關偉光 v. 億達行物業管理有限公司

HCMP 707/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 707 OF 2010

(ON AN INTENDED APPEAL FROM LDBM NO. 197 OF 2009)

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DECISION

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Hon Tang VP (giving the decision of the Court):

1.  The applicant is an owner of a property in Fortune Villa, Tuen Mun.  The respondent is the manager of Fortune Villa.  On 4 March 2010, Deputy District Judge Kot ordered the respondent to permit the applicant to inspect certain accounts documents relating to Fortune Villa.  The order was made in accordance with Schedule 7 of the Building Management Ordinance, Cap. 344 (“BMO”), which provides under clause 2(5):

“ (5) The manager shall-

(a)    permit any owner, at any reasonable time, to inspect the books or records of account and any income and expenditure account or balance sheet; and

(b)    on payment of a reasonable copying charge, supply any owner with a copy of any record or document requested by him.”

2.  When the applicant first made his application on 30 June 2009, he asked for an order that the accounting documents be delivered to him and that the respondent should allow all owners of the premises to inspect the accounts documents.  On 11 January 2010, the applicant amended his application to seek an order that the respondent do supply to him the accounts documents in compliance with Schedule 7.  The respondent, by an Amended Notice of Opposition on 2 February 2010, stated that they were willing to make available copies of accounts documents to any owners of Fortune Villa, including the applicant, in accordance with provisions as contained in clause 2(5) of Schedule 7 of BMO.

3.  On 4 March 2010, Deputy Judge Kot made an order that the respondent should allow the applicant to inspect the accounts documents and supply copies of them upon payment of photocopy charges.  The learned judge made no order as to costs.

4.  The respondent was dissatisfied with the costs order and applied to the learned judge for leave to appeal.  That was refused on 1 April 2010.  The respondent now applies to us for leave to appeal against the costs order.

5.  It is the respondent’s contention that since the applicant started the proceedings without first having made a proper request to the respondent for the same, (Speedy Gainer Ltd v. The Incorporated Owners of Malahon Apartments and Anor, CACV 336/2004 (unreported, 22 July 2005)), the applicant should have been penalised in costs.  The learned judge dealt with costs in a carefully-reasoned decision.  She referred to the background which led to the applicant’s application.  Apparently, there had been protracted litigation between the incorporated owners and respondent over the accounts documents.  That is why the applicant, who was apparently the chairman of the incorporated owners, eventually made the application in his personal capacity.  It was also in dispute before the learned judge whether the respondent had ever refused to supply the accounts documents or allowed the applicant to inspect the accounts documents.  It was also disputed whether the incorporated owners had been denied either copies of the accounts documents or an opportunity to inspect them.  The respondent had also contended before the learned judge that even if the respondent had refused permission to the incorporated owners to inspect the accounts documents or to supply them to the incorporated owners, that did not mean that they would have refused permission to the applicant in his personal capacity to do so.  On the other hand, the applicant contended that given the experience of the incorporated owners, he believed that any request by him would have been refused.  The learned judge took the view that such belief was reasonable.

6.  In all the circumstances and against such background, given the respondent’s pedantic resistance, we are not surprised that the learned judge made no orders as to costs.  Certainly, it is not an order in respect of which it would be proper to give leave to appeal. 

7.  We do not know the background of the respondent.  It may be that it or its owners have substantial means.  It is essential not to lose sight of the fact that the costs involved in any step of the proceedings, must be proportionate to the amount at stake.  We do not know what costs were involved before the learned judge.  We do know, however, that if leave to appeal is granted, and there is an appeal to this court, the amount of costs which will be incurred, would be substantially more than the costs which was at stake before the learned judge.  Such costs can be potentially oppressive.  In any event, we can see no good reason for leave to appeal.  The risk of having to bear substantial costs can be a potential deterrent against even meritorious claims.

8.  We also make an order under O. 59 r. 2A para. 8, that the respondent may not apply under para. 7 of O. 59 r. 2A to request this determination to be reconsidered at an oral hearing inter partes.