The Incorporated Owners of Matauwei Apartments v. Ng Shung Cho

LDBM 387 OF 2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 387 OF 2000

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D E C I S I O N

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1. This is an application on the part of the Respondent for the following orders: -

'1. That this Application No. LDBM 387 of 2000 ("the Application") be for want of prosecution dismissed with costs (including the costs of and occasioned by this application by this Summons) to be taxed and paid by the Applicant to the Respondent,

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2. That Messrs. Yu, Tsang & Loong do forthwith: -

(a) be discharged and released of and from and cease to be liable on the undertaking to withhold as stakeholder the sum of HK$60,000.00 given by them under an Order made by His Honour Judge Chow on 28th December 2000; and

(b) be at liberty to return the said sum to the Respondent.

3. The Applicant do repay by way of refund the sum of HK$4,000.00 paid for a Release which was not drawn.'

2. The application to dismiss the Application

On 21st November 2000, the Applicant took out the Application, and claimed against the Respondent for (a) the sum of HK$30,079.00 (being contribution to the maintenance and repair expenses in respect of the repair, maintenance and decoration works of the building in question, legal costs in preparing memorandum of charge, legal costs and search fee), (b) damages, (c) cost of the Application on a solicitor and own client basis to be taxed if not agreed, (d) interest, and (e) further or other reliefs.

3. On 18th December, 2000, the Respondent tendered to the Applicant a cheque in the sum of $34,079.00 in payment of $30,079.00 as claimed in the Application and $4,000.00 being legal costs for discharge of the memorandum of charge. This fact was pleaded in the Notice of Opposition which was filed on 19th December 2000. But the payment was made, as expressed in the letter dated 18.12.2000, "in the light of the urgency of the impending completion of the sale and purchase of the Property". It was made by the Respondent while reserving all his rights and under protests. He only tendered the cheque in order to make his property, the subject matter of a sole and purchase agreement, free from incumbrance. In the Notice of Opposition the Respondent did not admit the legal status of the Applicant. He also did not admit that the Applicant had duly served on him on 14th December 1998 a letter of demand for contributions to the costs, charges and expenses of the repair, maintenance and decoration works, and according to Clause 13 of the Deed of Mutual Covenant of the building in question it was only on demand that the liability on the part of the Respondent to pay such contributions arose. It is clear that the Respondent made the payment not because it admitted the liability to pay such contributions. Therefore all the issues as pleaded are still live issues in this case. Therefore the Respondent's allegation that the Applicant was in abuse of the process of the law in allowing to remain on file the Application but without taking any steps after the cause of action under the Application was extinguished by the Applicant's accepting the said payment cannot stand. Assuming that the cause of action under the Application was extinguished, there is still the issue of costs which has to be tried.

4. On 22nd February 2001, the Applicant filed an application (Form 31) to list for hearing. The parties were notified by the Tribunal to attend the Tribunal on 19th March 2001, for a call-over hearing.

5. On 9th March 2001, the Applicant took out a summons for the purpose of striking out the Notice of Opposition and the Grounds and Particulars on the ground that they disclosed no reasonable ground of defence. This summons was returnable on 19th March 2001. This application was dismissed on 29th March 2001.

6. On 19th March 2001, this application to list for hearing was adjourned sine dine, with liberty to restore. This order is necessary because if the application to strike out succeed, then there was no need to list the case for trial.

7. Since 29th March 2001 the Applicant has not restored the application to list the case for hearing. It should have done so because its application to strike out the Notice of Opposition failed, and it is necessary to have the case listed for trial. There has been a delay of about 151/2 months.

8. Mr. Szeto Yuk Ting, the senior partner of Messrs. Y. T. Szeto & Co., submitted in his affirmation filed on 7.8.2002 that at the hearing on 19th March 2001, while their striking out application was dismissed, the Respondent's solicitor submitted to the Tribunal that the Respondent admitted liability. This coupled with the fact that the Respondent had paid the sum claimed by the Applicant, the Respondent's present summons should be dismissed.

9. On 19th March 2001, it was Mr. C. H. Yeung of Messrs. Y. T. Szeto & Co, who appeared on behalf of the Applicant. The striking out application was not dismissed on 19th March 2001. It was dismissed on 29th March 2001. What Mr. Szeto stated in his affirmation is wrong.

10. I am satisfied that the Applicant had failed to pursue the Application with due diligence, and there has been an inordinate and inexcusable delay on its part in this Application. Despite this, the power to strike out should not be exercised unless the Tribunal is satisfied that the inordinate and inexcusable delay is such as to give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the Respondent.

11. The onus is on the Respondent to satisfy the Tribunal that the Notice of Application should be struck out on these grounds. But the Respondent has simply failed to discharge this burden. Mr. Anthony Pak Kit Loong, a partner of Messrs. Yu, Tsang & Loong, solicitors for the Respondent, claimed that the Respondent has been and is prejudiced. He has been and still is subject to the anguish of litigation over his head without end. As executor in relation to the property in question, he has been hard pressed by beneficiaries to conclude these proceedings. But he has not shown to the Tribunal that the prejudice he suffered can give rise to a risk of a substantial likelihood that a fair trial is no longer possible in view of the 151/2 months' period which has elapsed. In order to dispel the anguish he could have simply applied to restore the application to list for hearing, so that the case can be tried as soon as possible. Mr. Loong also stated that the Applicant is liable for inordinate or inexcusable delay and abuse of the process, but he has not referred to the consequence thereof. The Respondent has not demonstrated that the inordinate and inexcusable delay is such as to give rise to a substantial risk that it is not possible to have a fair trial of the issues in this case. Therefore the Application should not be struck out and I dismiss the Respondent's application to dismiss the Application, with costs to the Applicant, to be taxed, if not agreed.

12. In exercise of the power conferred upon me under Rule 14(2) of the Lands Tribunal Rules, I restore the application to list for hearing which was adjourned sine dine on 19.3.2001. I fix the restored hearing at 9:30 a.m. on 3rd September 2002 in Court No. 1, with an estimate of 1/2 hour reserved for the hearing.

13. Item 2 of the application

With consent of the parties, I make an order in terms of item 2(a) and (b) of the summons, with no order as to costs, upon the Applicant's waving the costs of amendment made on 9th August 2002.

14. Item 3 of the application

Upon the Applicant's undertaking to repay by way of refund the sum of $4,000.00 paid for a Release which was not drawn, I make no order in respect of this item, with no order as to costs.