THE INCORPORATED OWNERS OF PEARL ISLAND GARDEN v. HUI CHAN SOON HOY AND ANOTHER

CACV 26/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 26 OF 2004

(ON APPEAL FROM LDBM 110 OF 2003)

______________________

______________________

___________________________

REASONS FOR JUDGMENT

___________________________

Hon Cheung JA :

1.  These are my reasons of our judgment given on 14 January 2005.

Facts

2.  The claimant is the Incorporated Owners of the property known as Pearl Island Garden situated at 11 Tsing Lung Road, Castle Peak Road, New Territories (‘the property’).  It sought to recover from the respondents who were the owners of a flat in the property the sum of $4,669 together with interest and costs.  This sum was the respondents’ share of contribution to a special fund established pursuant to a resolution passed by the owners of the property at an Extraordinary General Meeting held on 6 July 2002.  The special fund was set up for the maintenance of the sewage system in the property.

3.  A number of defences were raised by the respondents to the claim including that the resolution was passed in breach of the terms of the Deed of Mutual Covenant of the property and was therefore null and void and that the management committee had misled the owners by providing misleading information about the sewage system.

4.  But what is more important for the purpose of this appeal is the defence that the resolution of 6 July 2002 is invalid because the management committee which convened the meeting was invalidly constituted in the first place.  This management committee was elected at an Extraordinary General Meeting of the owners on 23 September 2001.  It is said that the notice convening this meeting was invalid.

5.  What happened was that on 8 September 2001 the management committee issued a notice of this meeting to the owners.  The Agenda was as follows :

Agenda
‘	(1)	Dissolve of the Existing Management Committee and members.
	(2)	Re-election of management committee including members, secretary and chairman.
	(3)	Management Fee Account Arrangement.	’

6.  Then on 9 September 2001, a Revised Notice was issued.  Endorsed in handwriting on the top right-hand corner of this Revised Notice were the words :

‘To All Owners :
The agenda ref : PM/PLG/09704/01 issued earlier is superseded with immediate effect.
AG WILKINSON
9.9.2001
7:30 pm’

7.  AG Wilkinson was the property management company for the property.  The content of this Revised Notice was in exact terms as the notice of 8 September 2001, except in the following respects :

(1)	A handwritten letter ‘A’ was inserted after the reference number of the notice.
(2)	The handwritten word ‘Revised’ was inserted after the words ‘Notice of Extraordinary General Meeting’.
(3)	Under Item 1 of the Agenda, the words ‘and members’ were crossed out by two lines.

8.  The Revised Notice was both in English and Chinese.  The Chinese version contained the same changes.

9.  The respondents argued that the Revised Notice served on 9 September 2001 did not comply with the time requirement for the service of notice under the Building Management Ordinance Cap. 344 (‘the BMO’).

10.  H.H. Judge Chow sitting in the Lands Tribunal upheld this contention.  He held that the resolution passed at the meeting was invalid and had no effect by reason of Paragraph 3(7) of Schedule 3 of BMO.  As the management committee was invalidly constituted by an invalid resolution, the 6 July 2002 meeting convened by it was likewise invalid.  He dismissed the application without deciding the other defences raised by the respondents.

11.  The applicant appealed.  The respondents put in a respondent’s notice supporting the judge’s decision on certain additional grounds that are substantially the same as those other defences that the judge did not deal with below.

Building Management Ordinance

12.  Paragraph 1 of Schedule 3 of theBMO deals with the convening of meetings.  Paragraph 2(1) provides that :

‘	Notice of a meeting convened under paragraph 1 shall be served by the secretary of the management committee upon each owner and upon the tenants’ representative (if any) at least 14 days before the date of the meeting.’  (emphasis added)

13.  From a plain reading of this paragraph a notice of meeting will be sufficient and valid if it was served at least 14 days before the meeting.  Applying this paragraph, Mr. Wong counsel for the respondents accepted that one day before the meeting on 23 September 2001 was 22 September 2001.  Counting back, in this manner, 9 September 2001 was the 14^th day before the meeting.  The notice was served on 9 September 2001 and so the notice was a valid one.

Interpretation and General Clauses Ordinance

14.  What caused the judge to hold that the notice was invalid was because he held that the day of service of the notice should not be counted and the period of 14 days began on 10 September 2001.  On that basis there was only 13 days between 10 September 2001 and 22 September 2001.  The judge applied section 71(1)(a) of the Interpretation and General Clauses Ordinance (Cap. 1) (‘IGCO’) which provides that :

‘	In computing time for the purposes of any Ordinance
	(a)	a period of days from the happening of any event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done.’

15.  Section 2 of IGCO clearly provides that this ordinance will not apply when there is a contrary intention appearing from the context of another ordinance.  Section 71(1)(a) is clearly not applicable to a situation covered by Paragraph 2(1).  Section 71(1)(a) applies where there is a provision of a specified period of time from the happening of any event or the doing of any act.  In such a situation the day on which the event occurred or the act done will not be counted.

16.  However, the wording of Paragraph 2(1) is different.  It did not refer to a 14 days period from the day of the happening of an event or the doing of an act, namely, the service of the notice.  Whether other provisions of the BMO are subject to Section 71(1)(a) is not an issue we are concerned with.  But clearly this section has no application at all to paragraph 2(1).  Any previous decisions which decided otherwise are in my view wrongly decided.  The Revised Notice issued on 9 September 2001 was a valid notice. 

Other argument

17.    I am not convinced that the concept of ‘clear days’ should be imported into paragraph 2(1).  The word ‘clear’ simply does not appear.  Nor should the idea of fraction of a day be considered.  The BMO is to facilitate the management of multi-ownership buildings.  Paragraph 2(1) has used a simple and workable formula for the service of notice of meetings.  It will defeat the purpose of the legislation if some technical rules which do not in fact appear on the face of the relevant paragraph are adopted.

First Notice

18.  Furthermore, I am unable to accept that the Revised Notice of 9 September 2001 was an entirely new notice.  It did not say that the notice of 8 September 2001 was superseded but rather the agenda in the earlier notice was superseded.  But even on that basis the difference between the two versions of agenda was merely the deletion of the words ‘and members’ from item no. 1.  In substance it was the same agenda contained in the earlier notice.  There was no additional item in the agenda.  I fail to see why the first notice could not be regarded as a proper notice for convening the meeting on 23 September 2001.  The dispute by the owners on the agenda at the meeting is irrelevant to the question of the validity of the notice.  Ultimately, whether the Revised Notice was a new notice depends on a construction of the Revised Notice. 

Conclusion

19.  Accordingly, the appeal was allowed and the judgment was set aside.  As the judge had not dealt with the other defences, the case has to be remitted back to him for determination.  We ordered that the applicant is to have the costs of the appeal while the costs below will abide the result of the determination on the other issues.

Hon Yuen JA :

20.  I agree.

Hon A Cheung J :

21.  I agree.