any owner on request.

5. These appellants chose to act in person without the aid of legal advisors as from 23 October 1996. On 7 November 1996, the 4^th appellant, Madam Koo Kwan Ying sought an order that the Incorporated Owners of Tai On Building do produce certain accounts and documents at its solicitors' office. The judge acceded to her request and an order was made. Presumably it was also done under liberty to apply. The 4th appellant, Madam Koo Kwan Ying returned to the judge for yet a further application. Her application was heard on 3 January 1997, from the decision given at which the appellants now appeal. At that hearing, the 4^th appellant, Madam Koo Kwan Ying sought an extension of time to apply for a review of the judge's order given earlier i.e. on 4 October 1996. That was the order of the judge for the holding of a General Meeting before the 15 November 1996 and the appointment of Lo to be its chairman when it was convened by the existing management committee. It is not out of place here to note that on 11 November 1996 when a General Meeting was supposed to be convened, the meeting turned disorderly, to say the least. The participants dispersed and the meeting failed for lack of a quorum.

6. Coming back to the hearing of the 3 January 1997 which concerned an application of a very narrow ambit. The judge did not see fit to grant an extension. The application of Madam Koo Kwan Ying for an extension was refused. Madam Koo Kwan Ying was, therefore, unable to review the judge's order for the holding of a General Meeting and the appointment of Mr Lo as chairman when the existing management committee finally caused it to be held.

7. Madam Koo further requested the judge to consider various aspects in the affairs of the management of the Tai On Building, in particular, she pleaded with Judge Cruden to appoint Messrs., Yeung, Ho Jiu & Co., a firm of Certified Public Accountants to be administrators. The request of Madam Koo was not entertained by the judge, but in his judicial patience the judge explained to Madam Koo in the following terms.

"The first important step was for the mutually desired meeting to be held at which a new committee could be duly elected. If this could be achieved, there was no need to appoint an interim administrator."

8. The judge further reminded Madam Koo that the duty of a chairman at the meeting was merely "a creature of the meeting and that during a meeting a majority of owners could resolve that he be replaced by another person who in turn could be similarly replaced".

9. Thereupon the judge proceeded to give further directions because the parties had agreed and remained committed to the holding of a meeting. Directions were given apparently also under liberty to apply. These directions were that the General Meeting was to be held on 2 March 1997 with the same Mr Lo to be chairman and existing committee to call and convene it.

10. Another application was made to the judge by the 2^nd appellant, Madam Wu Kit Yee. Her application was filed on the 13 January 1997. It came before the judge on the 14^th, the next day. The judge gave his decision the same day but provided his written reasons on 25 February 1997.

11. The 2^nd appellant, Madam Wu Kit Yee conceded before the judge that her application was grounded similarly on the same complaints as those canvassed by Madam Koo Kwan Ying, the 4^th appellant in an earlier application. In fact, the 2nd appellant, Madam Wu sat beside Madam Koo throughout her earlier application. The judge observed that Madam Wu "frequently prompted her when the latter was asked questions by the Tribunal". The application of the 2^nd appellant, Madam Wu Kit Yee was rejected by the judge as being frivolous and vexatious.

12. The decision of Judge Cruden on 3 January 1997 was one exclusively for refusing to allow an extension of time to review. None of the grounds set out in the Notice of Appeal of the appellants is related to such an issue. This appeal is wholly misconceived. I am nevertheless impressed by the genuine concern of the appellants through Madam Wu and Madam Koo, but in principle, the order of Judge Cruden made on 3 January 1997 has not been demonstrated to be in any way in error. As a matter of fact, full and fair consideration was given to everything that was placed before the judge on 3 January 1997. The appellants were constrained in the various proceedings by their concession made through their former solicitors. The validity of the existing management committee was a matter expressly abandoned by consent through the former solicitors of the appellants. Judge Cruden was satisfied that there had been compliance with his order for production and inspection. I am not persuaded that the appellants were not given a full opportunity to make their submission. There was a commendable display of judicial patience on the part of the judge.

13. Of the grounds of appeal, none has, in my view, been substantiated. Not without sympathy for the appellants, particularly in their emotional pleas made through Madam Koo and Madam Wu before us today, I would dismiss the appeal. It appears that it would be open to the appellants to return to the Lands Tribunal for further directions under liberty to apply for holding the General Meeting if one has not been successfully held.

Hon P Chan, Chief Judge :

14. There are obviously a lot of problems in the management of the Tai On Building. Some people might even have acted without authority or not in accordance with the provisions of the DMC of the Building Management Ordinance. Various owners of the building are clearly most dissatisfied with the way in which the existing Management Committee is managing the building. The Chairman and the members of the Management Committee are no longer trusted by these owners. If the allegations of the appellants are true, the Chairman and other members might not be worthy of the trust of these owners. In that case they should have the dignity to step down. A lot of allegations against the Management Committee and the Chairman had been made before us. The court is asked to dissolve the Management Committee. These allegations may have some substance and some of the owners may have a genuine grievance.

15. I have some sympathy for the appellants and I am sure that my brothers will share my sentiments. But this is not the proper time or forum to ventilate these disputes. It is an appeal against an order of the Lands Tribunal which is not related to these allegations. If the order of the judge regarding the convening of a meeting is found not to work out or if no meeting can be held or even continued, the matter may be dealt with by the Lands Tribunal either in this action or in an separate action. There is, as my brother Liu JA said, no merit in the present appeal. I, too, would dismiss it.

Hon Cheung J :

16. I agree.