THE INCORPORATED OWNERS OF HILDER CENTRE v. CITYBASE PROPERTY MANAGEMENT LTD

LDBM 178 OF 2005

 IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT Application No. 178 of 2005

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J U D G M E N T

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Three Classes of Documents Sought

1. These proceedings arose from the dispute between an owners incorporation, the Applicant, and the Respondent, the out –going manager of the building. After a number of twists and turns, the relief sought by the Applicant is now for an injunction ordering the Respondent to deliver three classes of documents for the last 6 years when the Respondent was the manager. They are, monthly payroll tables, monthly attendance records, and the daily site attendance records signed by the staff on site. These records relate to the staff whose salaries, benefits, and other ancillary expenses formed a direct charge on the Applicant’s account.

Paragraph 8(b) Documents and Burden of Proof

2. Paragraph 8(b) of Seventh Schedule of the Building Management Ordinance (“the Ordinance”) imposes a duty on the out-going manger to deliver up within 2 months certain documents. The specification of these documents given in paragraph 8(b) is: “any books or records of account, papers, documents and other records in respect of the control, management and administration of the building that are under his control or in his custody or possession” (“ Paragraph 8(b) Documents”). The Applicant has to prove two things, the existence of such documents and that they are Paragraph 8 (b) Documents.

Monthly Payroll Tables

3. The Applicant relies on the evidence of a Respondent’s witness to prove the existence of the monthly payroll table.  His evidence is far from clear.  While he agreed in cross-examination with the suggestion put to him by Mr. Hung, counsel for the Applicant, such could be extracted from the computer record.  This witness did not know how such information could be extracted. The issue is not whether such table can be compiled from the other records of the Respondent.  In the instant case we are not concerned with the duty to account.  The real question to ask is whether the Respondent in fact had such documents.

4. The Respondent was the direct employer and at the material times was managing a number of buildings.  It is most probable that the Respondent must have a master payroll table for each month, covering all the buildings under its management. It is common sense that for the purpose of its internal operation and control it is not necessary for the Respondent to prepare physically payroll tables for each building. On the other hand, if there were such tables, one for each building, they would have to be for the purpose of control, management and administration of the individual building. In the instant case I am not convinced that such payroll tables existed. If they existed and if the Respondent had them under its control, or in its custody or possession, they would have been Paragraph 8(b) Documents.   

Monthly Attendance Records

5. The Respondent as an employer must have a master attendance records of its staff including those who served in the management of Hilder Centre. These are not in dispute. Similar to the case of monthly payroll tables, individual attendance records for each building can be compiled or constructed from the master attendance records or other records.   Again we are not concerned with whether the Respondent could or should provide such record. The question is whether they have such specific records, namely monthly attendance records of staff relating to Hilder Centre alone.  It has not been proved that such records exist for Hilder Centre.  If contrary to my findings, such records existed and if the Respondent had them under its control, or in its custody or possession, I would have found them to be Paragraph 8 (b) Documents.

Attendance Records at Site

6. There cannot be any dispute that such records exist  Common sense dictates that they exist. It is unnecessary for the Applicant to justify the use of those records.  They are entitled to them or they are not. Their entitlement does not depend on the use they might put on them.

7. I do not accept the argument of the Respondent that the delivery is limited to a certain reasonableness tests. In any event the site attendance records were clearly kept for the control, management and administration of the building.  The fact that they were also required for the internal and management of the Respondent does not change this fact. I have not been told the difficulty of their delivery.

8. The Respondent claims that these documents are their property.  Be that as it may, I do not think ownership of the documents is relevant. What is relevant is whether these documents are under its control, or in its custody or possession. Paragraph 8 (b) should not be interpreted to limit the delivery to document not owned by the Manager.  If the delivery is limited to documents owned by an owners incorporation, paragraph 8 (b) would be superfluous, or it would have been worded differently.

9. These site records could not possibly contain any information , the disclosure of which by the Respondent to the Applicant could be in breach of the Personal Data (Privacy) Ordinance.

Conclusion

10. Of the three classes of documents sought by the Applicant, only the daily site attendance records are found to exist. They are under the control, or in the custody and possession of the Respondent. As such the Respondent was under a duty to delver up the same under paragraph 8(b).  Ownership of these records is quite beside the point. The delivery of these records does not constitute any breach of the provisions of the Personal Data (Privacy) Ordinance. The Respondent has not delivered these records.  In all circumstances of the cases, it is proper for me to grant the injunction order. There be an order nisi for costs in favour of the Applicant on High Court Scale with Certificate for Counsel to be taxed if not agreed.  The order nisi be made absolute in 8 weeks.