KWAN PUI SIN v. THE INCORPORATED OWNERS OF MANDARIN COURT

HCMP 2826/2015

MISCELLANEOUS PROCEEDINGS NO 2826 OF 2015

(ON AN INTENDED APPEAL FROM LDBM 253 OF 2014)

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J U D G M E N T
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Hon Poon JA (giving the Judgment of the Court) :

1.  This is the applicant’s application for leave to appeal against two interlocutory orders made by His Honour Judge KW Wong sitting in the Lands Tribunal dated 2 and 19 October 2015 respectively (“the 1^st Order” and “the 2^nd Order”).

Background

2.  The respondent is the Incorporated Owners of the Mandarin Court, 647 - 651 Shanghai Street, Kowloon.  The applicant was at the material times the registered owner of a flat in the Mandarin Court.

3.  On 15 September 2014, the applicant commenced proceedings against the respondent in the Lands Tribunal seeking an order to dissolve the management committee of the respondent elected at its general meeting held on 12 September 2014 for non-compliance with various provisions of the Building Management Ordinance (Cap 344).  The Incorporated Owners denied all of the applicant’s claims.  Prior to the 2014 general meeting, the applicant was the secretary of the Incorporated Owners but was not re-elected to office at the meeting.  During the course of the proceedings, the respondent found out that the applicant had sold her only flat in the Mandarin Court with completion scheduled for 30 October 2015.  The respondent then took out a summons (“security for costs summons”) seeking an injunction to restrain the applicant from disposing of the sale proceeds to the extent of HK$99,300.00 as a security for the respondent’s costs.  The security for costs summons was heard on 2 October 2015.  Upon hearing both parties, the Judge adjourned the hearing to a later date for substantive arguments and made the 1^st Order :

“i) The security for costs summons be adjourned to 10:30am on 26 October 2015 at Court No. 1 for argument with 2 hours reserved;

ii) Leave granted to the applicant to file and serve her affirmation in opposition on or before 9 October 2015;

iii) The IO is at liberty to file and serve an affirmation in reply on or before 16 October 2015;

iv) There be no further affirmation without leave; and

v) Costs reserved.”

4.  In compliance with the 1^st Order, the applicant filed an affirmation in opposition to the security for costs summons.

5.  On 9 October 2015, the applicant took out a summons for leave to appeal against the 1^st Order, returnable on 19 October 2015.  At that hearing, upon the respondent’s oral application, the Judge granted it leave to withdraw the security for costs summons.  But the Judge refused to grant leave to the applicant to appeal against the 1^st Order.  The Judge further ordered the respondent to pay the applicant’s costs of the security for costs summons assessed at HK$2.300.00; and the applicant to pay the respondent the costs of the unsuccessful leave application assessed at HK$2,600.00.  The above orders made at the 19 October 2015 hearing constitute the 2^nd Order.

6.  In his written Reasons for Decision dated 23 October 2015, the Judge explained the reasons for the refusal of leave to appeal.  He said that the 1^st Order was an order for directions which directed a procedure and a timetable for the preparation of the substantive hearing on the security for costs summons.  It was purely a matter of the exercise of the Tribunal’s case management power.  It involved no error of law nor procedural irregularity, contrary to the applicant’s allegation.  The applicant’s intended appeal had no reasonable prospect of success nor was there any other reason in the interests of justice why the appeal should be heard.  Applying the normal rule of costs following the event, the Judge made the costs order mentioned in [5] above.

Grounds of appeal

7.  The applicant now applies to this Court for leave to appeal against the 1^st Order and the 2^nd Order.

8.  The applicant raised 10 grounds of appeal.  In summary, she complains that :

(1) The hearings on 2 and 19 October 2015 were unfair and in breach of Article 25 of the Basic Law and Article 14 of the International Covenant on Civil and Political rights (“ICCPR”).

(2) More specifically, the applicant says that the Judge :

(a) appeared to be biased;

(b) erred in departing from stare decisis in allowing the respondent to withdraw its application for security for costs without regard to attaining justice;

(c) failed to consider that the respondent delayed in notifying the applicant of its intention to apply for security for costs;

(d) erred in departing from Rule 21 of the Lands Tribunal Rules and Order 41 of the Rules of High Court in allowing the respondent to use defective Summons and Affidavit under Section 10(5)(a) and 10(6) of Lands Tribunal Ordinance without regard to attaining justice;

(e) failed to consider that the errors made in the respondent’s summons and affidavit were oppressive to the applicant;

(f) failed to take measure to remedy the applicant’s undue hardship in understanding the respondent’s defective summons and affidavit;

(g) erred in deciding that the respondent’s application be heard before 30 October 2015;

(h) failed to consider that the applicant was/is not legally represented; and

(i) failed to deal with the applicant’s reasons of application for leave to appeal.

Discussion

9.  Under Section 11AA(6) of the Lands Tribunal Ordinance :

Section 11(2):

“… any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law.”

Section 11AA(1):

“… no appeal may be made under section 11(2) unless leave to appeal has been granted by the Tribunal or the Court of Appeal.”

“Leave to appeal shall not be granted unless the Tribunal, the Court of Appeal or the Registrar hearing the application for leave 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.”

10.  In our view, the applicant has failed to satisfy us there is any error in law in the Judge’s decisions, or that her intended appeal has any reasonable prospect of success.

11.  Article 25 of the Basic Law and Article 14 of the ICCPR are about equality before law.  The transcripts of the hearings of 2 and 19 October 2015 show that the Judge had conducted the hearings fairly.  He had given the applicant reasonable opportunities to present her arguments.  There is no substance in the allegations of bias and procedural unfairness.  Grounds (1), (2)(a), (2)(h) and (2)(i) are unfounded and untenable.

12.  As regards (2)(b) and (c), it is within the Judge’s discretion to grant leave to the respondent to withdraw the security for costs summons.  And very fairly, the Judge had ordered the respondent to pay the applicant costs.  We can see no substance in these grounds.

13.  Grounds (2)(d), (e), (f) and (g) concern matters of procedure and case management.  We can see no basis to disturb the Judge’s decision on those matters.

14.  As to the costs order, costs are a matter of discretion for the Judge.  The Judge had awarded costs in accordance with the well established principle of costs following the event.  An appeal against the costs order is bound to fail.

Dispositions

15.  The applicant’s application for leave to appeal is therefore refused.  As the respondent has not put in any submission, we make no order as to costs of this application.

16.  This application is totally without merit.  We make an order under Order 59, rule 2A(8) Rules of the High Court that no party may under Order 59, rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.