THE INCORPORATED OWNERS OF TAK WING INDUSTRIAL BUILDING v. POON CHI HUNG, WILLIAM

HCMP 2505/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2505 OF 2011

(ON AN INTENDED APPEAL FROM LDBM NO. 63 OF 2011)

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BETWEEN

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DECISION

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Hon Kwan JA (giving the decision of the Court):

1.  This is an application for leave to appeal to the Court of Appeal against the judgment of Deputy Judge J Wong, Presiding Officer of the Lands Tribunal, given on 8 September 2011 in LDBM 63/2011. The applicant Poon Chi Hung William (“Poon”) was the respondent in the proceedings below. The respondent herein, being the Incorporated Owners of Tak Wing Industrial Building (“the IO”), commenced the proceedings below against Poon.

2.  Poon failed to obtain leave to appeal from the judge on 22 November 2011. He renewed his application to the Court of Appeal by the summons he issued in the present proceedings on 5 December 2011, stating that his grounds of appeal are set out in his supporting affirmation. That affirmation of 19 pages filed on the same day as his summons was superseded by his “Further Affirmation” of 26 pages with 12 schedules filed on 23 December 2011. The IO by its chairman Chiu Sek Wai (“Chiu”) made an affirmation on 23 December to oppose Poon’s intended appeal. On 29 December, Poon filed an affirmation in reply of 38 pages with one schedule to answer Chiu’s affirmation paragraph by paragraph.

3.  Under Order 59 rule 2A(5) of the Rules of the High Court, the Court of Appeal may determine this application without a hearing on the basis of the documents filed in court. It is appropriate to adopt this course in this application. In so doing, we have considered not only the documents filed in the present proceedings but also the documents filed in the proceedings below, including the trial bundle that is the subject of a number of Poon’s complaints in his intended appeal.

4.  For leave to appeal to be granted, Poon would need to satisfy this court that his appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard (section 11AA(6) of the Lands Tribunal Ordinance, Cap 17). Further, leave to appeal may only be granted under section 11AA on an appeal against a judgment, order or decision of the Lands Tribunal on a point of law (section 11(2), Cap 17).

5.  The background matters giving rise to the proceedings below have been adequately set out by the judge in his judgment of 8 September and may be stated as follows.

6.  At all material times, Poon was and is the registered owner of a unit on the 4^th floor (“the Premises”) of the building as well as the flat roof of the building (“the Flat Roof”). On 4 September 2009, the Fire Services Department issued the first of several fire hazard abatement notices to the IO requiring it to repair the fire services system, the fire hydrant/fire hose reel and water tanks in the building. On 27 October 2009, the Water Supplies Department also issued a letter to the IO asking it to repair the water facilities in the building, including the water pump, the water pipe, the fire services water tank and the drinking water tank. To comply with the above requests, the IO would need to replace the fire services water pump situated at the Flat Roof and would need to have access to the Premises and the Flat Roof. The IO had engaged a contractor for the repair works.

7.  Despite repeated requests and demands of the IO in 2009 and 2010, Poon refused to allow the IO’s contractor to have access to the Premises and the Flat Roof to carry out the works. On 2 November 2010, the Fire Services Department issued a summons against the IO in the magistrates’ court for its non-compliance with a fire hazard abatement notice. On 3 December 2010, the magistrate ordered the IO to comply with the abatement notice within 60 days. The IO applied to the magistrates’ court for a warrant to enter the Premises and the Flat Roof under section 40(2) of the Building Management Ordinance, Cap 344. The principal magistrate adjourned this application sine die for the IO to commence proceedings against Poon in the Lands Tribunal for injunctive relief.

8.  The IO commenced the proceedings against Poon in LDBM 63/2011 on 7 March 2011, seeking inter alia (1) a declaration that it had power under the Deed of Mutual Covenant (“the DMC”) to enter the Premises for the purpose of maintaining the common parts situated at the Flat Roof; and (2) an injunction allowing the IO to enter the Premises during business hours from 9 a.m. to 6 p.m. within 21 days for the purpose of carrying out repairs at the common parts of the building.

9.  Poon filed an amended Notice of Opposition in May 2011 of 62 pages with 9 schedules to defend the proceedings. He alleged that the whole case was caused by the IO’s wrongdoing in that the IO had “unlawfully re-construct[ed] the fire water supply system for the benefit of some factory owners of the building” and that the fire water services system at the building was damaged by the IO’s wrongful conduct. He asserted that he did not deny any right of the IO under the DMC to enter the Premises and Flat Roof, but the IO did not follow and observe requirements in the DMC as well as other safety requirements. He claimed that he did offer full co-operation and had advised the IO to comply with regulations relating to health, safety and third party liability, in view of the risk involved in the work and that he might be liable for occupiers liability, but the IO refused to co-ordinate the time, methodology and safety arrangements of the work in question. He counterclaimed for “punitive damages” against the IO.

10.  In a witness statement he filed in July 2011, he set out his position stating that he “fully agree[s]” that the IO “has the right to carry out the maintenance work set out in it’s [sic] application document”; that he “fully agree[s]” with the DMC and is “willing to follow the DMC”; that he will “fully co-operate” with the IO “whenever he will exercise any [sic] his right and, at the same time, obligation against the said DMC and Cap 344”. He said he is “very willing and happy” to follow the order of the Lands Tribunal “if the Tribunal will delivery [sic] directions and/or orders in related to [sic] satisfying the above safety considerations” so that the IO could commence work. The safety considerations he referred to were provisions in the Employment Ordinance, Cap 57, the Factories and Industrial Undertakings Ordinance, Cap 59 and the duty of care at common law.

11.  The IO framed the following issues of dispute for the purpose of trial: (1) whether Poon was acting reasonably by failing to allow the IO, its servants or agents to enter the Premises at a reasonable time with reasonable notice to conduct the maintenance works at the Flat Roof; (2) what should be the “reasonable time” to conduct the maintenance works at the Flat Roof; and (3) whether Poon’s insistence on the criteria regarding safety and risk is appropriate and reasonable.

12.  Poon did not respond to the request of the IO’s solicitors to agree the issues in dispute, nor did he prepare any list of issues in dispute of his own for the trial. He had requested the IO’s solicitors to include 26 items of documents in the trial bundle by his letter dated 12 July 2011. These documents included a risk assessment report dated 22 November 2010 provided by the IO. In reply, the solicitors wrote to him twice on 18 and 25 August 2011 requesting him to provide copies of four of the items for the purpose of preparing the bundle. He replied by email on 31 August enclosing several but not all of the requested documents. Without further input or request from him, the IO’s solicitors prepared the trial bundle on 1 September and served a copy on him the following day, for the trial which was scheduled on 8 September. No complaint was received from him regarding the trial bundle before or at the commencement of trial.

13.  The IO’s chairman, Chiu, was the only witness called to give evidence at the trial for the IO. Poon gave evidence for himself.

14.  The judge had no difficulty in ruling that the IO has a legal right to enter and pass through the Premises and the Flat Roof to carry out the proposed works and that in view of Poon’s attitude, it was appropriate to grant a mandatory injunction to the IO. As to the disputes between them whether Poon had acted reasonably in insisting on his criteria relating to safety and risk be complied with by the IO before allowing the latter access to the Premises and the Flat Roof, the judge held that Poon had behaved unreasonably in that he had demanded too much. All that he was asked to do was to give access for the work to be done, he was not asked to supervise the works or act as an expert to monitor the works. The judge held that the IO had provided adequate information to Poon on the scope of the works, and had gone to the length of obtaining the risk assessment report to meet his demands. The IO had also provided copies of two insurance policies taken out by its contractor, on employees’ compensation and on contractors’ all risks. The judge concluded that reasonable measures had been taken by the IO to address such concerns that Poon might reasonably have for the safety of himself, his employees and his property.

15.  The judge answered issues (1) and (3) of the issues in dispute in the IO’s favour. As for issue (2), the judge held that a reasonable time to carry out the works at the Flat Roof would be three consecutive days, from 9 a.m. to 6 p.m., with one hour for lunch. He made a declaration that the IO do have power under the DMC to have reasonable access regarding the Premises and the Flat Roof for the purpose of maintaining the common parts situated at the Flat Roof and granted a mandatory injunction ordering Poon to allow access to the Premises and the Flat Roof for such purpose during the hours as aforesaid. Poon’s counterclaim was dismissed, as he had failed to come up with proof that the fire services system was damaged by the IO as alleged.

16.  The judge saw no reason to depart from the general rule that costs should follow the event and awarded costs in favour of the IO. He made a summary assessment at the conclusion of trial. The sum he assessed was $92,710. A day after the assessment, the IO’s solicitors wrote to the judge stating they had inadvertently forgotten that their retainer with the IO was agreed at $35,000, so they could only claim the cost of the retainer plus disbursements of $41,770 in the total sum of $76,770. Poon responded by suggesting that the procedure in Practice Direction 14.3 should be followed. The judge declined to adopt Poon’s suggestion and varied the assessed costs to $76,770 having regard to the indemnity principle.

17.  The reasons for the judgment of 8 September were handed down on 30 September. Prior to that and on 12 September, Poon had taken out an application for the judge to review his decision. This was dismissed by the judge on 30 September. On 10 October 2011, Poon issued a summons seeking leave to appeal to the Court of Appeal. In his supporting affirmation of the same date, he attached a draft Notice of Appeal of 16 pages. He sought to set aside the orders on 8 September and asked for an order that the IO should pay his costs of the proceedings below and on appeal. By then, the IO’s contractor had, pursuant to the mandatory injunction granted, gained access to the Premises and Flat Roof and carried out the work required on 19 and 20 September. So the only effect if the intended appeal were successful would be to set aside the costs order.

18.  The judge heard his summons for leave to appeal on 15 November 2011 and dismissed his application in a ruling handed down on 22 November, having concluded that Poon failed to satisfy the threshold requirement for leave to appeal to be granted under section 11AA(6) of Cap 17.

19.  This court has considered thoroughly the documents filed by Poon in these proceedings in support of his application and the rambling submissions he made. The grounds of appeal he relied on were essentially the same as those set out in his draft Notice of Appeal. We do not find it necessary to repeat the grounds of the proposed appeal, which are verbose and untenable.

20.  We are in complete agreement with the judge this is plainly not a case to grant leave to appeal, and with the succinct reasons given by the judge in his ruling on 22 November. There is no substance in Poon’s contention that the judge was in error in accepting “false evidence” from IO in that the makers of certain documents in the trial bundle were not called to testify and that the IO did not serve a hearsay notice. We are satisfied there was no unfairness to Poon in the manner the trial was conducted or in the summary assessment of costs at the conclusion of the trial. As the judge had pointed out, pursuant to sections 10(5) and (6) of Cap 17, the proceedings in the Lands Tribunal should be conducted with as much informality as is consistent with attaining justice and the Tribunal has power to admit in evidence any statement, document, or information whether or not it would otherwise be admissible and attach such weight to it as may be appropriate in the circumstances. There is no basis to interfere with the discretion of the judge in awarding costs to the IO or the summary assessment he made.

21.  For the above reasons, we dismiss the application for leave to appeal. As the IO has incurred legal costs in resisting this application, we make an order nisi that Poon is to pay the IO’s costs of this application, which shall become absolute within 14 days of this decision. We order that the IO’s costs are to be assessed summarily, and for that purpose, we direct the IO’s solicitors to lodge their skeleton bill of costs and serve a copy on Poon within seven days of the order nisi becoming absolute. We give leave to Poon to respond to the skeleton bill within seven days of the service of the same on him.

22.  As this application for leave is entirely without merit, pursuant to the power under Order 59 rule 2A(8) of the Rules of the High Court, we order that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.