THE INCORPORATED OWNERS OF FINANCE BUILDING v. BRIGHT HILL MANAGEMENT CONSULTANTS CO LTD

CACV 184/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 184 OF 2002

(ON APPEAL FROM LDBM153/2000 and LDBM251/2000)

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JUDGMENT

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Hon Kwan JA (giving the judgment of the Court):

1.  On 12 April 2010, the Court of Appeal (Yuen and Kwan JJA) allowed an appeal brought by Bright Hill Management Consultants Co. Ltd. (“BH”) against certain interlocutory orders of HH Judge Yung sitting in the Lands Tribunal made on 22 January 2002 and 1 March 2002.

2.  The Court of Appeal made these orders:

(1)   the orders made by the Judge on 22 January 2002 and confirmed on review (by which the Judge lifted the stay of proceedings in LDBM 251/2000 and consolidated the proceedings with LDBM 153/2000) be set aside;

(2)   the applications of the Incorporated Owners of Finance Building (“the IO”) for lifting the stay of proceedings in LDBM 251/2000 and for consolidation of LDBM 251/2000 and LDBM 153/2000 be remitted to a different presiding officer of the Lands Tribunal for hearing;

(3)   directions were given for BH and the IO to file and serve evidence in the Lands Tribunal proceedings regarding BH’s challenge to the validity of the resolution of the IO on 10 July 2000 to appoint a new management committee and to appoint solicitors to conduct legal proceedings for the recovery of sums owing to the IO;

(4)   the IO was to pay the costs of BH of the appeal, to be taxed if not agreed; and

(5)   costs of the hearings before the Lands Tribunal on 22 January 2002 and 1 March 2002 be costs in the cause of the said applications in (2).

3.  The costs orders were orders nisi.

4.  BH acted throughout by its director Lie Han Ji.

5.  On 26 April 2010, BH issued a summons in the Court of Appeal, purportedly under section 13(4) of the High Court Ordinance, Cap. 4 and Order 59 rule 10 of the Rules of the High Court, for “amendment” of the judgment and orders made on 12 April 2010. BH sought an order as follows:

(1)   to vary the costs orders nisi and to require the IO to pay forthwith on a full indemnity basis all BH’s costs of the appeal and all its costs of all hearings of all courts below, being the High Court, the Lands Tribunal, and the Small Claims Tribunal;

(2)   to amend the judgment and orders of the Court of Appeal as the judgment and orders did not deal with all the complaints and grounds of appeal raised by BH on appeal; and

(3)   to declare the minutes of the meeting of the IO on 10 July 2000 invalid.

6.  The application for the orders sought in (2) and (3) is misconceived. The authority and jurisdiction of the Court of Appeal to amend its judgment is the same as that of the tribunal from which the appeal was brought, see section 13(4) of the High Court Ordinance, which is to correct an error from an accidental slip or omission. As for the order sought in (3), the Court of Appeal has ordered and directed that the challenge to the validity of the resolution on 10 July 2000 was to be dealt with by the Lands Tribunal before another presiding officer, see paragraph 46 of the judgment. It is an abuse of process to take out a new summons seeking a determination on this very question by the Court of Appeal.

7.  This leaves the application to vary the costs orders nisi. As it was directed that the applications of the IO to lift the stay of proceedings in LDBM 251/2000 and for consolidation were to be heard by another presiding officer, and the merits of these applications have yet to be determined, it is inappropriate to vary the order nisi and award the costs of those applications on 22 January 2002 and 1 March 2002 to BH. Moreover, there is no juridical basis to make an order to award BH its costs of all hearings of all courts below, being the High Court, the Lands Tribunal, and the Small Claims Tribunal. Costs in respect of previous hearings in the lower courts were the subject of orders already made and such orders, if they were orders nisi, have long since become absolute. As for the application to vary the costs order nisi in this appeal to provide for taxation on an indemnity basis, we agree with the submissions of Mr. Martin Wong, who appeared for the IO, that there was nothing to show that the conduct of the IO in the appeal was scandalous or vexatious, or that the appeal was resisted with ulterior motive, maliciously or oppressively to warrant indemnity costs against it.

8.  We dismiss the summons of BH filed on 26 April 2010 in the entirety.

9.  We turn to the notice of motion of BH filed on 10 May 2010 seeking leave to appeal from the judgment of the Court of Appeal on 12 April 2010 to the Court of Final Appeal. BH filed an affirmation of Mr. Lie on the same date to set out the grounds of the proposed appeal.

10.  The orders of the Lands Tribunal, being the subject of the appeal heard by the Court of Appeal, were interlocutory orders. Hence, BH has no appeal as of right under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

11.  The Court of Appeal has discretion to grant leave to appeal from an interlocutory judgment to the Court of Final Appeal under section 22(1)(b) if it is of the opinion that the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

12.  We have considered the proposed grounds of appeal in Mr. Lie’s affirmation. His complaints are that the Court of Appeal did not deal with the arguments that he raised, which he called “major law points”. The short answer is that the Court of Appeal did not find it necessary to deal with those arguments, as the orders made by Judge Yung on 22 January 2002 and 1 March 2002 were set aside and the applications were remitted to the Lands Tribunal to be heard by another presiding officer. Mr. Lie also challenged the decision of the Court of Appeal in paragraph 37 of the judgment regarding the refusal of the Judge to provide written reasons for the decision on 22 January 2002.

13.  Quite apart from the merits of these proposed grounds of appeal, we fail to see in what way the questions raised could be regarded as having great general or public importance. Interlocutory appeals to the Court of Final Appeal should be rare and exceptional, leave will generally be refused unless it can be seen clearly that the proposed appeal genuinely raises a question of law of great general or public importance (CSAV Group (Hong Kong) Ltd. v. Jamshed Safdar (2007) 10 HKCFAR 629, paragraph 1).

14.  It is not necessary to go into BH’s contention that it has suffered loss and damage of $1 million or above by the alleged wrongful acts of the IO.

15.  We also decline to grant leave on the “or otherwise” ground. The granting of leave to appeal under the “or otherwise” limb is an exceptional course (Hui Yiu Wing v. The Regional Council, FAMV 16/2002, 24 September 2002, paragraph 1; Chao Keh Lung v. Don Xia (2004) 7 HKCFAR 260, paragraph 9). The proposed appeal is not an appropriate case for such an exceptional course to be taken.

16.  We dismiss the application for leave to appeal to the Court of Final Appeal.

17.  We have heard submissions on costs of the present applications. We order BH to pay the costs of the IO in the summons and the notice of motion. The costs of the IO will be assessed on a gross sum basis. We give leave to BH to make submissions in writing on the bill of costs of the IO dated 13 July 2010 within 7 days of the handing down of this judgment. The parties will be notified by letter of the amount of costs assessed on a gross sum basis.