SIU SIU HING t/a CHUNG SHING MANAGEMENT CO. v. THE LAND REGISTRAR

HCAL77/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.77 OF 2000

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J U D G M E N T

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Leave to apply for judicial review

1. The applicant applies for leave to issue judicial review proceedings against the decision of the Land Registrar.

2. The Land Registrar had issued a Certificate of Registration under section 8(1) of the Buildings Management Ordinance ("the Ordinance") under which the owners of Chun Fai Garden were registered as a corporation.

Alternative forum?

3. The only issue at this stage of these proceedings is whether the matter should be properly dealt with in an alternative forum, namely, the Lands Tribunal. Section 45 of the Ordinance provides that the Lands Tribunal shall have jurisdiction to hear and determine any proceedings specified in the 10th Schedule, Clause 1 of which is :

"Proceedings relating to the interpretation and enforcement of the provisions of this Ordinance."

The formation of an owners corporation arises under the Ordinance and it appears that Clause 1 is wide enough to cover the situation. In fact, there are current proceedings between related parties in the Lands Tribunal where the issue is on whether the owners corporation was validly formed or not.

Conclusive evidence clause

4. However, what stands in the way of this apparently straightforward matter is section 13 of the Ordinance which provides that :

"A Certificate of Registration ... in respect of a corporation ... shall be conclusive evidence that such corporation is incorporated under the Ordinance".

Whether the Lands Tribunal can still deal with the issue in the light of the conclusive evidence clause is doubtful and has to be fully argued, see the comments of Le Pichon J in Grace International v. Incorporated Owners of Fortana Garden [1990] 4 HKC 635.

5. On the other hand, whether challenge by way of judicial review is unattainable by reason of the exclusive jurisdiction clause in the light of the case of R. v. Registrar of Companies, ex parte Central Bank of India [1986] 1 All ER 105 is certainly an arguable point. The real issue is, given the structure of the landholdings in this case, whether the incorporated owners could be formed in the first place. This goes to the vires of the Land Registrar. I am not convinced that this point is totally unarguable and the matter can only be dealt with in the Lands Tribunal.

Leave granted

6. Accordingly, I shall grant leave to the applicant to issue the judicial review. I shall further order the applicant to serve the paper of these proceedings on the incorporated owners. I shall not direct the Lands Tribunal proceedings to be stayed in the absence of the incorporated owners before me today.