黃瑞珊及另二人 v. 同利工業大厦業主法團及另四人

HCMP 911/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 911 OF 2011

(on an intended appeal from LDBM 33 of 2010)

____________

____________

____________

J U D G M E N T

____________

Hon Yuen JA (giving the judgment of the court):

Background

1.1   LDBM33/2010 are proceedings issued in the Lands Tribunal. 

1.2   On the face of the claim, 黄瑞珊 (“WSS”), 楊雪華 (“YSW”) and鴻略有限公司 (“the Company”) were the applicants. 

1.3 There were 5 respondents originally, but proceedings against the 1^st and 4^th respondents were subsequently withdrawn, leaving 黄慶生 (“Mr Wong”), 陳君德 (“Mr Chan”) and 同利工業大廈業主立案法團 (“the IO”) as respondents.

2.1   The proceedings concerned a goods lift in an industrial building. 

2.2 It was alleged in the claim that WSS, YSW and the Company were at various times the owners of the unit on the 13^th floor.  This floor was not directly served by the lift, and so it was claimed that the owners of this unit should not have had to pay part of the management fees attributable to the lift.  The relief sought essentially reimbursement of overpayments from 1996 to 2008.

2.3   The IO counterclaimed for arrears of management fees.  

Deputy Judge Kot’s judgment in the Lands Tribunal

3.  At the hearing before Deputy Judge Kot in the Lands Tribunal, WSS, YSW and the Company were represented by Huen & Partners. 

4.  On 24 January 2011, Deputy Judge Kot dismissed the application and found in favour of the respondents on the IO’s counterclaim.

Application for leave to appeal

5.1   On 11 March 2011, on the face of it, WSS, YSW and the Company applied out of time for leave to appeal Deputy Judge Kot’s judgment.

5.2   On 21 March 2011 Deputy Judge Kot refused leave.

Miscellaneous Proceedings

6.1   On 19 May 2011, HCMP911/2011 (“the MP”) seeking leave to appeal Deputy Judge Kot’s judgment were instituted by Huen & Partners as solicitors for WSS, YSW and the Company.

6.2   Mr Wong and the IO’s solicitors provided submissions in opposition to the application.

Court of Appeal decision on application for leave to appeal

7.1   On 21 October 2011 this court (Tang VP as he then was and Yuen JA) handed down a judgment dismissing the application. There was also an order nisi that there should be a gross sum assessment of costs. 

7.2   Various submissions seeking to vary the order nisi were received by the court during the period from 9 November 2011 to 28 February 2012, purportedly from WSS and also from YSW (now acting in person) and also from the respondents.

7.3   On 14 March 2012, the court handed down a written decision making a costs order absolute.

8.  Pausing here, so far the above events revealed nothing out of the ordinary.

WSS’s application

9.1   However WSS then alleged that she had not authorised the proceedings in the Lands Tribunal or in the MP.

9.2   On 5 February 2013 pursuant to directions from this court, she sent filed a summons for an order that

“1. the name of [WSS] be struck out from the Notice of Application dated 19^th May 2011 herein and all subsequent Court documents, Orders and Judgment herein, on the ground that [WSS] has never commenced and pursued the [MP] herein and has never instructed, permitted or authorized any person to commence and pursue the [MP] herein;

2. this application be dealt with LDBM33/2010 together;

3. [YSW] do pay the costs of and occasioned by this application and wasted costs”.

9.3   This court also gave directions for affirmations to be filed by all interested parties, including the solicitors who had purported to act for WSS. 

9.4   A large number of affirmations have since been filed.  In particular WSS has alleged that although she had signed a power of attorney in English in favour of YSW in 2007, that did not authorize YSW to act on her behalf in instituting the proceedings against the IO; and she further alleged that a  power of attorney written in Chinese dated 15 November 2010 (“the Chinese POA”) had not been signed by her.  She has reported the matter to the police.               

9.5   Meanwhile the respondents in the Lands Tribunal and the MP have asked that this court’s judgment of 21 October 2011 and the order dated 14 March 2012 be sealed so that they could proceed to taxation of costs (the sealing of the court’s orders having been suspended in the meantime).

9.6   YSW and the Company have asked in a letter dated 23 July 2013 that the Lands Tribunal proceedings, the MP and two other High Court actions (HCA868/2008 and HCA1089/2013) be heard together but that the issue of the Chinese POA be dealt with separately.

Discussion

10.  The affirmations filed contain highly controversial matters.  Serious allegations have been made, a report of forgery has been made to the police and the issue of solicitors’ authority to act strikes at the very heart of the validity of the Lands Tribunal proceedings, from which the MP stems.

Order

11.1   It seems to us that the proper way to resolve the matter would be to direct that all proceedings in the MP (including taxation of costs) be stayed until the issue of authority to act on behalf of WSS in LDBM33/2010 is determined in the Lands Tribunal. 

11.2   For the avoidance of doubt, we direct that no orders of this court (other than the present one) are to be sealed. 

11.3   Also for the avoidance of doubt, we make no order as to which proceedings are to be heard with LDBM33/2010. That will be a matter for the presiding officer to decide. 

11.4   It will also be up to the presiding officer to decide on whether any issue(s) should be decided as preliminary issue(s). 

11.5   Costs incurred by all parties in the MP are reserved.