Greenwood Property Ltd. 訴 Incorporated Owners of Kiu Sun Factory Building

LDBM 294 OF 2000

香港特別行政區

土地審裁處

建築物管理申請編號2000年第294號

______________

判 決 書

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1． 申請人是九龍觀塘King Yip Street Kiu Sun Factory Building 14個單位的業主；答辯人是該大廈的業主立案法團。

2． 答辯人的申請是要求土地審裁處（“審裁處”）下令將本案的申請剔除，或是將它的法律程序擱置，直至申請人在高等法院提出的申請（HCMP No. 2833/2000）審結為止。

3. 2000年9月12日，申請人提出本案的申請。為方便分析，本席將它的主要內容列出 ：

'5. The Third Schedule of the DMC ("the Third Schedule") further provides, inter alia, that: -

"(e) The following costs and charges and expenses namely: -

.................

(vii) All costs and expenses properly incurred by the Agent for or incidental to the management of the said building including all legal costs properly incurred by the Agent in carrying out his duties as Agent of the said building under this deed.

shall be borne and paid by the owners in proportion to the respective shares in the said premises for the time being vested in them." (Emphasis added)

6. On 5th May 1999, the Management Committee purportedly passed a resolution ("the 1st Resolution") which stated as follows: -

關於大廈各業主因拖欠管理費及其他所有欠費,導致法團需聘請律師發警告信予該欠費業主、在土地註冊處註契及採取任何法律行動及法庭票控程序而引起的註契及解契費、律師費用、堂費及雜項支出等,均須由該欠費業主按完全彌償基準（Full Indemnity Basis）承擔。

7. On 12th August 1999, the Respondent in an owners' meeting further passed a resolution with the effect that owner of each undivided share of the Building would have to contribute HK$10,000.00 ("the Repair Expenses Contribution") towards the fund for general repair for works required to be done................The said payment was due on 20th August 1999.

...................

14. On 27th August 1999, 14 memoranda of charges ("the Memoranda of Charges") were registered at the Land Registry against the Properties ...................... for a total outstanding payment of HK$161,000 being the total sum of the Outstanding Management Fee and the Outstanding Repair Costs.

......................

19. The Applicant settled the Outstanding Management Fee and the Outstanding Repair Costs on or about 16th November 1999.

............................

23. By the letter dated 10th December 1999, VLL stated that: -

(1) ......................

(2) the Respondent was entitled to demand the Applicant to reimburse the Alleged Legal Costs on a full indemnity basis pursuant to the 1st Resolution which was passed under s 14(1) of the BMO.

24. The Applicant avers that the Respondent is not entitled to demand the Applicant and the Applicant is not liable to pay the Alleged Legal Costs since the 1st Resolution was ultra vires and/or invalid because: -

(1) on a proper construction of clauses 13, 14 and (e)(vii) of the Third Schedule of the DMC: -

(a) the Respondent does not and did not at all material times have the power and authority to pass a resolution demanding any owners (including the Applicant) of the Building to reimburse any legal costs incurred by the Respondent on carrying out its functions and duties on a full indemnity basis;

(b) at most (which is denied), the Respondent is and was at all material times only authorized to pass a resolution to demand any owners (including the Applicant) of the Building to pay any legal costs properly incurred by the Respondent on carrying out its functions and duties on a proportional basis with reference to the number of undivided shares of the Building owned by that particular registered owner;

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

.........................

26. Further, as a matter of law and on a proper construction of the DMC and the Memoranda of Charges, the Applicant is entitled to demand the Respondent to have the Memoranda of Charges discharged forthwith (whether or not the Applicant is liable to pay the Alleged Legal Costs) since the Applicant has already settled the Outstanding Management Fee and the Outstanding Repair Costs which are the only subject matter of the Memoranda of Charges.

27. On 12th June 2000, the Applicant issued an Originating Summons under HCMP No. 2833 of 2000 seeking leave for the taxing of the bill of the Alleged Legal Costs.

........................

29. On 14th July 2000, the Respondent at an owners' meeting purportedly passed, inter alia, a resolution ("the 2nd Resolution") to purportedly ratify the invalid 1st Resolution.

30. As a matter law and on a proper construction of the DMC and the BMO, the 2nd Resolution is ultra vires and invalid as there are no provisions in the DMC and/or the BMO authorizing or empowering the Respondent to pass any resolutions with retrospective effect.

31. By reason of the matters aforesaid, the Applicant stands to suffer loss and damage. The Applicant has been deprived of its proprietary rights and its right under the DMC to freely dispose of its interests in the Properties. Full particulars of the loss and damage will be supplied in due course.

........................

AND THE APPLICANT CLAIMS: -

(1) A Declaration that the Respondent should forthwith discharge or cause the discharge of the Memoranda of Charges; failing which the Registrar of the High Court can exercise his power to execute any documents on behalf of the Respondent to effect the discharge of the Memoranda of Charges;

(2) A Declaration that the 1st Resolution is ultra vires and/or invalid;

(3) A Declaration that the 2nd Resolution is ultra vires and/or invalid;

(4) A Declaration that the Alleged Legal Costs are not legal costs properly and/or reasonably incurred by the Respondent;

(5) A Declaration that the Applicant is not liable to pay the Respondent the Alleged Legal Costs;

(6) Alternatively, a Declaration that the Applicant is only liable to pay its proportional share of the Alleged Legal Costs by reference to the Applicant's ownership in the number of undivided shares of the Building;

(7) Alternatively, damages;

(8) Interest;'

4. 代表答辯人的王祖威大律師指申請人提出本案的申請，基於 5個理由，是濫用司法程序。就構成濫用司法程序的因素，他 說 ：

"The law in clear that it is an abuse of court proceedings (i) if a party makes an election to take certain course of action which another party has relied upon and that party then turns round attempting to seek a determination which is inconsistent to that being elected and (ii) that every party is obliged to make out its complete case in any step taken: Hoystead & Others v. Commissioner of Taxation [1926] AC 155 (see also Henderson v. Henderson (1843) 3 Hare 100 being referred in Yat Tung International Co. Ltd v. Dao Heng Bank Ltd. [1975] AC 581) and such extends to proceedings per Mortimer J, as he then was at 14G in Berthier Godown Ltd. v. E Wah Realty Ltd. [1986] HKC 8"

上述的案例顯示，與訟的一方採取的都是在有關案件的法律程序內採取的立場，而法庭亦按該立場作出裁決，因此在另外一件相關的案件的法律程序內，他不能採取與前者有牴觸的立場。上述案例的原則並不伸展至法律程序以外與訟任何一方採取的立場。就本案而言，香港律師會的調查並未涉及法律程序，申請人提出帳單評定的行為並非是承認負有繳付帳單責任的行為，而申請人在法律程序外採取的立場是與法律程序無關，故此王大律 師所提出的案例是不適用於本案。

5． 就構成第一個濫用司法程序的理由，王大律師說 ："The application taken out by the Applicant under section 67 and 68 of the Legal Practitioners Ordinance Cap.159 Laws of Hong Kong and by doing so has admitted that it was the party liable to pay........................"。他的說法與代表答辯人的Cheung Yuk Kwan律師在他的誓章（節錄如下）的說法都是一致的：

".....................I crave leave to refer to the provisions under section 68(1) of the Legal Practitioners Ordinance ("LPO") by virtue of which provisions the Applicant, by taking out the 1st Bill Taxation Proceedings on 12th June 2000, either has paid the bill (which is not applicable in this case), or is or was liable to pay the same. This single act on part of the Applicant on its lawyer's advice in commencing the 1st Bill Taxation Proceedings amounts to an unequivocal admission of liability to pay the bill by operation of law, ........................."

6. 他們二人的說法都是錯的。事實上，申請人衹是按《法律執業者條例》第67條提出他的申請。該申請的內容清楚顯示此點 ：

"1. Leave be granted pursuant to section 67 of the Legal Practitioners Ordinance (Cap 159 of the Laws of Hong Kong) for the taxing of a bill chargeable on the Plaintiff by the Defendant for the legal costs and disbursements incurred in preparing and registering memoranda of charge and release against the title of 14 properties all owned by the Plaintiff as listed out in the Defendant's letter to the Plaintiff dated 27th August 1999 the original of which is enclosed herewith.

2. Further and/or other relief; and

3. Costs be to the Plaintiff."

(原文無劃線)

7. 第67條與第68條是兩條輒然不同的條文；本席將該兩條條文與本案有關的部份列出，以証實此點。

"67. Taxation of bills on application of party chargeable or solicitor or foreign lawyer

(1) On the application, made within 1 month of the delivery of a solicitor's bill or a foreign lawyer's bill, of the party chargeable therewith the Court shall, ............ order that the bill shall be taxed. ...............

(2) If no such application is made within the period mentioned in subsection (1), then, on the application of the solicitor or the foreign lawyer, or if the party chargeable with the bill the Court may...........order

(a) that the bill shall be taxed;

(b) .............................

Provided that -

(i) if 12 months have expired from the delivery of the bill, ............... no order shall be made on the application chargeable with the bill except in special circumstances ......................"

"68. Taxation on application of third parties

(1) Where a person other than the person who is the party chargeable with the bill for the purposes of section 67 has paid, or is or was liable to pay, the bill to the solicitor or the foreign lawyer, or to the party chargeable with the bill, that person or his executors, administrators or assignees may apply to the Court for the taxation of the bill as if he were the party chargeable therewith, and the Court may make thereon the same order, if any, as it might have made if the application had been made by that party.

(2) If a trustee, executor or administrator has become liable to pay a bill of a solicitor or of a foreign lawyer the Court may, upon the application of any person interested in any property out of which the trustee, executor or administrator has paid, or is entitled to pay, the bill, ........................... order the bill to be taxed ................"

（原文無劃線）

張律師指出申請人根據第68條提出HCMP No. 2833/2000的申請在法律上是等同承認它負有繳付帳單的法律責任；張律師在誓章內的“is or was liable”片語之下加上劃線；這顯示他倚藉此片語以支持他的論據，但HCMP No. 2833/2000的申請衹是依據第67條提出的，而第67條並無上述的片語，故此他的說法不能成立。

8. 第67條與第68條有“chargeable with the bill”的片語，而第68條則更有“is or was liable to pay, the bill”的片語。既然同一條文（第68條）有“chargeable with the bill”及“liable to pay the bill”的兩個片語，它們自然是有不同的含義。The New Shorter Oxford English Dictionary（1993年版）將“chargeable”一字詮釋為“able or liable to be charged”，而The Advanced Learner's Dictionary of Current English (牛津大學出版社，1970年版) 則將該字詮釋為“that may be added to an account”及“that may be made an expense”。由此可見“chargeable with the bill”的片語並無要為帳單負上法律責任的含意。申請人提出帳單評定的申請衹是行使第67條賦予的權利，故此該申請不能被視作它承認要為帳單負上責任的行為。

9. 王大律師指稱申請人濫用司法程序的第二個理由是如下 述：

"The Applicant has taken out a complaint with the Law Society as to the reasonableness of the costs charged and that amounted to an admission in arguing as to quantum and not liability before a statutory tribunal. The Law Society's finding is binding against the Applicant as it has submitted to a tribunal and has elected to argue on quantum. Under the Law Society complaint the Applicant has explicitly elected to challenge quantum under the 1st Bill of Costs. It would be unfair and an abuse of process to allow the Applicant to apply before another tribunal hoping for a different result."

王大律師說 ："the Law Society Disciplinary Committee is a tribunal created under statute (namely the Legal Practitioner's Ordinance) whereby it make its determination upon receipt of evidence from two parties ..............."

10. 2000年12月28日，申請人向香港律師會作出投訴，指稱代表答辯人的劉棟燊律師行曾作出下列不恰當的行為 ：

"A. Deliberately incurring legal costs for services that were unnecessary in the circumstances;

......................

B. Charging for costs not in proportion to the skills and time involved;

......................

C. Refusing to register the releases until after we had their costs.

......................"

11. 本席首先要確定“Disciplinary Committee”是否一個 “tribunal”。《法律執業者條例》第9條授權終審法院首席法官委任一個律師紀律審裁團（Solicitors Disciplinary Tribunal Panel）;在第9B條指明的情況下，這審裁團的審裁組召集人須從該審裁團中委任2名律師以及1名非法律專業人士以組成一個“律師紀律審裁組”（Solicitors Disciplinary Tribunal）以對有關的事宜作出調查。按《法律執業者條例》成立的“tribunal”就衹有這個審裁組；該條例並無提述答辯人所指的“Law Society Disciplinary Committee”。

12. 對律師紀律審裁組的裁斷，《法律執業者條例》第12條有以下的規定 ：

"(1) An order made by a Solicitors Disciplinary Tribunal shall include a statement of its findings in relation to the facts of the case and shall be signed by the chairman or by a member authorized by the Tribunal."

13. 2000年5月20日，香港律師會向劉棟燊律師行發出以下的函件 ：

"The Investigation Committee has considered the matter and it has been resolved: -

That in respect of (1) the reasonableness of 14 Memoranda of Charges to be prepared and registered against the 14 properties in issue; (2) the reasonableness of costs charged by Messrs. Van Langenberg & Lau; and (3) the release of the relevant Memoranda of Charges, the Court in the appropriate venue to adjudicate the matters....................."

信中清楚顯示有關的決定是由“the Investigation Committee”作出的；它並不是一個由“tribunal”作出的裁斷；該決定亦決不會是第12條所指的裁斷。答辯人第二個理由是建基於錯誤的事實，因此它的論據不能成立。

14. 答辯人指申請人濫用司法程序的第三和第四個理由分別後列如下 ：

"The present Application of the Applicant was solely taken out to do away any liability as to costs in which the Applicant has admitted to be liable save for quantum. Such an act is considered to be an abuse of court process especially given the fact that the Applicant has elected a position before the disciplinary committee of the Law Society and also taken out HCMP No. 2833 of 2000."

"The hearing at the Court of First Instance is a live issue and there will be a hearing of the originating summons under HCMP No. 2833 of 2000 and a relating originating summons HCMP No. 5020 of 2000........................."

基於本席對第一和第二個理由的裁決，第三和第四個理由亦自然不能 成立。

15. 王大律師指申請人濫用司法程序的第5個理由是 ：“there is no reason for the parties to have two sets of litigation on identical issues where the entire matter ought rightly to be argued in the Court of First Instance ....................... the consequence of the Applicant in taking out HCMP No.2833 of 2000 prohibits it from re-opening issues as to whether the Applicant was liable to pay costs at all.”基於本席對第一個理由的裁決，第5個理由亦不能成立。

16. 王大律師指兩宗案件涉及的，都是相同的問題，這並非是事 實。HCMP No. 2833/2000一案衹是關於帳單評定的訴訟，但本案申請並非是同樣性質的訴訟。

17. 王大律師指申請人向答辯人提出某個金額作為和解的行為，顯示它承認負有繳付法律費用的責任。本席拒絕接納此論點。申請人已聲明有關的提議是和解的提議，這決不能被曲解為承認責任的行為。

18. 王大律師並無針對申請通知書第1項申索提出理由為何該項申索要被剔除。這項申索與繳付法律費用並無任何關係。無論對繳付法律費用責任的事宜作出何種的裁決，審裁處必需對該事宜及解除註契事宜的問題作出裁決。它需要針對的問題是 ：‘是否申請人欠繳法律費 用，註契便不可以被解除？’。這要視乎1999年5月5日的決議是否有效的決議，因為答辯人是基於此決議對申請人的物業採取註契的行動的，而2000年7月14日的決議確認1999年5月5日決議，故此審裁處需對第1至第3項申索作出裁決。

19． 申請人在申請通知書的第31段聲稱由於註契不能被解除，它 蒙受不能將受影響的物業自由買賣的損失。這項指稱能否成立是取決 於1999年5月5日的決議是否為有效的決議，故此審裁處需對第7項申索作出裁決。

20． 基於前述的理由，本席拒絕答辯人第一項申請。

21． HCMP No. 2833/2000一案衹是局限於法律費用評定的訴訟；本庭需要裁決的問題與該訴訟無關；該案的裁決不會對本案的裁決有所 幫助，但反過來說，假若審裁處裁決申請人並無繳付有關法律費用的責任，則與訟雙方無需繼續HCMP No. 2833/2000的訴訟，故此本席拒絕答辯人的第二項申請。

22． 訟費

本席頒下臨時訟費的命令：答辯人須支付申請人因本申請所引致產生的所有訟費（包括聘請大律師的費用）。該等訟費須以《高等法院規則》的訟費基準而予以評定。如與訟雙方未能議定訟費的款額，則該款額由法庭訂定。如在21天內與訟任何一方不向本席提出申請，則此訟費的命令作實。