李志輝 v. 蘇麗珍

LDBM 56/2020

[2021] HKLdT 37

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 56 OF 2020

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BETWEEN

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DECISION ON COSTS

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Background

1.  The applicant is the owner of Flat 2215, Hiu Fai House, Hiu Lai Court (“the Estate”), 21 Hiu Kwong Street, Kwun Tong, Kowloon, Hong Kong.

2.  The respondent was the chairman of the management committee of the Estate’s owners’ corporation (“the IO”).

3.  The applicant’s application in these proceedings was to ask this tribunal to order the respondent to convene a general meeting of the IO pursuant to paragraph 1(2) of Schedule 3 of the Building Management Ordinance, Cap 344 (“the BMO”), as not less than 5% of the owners of the Estate had requested the respondent to convene such a meeting but the respondent refused to do so.

4.  The agenda of the proposed meeting was to re-elect all the members, chairman, treasurer and secretary of the 6^th management committee.

5.  There is no dispute that the respondent did receive the request of not less than 5% of the owners of the Estate for convening the meeting, but the respondent contended that the meeting should be held after the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation, Cap 599G (“the Regulation”) has ended and the current pandemic of Covid-19 has subsided.

6.  However, by a consent summons dated 27 October 2020, the respondent agreed to convene the requested meeting on or before 27 December 2020; and upon holding of the meeting, the applicant agreed to withdraw and/or discontinue the present proceedings within 14 days thereafter.  The parties also agreed that they should make written submissions on costs within 14 days if costs could not be resolved.  The consent summons was approved by me and I granted the orders as agreed on the same day.

7.  On 23 December 2020, the respondent filed a summons to seek for an extension of time to hold the said meeting on or before 31 January 2021.  The summons was dealt with by me on papers.  I granted the extension sought by the respondent in view of the significant health risk at that time as submitted by the respondent, namely there was an outbreak of Covid-19 cases at the United Christian Hospital which is just next to the Estate, and there were 2 unrelated Covid-19 cases at Hiu Sing House, one of the buildings of the Estate, causing the government to impose compulsory Covid-19 test on all the persons who had been present at Hiu Sing House during the period from 17 to 30 December 2020.

8.  The requested meeting was then convened on 31 January 2021, and the applicant was elected as the chairman of the management committee in place of the respondent.

9.  Thereafter the applicant filed and served a Notice of Discontinuance on 10 February 2021 to discontinue the proceedings herein.

10.  As the parties could not agree on costs, I made an order on 4 March 2021 to have the issue on costs decided on papers.

11.  This is my decision on costs.

The law

12.  Rule 27(1) of the Lands Tribunal Rules, Cap 17A (“the LTR”) stipulates that “A party may, without leave of the Tribunal, discontinue the proceedings or withdraw any part thereof by serving a notice to that effect on the other party.”

13.  Thus, the applicant was entitled to discontinue the proceedings herein by serving the Notice of Discontinuance on the respondent on 10 February 2021, and it could be done without leave of the Tribunal.

14.  Rule 27(2) of the LTR stipulates that “A party upon whom a notice mentioned in subrule (1) is served may, within 14 days of that service, apply to the Tribunal for an order for costs”.

15.  However, in our present case, the issue on costs was raised by both parties by way of the consent summons dated 27 October 2020.  

16.  Section 12(1) of the Lands Tribunal Ordinance, Cap 17 (“the LTO”), stipulates that “The costs of and incidental to all proceedings in the Tribunal are in the discretion of the Tribunal, and the Tribunal has full power to determine by whom and to what extent the costs are to be paid.”

17.  Thus, the tribunal has a wide discretion on costs.  The tribunal can in fact order costs on either High Court scale or District Court scale (see section 12(5) of the LTO).

18.  Moreover, the tribunal may, so far as it thinks fit, follow the practice and procedure of the Court of First Instance (see section 10(1) of the LTO).

19.  Order 62, rule 10(1) of the Rules of the High Court stipulates that “Where a plaintiff by notice in writing and without leave either wholly discontinues his action against any defendant or withdraws any particular claim … , the defendant may tax his costs of the action or his costs occasioned by the matter withdrawn”.

20.  However, in Sino Estates Management Ltd v Leung Wai Piu (unreported, LDBM 238/2004), it was submitted that the LTR required the respondent to apply for costs, and thus, Order 62, rule 10 should not be applicable to cases at the Lands Tribunal.  Whilst it was accepted that the respondent was not entitled to costs as of right, it was held that the burden was on the applicant to show good reason for the displacement of the general rule governing costs on discontinuance (see paragraph 62/10/2A of Hong Kong Civil Procedure 2021).

21.  I accept the above ruling and am also of the view that the applicant bears the burden to show good reason why he is entitled to costs against the respondent instead of liable to pay costs to the respondent.

22.  In deciding which party is entitled to costs, the tribunal should see the likely outcome after trial of the substantive issues.  The “likely outcome after trial” and “substantive issues” points were mentioned by HH Judge S Lo in 陳小華及其他 訴 鄭道珍, LDBM 95 of 2018, where he held that:-

“22. 本席認為特別在當案件變得學術性 (academic) 的時候，而不是申請人 (或原告人) 認同他的申索沒有勝算 (acknowledgment of likely defeat) 的話，審裁處或法庭只須裁定在實質議題 (substantive issues) 上申請人 (或原告人) 或答辯人 (或被告人) 誰較大可能勝訴，或裁定若在審訊後，較大可能的結果 (likely outcome after trial) 。而不是謝大律師所說的申請人 (或原告人) 須證明他必然勝訴 (his case is so strong that he is bound to win had it gone on to trial) ，才可獲訟費 。本席認為在一般有事實爭議的案件中，申請人 (或原告人) 是極難證明若在審訊後，他必然勝訴，這門檻是太苛刻和不切實際。本席亦察覺到黃法官在Felan Investment一案和歐陽法官於 Famous Marvel一案都沒有要求申請人或原告人須證明他必然勝訴，但最終，申請人和原告人在這兩宗案同獲訟費。上訴庭在Felan Investment一案中亦認同黃法官的裁決。” (emphasis added).

23.  Thus, for the applicant to be able to claim costs against the respondent when he discontinued the case, the applicant has to show that he has more chances to win the case on the substantive issues or that it is the likely outcome after trial.

24.  In addition, as submitted by the respondent, in exercising its discretion on costs, Order 62, rule 5 of the Rules of the High Court provides that the court may take into account, inter alia, the following:-

“(d) any written offer which is expressed to be “without prejudice save as to costs” and which relates to any issue in the proceedings, but the Court may not take the offer into account if, at the time it is made, the party making it could have protected his position as to costs by means of a sanctioned payment or a sanctioned offer under Order 22;

(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(g) any admissible offer to settle made by a party, which is drawn to the Court’s attention.”

Substantive issue

25.  First of all, the applicant discontinued the proceedings not because he had no case against the respondent, but on the contrary, he has obtained the relief claimed by having the requested meeting held on 31 January 2021.

26.  If the case had proceeded to trial, the substantive issue in the present case is whether the respondent was entitled to delay the holding of the meeting in view of the Regulation and the pandemic as contended by the respondent.

27.  Paragraph 1(2) of Schedule 3 of the BMO stipulates that the chairman shall convene the requested meeting within 14 days of receiving the request from not less than 5% of the owners, and hold the requested meeting within 45 days of receiving such request.  These are the statutory deadlines for convening and holding of the requested meeting.  The BMO does not have any provision to allow the respondent to have any exemption not to follow the deadlines.

28.  On the other hand, Schedule 1 of the Regulation does give a list of exemptions for group gathering (see section 3(2)(a) of the Regulation). In particular, paragraph 3 of Schedule 1 of the Regulation provides that “Group gathering for performing any function of a statutory body” is exempted from the prohibition on group gathering.

29.  More importantly, paragraph 11(a) of Schedule 1 of the Regulation provides another exemption as follows:-

“Group gathering during any of the following meetings at which no food or drink is served and, in the case of a group gathering of more than 50 persons, measures are in place for separating the participants in the gathering in different rooms or partitioned areas, each accommodating not more than 50 persons –

(a) a meeting of a body that must be held within a specified period in order to comply with any Ordinance or other regulatory instrument that governs the operation of the body or its business;”

30.  The present proceedings were started on 3 June 2020 when the Notice of Application was filed.  There was a pre-action letter dated 4 May 2020 sent by the applicant’s solicitors to the respondent stating that the request to convene a general meeting was in accordance with paragraph 1(2) of Schedule 3 of the BMO and such a meeting falls within the exemption of paragraph 3 of Schedule 1 of the Regulation.

31.  On 11 May 2020 the respondent’s then solicitors, Messrs Chung & Kwan, gave a reply letter and refused to convene such a meeting on the ground, inter alia, that convening such meeting is not an exemption under the Regulation as the IO is not a statutory body.  The same contention was repeated in paragraph 8(d) of the respondent’s Notice of Opposition filed on 22 July 2020.

32.  On 15 May 2020 the applicant’s solicitors issued a clarification letter stating that the requested meeting should be exempted under either paragraph 3 and/or paragraph 11(a) of Schedule 1 of the Regulation.  In the same letter, the applicant’s solicitors also requested the respondent to confirm whether she was agreeable to convene the meeting at the latest within 14 days after the Regulation has ended or on such an earlier and suitable date to avoid further delay of the meeting.

33.  However, on 22 May 2020, Messrs Chung & Kwan replied that the respondent would only convene the meeting as soon as possible after the Regulation has ended and the pandemic has subsided.

34.  Since the respondent did not confirm with the applicant as requested in the said letter of 15 May 2020, the applicant took out the present application on 3 June 2020.

35.  At the call-over hearing on 5 October 2020, I asked the parties whether they had enquired with the Department of Health as to whether such an owners’ meeting could be convened under the present health regulations.  The parties confirmed that they had not done so.  Thus, the call-over hearing was adjourned to 28 October 2020 for the parties to make such enquires.

36.  On 14 October 2020 the respondent’s present solicitors, Messrs Mayer Brown, issued a letter to the Department of Heath to seek clarifications on whether paragraph 3 and 11(a) of Schedule 1 of the Regulation are applicable to the requested meeting.

37.  On 27 October 2020, the Secretary for Food and Health replied as follows:-

“As stipulated under section 1(2) of Schedule 3 to the Building and Management Ordinance (Cap. 344), the chairman of the management committee shall convene a general meeting of the corporation at the request of not less than 5% of the owners for the purposes specified by such owners within 14 days of receiving such request, and hold the general meeting within 45 days of receiving such request.  If a management committee must convene a meeting within a specified period in order to comply with Cap. 344, the group gathering in the meeting can be exempted under Schedule1 to Cap. 599G as far as the abovementioned conditions are satisfied.  While the exemption applies to members of the Incorporated Owner participating in the meeting, supporting personnel involved in arranging the meeting may be covered by another exempted group gathering, namely “group gathering at a place of work for the purposes of work” (item 4 of Schedule 1 to Cap. 599G refers).”

38.  Thus, the Secretary for Food and Health has clarified and confirmed that the requested meeting would be an exempted group gathering under Schedule 1 of the Regulation, and in particular paragraph 11(a) of Schedule 1 of the Regulation is applicable to the requested meeting as contended by the applicant.

39.  It is clear that paragraph 11(a) of Schedule 1 would be able to give an exemption for the respondent to convene the requested meeting of the IO, and it is wrong for the respondent to insist that the meeting should be held after the Regulation has ended.

40.  It is also wrong for the respondent to insist that the meeting should be held after the pandemic has subsided.  No one knows when the pandemic would subside.  To insist on such an event to occur, it is equivalent to postponing the meeting indefinitely.  It is unreasonable for the respondent to delay the meeting by imposing such a condition when there are statutory deadlines for her to comply with.

41.  If the respondent had not insisted on the wrongful interpretation of the Regulation, and was prepared to provide the applicant a more definite date for convening the requested meeting, the present application could have been avoided.

42.  Moreover, the respondent contended that due to the pandemic, she was unable to hire any community hall, school or sports centre in the area of the Estate to hold the meeting. The volleyball and basketball courts of the Estate were the only possible venue for convening the general meeting but convening a general meeting in those courts would contravene the Regulation. 

43.  The Estate has 4864 registered owners.  The respondent estimated that as many as 800 to 1,000 attendees might attend such a meeting. As the volleyball and basketball courts are places accessible by the public and therefore “public places” within the meaning of the Regulation, the respondent was concerned that holding a meeting in those courts would be in breach of the Regulation.

44.  As discussed above, this interpretation is wrong and such a group gathering, even in public places, is exempted under the Regulation. 

45.  Further, irrespective of the Regulation, the respondent contended that she needed to ensure that the meeting could be safely held. Health and safety were her paramount concerns.  The respondent therefore wanted to ensure that there was sufficient space between each attendee, being at least 1.5 metres apart, to minimize the risk of infection.  If the respondent failed to take adequate steps, she would face significant risks of being liable for civil claims in the event attendees were infected.

46.  Based on the assessments by the respondent and the property manager of the Estate, Mr. Kelvin Wong (黃國坤), the volleyball and basketball courts could only accommodate at most 288 attendees.  The respondent in fact instructed a contractor to analyze the spacing requirement.

47.  The respondent also contended that such courts were not suitable because they could be exposed to weather conditions.  It would also be extremely noisy and there were risks of items being thrown from height.

48.  Nevertheless, the legal requirement of “1.5m” is stated under section 10 of the Regulation in relation to “Power to disperse prohibited group gathering etc. in public place”.  As the subject meeting is exempted under paragraph 11(a) of Schedule 1 of the Regulation, section 10 of the Regulations shall not be applicable and there should be no such “1.5m” legal requirement for convening the meeting.  As such, it is wrong for the respondent to insist on adopting the “1.5m” requirement as a safety precaution. 

49.  The requirement under paragraph 11(a) (apart from no food or drink is served) should just be that when the group is more than 50 persons, they should be in different rooms or partitioned areas, each accommodating not more than 50 persons.  Judging from the sizes of the volleyball and basketball courts, there should not be a problem in accommodating 800 to 1,000 persons with partitioned areas each limited to 50 persons.

50.  The issues on noise, weather conditions and items being thrown from height are all manageable issues and should not be concerns that outweigh the importance of having the requested meeting.

51.  Thus, I am of the view that no suitable venue is not a valid defence available to the respondent in not convening the meeting. 

52.  In the circumstances, I am satisfied that the applicant has established that he has more chances to win the substantive issue than the respondent or that the likely outcome of the trial would be for the tribunal to order the respondent to convene the requested meeting.

Personal liability of the respondent

53.  Although the respondent alleged that she was willing to convene such a general meeting in accordance with the request, she contended that the decision to postpone the meeting was agreed by the management committee unanimously.

54.  However, her failure in not convening the meeting before the statutory deadlines made her personally liable to the applicant’s claim. Paragraph 1(2) of Schedule 3 of the BMO stipulates that this is the personal responsibility of the chairman of the management committee to convene such a meeting.  In 胡桂容及廖廣海 訴 黃漢明, LDBM 323/2002, I held that:-

“由上述條文可見，召開業主大會的責任在於管理委員會主席，而不是管理委員會。因此，答辯人本身有責任在收到要求後14天內，召開業主大會。答辯人不能將這責任轉移至管理委員會。即使管理委員會決定不召開業主大會，這並不等於答辯人必須跟從管理委員會這個決定。本席認為這個責任是答辯人個人的責任，應由答辯人個人去作決定及承擔後果，與管理委員會完全無關。因此，申請人並沒有告錯答辯人。” (emphasis added).

55.  Thus, the applicant is entitled to make the present claim against the respondent personally.

Agreement to convene meeting after the Regulation has ended

56.  The respondent contended that in the applicant’s solicitors’ letter dated 15 May 2020, the applicant had requested the respondent to confirm that the meeting would be held within 14 days after the Regulation has ended, and the respondent’s then solicitors, Messrs Chung & Kwan, responded on 22 May 2020 that the respondent would convene the meeting as soon as possible after the Regulation has ended and the pandemic has subsided.  As such, there was a clear agreement, at least in principle, that a meeting could be convened after the Regulation has ended.  However, despite this, the applicant commenced the application on 3 June 2020.  The application was completely unnecessary given the parties had agreed that a meeting could be convened after the Regulation has ended. 

57.  The respondent therefore asks the tribunal to take this agreement into account in exercising its discretion on costs.

58.  The exact wordings of the relevant part of the applicant’s solicitors’ letter dated 15 May 2020 are as follows:-

“根據本行客戶的指示，本行客戶非常關注公眾衛生安全及現時有關新型冠狀病毒的影響。基於上述理由及希望能夠合理地盡快處理題述事項，根據本行客戶的指示，本行要求貴行客戶確認是否同意最遲於該規例終止後14天內根據《建築物管理條例》(第344章)附表3「法團及會議及其程序」第1(2)條規定發出召開題述業主特別大會的通知及根據其規定召開業主特別大會或在任何較早及適合情況下發出召開題述業主特別大會的通知及根據其規定召開業主特別大會，以免就召開題述的業主特別大會有進一步阻延。”

59.  The exact wordings of the relevant part of Messrs. Chung & Kwan’s letter dated 22 May 2020 are as follows:-

“本當事人重申，當該規例終止及疫情退卻後，本當事人會盡快舉行會議”

60.  It is clear from the above wordings that the applicant was asking for a relatively definite date, either 14 days after the Regulation has ended or an earlier date to be proposed by the respondent such that the applicant could know the time frame for convening the meeting.  The respondent’s reply had no definite date.  As such, I do not agree with the respondent that the parties had come to an agreement on convening the meeting.

61.  It is therefore necessary for the applicant to commence the proceedings herein to compel the respondent to act in accordance with the BMO.

Offers by the parties

62.  On 21 October 2020, the applicant’s solicitors wrote to Messrs Mayer Brown and stated that the applicant has been provided with reply letters from the Secretary for Food and Health and Kwun Tong District Office which were of the views that an extraordinary general meeting under the BMO falls within the exemption under paragraph 11(a) of Schedule 1 of the Regulation.  The applicant offered to the respondent that she could undertake to procure and take all necessary steps to convene the extraordinary general meeting as requested and such meeting should be held on or before 13 December 2020, and that the respondent should pay 70% of the applicant’s costs.

63.  On 23 October 2020, by way of a without prejudice letter, the applicant, trying to amicably settle the matter, further offered to have 50% of the costs to be paid by the respondent but such proposal was rejected by the respondent.

64.  The respondent contended that her case was not simply based on a prohibition under the Regulation.  Irrespective of whether there was an exemption under the Regulation, there was still a fundamental factual issue about whether a meeting could be held in the volleyball and basketball courts due to health and safety reasons and whether it was a suitable venue.  These factual issues were never resolved. 

65.  Due to relaxation on restrictions for indoor venues, the respondent was making enquiries to hire the sports centre near the Estate.  The respondent therefore agreed to the applicant’s proposal only because an indoor venue might be available and not because the volleyball and basketball courts were a suitable venue.  As the respondent needed further time, the parties agreed to have the meeting held on 27 December 2020.

66.  The respondent submitted that even if the tribunal is not minded to award costs to the respondent, the respondent should not be liable for the applicant’s costs for the following reasons:-

(a) The matter was resolved by consent and there was no “successful party”.  The factual issue about whether a meeting could have been convened earlier was never resolved; and

(b) The Respondent was forced to defend the application despite that there was an agreement between the parties that a meeting could be convened after the Regulation has ended.   

67.  The respondent contended that in the circumstances, given the parties have agreed to resolve the matter, it was only reasonable and fair that there be no orders as to costs.

68.  I do not accept the respondent’s contentions in this regard.  As aforesaid, the respondent was wrong in her interpretation of the Regulation.  The volleyball and basketball courts were suitable venue to hold the meeting.  Thus, her refusals to accept the applicant’s offers were clearly unreasonable.  Although the parties had the meeting convened by agreement, the issue on costs was never agreed.  There is simply no basis to ask the tribunal to give no order as to costs.

69.  As aforesaid, the applicant would be able to win on the substantive issue or the likely outcome of the trial would be in favour of the applicant.  Thus, the applicant is entitled to costs against the respondent.

Conclusion

70.  In the circumstances, I order that the respondent do pay the applicant costs of the proceedings herein, to be taxed on District Court Scale if not agreed.