MAK KAM CHIU v. 富明閣業主立案法團

LDBM 204/2017

[2019] HKLdT 43

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 204 OF 2017

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D E C I S I O N

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1.  This is the applicant’s application for leave to appeal against my decision dated 11^th March 2019 (“the Decision”). Parties have agreed to have the application dealt with by way of paper disposal.

2.  I shall not repeat the background of the case which has been summarized in paragraphs 2 – 15 of the Decision. I shall also adopt the same abbreviations as used in the Decision.

3.  The applicant advances 2 grounds of appeal in its draft grounds of appeal. The draft grounds of appeal can be summarized as follows:

1)  It was plainly wrong and/or an err in law to find there was issue estoppel;

a) The Adjudicator had expressly stated, at paragraph 8 of her decision dated 29^th March 2016 (“the Review Decision”), it was not necessary for her to determine or to rule on the proper delineation of the Car Parking Spaces;

b) The Small Claims Tribunal does not have the jurisdiction to determine or rule on matters relating to the proper delineation of the Car Parking Spaces;

c) The Adjudicator has no jurisdiction to determine or rule on the property rights concerning the Car Parking Spaces; and

d) Even if issue estoppel is established, it should not be applied due to the injustice it would cause to the applicant in this present case.

2)  It was plainly wrong and/or an err in law to hold the Application as being a Henderson v Henderson abuse:

a) The Tribunal should have taken into account there was no issue estoppel in this present case;

b) Whether the applicant is “improving” his case should be left to be determined at the substantive trial;

c) The wording of the Adjudicator’s decision may have influenced the applicant’s decision to appeal. Hence the absence of an appeal should not be given weight; and

d) The Application would not bring the administration of justice into disrepute.

4.  I have considered the written submissions of both parties. I do not intend to respond to each and every submission. Suffice to say, I shall respond to the salient points.

FIRST GROUND OF APPEAL

5.  The arguments raised on this intended ground of appeal have been previously argued at the substantive hearing. I have dealt with the same in paragraphs 18 – 25 of the Decision and I do not intend to repeat my reasoning therein. In summary, I have already explained my interpretation of paragraph 8 of the Review Decision. I have also explained why I believed the applicant’s argument on jurisdiction is misconceived.

6.  There are 2 new submissions made by Mr Cheung for the applicant. The first new argument is based on the Adjudicator’s use of the words “本案” and “案中” in paragraph 8 of the Review Decision. The second new submission is on grounds of injustice.

7.  Regarding the first new submission, Mr Cheung argues the use of the words “本案” in the last sentence of paragraph 8 of the Review Decision, which reads “而本案亦無需就此議題作事實的裁定,” must be taken to mean a determination of the proper delineation of the Car Parking Spaces was unnecessary in the present case. Mr Cheung submits that upon reading the Review Decision as a whole, and having regard to the said sentence in paragraph 8 of the Review Decision, there cannot be any question of issue estoppel being raised.

8.  I have already dealt with the same in paragraph 25 of the Decision and have explicitly set out my understanding of paragraph 8 of the Review Decision having regard to the last sentence of the paragraph. In coming to my decision, I was fully aware of the words used by the Adjudicator but nevertheless, for reasons set out in the Decision, I disagreed with Mr Cheung’s submissions on the same.

9.  Having considered the submissions of Mr Cheung, for reasons set out in the Decision, I do not accept his submissions on the meaning of paragraph 8 of the Review Decision.

10.  As for the second new argument, Mr Cheung submits, at paragraph 14 of his written submissions, the Small Claims Tribunal “cannot logically proceed to rule in favour of the Applicant in this tortious counterclaim when this Property Right Issue has not been properly and duly resolved.”

11.  I have already set out, at paragraph 24 of the Decision, the reasons why I did not accept the counterclaim was a trial about “the issue of land boundaries.”As I had explained in the Decision, the counterclaim in the Small Claims Tribunal is a monetary claim. The applicant’s counterclaim in the Small Claims Tribunal Action is for loss of rental income and is not a claim about adjudication of land boundaries. The counterclaim clearly falls within the jurisdiction of the Small Claims Tribunal. Since the applicant premised his counterclaim on the issue of proper delineation of the Car Parking Spaces, it is necessary for the Adjudicator to determine whether she accepts the basis of his claim before she can make the monetary award sought.

12.  Furthermore, up until the date of this Decision, the applicant has failed to point out, or clearly and expressly state, what underlying cause of action is invoked when reference is made to the applicant’s “property rights” or when reference is made to the “issues of land boundaries.” 

13.  For reasons as I have stated in the Decision, it is clear the applicant’s counterclaim in the Small Claims Action for loss of rental income is within the jurisdiction of the Small Claims Tribunal. Unless and until the applicant is able to clearly formulate the cause of action underlying the so-called “property rights” and or “issues of land boundaries,” I fail to see any merit in the applicant’s submission on the Small Claims Tribunal’s lack of jurisdiction to deal with the applicant’s counterclaim for loss of rental income.

14.  I therefore do not accept the applicant’s submissions regarding the jurisdiction of the Small Claims Tribunal.

15.  In respect of the applicant’s submission that issue estoppel should not be applied because of possible injustice caused to the applicant, the applicant relies on the cases of Miss Saudia Quashie v The London Borough of Greenwich, No EAT/1242/98, and N v N [2015] EWHC 514 (Fam).

16.  I have considered the above authorities. I accept the proposition expounded in Miss Saudia Quashie at paragraph 13 of the judgment which reads,

“Equally, as Mr Kenward accepts, it is clear that issue estoppel will not be applied in cases where there are special circumstances which make it unjust to do so”.

17.  However, I also note the sentence that follows which reads,

“He points out that the courts have been slow to find special circumstances in this context.”

18.  Mr Cheung submitted that, “if the Applicant is barred by issue estoppel at this early stage, the Applicant will be out of Court indefinitely and his property right (if its scope and extent are truly wrongly delineated) will be forever restricted without any form of compensation.” In other words, the purported injustice caused by the operation of issue estoppel to the applicant is two-fold: (1) he will be barred from court; and (2) his property right will be “forever restricted without any form of compensation.”

19.  I disagree with Mr Cheung’s submission on there being injustice caused to the applicant by the application of the doctrine of issue estoppel.  

20.  The operation of issue estoppel does not bar the applicant from court “indefinitely.” The applicant is only “barred” from re-litigating the issue of whether the delineation of the Car Parking Spaces can be decided with reference to the Assignment. There is nothing barring the applicant from litigating the issue of proper delineation of Car Parking Spaces on other grounds. Consequently, the application of issue estoppel, as set out in the Decision, would not “forever restrict” the applicant’s “property right.”

21.  For reasons set out above, I fail to see any reasonable prospects of success on the first intended ground of appeal.

SECOND DRAFT GROUND OF APPEAL

22.  The submissions made relating to the second intended ground of appeal are, in summary, a repetition of the submissions made at the substantive hearing. I have dealt with the same in the Decision.

23.  There being no new arguments raised, I fail to see any reasonable prospects of success on the second intended ground of appeal.

24.  Furthermore, I do not find there to be some other reason in the interests justice why the appeal should be heard.

25.  By reason of the matters set out above, I dismiss the applicant’s application for leave to appeal.

26.  I make a costs order nisi that the applicant do pay the respondent’s costs of the application for leave to appeal, to be taxed on the District Court Scale if not agreed, with certificate for counsel. Unless any party applies to vary the costs order nisi within 14 days hereof, the costs order shall become an order absolute.