中紀投資有限公司 v. 青山道國際工業大廈業主立案法團

LDBM 118/2017

[2021] HKLdT 2

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 118 OF 2017

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D E C I S I O N

(Leave to appeal)

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1.  By a summons dated 6 August 2020, the applicant applies for leave to appeal against the Tribunal’s Decision on Review handed down on 9 July 2020 (“Leave Application”).  As directed by the Tribunal on 17 August 2020, the Leave Application shall be dealt with on paper without oral hearing.

2.  In the said Decision on Review, the Tribunal ordered that:-

(a) the applicant’s application for review of the Judgment of the Tribunal dated 24 January 2020 (“Original Judgment”) be dismissed; and

(b) the Original Judgment be confirmed (“Decision on Review”).

3.  Unless otherwise stated, the same abbreviations as used in the Original Judgment and the Decision on Review will be adopted below.

4.  By the Original Judgment, the Tribunal dismissed the applicant’s claims for, inter alia, an order that the respondent do take such actions, including legal actions, to enforce the DMC and the BMO against the owner of Flat 9A, for the removal of the Window Frames and the reinstatement of the external wall, and to restrain the owner of Flat 9A from installing further similar structures.

Applicable legal principles

5.  It is beyond dispute that an appeal from the Lands Tribunal can only be brought on the ground that the decision is erroneous in point of law (section 11(2) of the Lands Tribunal Ordinance (Cap 17) (“LTO”)).  Leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard (LTO, section 11AA(6)).

6.  As to appeals from review decisions of the Tribunal, in CLP Power Hong Kong Ltd v Commissioner of Rating and Valuation [2013] 4 HKLRD 535, Au J (as he then was) held at paras 29 to 30 that, once the Tribunal has made a review decision:- (1) a party is no longer entitled to seek leave to appeal against the original decision, which would have by then been superseded by the review decision; (2) the party can seek leave to appeal the review decision under the statutory time period on points of law; and (3) in seeking to appeal against the review decision, the party is not limited to relying on only those grounds that have been raised in the review itself, and one may still challenge the review decision on the basis of errors of law of the Tribunal’s original reasons which have not been reviewed.

Grounds of Appeal

7.  The applicant’s intended grounds of appeal (as set out in the draft Notice of Appeal) are based on the following:-

Ground 1 -  The Tribunal erred in law in finding that at the time of passing the 2017 Resolution, it was the intention of the MC to treat the Post-Window Frames as the structures then existing at the external wall of the Building and that the 2017 Resolution on its true construction covered the Post-Window Frames;

Ground 2 -  The Tribunal erred in law in failing to find that the Post-Window Frames were likewise illegal structures and that it was beyond the power of the MC to permit their construction or retention;

Ground 3 -  The Tribunal erred in law in failing to find that the installation of the Post-Window Frames was in breach of Clause 10(g) of the DMC;

Ground 4 -  The Tribunal erred in law in holding that the MC had the power to approve of breaches of Clauses 10(e) and 10(g) of the DMC by the 2017 Resolution.

Discussion

8.  I am of the view that most of the Grounds have been dealt with in either the Original Judgment or the Decision on Review.  In the circumstances, I will only discuss these Grounds briefly below.

9.  For Ground 1 which concerns the true construction of the 2017 Resolution, the applicant complains about the Tribunal’s finding on the intention of the MC in passing the 2017 Resolution and submits that the finding is contradicted or not supported by the evidence.

10.  In my view, the applicant ignored the factual bases relied upon by the Tribunal in concluding that it was the MC’s intention to treat the Post-Window Frames as being covered by the 2017 Resolution.  Such factual bases have been eminently set out in paras 35 and 36 of the Decision on Review, viz the mere technical difference between the Pre- and Post-Window Frames, the respondent’s position throughout the proceedings, the MC members’ not being lawyers, the MC’s concern in passing the 2017 Resolution, the fact that the Window Frames would not affect the structure of the Building, and the consistency in rationale between the 2017 Resolution to the regularization of the Pre-Window Frames.

11.  I consider that Ground 1 actually involves no point of law and has no reasonable prospect of success.

12.  For Ground 2 which concerns the illegality of the Post-Window Frames, the applicant is in fact complaining that the Tribunal refused to allow this new point to be argued in the review.  The Tribunal has set out the approach in paras 24 to 29 of the Decision on Review in rejecting the applicant’s attempt to argue the alleged illegality of the Post-Window Frames, which is not specifically pleaded in the Notice of Application or the Reply, in particular the definition of signboard under section 2(1) of the BO.  Ground 2 does not amount to a point of law and has no reasonable prospect of success.

13.  For Ground 3, as to the question whether the Post-Window Frames should have been regarded as de minimus is a matter of fact finding for the Tribunal.  Having found that “as a matter of fact that [the Post-Window Frames] were so not prominent that a reasonable man would conclude that the external appearance of the Building has been altered” by relying on the size of the Post-Window Frames as shown in the photos (para 49 of the Original Judgment), I consider that there is utterly no room for the applicant to argue that the Tribunal has committed any error of law in concluding that there is no breach of Clause 10(g) of the DMC.

14.  In my view, Ground 3 has no reasonable prospect of success.

15.  For Ground 4, the applicant argued that it was the statutory duty of the respondent under section 18(1)(c) of the BMO to do all things reasonably necessary for the enforcement of the obligations contained in the DMC, including those imposed by Clauses 10(e) and 10(g) of the DMC, and the 2017 Resolution would be a clear dereliction of such duty.  In paras 43 and 46 of the Original Judgment, the Tribunal has explained and taken the view that it was within the power of the respondent to approve the breaches of Clauses 10(e) and 10(g) of the DMC by the 2017 Resolution.  In other words, I disagree that Clauses 10(e) and 10(g) of the DMC impose complete and absolute prohibitions to regulate against the use of the exterior or the exterior wall of the Building by the owners.

16.  Ground 4 has no reasonable prospect of success.

Conclusion

17.  To conclude, the applicant has failed to demonstrate any reasonable prospect of success in its intended appeal and there is no other reason in the interests of justice why the appeal should be heard.  The Leave Application should be dismissed with costs.

18.  Parties have lodged and served their respective statements of costs.  On board brush basis, I summarily assessed costs of the respondent at $80,000 payable by the applicant forthwith.