NG YUI TONG v. TAIKOO SHING (MANAGEMENT) LTD

LDBM 1/2023

[2024] HKLdT 56

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 1 OF 2023

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DECISION

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Application

1.  By the filing of Form 1 together with an affirmation (“Affirmation”) on 27 May 2024, the applicant applies for leave to appeal from my judgment handed down on 30 April 2024 (“Judgment”). For convenience, I shall adopt the definitions and abbreviations used in the Judgment.

Legal Principles

2.  Section 11(2) of the Lands Tribunal Ordinance, Cap 17 (“LTO”), provides that any appeal to the Court of Appeal against a judgment of the Lands Tribunal be confined to the ground that such judgment is erroneous in point of law.

3.  Section 11AA(6) of LTO further stipulates that leave to appeal shall not be granted unless the Tribunal is satisfied that: (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.

4.  Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 at §17.

5.  An applicant is required to show “more than just an arguable case, but an appeal that has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed: Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515 at §19.

6.  With these principles in mind, I now turn to consider the applicant’s application.

Grounds for Leave to Appeal

7.  The applicant has not set out formal intended grounds of appeal but has instead filed the Affirmation. At the hearing, the applicant adopted the Affirmation as his only intended grounds of appeal. The only basis upon which he says the Judgment is erroneous in law. I shall follow the order of the paragraphs of the Affirmation to distill his intended grounds of appeal.

8.  §§1 to 4 of the Affirmation plainly recapitulate some background of the present case.

9.  §§5 to 7 of the Affirmation set out various clauses of the DMC III. It is noteworthy that Clause 8(c)(iii) was not mentioned in the Re-amended Notice of Application.

10.  §8 of the Affirmation sets out several statutory provisions of the Building Management Ordinance, Cap. 344 (“BMO”). At the hearing, the applicant confirmed that he would not place reliance on those sections as contained in §8.4 of the Affirmation, ie various sections under Schedule 7 of the BMO.

11.  Indeed, those statutory provisions as contained in §8.4 of the Affirmation were not referred to in the Re-amended Notice of Application. Nor were they taken as the matters in dispute at trial. They in any event could not form the basis of the applicant’s grounds of appeal.

12.  §§9 and 10 of the Affirmation just repeated the applicant’s own view on the interpretation of the various clauses of the DMC III.

13.  In §11 of the Affirmation, the applicant posed six questions, which he described as “The LT’s error for leave to appeal to Court of Appeal”. Those questions, however, cannot be properly understood. At the hearing, the applicant was offered an opportunity to clarify and state clearly his intended grounds of appeal, which are summarized and dealt with as follows.

14.  The 1^st Question in §11.1 of the Affirmation is not understood. At the hearing, the applicant clarified that he sought to argue that the “management” as defined in Recital (5) of DMC III does not empower the respondent to undertake the Appliances Works, which are works for improving and upgrading the existing system. Apparently, this paragraph is just a reiteration of his proposition at trial without elaboration.

15.  The 2^nd Question in §11.2 of the Affirmation is not understood. At the hearing, the applicant clarified that he sought to argue that the “management” as defined in Recital (5) of DMC III only empowers the respondent to carry out works for the interests, benefits and enjoyment “of owners and subsequent owners” but not for the “residents” of the flats. That is, the respondent does not have power to undertake the Appliances Works, which are works for improving and upgrading the existing system, for the interests, benefits and enjoyment of the “residents”.

16.  Given such argument (on the interests, benefits and enjoyments for “owners and subsequent owners” vs for “residents”) had not been seriously advanced in the Re-amended Notice of Application or at trial, there is plainly no room for the applicant to bring in such a new topic for argument at this stage.

17.  In any event, the applicant was unable to particularize such argument, not to mention justifying it logically. Indeed, it is difficult to see how the residents of Stage III are also benefited from the Appliances Works together with the owners could develop any serious argument in favor of the applicant in the present proceedings, still less of forming a valid ground of appeal.

18.  Viewed in another way, it would be a hopeless attempt to argue that the owners would not take advantage of the residents being benefited from the Appliances Works bearing in mind that the residents of Stage III should indeed be the owners themselves or the owners’ tenants or licensees.

19.  The 3^rd Question and the 4^th Question respectively in §§11.3 and 11.4 of the Affirmation plainly repeated the applicant’s same complaints at trial. He complained that Clause 7(a) of DMC III, which is subject to the scope of “management” as defined in Recital (5), could not be construed to empower the respondent to “removing and replacing with different appliance for the purpose of improving and upgrading work at the common parts of building of flats” in Stage III.

20.  The 5^th Question in §11.5 of the Affirmation is not understood. When asked to clarify at the hearing, in particular, in what sense and to what extent such question had been canvassed in the Amended Notice of Application and at trial, the applicant immediately withdrew his reliance on such question and did not take such matter any further.

21.  Similarly, the 6^th Question in §11.6 of the Affirmation was not mentioned in the Amended Notice of Application. Nor was it raised as an issue at trial. When asked to clarify at the hearing, the applicant sensibly abandoned the whole sub-paragraph and did not pursue the matter further. Strictly, matters that had not been tried at trial could not form the subject matters of an appeal.

22.  Thus viewed, the six questions aforesaid are either merely a repetition of the same question the applicant had raised at trial without any elaboration or strictly a question that had never been put forward at trial. Hence, they cannot constitute any valid grounds of appeal.

23.  §§12 and 13 of the Affirmation can be dealt with together. The applicant complained this Tribunal to have erred in the interpretation of “management” under Recital (5) by failing to “appreciate the inherent restrictive of the word ‘management’” and failing to “disclose any other applicable authority to support the LT’s intended ‘management’ as stated”.

24.  Such complaint is in ignorance of this Tribunal’s detailed analysis of the construction of DMC III, including the interpretation of “management” under Recital (5), as set out in §§24 to 38 of the Judgment. It started with the general principles governing construction of deed of mutual covenants and the factors to be taken into account in the construction exercises. The purpose of DMC III was considered, followed by an examination of the structure of DMC III and the words used in the relevant paragraphs of DMC III. The interrelationship between the various relevant paragraphs, their overall implications as well as the background facts were analyzed.

25.  The analysis of the Judgment was the result of this Tribunal’s own careful reading and examination of the DMC III, followed by an evaluation of the approach and rationale of the CA Judgment. It was only after such detailed analysis, this Tribunal then respectfully agreed and adopted the approach and rationale in the CA Judgment in construing the scope of the respondent’s management powers, while being alive to the distinction between the CA Judgment and the present case in the sense that the CA Judgment primarily concerned recreational or social activities whereas the present case concerned technological security upgrades and improvements (§31 of the Judgment).

26.  The applicant failed to point out how such analysis in §§24 to 38 of the Judgment is wrong. Nor did he explain how this Tribunal had failed to “appreciate the inherent restrictive of the word ‘management’”. Further, absent any solid analysis on how the CA Judgment is wrong, it is inconceivable for the applicant to complain that the Court of Appeal’s interpretation of Recital (5) and Clause 7(a) of DMC III should not be followed merely by reason of his ongoing application for leave to appeal to the Court of Final Appeal against the CA Judgment. The reality is the CA Judgment remains intact and in full force.

27.  As to the applicant’s challenge under §12.3 of the Affirmation that the Judgment has incorrectly stated some facts, they can be briefly answered as follows :-

(a)  Regarding his complaints in §§12.3.1 and 12.3.3, it is nothing wrong for this Tribunal to describe the respondent as “the estate manager of the Taikoo Shing Estate” in §1 of the Judgment and “estate manager” in §2 of the Judgment. Such statements are accurate descriptions of the real facts.

(b)  It is also noteworthy that the whole Taikoo Shing Estate was abbreviated and defined as the “Estate” whereas the words used to describe the respondent was the “estate manager” not the “Estate manager” in the Judgment. The applicant should not have taken such general description of the respondent out of context.

(c)  Further, the descriptions about the applicant, the respondent, the Stage III and the whole Taikoo Shing Estate as well as the relationships between them have been accounted for in more details in §§4 to 8 of the Judgement. More specifically, the issue in dispute in these proceedings, being the scope of the power of the respondent as “the estate manager of Stage III under DMC III”, had been precisely specified in §15 of the Judgment.

(d)  Hence, there should not be any confusion. The applicant’s criticism is unjustified.

(e)  The complaint in §12.3.2 of the Affirmation is baseless for a rounded-up figure should never be regarded as an error. In any event, a general description of the size of the Estate cannot form any valid basis for grounds of appeal.

(f)  §12.3.4 of the Affirmation is again a general complaint about the adoption of the rationale of the CA Judgment in the Judgment without elaboration, which has been dealt with above.

28.  Thus analyzed, the grounds set out in §§12 and 13 of the Affirmation are unmeritorious.

29.  §§14 and 15 of the Affirmation contained extracts from the judgments of several decided cases without elaboration. Those contained in §§14.1 to 14.5 purely set out the general rules of construction of contracts. §14.6 referred to the two decided cases, Bayview[1] and Grace International Ltd v The Incorporated Owners of Fontana Gardens & Ors[2], which the applicant had relied on during trial. This Tribunal has, in §§47 to 51 of the Judgment, given reasons that the applicant’s reliance on these two cases was misplaced and distinguished the present case from Bayview.

30.  Lacking any solid explanation as to how the Judgment is wrong in law in light of those extracts of judgments, a mere blanket assertion that this Tribunal’s construction of Recital (5), Clause 7(a) and Clause 7(a)(24) of DMC III is incorrect as a matter of law does not take the applicant’s present application any further. The grounds under §§14 and 15 carry no merit at all.

31.  In §16 of the Affirmation, some extracts of a textbook and of a decided case[3] regarding the Control of Exemption Clauses Ordinance, Cap. 71, and the word “dishonesty” were cited. However, it is difficult to see how such general propositions could mount any serious challenge to §§64 to 65 of the Judgment.

32.  §§17 to 24 of the Affirmation simply set out the applicant’s position in the present application.

Conclusion

33.  By reason of the matters set out above, the applicant has not demonstrated why the Judgment is erroneous in law. I do not consider that there is any reasonable prospect of success in the applicant’s intended appeal. Nor am I convinced that the intended appeal would be in the interest of justice.

34.  At the hearing, both parties agreed that costs of the present application should follow the outcome of the application and to be assessed summarily.

35.  Having considered all the relevant circumstances, including the fact that the present application does not involve complicated legal arguments and the submissions of both parties are economical, without further oral submissions in court, I summarily assess the costs of the respondent in the sum of HK$6,000.

Order

36.  Having considered all the submissions of the parties, I dismiss the applicant’s application with costs to the respondent, summarily assessed at HK$6,000, payable forthwith.

37.  This decision is written in English in view of the fact that all the documents submitted by both parties for the purpose of this application are substantially written in English[4]. If required, the applicant may make an appointment with the clerk to the Tribunal for this decision to be orally interpreted to him in Punti.