CHENG CHEUNG WANG v. LO HOI YUNG AND OTHERS

IN THE COURT OF APPEAL

______________

J U D G M E N T

______________

Silke, V.-P.:

1. In King's Road stands the Han Palace Building. This was erected in the early seventies by Madam Wong Ching. In that building, are many flats. Over the years, Madam Wong, using the name Wong Suk Yee, sold a number of those. flats. She still retains something over 50% of them.

2. In 1983, there were rumbles of discontent emanating from some of the owners. This was directed towards that which was thought to be the mismanagement of the building,. These culminated in 1984 when Mr. Cheng Cheung Wang, on the 11th October 1984, applying on behalf of himself and the co-owners of 47 of the flats, issued an Originating Summons - "the Summons" - in the High Court. It cited as Defendants persons who were said to be members of the Management Committee of the building and it named Lo Noi Yung as the 1st Defendant, Peter Law as the 2nd, Katherine Wong as the 3rd, Wong Pik Yiu as the 4th, John Law as the 5th and Madam Wong Ching as the 6th. Subsequently a firm, by the name of Sam Wo Brothers Co. Ltd., was added as the 7th Defendant, Madam Wong being a director of that firm and it being thought that they had an interest in the issues.

3. The Summons claimed reliefs under s.31 o?the Multi-storey Building (Owners Incorporation) ordinance Cap. 344 - the Ordinance - and asked for the following:

1.    For an Order that the Management Committee be dissolved; and/or

2.    For an Order for an account of all monies paid to the Management Committee from the 12th day of January, 1978 to the date hereof, in accordance with Clause 14(iv)(a) of a Deed of Mutual Covenant dated the 15th day of May 1972 made between Madam wong Suk Yee and Madam Li Kwan;

3.    For an Order that an Administrator be appointed to supervise the management of the said building;

4.    That the costs of this application be either paid for by the Defendants name herein, or that they be deemed to be part of the expenses of the management of the building, in accordance either with the said Ordinance, or the Second Schedule of a Deed of Mutual Covenant, dated the 16th day of May, 1972 made between Madam Wong Suk Yee and Madam Li Kwan."

4. From thereon, this matter has taken a tortuous, complex and highly litigious course.

5. On the same day Barnes J., having before him the draft Summons granted both an ex parte injunction and an Anton Pillar order which:

(1)    required the Defendants to deliver up Management Committee records;

(2)    restrained the Defendants from operating on Management Committee bank accounts;

(3)    restrained the Defendants from taking further management decisions;

(4)    required the Defendants to Produce Management Committee correspondence;

(5)    directed the Defendants to produce a list of current outstanding management fees;

       (6)     directed the Defendants to permit a search of their premises; and

(7)    enjoined the Defendants from disposing or parting with possession of documents.

6. The ex parte injunction was made returnable inter par tes on 18th October 1984. On that day, Mr. Arjan Sakhrani, Q.C. sitting as a Deputy Judge of the High Court, directed.that the injunction continue until trial or further order with liberty to the Defendants to apply on two days notice.

7. On 22nd October, Madam Wong applied ex parte to have the injunction discharged. On the basis that the Plaintiff was absent, no order was made. On 23rd October 1984, Madam Wong issued an inter partes summons asking that the injunction be released. This, on 26th October, was adjourned sine die.

8. On 1st November 1984, Madam Wong alleged that a properly constituted meeting had been held on 6th September 1984 at which a Management Committee had been elected the elected.members of which were the named Plaintiff, Mr. Cheng, and five of the other complaining co-owners. All of these persons denied any knowledge of such a meeting, election or membership.

9. On 7th November 1984 Madam Wong applied again to Barnes J. to have the injunction "discontinued" and her application was dismissed. Barnes J. appointed Collier Petty - then a firm - as interim administrators to manage the building until a.full inter partes application to appoint them as administrators was heard. Leave was given to issue an inter partes summons to this end for hearing on 23rd November, with instructions as to service on the defendants by registered post and newspaper advertisements - the "Barnes Order". The direction was necessary because it had become difficult to trace, if they existed at all, those who were said to form the pre-October Management Committee.

10. Up to then, Madam Wong had been appearing in person but on 17th November she was. represented. There was filed a Notice of Motion asking that the injunction be dissolved. On 19th November the Plaintiff issued the inter partes summons for which leave had been given at the hearing. on 7th November.

11. The first paragraph of that inter partes summons bears repetition. It asked that:

"The Management Committee of the Building known as Han Palace Building, situate at No. 441-447 King's Road, North Point, Hong Kong be dissolved and that in its place an Administrator, Messrs. Collier Petty of 27th floor, Wing On Centre, 111 Connaught Road Central, be appointed until further Order without giving security to supervise manage and administer the said Building."

12. In answer Madam Wong filed an affidavit in reply which averred the election of the "new" Management Committee to which  have earlier made reference and continued that:

"Despite that election I am not actively opposing, the application of the Plaintiff to have Messrs. Collier Petty appointed as Interim Administrator to manage the Han Palace Building, except only that I question the Plaintiff's right both to apply for the said appointment and the interim injunction which he has already obtained."

13. In a further affidavit she stated that her position was that, if the minority shareholders and the Incorporated owners wanted to take over the interim management of the building either by themselves or by professional managers, she was prepared to let them do so but the costs must be reasonable and payable by all the units alike. Madam Wong objected to the extent of the powers which it was proposed to give to Collier Petty and she suggested the appointment of a new Management Committee which would supervise the administrator, be they Collier Petty or someone else.

14. At the hearing before Mr. Barnett, sitting as a Deputy Judge of the High Court, Madam Wong was represented by leading and junior counsel. Mr. Pirie represented, as he has done throughout these proceedings, the Plaintiff.

15. The order then made by Deputy Judge Barnett - "the Barnett Order" - was not a consent order but it was not strongly opposed. The transcript indicates that Mr. Bernacchi, Q.C., said that, if the Court did make the order, he would ask that it be made clear to Collier Petty that they were appointed by the Court and that they should take the instructions from the Court and not from solicitors. He further said that he would like the appointment to be until trial or until further order.

16. There was no appearance at that hearing by the 1st to the 5th Defendants.

17. The Judge had before him a lengthy affidavit made by Mr. Cheng Cheung Wan. This set out. the various deficiencies which were alleged to exist in relation to the management of the building: there was no proper meeting held by a Management Committee which had come into being on 12th January 1978; no proper notice of any meetings of any Management Committee had ever been given; the subsequent Management Committees had been asked to produce books of account but had failed to do so; the Deed of Mutual Covenant required that a summary of accounts be given to all the incorporated owners at the time of the convening of the Annual General Meeting and this had not been done.

18. It was further alleged that the composition of the various Management Committees - five being the necessary membership number - was not a true one in that the same individuals were represented as being members of it under various. aliases. There was a distinct possibility that Madam Wong Ching had used the name Wong Suk Yee, Lily Wong, Lily Wong Ching, Lily Law, and others, at will.

19. Mr. Cheng's main complaint, however, was that large sums of money had been collected by the various Management Committees and very little had been expended on the maintenance of the building. The lack of maintenance was-said to include: the suspension of the lift service in April 1984 by the appropriate government department; the Building, Authority, on 25th March 1983, requiring certain works to be carried out which were, in October 1984, still undone; the. fire fighting equipment was required by Fire Services to be updated, this was not done damage to external drainage pipes needed repair; health hazard's were created; the Hong Kong Electric Company required remedial work to be carried out on electrical installations.

20. He and his fellow owners had found it impossible to contact individual members of the Management Committee. There had been a protest refusal by owners to pay management fees. This resulted in distraint actions being brought in the District Court. The Management Committee, thought to have been in existence on 25th July 1984, was requested, by notice, to call an extraordinary meeting of all the incorporated"owners. That notice was ignored.

21. It was for all these reasons that Mr. Cheng and the other owners sought the assistance of the Court.

22. The Barnett Order, in part, dissolved the existing Management Committee, "if any", and directed that Collier Petty "continue" - from the Barnes Order - to be the administrators of the building, and empowered them to do certain acts as set out in its body including the raising of moneys in order to carry out repairs. The appointment of Collier. Petty was to be until the trial of the issues in these proceedings or until further order.

23. On 21st December, an ancillary order was made that the Anton Pillar order of 10th October be discharged as against the 6th Defendant.

24. Madam Wong's Notice of Motion had not sought the discharge of the Barnes Order of 7th November appointing Collier Petty as interim administrator.

25. In 1985, Madam Wong issued a summons seeking an order removing Collier Petty as an interim administrator and the convening of a meeting of owners.to appoint a new Management Committee. She also took out a summons to vary that part of the order appointing Collier Petty to be administrators "until trial or further order".

26. On 1st March she filed an affidavit in support of those summonses and, on 5th March, Deputy Judge Barnett gave directions as to hearing, adjourning both of them to a three-day hearing on dates to be fixed. They were never proceeded with.

27. On 8th April 1985, Madam Wong took out yet a further summons asking that the Plaintiff's action be dismissed for want of prosecution. That application was refused."

28. On 19th November 1985, Collier Petty issued a summons seeking directions that management charges be raised and the payment of a management deposit by individual owners.

29. On 30th November Madam Wong issued a summons asking for an order that the Management Committee be reconvened and that Collier Petty be accountable and subordinated to the reconvened Management Committee.

30. These two summons came on for hearing on 6th December before Mayo J.. The judge refused Madam Wong's application saying that, having regard to the past history of the proceedings, to accede to it would in all probability be a "prescription for chaos". On Collier Petty's summons, he directed that a meeting should he convened, with Collier Petty as chairman and a member of their then.instructing solicitors' firm as secretary, for the issues raised.in Collier Petty's summons to be discussed.

31. On 15th January 1986, the hearing of Collier Petty's summons for directions resumed. At that hearing, the 1st, 3rd and 7th Defendants were represented as were a group called "and others". Madam Wong appeared in person. The 2nd, 4th and 5th Defendants were absent. Mayo J. gave the directions Collier Petty asked. He expressed himself as being disturbed at the amount of delay there had been in the litigation.

32. On 5th March 1986, there came on for hearing before another Division of this Court a series of appeals brought by Madam Wong Ching. The first, was against the Barnett Order of 23rd November 1934; the second was against, the order of Mayo J. of 6th December 1984; the third against an order of Mayo J. of 19th December 1985 and the fourth was against a further order of Mayo J. on 30th January 1986. When these appeals were heard the Summons had still not been determined and Madam Wong asked the Court of Appeal to deal with it. This the Court refused to do but directed that it be listed on a date no later than two months from the 5th of March.

33. The first appeal was so far out of time that leave was refused. The second appeal was dismissed. The third appeal was one in which Madam Wong had no standing, for the order of Mayo J. of 19th December 1955 concerned other Defendants who were not before the Court. This was dismissed. The fourth appeal was also dismissed.

34. For the first time the issue of jurisdiction was raised, and this by the Court itself - and this has particular relevance to the appeals which lie for our consideration. It is this: It is submitted that Section 31 of the Ordinance confers upon the District Court, and only the District Court, jurisdiction to make orders dissolving a Management Committee and appointing an administrator.

35. The Court considered whether it should transfer the summons to the District Court but declined to do so making the direction to which I have referred for its hearing. It suggested that in these circumstances the Plaintiff might consider seeking the transfer of the Summons to the District Court under s.40 of the District Court Ordinance.

36. It is obvious that the reason why the Summons was first issued in the High Court was the claim in paragraph 2 for an account. This claim related to sums in the region of $1 million, far outside the jurisdiction of the District Court. No one up to the time of the Court of Appeal hearing seems to have adverted to the fact that the jurisdiction to grant the relief claimed in paragraphs (1) and (3) lay solely within the jurisdiction of the District Court.

37. Then came the "Downey Order" made by His Honour Judge Downey, sitting as a Deputy Judge of the High Court, on 26th March 1986 which directed that:

"... under the inherent jurisdiction of this Honourable court the above action be transferred from this Honourable court to the Victoria District Court and tried within 2 months from the 5th March, 1986 that the costs of today to be 1st, 3rd, 6th and 7th Defendants costs in the cause."

38. The District Court hearing, started on 1st May 1986 before His Honour Judge Scriven with Madam Wong appearing in person and the 1st to the 5th and the 7th Defendants being, represented by counsel. In the course of it was suggested by Mr. Pirie that the 1st Defendant was in Dominica; the 2nd Defendant was the son of Madam Wong Ching as was the 5th; the 3rd Defendant's name was an alias for Madam Wong; the 4th Defendant held an identity card with the same number as that of Madam Wong and the 7th Defendant was the alter ego of Madam Wong.

39. The 1st to the 5th and the 7th Defendant did not wish to call evidence. Madam Wong objected to the making of orders in terms of paragraphs (1) and (3) of the originating summons. She filed in the course of the hearing, as is her wont, a lengthy affirmation in support of her objections. There were a number of affirmations by the Plaintiffs and these were not opened to the Court as leave was needed which was refused. Counsel for the other Defendants had no wish to cross-examine the witnesses called for the plaintiff but Madam Wong did.

40. During her cross-examination there arose a matter which gave and has continued to give Madam Wong Ching considerable concern. This was that a daughter of Judge - Scriven was an employee of Collier Petty. The judge asked Madam Wong if she wished him to continue to hear the case to which she replied that she was "a bit scared". The judge felt that there was no real likelihood of bias, Collier Petty was not a party to the action and he was not acquainted with any of the partners of the firm. Counsel for the other Defendants had no comments he wished to make and the hearing went on.

41. Mr. Cheng Cheung Wang gave evidence affirming the contents of the various affirmations which he had made. His cross-examination by Madam Wong foreshadowed another aspect of the matter raised before us for she sought to show that Mr. Cheng did not represent those whom he purported to represent. Questions on that issue were not allowed.

42. On the second day of the hearing Madam Wong asked for an adjournment. She made reference again to the judge's daughter working with Collier Petty, said she felt feverish and that she was scared that she might be in contempt. There was no medical evidence before the judge. He clearly considered Madam along capable of carrying on the proceedings and the adjournment was refused.

43. Mr. Bryson, the solicitor having conduct of the matter for the Plaintiff, then gave evidence and he also affirmed the contents of various affidavits which he had made. He said the total amount of fees due up to 31st March 1984 was some $857,000. Upon being invited to cross-examine him, Madam Wong again asked for an adjournment. This time to see a doctor. She was allowed to do so.

44. When the Court resumed, a longer adjournment was granted and the judge made an interim order dissolving the Management Committee as from 23rd November 1984 and appointing Collier Petty with effect from that date, and for a period of three years, as administrator. There was a further order that the Hong Kong Industrial Commercial Bank disclose to the administrator details of an account held in the name of the incorporated owners.

45. The judge directed that the costs occasioned or thrown away by the adjournment be paid by Madam Wong in any event with a Certificate for counsel. Madam Wong asked for leave to appeal against these orders and was refused.

46. On 27th May the hearing restarted - and again in Chambers though we are somewhat at a loss to know why the whole proceedings were not being heard in open. Court – and a summons for leave to appeal by the 1st to 5th and 7th Defendants was heard. This application after argument was also refused.

47. The hearing resumed again on 9th July 1986 when Mr. O'Reilly Mayne, Q.C. led for Madam Wong. The 1st to 5th and the 7th Defendants were again represented by Mr. Percy. One of the first things Mr. O'Reilly Mayne did was to tender Madam Wong Ching's apologies for her reference to the judge's daughter matter and he stated that he was satisfied that was no likelihood of bias.

48. Mr. Bryson was recalled, continued his evidence and was cross-examined. Other witnesses were called as to the identity of Lily Law and a Law Yee Wan and as to the use by Lily Law of the identity card which is.that of Madam Wong. In the course of cross-examination the matter of the authority of Mr. Cheng to continue the proceedings was raised again and was on this occasion fully ventilated. Mr Bryson said that he had had a mass meeting with the other 46 persons,. the names and addresses of whom.were set out in an exhibit CCW1 to Mr. Cheng's first affirmation. Mr. Bryson was not then aware of who had moved out or who had not. He had been funded by payments from-all 46, He stated that when he issued the Summons he had satisfied himself that all the persons mentioned in CCWl were in existence.

49. On 10th July Mr. O'Reilly Mayne made submissions on behalf of Madam Wong, taking point's of jurisdiction on the order transfering the Summons to the District Court and the Court's jurisdiction to deal with the account. These arguments was adopted by Mr. Percy for the other Defendants.

50. Having considered the submission made to him, the judge felt that he could not deal with the matter of the account and he transfered that part of the Summons back to the High Court.

51. Further evidence was heard as to the condition of the building at the time Collier Petty took over. Mr. Cheng was recalled. Mr. Bryson's secretary gave evidence of the moneys paid by various persons whom she herself did not know but whose names and addresses she had marked on the back.of each cheque. This covered a period up to 1955. One of the other owners was called and spoke of dissatisfaction, meetings of co-owners but not of any general meeting of 46 or more.

52. Madam Wong was tendered for cross-examination. She said that Lily Law was her elder sister. She accepted that her identity card was E05875, that Lo Noi Yung (D1) had the same address as her stock-broking firm; that she used the name Katherine Wong for signing purposes; that she applied to become a member of the Stock Exchange as "Mrs. Law" and that the name she used for the Stock Exchange was "Law Wong Ching,"; she also agreed that she used the name "Lily Wong Ching". There was then an adjournment to October and an order was made that Collier Petty Limited, which had by then replaced the firm Collier Petty, be substituted as the administrator.

53. On 14th October, cross-examination resumed, Madam Wong being still represented.

54. It is an interesting sidenote that Madam Wong then alleged that all the other members of the pre-October Management Committee, and this included her sons, were officers of the Chinese Government.

55. On 15th October, Judge Scriven gave judgment and made final orders:-

(1)    that the Management Committee if any as existing at the 23rd November 1984 be dissolved as from that date.

(2)    that Collier Petty be appointed Administrator from that date and, as from the incorporation of Collier Petty Limited, that they he substituted for Collier Petty (a firm).

(3)    that the appointment period be limited up to the 31st December 1987 or further order.

(4)    that the provisions of the Barnett order should be deemed incorporated in his own order except in so far as any of those provisions conflicted with it.

56. On 18th October, he made an order nisi as to costs that the Plaintiff's costs of all the proceedings to date, whether in the District Court, the High Court or Court of Appeal, should be taxed on a solicitor and own client basis and paid by the Defendants jointly and severally provided that his order did not conflict with any previous order made as to costs. Further, that the costs of the 1st to 5th and the 7th Defendants in the Court of Appeal be taxed on party and party basis and paid by Madam Wong. He reserved the costs on the transferred account claim to the High Court. This order, with the addition of a part ordering certificate for counsel, was confirmed on 5th November 1986.

57. On 19th November 1936 the Chief Justice, sitting as a single Justice of Appeal, gave leave to the 1st, 3rd and 7th Defendant to appeal against the Scriven Order. On 28th November similar leave was given to Madam Wong.

58. On 20th February 1987 Kempster J.A., sitting as a single Justice of Appeal, gave directions that Appeals Nos. 156 and 161 be heard together.

59. There was then an attempt to join other parties as defendants in the proceedings. This was refused by the single judge whose order was not varied by the full Court of Appeal. The Court directed at that time that all the Appeals should he brought on at the earliest possible moment and that they should be brought on because of its complexity before a Court constituted as was that Court, namely Kempster J.A., Hunter J.A. and myself; all of us having, knowledge of the course the litigation has taken and the issues involved.

60. On 18th November 1987, a Notice of Motion brought by solicitors then representing Madam Wong, the terms of which were not particularly clear, came on before me sitting as a single Justice of Appeal. This was to vacate the hearing of the appeals which had then been set down for 16th December. This I refuse to do but I did direct that a Notice of Motion, which had been set for hearing on a separate day, questioning the authority of Mr. Cheng to continue the proceedings, be heard as a preliminary point on the date fixed for the hearing of the Appeals.

61. A discharge of that order was also sought from the full Court of Appeal under Section 35(3) of the Supreme Court Ordinance. The order remained in place, Cons, V.-P. making reference to the inordinate length of time already taken by this litigation. The 1st to 5th and the 7th Defendants were represented. Madam Wong was not present.

62. Having now set out, at possibly inordinate length, the complex course of this litigation I come to the present proceedings.

63. There lay for consideration, before the Appeals proper could he approached, three Notices of Motion.

64. The first, by Madam Wong who appeared in person throught, was yet another application to vacate the dates on the ground of ill health. The second was an amended Notice of Motion on behalf of the lst to 5th and the 7th Defendants, for whom Mr. Howard, Q.C. with him Miss Vivian Chik, appeared, which challenged the authority of Mr. Chen to continue to prosecute the Appeals. The third, an amended Notice of motion in similar terms by Madam Wong. These last two motions had first come on before another Division of this Court but were directed to he amended. We were unclear as to the terms of that direction and whether or not the notices of motion complied but we went on to entertain them.

65. We first heard Madam Wong's application for an adjournment. She had filed a voluminous and repetitive affirmation which related to the proceedings generally and to this application in particular. She produced three documents: (1) a request from a doctor for her admission to hospital with reference to cystitis; (2) a hospital fee note for $1,000 and (3) a document signed by herself, and witnessed by some unknown person, stating her to have left the hospital of her own free will and against medical advice. She herself said that she had had a bladder operation. We thought that medical evidence, if indeed such were available, could easily have been produced by Madam Wong in support of her application. She asked us to have her medically examined. This we refused to do. She had prepared papers in a multitude of bundles in relation to the Appeals which bundles were not, incidentally, served on the other parties. We were not convinced that she was in any way unfit to proceed and in the light of the Courts earlier comments on this "horrendous litigation" and the time which it had taken, we did not see fit to acceed to her application.

66. We then heard argument in relation to the authority point raised in the amended Notices of motion. Mr. Howard did not proceed with his and it was dismissed; but Madam Wong did. Notices to cross-examine were expressly abandoned by Mr. Howard and not proceeded with by Madam Wong.

67. This is a representative action. We accept, and it was common case, that Mr. Cheng Cheung,Wang had sold his flat in Han Palace Building in January of this year. At the time covered by the Appeals Mr. Cheng was the representative Plaintiff on record and was personally a highly interested party. We felt that Mr. Cheng was effectively locked into the action until those Appeals had been determined. It was made clear to Madam Wong that, if Mr. Cheng were removed, then she might not have any person, should she he successful in the prosecution of her Appeals, against whom to levy any costs awarded to her. It would, of course, have been open to the Plaintiff to select another one of the owners to become the nominal Plaintiff in place of Mr. Cheng.

68. There may well have been changes in the ownership of some of the flats,but under Section 31 of the Ordinance, it is sufficient if one owner makes application. We were fully satisfied that more than one owner was concerned in these proceedings. We, therefore, dismissed Madam Wong's Notice of Motion and proceeded to the hearing of the appeals proper.

The Appeals

69. The Appeals brought on behalf of the 1st to 5th and 7th Defendants concerned first: the order of Judge Scriven of 15th October; second, his order on costs of 18th October; third, his order in respect of Certificate for counsel of 5th November. There was a second appeal, with homemade grounds, purporting to be brought by the 1st, 3rd and 7th Defendants against a costs order made by Judge Downey on 11th October 1984 (No. 44/86) and a further appeal by Madam Wong against the same costs order (No. 45/86).

70. There is an objection ab initio to the jurisdiction of Deputy Judge Downey to transfer the Summon's to the District Court. At Mr. Howard's suggestion we consolidated all the appeals.

71. On them, Mr. Howard took three net points which he argued succinctly and with becoming brevity. Madam Wong's submissions on the same and other points were rather more wide ranging and varied.

72. The first: whether the order of the High Court made by Deputy Judge Downey was one made within his jurisdiction; the second, can a firm, Collier Petty, consisting of a number of persons, be a "person" within the meaning of the Ordinance and could such a firm be properly appointed administrator; the third, the order of Judge Scriven, of the 15th October 1986 whereby he directed that any owner or the administrator could apply at any time after the 30th June 1987 for extension of Collier Petty's three-year appointment after a meeting of the registered owners had been called for the purpose of approving such an application. The portion complained of is this:

"At such meeting a director of Collier Petty Limited shall preside and at such or any other meeting called by the administrator any resolution shall be passed by a simple majority of the owners present and voting personally."

The complaint is that there.was no reference in it to voting by proxy.

The first point.

73. These were hybrid proceedings. The provisions of the Ordinance, conferring exclusive jurisdiction upon the District court to dissolve a Management Committee and appoint an administrator, were clearly enacted without contemplating a situation such as has arisen in this case. The account which is claimed of moneys paid between 1978 and 1984 involves sums far outside the jurisdiction of the District Court. Ideally it would have been preferable had two originating processes being issued, one in the District Court in relation to the dissolution of the Management Committee and the other, in the High Court, relating to the account. That this was not done has been, for Madam Wong at least, a matter of considerable disquiet, and has led to the various transfer orders back and forth between the two courts.

74. When the Downey Order was made the judge had before him the reasons given by this Court in the March Appeals but not the formal order of the Court. Acting under the inherent jurisdiction of the High Court he made the order of transfer.

75. We have been referred to Kwong Hua (Hong Kong) Limited v. Lau Sung Kwan^(l) and to the subsequent decision in Liu Ying Wah v. Great Mace Trading Co. Ltd.⁽²⁾. In Kwong Hua^(l) Trainor J. had for consideration a claim for possession only the exclusive jurisdiction to entertain which was given to the District Court. In Great Mace⁽²⁾ Mr. Commissioner Litton, Q.C. held that while certain of the issues before him were exclusively within the jurisdiction of the High Court this did not mean that the High Court lacked jurisdiction in all respects. He felt that there was no reason why the High Court or a Registrar of the High Court should not, as a procedural matter order the transfer of proceedings within the jurisdiction of the District Court to that Court. He had considered the earlier decision in Kwong Hua⁽¹⁾ which he held to be a case very different from the one which he was then considering.

76. We take. the same view here. There was undoubted jurisdiction in the High Court to deal with the account.

77. Section 40 of the District Court Ordinance reads:

"Where an action or matter commenced in the High Court is within the jurisdiction of the Court or has been brought within such jurisdiction by payment, admitted set off or otherwise, the High Court or the judge thereof may, if it or he thinks fit, order the transfer of such action or matter to the Court (the District Court) and thereupon the Court shall have jurisdiction and authority to proceed therein."

By reason of the fact that the High Court did have jurisdiction to entertain the proceedings generally I have no doubt that it^, was proper for Deputy Judge Downey, to make the transfer order he did in relation to those portions, both under the inherent jurisdiction and Section 40 of the District Court Ordinance, which lay exclusively within the District court.

The second point.

78. Collier Petty at the time of appointment was a firm comprising two or more persons. An administrator is defined in the ordinance as meaning, "a person appointed as an administrator under Section 30 or 31;". (Emphasis s supplied) The Interpretation and General Clauses Ordinance Chapter 1 defines "a person" as including "any public body and any body of persons corporate or unincorporate". While Madam Wong expressed her sense of unease at having various individuals,'members of the firm of Collier Petty, coming in to administer, nevertheless I have no doubt that Collier Petty as a firm was capable of being appointed and to administer. Now of course it is Collier Petty Limited a body corporate and presently no such objections can arise.

The third point.

79. The Ordinance provides in its Section 5 sub-section 5(b) that at a meeting convened under Section 3, that is a meeting of the owners to appoint a Management Committee, or under Section 4, a meeting held at order of court to appoint a Management Committee, -

"(b) a vote may be cast either personally or by a proxy appointed in accordance with sub-paragraph 2 of paragraph 4 of the third schedule;".

Paragraph 4 of the Third Schedule repeats that the votes of owners may be given personally or by proxy and sets out the form of instrument appointing a proxy. Paragraph 3 of the Third Schedule again refers to the owners voting either personally or by proxy.

80. It was clearly sensible here, bearing in mind the doubtful existence of certain members of the pre-existing Management Committee, that voting should take place by persons actually present at any meeting convened as a result of Judge Scriven's Order. Under the provisions of Section 32 sub-section 1 of the Ordinance an administrator has all the powers and duties of a Management Committee and of the Chairman and Secretary of such Committee.

81. In my judgment the provisions which I have set out relating to voting by proxy would not apply to meeting called on foot of Judge Scriven's order. This was a direction, and as I have said a sensible one, by the Court as to what should take place at the meeting it said should be called. The order does not give rise to conflict with the terms of the Ordinance. These points therefore fail.

82. Madam Wong in a wide ranging, and at times irrelevant, submission has raised the basic issue of jurisdiction as well as the propriety of the Barnett and Scriven orders.

83. Before I deal with that matter I think it necessary to advert to some of the not directly relevant matters which Madam Wong has canvassed before us. She suggests that she has been the subject of blackmail by legal procedure. She bases this upon that which she says is the "misleading" of the Court by the Plaintiff in taking, his proceedings in the wrong place; by demands which she said were made upon her by representatives of the Plaintiff for some $12 million in order to compromise the proceedings; of statements in the nature of threats made by those representatives that Mr. Cheng was well acquainted with "many judges and justices"; and of other happenings. In the course of this very hearing she spoke of what she terms "negotiations" being carried on with those representatives and at their instigation. During the course of an overnight adjournment she said she was approached by a Mr. Wong who told her that a consent order could be made provided she paid $6 million. This she said she did not have but she did give this person ten gold hams and her diamond necklace. She valued these at a total of $1 million. To add to her woes she says that she had received a very large number of writs at a rate of about two a month.

84. If these events ever did take place and, with respect to Madam Wong, we have some doubt on this - the "gold.bars" incident according to her first started outside this Court, then moved to the bottom of the stairs and finally took place as a result of a telephone call to her by a person who spoke very good English - none had or could be reasonably thought to have had the sanction of this Court. While the full sum which may be accountable could well now reach over a million dollars, bearing in mind payments in Madam Wong's hands unaccounted for since 1984, there could be no question of anything even approaching the sums to which Madam Wong has made reference.

85. Added to these allegations is her suggestion of bias on the part of Judge Scriven. But, as I have indicated earlier, her then counsel expressly disavowed any possibility of this in the course of the hearings before that judge and it is not now open to Madam Wong to advance it in this Court.

86. Madam Wong also said that she has lost faith.in all members of the Bar in Hong Kong for she told us that those who did represent her did not act properly and that since-then counsel, she suggests out of fear of this Court, have refused to represent her. She has throughout these proceedings being represented or unrepresented with a remarkable rapidity. In one hearing before.myself when it began she was represented,half way through she sought to withdraw her instructions and to appear in person but, after an adjournment, continued to he represented by counsel.

The jurisdiction point

87. No one took this point until the Court of Appeal of itself raised it in the hearings in March. Those hearings concerned, inter alia, the Barnett Order. While an appeal from that was well out of time and leave to bring it was refused, Court went on to say:

"Indeed, although the Order appealed against was not a consent order, it was made only after both Counsel had been heard and had made suggestions which were incorporated in the order. In such circumstances, even had Madam Wong not been out of time, she would have had great difficulty in persuading us that it would he proper to interfere with that Order."

And be it remembered that that was said by a court which had the jurisdiction Point in mind. That Court, as do we, clearly took the view that the Han Palace Building needed to be administered and that this was originally effected without any real contest.

88. On a strict construction, the judgment of the Court of Appeal could give rise to complaints of.inconsistency. But I think the reality to be different. While the power to make a final order appointing, an administrator lies exclusively in the District Court there is no reason why the High Court could not appoint an.interim administrator which was in fact what it did. The order appointing Collier Petty was to be in force only until the trial or further order. The difficulty arises with the dissolution of the Management Committee which is a prerequisite to the appointment of an administrator.

89. The appeal against the Barnett 0rder could only have been dismissed by this Court on the basis that that order was an interlocutory one. Manifestly the appointment of the administrator necessitated at least the temporary dissolution or suspension of any Management Committee.

90. The High Court is a court of unlimited jurisdiction. There is nothing in the Ordinance which has the effect of depriving that Court, in hybrid proceedings such as these, of its power to make interlocutory orders even where the jurisdiction to make final orders lies within the exclusive jurisdiction of another court. Further, and perhaps more important, it is not now open, to Madam Wong to re-litigate the Barnett Order that matter having been finally disposed of by the Court of Appeal in March. I accept, of course, that jurisdiction is always a live issue and that if there be no jurisdiction then an order of Court purporting to confer it is always open to challenge.

91. Eventually the final orders here were made by the District Court. When they were made Judge Scriven ante-dated them to-23rd November 1984. I doubt his authority to do so though I can fully understand his reasons. By doing so he avoided an apparent interregnum during which many things had taken place, which, once he decided to make a final order, had he upset could have led to an even more chaotic situation than now exists. If Deputy Judge Barnett had jurisdiction to make the orders he did, and having held these to have been interim orders in my judgment he did, then the fact that those orders were to be continued to trial and that trial being before Judge Scriven, that the District Judge purport to make the final orders retrospective can assume no significance. The Barnett Orders were in place until the matter was finally determined by Judge Scriven.

92. One final matter in this regard. It would seem that the order of the March Court of Appeal was drawn up by the successful respondents (the Plaintiffs) on 19th June 1986. On 30th September 1986, long after the Scriven hearing, Madam Wong presented to the Registry her own form of draft order. Unfortunately, it came for approval to a very new clerk of an Appellate Justice, one who had no knowledge of that which had gone before. She approved it as amended, so there came into being, two orders in the same proceedings. Madam Wong is now convinced that the order of the 19th June is a forgery. It clearly is not and her order should never have been permitted to be entered. This Court directed that an enquiry be made by the Registrar into this most unfortunate happening, mainly with a view to avoiding its ever occurring again.

93. It is clear from a perusal of the judgment of the Court of Appeal that the order drawn up by the successful respondents embodied in proper form both the orders on the Appeals and the directions given.

94. We have heard no submissions in relation to the costs orders which had been made in the orders of Judge Striven and Deputy Judge Downey. This is hardly surprising, for while Madam Wong objects in principle to any order of costs made either against herself or against the other defendants, or against herself in relation to the other defendants - and in particular complains that many of these orders are on an indemnity basis - they stand or fall by the result of these appeals.

95. Indemnity costs orders were, in the circumstances of this case, the proper order to make. This is a representative action. There is no reason why the Plaintiff who has been brought before the court on so many occasions should be in any way out of pocket as the result of the proceedings.

96. In the event, these appeals are dismissed.

Kempster, J.A. :

97. On 11th October 1984, on the basis of a draft Originating Summons and his affirmation, Cheng Cheung Wang on his own behalf and that of other co-owners of flats in Han Palace Building in King's Road, sought and obtained from Barnes J. an interlocutory order ex parte in the High Court restraining the members of the Management Committee of that building from acting as such and from making withdrawals from the material bank accounts and also requiring them to deliver up to the plaintiff all documents relating to the activities of the Committee. Authority was granted to the plaintiff's solicitors to make searches in aid of the order. An Originating Summons in the terms of the draft was issued the same day naming the members and a creditor of the Management Committee as defendants.

98. On 1st November 1984 the 6th defendant, Madam Wong Ching, made an affirmation headed "Defence and Counterclaim" comprising generalised allegations of slander, conspiracy, wrongful imprisonment and matters potentially permitting claims under the cross-undertaking as to damages given by the plaintiff on 11th October. Throughout a succession of hearings, in some of which she has been represented by counsel and in others, as in the instant appeals, has appeared on her own behalf, no admissible evidence has ever been given in support of these allegations. This is not to overlook the fact that, demonstrating an impressive sense of drama, the 6th defendant has spent considerable time before us making allegation to the same or similar effect; adding charges of extortion and blackmail for good measure.

99. By the Originating Summons the plaintiff claimed, pursuant to section 31 of the Multi-storey Buildings (Owners  Incorporation) Ordinance (Cap 344) an order for the dissolution of the Management Committee and for the appointment of an Administrator in lieu. Having regard to the definition of "court" in section 2, a definition also found in the equivalent section of the District Court Ordinance (Cap 336), such relief was within the exclusive jurisdiction of the "District Court. However, the plaintiff also claimed an account of monies paid to the Management Committee as from 12th January 1978 pursuant to a Deed of Mutual Covenant. Since any entitlement to that and any consequential relief was grounded in contract and the sums involved exceeded HK$60,000 only the High Court had. jurisdiction in this regard. District Court Ordinance section 37 (1). These mutually exclusive statutory provisions really called for separate originating process the High and in the District Court respectively. As it is the Summons may well be subject to several transfers as between those courts.

100. On 7th November 1984 Barnes J. refused an application made by the 6th defendant, inter partes, to discharge his ex parte order but acceded to an application on the part of the plaintiff to have Messrs. Collier Petty appointed Interim Administrator. The plaintiff went on to issue an inter partes summons which came before Deputy High Court Judge Barnett on 23rd November. That judge ordered that "the existing management committee (if any) of Han Palace Building .... be dissolved" and that "Messrs. Collier Petty to continue to be Administrator of the said building .... until the trial of the issues in these proceedings,or until further order." Prima facie it would appear that he, Barnes J. and Mayo J., who made consequential orders in the High Court on 6th and 18th December 1985 and 15th January 1986, acted without jurisdiction which cannot, it goes without saying, be conferred by consent. The point was not raised in any proceedings until canvassed in this Court by Power J. on 5th March 1986. In the judgment of the court, given on 20th March, which dismissed appeals by the against the orders of Deputy Judge Barnett 15th January 1986, goes without was not raised Court by Power J. court, given on 6th defendant and Mayo J., the exclusive jurisdiction of the District Court in relation to the dissolution of a Management Committee and the appointment of an Administrator was emphasised and the order of 23rd November 1984 described as "a continuance of the interim injunction granted by Barnes J. on 7th ....". The judgment continued : ...even had Madam Wong not been out of time she would have had great difficulty in persuading, us that it would be proper to interfere with that Order." I can only reconcile the apparently conflicting findings in this judgment on the basis that the exclusive jurisdiction of the District Court under section 31 of the Multi-storey Building Ordinance is confined to final orders; leaving the jurisdiction of the High Court in the interlocutory field untrammelled. As pointed out by Mr. Commissioner Litton in Liu Ying Wah v. Great Mace Trading Co. Ltd^(l) at v 883 :

"The High Court is a Court of unlimited jurisdiction ... and it is a strong thing to say that a statute has the effect of depriving it of jurisdiction in a particular matter."

101. I am accordingly satisfied that we are bound to find that the question of Deputy Judge Barnett's jurisdiction to make the order he did is "res judicate". His order is to he regarded as interlocutory only and the words "the existing management committee (if any) .... be dissolved ...." must be construed to read "the exercise of the powers of the existing management committee (if any) .... be suspended .... until the trial of the issues in these proceedings or further order." This Court directed that the Originating Summons should come on for hearing within two months but left it to the parties to seek transfer to the District Court if they or one of them saw fit. Inexplicably two orders were' drawn up and entered following this decision. Their effect was much the same but the terminology differed in relation to costs. Understandably this caused the 6th defendant some disquiet, to put it no higher.

102. Upon application by the plaintiff, Deputy High Court Judge Downey directed transfer on 26th March following as he was entitled to do as well under section 40 of the District Court Ordinance asunder the inherent jurisdiction mentioned in his Order. Unlike the claim for possession of premises considered by Trainor J. in Kong Hoa (Hong Kong) Ltd v. Lau Hung Kwan⁽²⁾ the High Court had jurisdiction to entertain the proceedings transferred by reason of the claim for an account.

103. In the District Court the Originating Summons came before Judge Scriven on 1st May 1986 but was adjourned on the following day due to the indisposition of the 6th defendant. On 15th October, the hearing having been resumed, a final order as made in virtually identical terms to that which the Judge had made on an interlocutory basis when granting the adjournment. It dissolved the Management Committee and appointed Collier Petty, first as a firm and subsequently as a limited company, Administrator as from 23rd November 1984 with provision for application for extension after the approval of the majority of registered owners had been signified at a meeting called for the purpose and at which a director of the Administrator should preside. It was further provided that at any meeting called by the Administrator a resolution should be deemed passed in like circumstances. Save insofar as they conflicted with such terms the provisions of the Order made by Deputy Judge Barnett on 23rd November 1984 were incorporated. At the hearing, on 4th June 1986, of an appeal against the terms of Judge Scriven's interlocutory order this Court said :

"... the District Judge was here doing no more than ensuring that the position as it had obtained for the previous 18 months continued thereafter. There seems no doubt that he made this order because a question had arisen as to whether or not the Court making the original interim order (emphasis mine) had had jurisdiction to do so."

For my part I cannot accept that, whether pursuant to Rule 9(1) of the District Court Civil Procedure (General) Rules and R.S.C. Order 42 Rule 3(1) or otherwise, the District Judge had jurisdiction to make any order purporting to have effect prior to its date. If, however, I am right in holding that Deputy Judge Barnett had jurisdiction to, make and did make interlocutory orders which continued to have effect "until the trial of the issue in these proceedings or further order" the feet that the District Judge's orders could have had no effect before 2nd May and 15th October 1986 respectively is of no significance.

104. Now we are called upon, by leave, to determine appeals by the defendants from the orders, made in the District Court on 26th March and 15th October 1986 and from consequential orders dealing with costs which stand or fall with them.

105. The first identifiable ground of appeal is to the effect that, having no jurisdiction to entertain the proceedings, the High Court had no power to transfer them to the District Court. For the reasons already given I am satisfied that the High Court bad jurisdiction both to entertain the proceedings and to transfer them.

106. The second identifiable ground of appeal is that the appointment of Collier Petty, initially a firm comprising at least two persons, was invalid since a firm is not "a person" within the definition of "Administrator" in section 2 of the Multi-storey Buildings Ordinance. Since however, the Interpretation and General Clauses Ordinance (Cap 1) defines "a person" as including "any public body and any body of persons corporate or unincorporate .... I am satisfied that Collier Petty, as a firm, was susceptible of appointment as Administrator.

107. The third identifiable ground of appeal is that, having regard to the provisions of section 5(5)(b) and paragraph 3(3) of the Third Schedule to the Ordinance, there was no jurisdiction to permit a resolution to be passed by a simple majority of the registered owners of flats in Han Palace Building present at a meeting without also permitting proxy votes. But this provision could not apply to a meeting, called by the owners or by order of the Court, to appoint a Management Committee pursuant to sections 3 or 4 or of a body incorporated pursuant to sections 7 and 8 since the appointed Administrator enjoys the power of such a Committee and corporation pursuant to section 32(1). The order could not give rise to conflict with the terms of the ordinance.

108. Finally the 6th defendant sought to rely on bias. Such an allegation having expressly been disclaimed by leading counsel on her behalf before Judge Scriven on 4th July 1986 the point was not open to her.

109. I would dismiss the appeals.

Hunter, J.A.:

110. I agree with both the judgments just delivered. I too would dismiss the appeals.

(1) (1976) H.K.L.R. 62

(2) (1980) H.K.L.R. 881

(1) [1980] H.K.L.R. 881

(2) [1976] H.K.L.R. 62