NOMINSHARE LTD v. THE INCORPORATED OWNERS OF KWONG FUNG TERRACE

LDBM 191/2011

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 191 OF 2011

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D E C I S I O N

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1.  On 8 October 2013, the application was tried before me. Judgment was handed down on 28 January 2014 dismissing the application (“the Judgment”). I further made an order nisi that the Applicant should pay the Respondent costs of the application.

2.  By a Summons taken out on 19 February 2014, the Applicant asks for leave to appeal against my dismissing the application and entering judgment for the counterclaim.

The Application for Leave to Appeal

3.  Sections 11 and 11AA of the Lands Tribunal Ordinance  provide for appeals from the Tribunal :-

(a)	A party may appeal to the Court of Appeal against a judgment, order or decision of the Lands Tribunal on the ground that such judgment, order or decision is erroneous on point of law: section 11(2) of the Lands Tribunal Ordinance (“LTO”).
(b)	No appeal may be made under section 11(2) unless leave to appeal has been granted by the Lands Tribunal or the Court of Appeal: section 11AA(1) of the LTO.
(c)	Leave to appeal shall not be granted unless the court is satisfied that either (i) the appeal has a reasonable prospect of success; or (ii) there is some other reason in the interests of justice why the appeal should be heard: section 11AA(6) of the LTO.

4. Mr Lee who did not appear for the applicant at trial now submits that I have erred in finding that, given the nature of the Work,  the cost falls within the ambit of general fund and was therefore governed by s.20 of BMO and not as special fund governed by Schedule 7.  He is of the view that a major renovation at the amount of $39,000,000 must be classified as special fund; and in the event that no special fund has been established by the Manager under paragraph 4 of Schedule 7, and the owners thus had not been asked to decide on the amount and when to pay contributions, the owners have no liability to pay.

5.  I asked whether he had could assist me with the DMC to show how and why he said that the costs of the Work could not be put under general fund.  He submitted that if there was inconsistency between the DMC and the BMO, BMO prevails.  He did not explain how and why he said there were inconsistencies between the two; namely Section 6 (Management Of The Building) and in particular Clause 6.14 of the DMC and paragraph 4 of Schedule 7.

6. As far as I could see there were no inconsistencies between the paragraph 4 of Schedule and Section 6 the DMC. (paras 18-29 of the Judgment refer).

Conclusion

7.  I do not see that the interlocutory application for leave to appeal has satisfied the requirement that either (i) the appeal has a reasonable prospect of success; or (ii) there is some other reason in the interests of justice why the appeal should be heard: section 11AA(6) of the LTO.  The Applicant’s application is therefore dismissed.

Costs

8.  I order the Applicant to pay the costs of the Respondent to be taxed at District Court scaleif not agreed.  This is an order nisi to become absolute within 14 days if no application is taken out to vary the same.