黎偉雄 v. SINO ESTATES MANAGEMENT LTD AND ANOTHER

LDBM 61/2020

[2023] HKLdT 23

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO.61 OF 2020

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D E C I S I O N

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1.  By my judgment handed down on 22 December 2022 (the Judgment)[1], the Applicant’s entire application as against both the 1^st and 2^nd Respondents is dismissed by me[2]. By Form 1 filed on 20 February 2023, the Applicant applied for leave to appeal against the Judgment to the Court of Appeal out of time (the Application).

2.  In disposing of the Application below, I will adopt the same abbreviations in the Judgment.

3.  At the hearing of the Application, the Applicant appeared in person. Mr Justin Ismail of counsel (Mr Ismail) was instructed to appear for R1 while Mr Paul Kwan of Messrs. Deacons (Mr Kwan) appeared for R2. Both R1 and R2 opposed the Application.

Brief Summary of the Judgment

4.  In brief, the Applicant, a residential flat owner[3], claimed in his application that the Subject Areas of the Estate (i.e. portion of G/F Entrance and certain Former G/F Corridors) have been “Commercial Common Areas” since the making of the DMC[4] and that the 2^nd Respondent (the developer of the Estate and operator of the Mall on its G/F and UGF[5]) had since 1999, with the acquiescence and misrepresentation of the 1^st Respondent (the manager under the DMC[6]), encroached upon the Subject Areas for its own profit[7]. On the basis of this complaint, the Applicant sought against both Respondents a declaration of “Commercial Common Areas” and against the 1^st Respondent mesne profit, and account of profit, for the Encroachment and damages for misrepresentation[8].

5.  In gist, I found the Subject Areas being private area owned by the 2^nd Respondent on G/F[9] and, thus, the 2^nd Respondent had not encroached upon any alleged “Commercial Common Areas” (had the Subject Areas been so held, the Applicant, as a residential owner, I also found, enjoys no right over them under the DMC[10]). The 1^st Respondent had, I found, reasonably shared, and acted on, the same view of the 2^nd Respondent and was not in breach of its manager duty under the DMC. In any event, the 1^st Respondent was protected by the terms of the DMC[11]. Finally, the Applicant’s various monetary claims against the 1^st Respondent are, I ruled, all bad in law, and the Applicant had not, I found, adduced sufficient and reliable evidence to prove their alleged quantum[12]. Hence, I dismissed all the Applicant’s claims against both Respondents.

Applicant’s Submissions

6.  Looking at affirmation filed by the Applicant on 20 February 2023 in support of the Application (A’s Affirmation), one thinks he advanced basically 3 grounds of appeal in seeking leave to appeal against the Judgment out of time.

7.  The Applicant first questioned whether this Tribunal can review or reopen CA Judgment[13]. He complained that the Judgment was inconsistent with CA Judgment (First Ground).

(1)  The Applicant submitted that the Court of Appeal had by CA Judgment “already” decided that “Commercial Common Areas” of the Estate have always been, pursuant to CA Assignment, held by the 1^st Respondent as trustee for all the owners of the Estate.

(2)  The 1^st Respondent’s application for leave to appeal against CA Judgment to the Court of Final Appeal, the Applicant pointed out, had been rejected by the Court of Appeal (the CFA Leave Judgment)[14]. CA Judgment is thus, he submitted, final and conclusive as against the 1^st Respondent, which, however, disregarded CA Judgment “as a waste piece of paper” and continued to condone the Encroachment. That this Tribunal was “dissatisfied” with CA Judgment has also, the Applicant submitted, “nothing to do with him”.

(3)  It is, he submitted, most “perplexing” and “unreasonable” for this Tribunal to have wrongly construed the DMC contrary to CA Judgment to hold that the Subject Areas are privately-owned by the 2^nd Respondent. One wonders, the Applicant asked, which of the two judgments (i.e. CA Judgment or the Judgment) is now to be followed on this matter of “Commercial Common Areas”.

(4)  The Applicant referred to (1) 鄭惠娟 對 永利中心業主立案法團及另一人[15] and (2) The Incorporated Owners of Man Hong Apartments v Kwong Yuk Ching & Others[16] and submitted that they set out clearly differences between “common parts” and private property. By reference to these 2 cases, whenever any particular area is alleged by an owner under his/her/its exclusive use, occupation and enjoyment, deeds of mutual covenant must, he submitted, “record”[17] that area as belonging to that particular owner.

8.  Secondly, the Applicant complained in A’s Affirmation that this Tribunal’s holding in the Judgment that residential owners like him have no right under the DMC to go, pass and repass over “Commercial Common Areas” is also “perplexing” (Second Ground).

(1)  While commercial owners have “exclusive”[18] right to access “Commercial Common Areas”, residential and carpark owners, he submitted, should also have access to “Commercial Common Areas” by virtue of their “co-ownership” or “tenancy-in-common”[19] of the Land and the Estate[20].

(2)  Following from the aforesaid, the Applicant submitted that he did suffer damage as he could not exercise his legal right to go elsewhere by going through “Commercial Common Areas” of the Estate.

(3)  And he is therefore entitled to seek against the 1^st Respondent damages for misrepresentation for being deprived of such access in sum of $30,598 (quantified like lawyer’s hourly rate) at a daily rate of $3.8 for 22 years at 336 days per year.

9.  Thirdly, clause 7 in Section J of the DMC[21] entitled “miscellaneous income”[22], the Applicant submitted in A’s Affirmation, is applicable in the circumstances (Third Ground).

(1)  The 2^nd Respondent had, he emphasized, encroached upon “Commercial Common Areas” and profited at the expenses of other owners of the Estate and that the 1^st Respondent had, in breach of its duty as manager under the DMC, condoned the Encroachment.

(2)  Hence, the 1^st Respondent should be held liable on the aforesaid clause to pay mesne profit, or account for such profit, totaling $27,919,510 into Estate Capital Fund under the DMC [23].

(3)  In assessing quantum of the above claim, this Tribunal had, he submitted, erred in not assuming rent payable under the old lease as evidence of market rent and 駱詠欣 訴 彭君偉 [24]was cited by him in support of such proposition.

10.  At the hearing of the Application, the Applicant submitted, and repeated, that the whole focus of the Application is his submissions at [7(1)] above. Dissatisfaction of this Tribunal with CA’s decision of “Commercial Common Areas” in CA Judgment now requires, he submitted, the same matter to be re-litigated in the Court of Appeal again.

11.  In response to “delay” submissions advanced by Mr Ismail and Mr Kwan at the hearing of the Application, the Applicant explained for the first time in his reply that he was late in seeking leave to appeal because he did not understand the Judgment written in English and that he had not been supplied with a Chinese version of the Judgment (Chinese Judgment) after he made his application for the same to the Lands Tribunal.

Applicable law and principles

12.  Any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment of the Tribunal on the ground that such judgment is erroneous in point of law: s.11(2) of Lands Tribunal Ordinance, Cap.17 (LTO).

13.  Leave to appeal shall not be granted unless the Tribunal hearing the application for leave is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard: s.11AA(6) of LTO.

14.  For limb (a) above, the prospects of succeeding must be “reasonable”. It must therefore be more than “fanciful”, though without having to be “probable”: 張超翰 及 韓欣陶[25] at [38].

15.  Application to the Tribunal for leave to appeal must be made within 28 days from the date of the judgment in the case of an appeal against a judgment other than an interlocutory judgment: r.30B(2)(a) of Lands Tribunal Rules, Cap.17A (LTR).

16.  The Tribunal may, at any time, and notwithstanding that the time for an application for leave to appeal may have already expired, extend the time for applying for leave to appeal: r.30D of LTR.

17.  The factors which are normally taken into account in deciding whether to grant an extension of time are: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if time for appeal is extended; and (4) the degree of prejudice to the potential respondent if the application is granted. Where the delay is substantial and inexcusable, a party seeking an extension of time must satisfy a higher merits threshold of showing a real prospect of success: 張超翰, supra, at [40] and [41]; The Incorporated Owners of Morning Ray Mansion v Tong Wai Tak[26] at [21].

18.  An appeal is not a re-hearing. One is required to identify on appeal what error(s) the trial judge had made in ruling as he/she did in the judgment below. It is no use on appeal to make a re-run of the same submissions advanced but rejected below and the same cannot be proper ground of appeal: 張超翰, supra, at [42] and [43]; The Incorporated Owners of Morning Ray Mansion, supra, at [29].

Discussions

Length of delay

19.  The 28-day deadline for the Applicant to apply to this Tribunal for leave to appeal against the Judgment to the Court of Appeal ended on 19 January 2023. By taking out this Application on 20 February 2023, the Applicant was 32 days out of time.

20.  As was rightly pointed out by Mr Ismail, the Applicant had once applied for, and refused, leave to appeal against PPW Case[27] to the Court of Appeal out of time[28] and the applicable time limit for applying for leave to appeal has been explained to him when the Lands Tribunal handed down its decision in December 2018[29].

21.  For the above reason, Mr Ismail submitted that same level of indulgence should not be afforded again by this Tribunal in the Application to the Applicant. I agree.

22.  The length of delay in our case is, I also agree with Mr Ismail, not insubstantial.

Reasons for delay

23.  While the Judgment was written in English and lengthy, I do not find Applicant’s “late” explanation for delay in [11] above genuine or excusable for the following reasons.

(1)  While he did say at p.8 of A’s Affirmation that he had not received Chinese Judgment, he did not say at the same time “he was late in applying for leave, and had to make the Application, as he did not understand the Judgment written in English”. Neither did he say therein “his application for Chinese Judgment was still being processed (see below)”.

(2)  While the Applicant did apply on 23 December 2022 for Chinese Judgment, this Tribunal had by letter dated 28 December 2022 rejected his application (the Rejection Letter) and reminded him again of his right under [253] of the Judgment to approach my clerk to make appointment with court interpreter for interpretation of the Judgment.

(3)  Though the Applicant disclaimed receipt of the Rejection Letter when our file copy was shown to him at the hearing of the Application, it was, he agreed, sent to his correct address for service and the original was, on our records, never returned undelivered to the Lands Tribunal.

(4)  Had the Applicant not received the Rejection Letter by post as alleged by him, it was, I think, most incredible for him to claim at the hearing of the Application that he did not see fit to chase the Lands Tribunal for result to his application for Chinese Judgment (i.e. approved or disapproved) even after a long lapse of 2 months.

(5)  In any event, the Applicant admitted at the hearing of the Application that court clerk did advise him of his right under [253] of the Judgment before and at the time of handing down of the Judgment but that he himself declined interpretation service then made available to him.

(6)  Though the Applicant has hearing problem requiring provision of hearing aid (and assistance of interpreter) at trial and at the hearing of the Application, he, I believe, can read and understand some (if not all) English in the Judgment and, if required, could seek interpretation assistance elsewhere himself for the rest. Were it otherwise, this Tribunal fails to see how the Applicant could have put up his grounds of appeal above in A’s Affirmation.

(7)  Were the Applicable unable to read or understand the Judgment written in English in part or at all and had he not received the Rejection Letter as alleged by him, he had, I think, only himself to blame for his delay in taking out the Application for not availing of interpretation service of the Judgment by court interpreter available at about its handing down and his own election to wait for Chinese Judgment which inevitably takes time to be prepared even after its application is approved (which had in fact been rejected).

Chances of intended appeal

First Ground

24.  Regarding CA Judgment, as the Applicant should be well aware himself, the PPW Case (and PPW Appeal[30]) is, I have repeatedly pointed out in the Judgment and as Mr Kwan pointed out at the hearing of the Application, separate and different from this case.

(1)  The PPW Case dealt with a subject matter (PPW situated at UGF[31] of the Estate) different than that in our case (the Subject Areas situated at G/F[32] of the Estate).

(2)  The issue in PPW Case (and PPW Appeal) is whether PPW is “Estate Common Areas” under the DMC or part of Commercial Accommodation reserved by the developer (i.e. our 2^nd Respondent)[33]. Our issue is different: whether the Subject Areas are “Commercial Common Areas” under the DMC or part of G/F “Commercial Accommodation” privately-owned by the 2^nd Respondent[34].

(3)  The evidence adduced in PPW Case and in our case was, I would like to point out, not entirely the same. Though Leung was called in both cases by R1[35], new and different witnesses were called in our case.

(i)  Significantly, Chau was called by R2 in our case to give material evidence about allocation of undivided shares in the DMC[36] (and to explain SC(12) of the New Grant[37]).

(ii)  Hung was also called by R2 in our case to give evidence on the physical lay-out of the Mall and of the Estate[38].

(4)  Hence, the Court of Appeal heard the PPW Appeal in the aforesaid different context of the aforesaid different issue in PPW Appeal and on the aforesaid different evidence adduced in PPW Case[39] (and this Tribunal decided this case on its different context, different issue and different evidence, albeit involving the same Estate and the same DMC).

(5)  The Court of Appeal had expressed its views about “Commercial Common Areas” at, inter alia, [23] of CA Judgment in order to show that all 6 reasons given by trial judge in PPW Case in finding PPW not “Estate Common Areas” were flawed[40].

(6)  As the trial judge of PPW Case did not correctly analyze the terms of the DMC as a whole against the relevant context, the Court of Appeal in PPW Appeal had to construe the DMC afresh in resolving the appeal[41].

(7)  The Court of Appeal had thereafter embarked on its own iterative process of construing the DMC to conclude that PPW is “Estate Common Areas” under the DMC and, in the said iterative process, expressed its views about “Commercial Common Areas”[42].

(8)  Thus, the Applicant obtained in the end only a declaration of PPW being “Estate Common Areas” under the DMC after the PPW Appeal was allowed[43]. In the end, the Court of Appeal had, I think, decided or determined nothing about the Subject Areas or “Commercial Common Areas” in the PPW Appeal.

(9)  By comparison, had the Applicant succeeded on Issue (1) in our case, he could have obtained a different declaration about the Subject Areas being “Commercial Common Areas” under the DMC[44] in our case.

(10)  As a matter of precedent, such legal principles laid down by the Court of Appeal in CA Judgment in construing deeds of mutual covenant[45] are admittedly binding on lower courts like this Tribunal. But the iterative process undertaken afresh by the Court of Appeal in CA Judgment to discover the status of PPW at UGF of the Estate under the DMC[46] is, I think, different from that similar process to be undertaken by this Tribunal after trial of this case to discover the status of the Subject Areas at G/F of the Estate under the DMC, though both touched upon “Commercial Common Areas” in the process.

(11)  Further, the 2^nd Respondent was not a party to the PPW Case[47] (and PPW Appeal) and R1 was not a related company of R2 at the time of the PPW Case (and PPW Appeal) [48]. Though the declaration the Applicant obtained in PPW Appeal says that “[R2] did not have exclusive right to use and occupy the PPW” as it is “Estate Common Areas” under the DMC, CA Judgment cannot bind a non-party like the 2^nd Respondent, though R1, a party to the PPW Appeal, is bound at law to abide by the said determination of PPW being “Estate Common Areas” under CA Judgment[49].

(12)  Looking at the handwritten words (or question) the Applicant himself put down on Form 29 he enclosed at last page of A’s Affirmation i.e. “海悅豪園是否存在商業公共地方?”, I think he apparently knew full well at the commencement of this application that “Commercial Common Areas” had not been decided by the PPW Appeal and that he brought this application in order to resolve this unresolved question.

(13)  As the Applicant sought to rely on the aforesaid views expressed by the Court of Appeal in CA Judgment on “Commercial Common Areas” in this new and different case about the Subject Areas, this Tribunal had no choice but was obliged to consider them[50].

25.  For the above reasons, CA Judgment could not, as was pointed out in the Judgment, be determinative of our Issue (1) about the Subject Areas being “Commercial Common Areas”. Issue (1) required this Tribunal to construe the DMC afresh in light of different evidence adduced in this case and the rival contentions advanced by the parties in this case[51].

26.  While it was said in context somewhat different to our case[52], what Lam J. (as he then was) said at [8] of Chan Wing v Chow Lee Wah[53] is, I think, pertinent and worthy to be remembered i.e.

“因為[本案被告人]並非土地審裁處案件及區域法院案件的被告人，法庭在該兩宗案件的判決對[本案被告人]是沒有任何約束力。在法律上，該兩宗案件的判決亦不可在本案中被視為證明原告人申索的證據，土地審裁處及區域法院之事實裁斷亦對今次的訴訟沒有任何幫助…。因此，本席必須按在今次審訊中雙方向法庭呈交的證據及證人之證供就相關的事實作出重新的裁斷，並按本席的事實裁斷根據適用的法律原則就原告人提出的申索作出判決。縱使本席作出的結論可能與較早前土地審裁處的法官或區域法院的法官有所不同，本席亦不應因為這些較早前的裁決而影響本席獨立之判斷。雖然驟眼看來，旁人可能會詫異為何就同一之案情不同的法官會達至不同的結論，但在實質上這並沒有任何矛盾。因為每一個法官就每一件案件的決定均為獨立之決定，而在作出每一項裁決時，每一位法官的責任均是按與訟雙方在審訊時向該法庭呈交之證據作出獨立的判斷及衡量，雖然案情是一樣，同一位證人在不同案件中及不同法官面前作供的表現亦很可能不同，所以不同法官達至不同的結論不足為奇。”

Given that our case involves different subject matter, issue and evidence from those of PPW Case (and PPW Appeal), it is, one thinks, even more not surprising that the Judgment could well be different from that of CA Judgment.

27.  In our case, the construction exercise of the DMC should be performed in the context of the DMC as a whole, its factual and legal background and the practical objects that it was intended to achieve. Both its text and its context are to be considered. And it is a unitary exercise involving an iterative process. All relevant pointers should be taken into account by this Tribunal in this construction exercise[54].

28.  CA Assignment that the Applicant heavily relied upon in A’s Affirmation[55] is, I would like to point out, only one out of many alleged pointers that this Tribunal is required at law to consider in the above construction exercise of the DMC. This Tribunal had in the Judgment taken into account all alleged pointers raised by all parties[56] before arriving at its conclusion on Issue (1).

29.  CA Assignment on its own does not, I am afraid, give simple and straightforward “black and white” answer to Issue (1). As was shown by PPW litigation from first instance to appeal, the construction of the DMC is not an easy task but a painstaking iterative process which is open to different interpretation by different tribunal(s) (who may attach different significance or weight to similar factors)[57].

30.  The 2 cases cited by the Applicant at [7(4)] above are, I think, distinguishable from our case and they do not, I think, fully support the proposition advanced by him in A’s Affirmation.

31.  Having gone through in the Judgment relevant BMO provisions and the case law[58], this Tribunal maintains the view expressed in the Judgment that BMO does not require “express” designation or specification of exclusive use areas in a deed of mutual covenant[59].

32.  Against, among others, the context of Chau’s material evidence about allocation of undivided shares, including those to “Common Areas”, in the DMC[60], this Tribunal had determined in the Judgment that the Subject Areas had, by allocation of 322 undivided shares to R2 in the First Schedule for “G/F” “Commercial Accommodation” and clause 1 of Section C, been designated or specified as exclusive use (or private) areas belonging to R2[61].

33.  With respect, the Applicant has not, I think, identified any arguable error of law in the aforesaid construction process of the DMC undertaken by this Tribunal in the Judgment having reasonable (let alone, real) prospect of success on appeal.

34.  The Applicant’s First Ground fails.

Ground Two

35.  Regarding right to pass enjoyed by residential owners under the DMC, the Applicant’s submissions, I am afraid, fly in the face of the plain contrary wordings of the DMC, which was executed in order to “restrict” the “unity of possession” formerly enjoyed by each tenant-in-common of the Land and the Estate.

(1)  Clause 1(i) in Part I of Second Schedule[62] means exactly what it says: owner for time being of a residential unit has the right and liberty to go, pass and repass over “Estate Common Areas” and “Residential Common Areas”. Had residential owners enjoyed additional access to “Commercial Common Areas” like that provided for commercial owners in clause 1(ii) below, those words of “Commercial Common Areas” could also, one thinks, be easily added to clause 1(i).

(2)  The scheme of the DMC as a whole is that each group of owners of this composite development enjoy right to pass their respective common areas and all 3 groups enjoy the same additional right to pass “Estate Common Areas”[63].

(3)  The Applicant had, I am afraid, misread [27] of CA Judgment to have believed that the “default” position of unity of possession to each part of the Land enjoyed at common law by each tenant-in-common of the Land survived after the execution of the DMC (the DMC in fact overrides such default position at law after its execution) [64].

36.  Hence, this Tribunal maintains the view in the Judgment that the Applicant, as a residential owner, enjoys no right under the DMC to pass or go over “Commercial Common Areas” to access other areas, had I ruled Issue (1) in his favour and found “Commercial Common Areas” to have existed in the Estate in the past[65].

37.  As the Applicant enjoys no legal right under the DMC to pass over “Commercial Common Areas” (if they existed in the Estate at all), as was held in the Judgment, he had been deprived of nothing he formerly enjoyed at law and, thus, he had suffered no damage in the eyes of the law[66].

38.  This is not to mention that the misrepresentation claim made by the Applicant against the 1^st Respondent of being deprived of access to “Commercial Common Areas” (had they allegedly existed in the Estate and had he enjoyed alleged legal right over them under the DMC) at $3.8 per day for 22 years is, without doubt, arbitrary[67].

39.  Hence, this Second Ground is, in my view, not arguable.

Ground Three

40.  This ground is, I think, no more than a re-run of the same submissions raised by the Applicant at trial and rejected in the Judgment. This is not a valid ground of appeal at all.

(1)  For reasons given in the Judgment, Applicant’s reliance of clause 7 in Section J[68] is, I think, misconceived[69].

(2)  This Tribunal has not found for encroachment of “Commercial Common Areas” alleged against the 2^nd Respondent nor breach of manager duty alleged against the 1^st Respondent.

(3)  And the Applicant had not been able to prove his alleged claim of $27,919,510 by sufficient and reliable evidence. At law, he bears burden to prove the quantum of his claim[70].

(4)  Those legal propositions about nature, and assessment, of mesne profit said in 駱詠欣 訴 彭君偉 are not controversial. What, however, caused the Applicant to have failed in the end to prove his alleged quantum is that he failed to collect and put forward at trial sufficient and reliable evidence to prove his various heads of claim for different parts of the Subject Areas over a long period of time[71].

Conclusion on Merits

41.  Hence, the Applicant’s intended appeal has, I conclude, no reasonable, let alone real, prospect of success.

42.  For the sake of completeness, the Applicant has not submitted any other reason why his intended appeal should be heard in the interests of justice.

Prejudice to the Respondents

43.  Mr Ismail made no submission on this factor while Mr Kwan suggested that Applicant’s massive claim of $27,919,510 may have a bearing or impact on financial reporting of R2’s listed parent company. After this Tribunal had reminded Mr Kwan that the Applicant had at trial made all his monetary claims against R1 alone, he no longer maintained this submission of alleged prejudice to R2.

Time Extension or not?

44.  All things considered, as the Applicant had been guilty of substantial delay without having any genuine or excusable explanation for the same and as his grounds of appeal do not enjoy any reasonable or real prospect of success, this Tribunal declines to exercise my discretion to extend time for the Applicant to apply for leave to appeal against the Judgment to the Court of Appeal.

Disposition

45.  Accordingly, I dismiss the Application.

46.  Costs normally follow the event. I make an order nisi that the Applicant do pay the 1^st and 2^nd Respondents their respective costs of the Application, including costs of the hearing of the Application on 3 March 2023, together with certificate for counsel for the 1^st Respondent, to be taxed on District Court scale if not agreed. This order nisi shall become absolute if none applies to vary it within 14 days of this decision.

47.  As this Tribunal had made clear to the Applicant at the hearing of the Application, no Chinese version or translation of this decision will be provided to him[72]. Other than the time limit in [46] above, there are other time limits arising from this decision. If the Applicant requires interpretation of this decision by court interpreter, he should without delay approach my clerk to arrange appointment for the same, failing which he may be held again to have no good explanation for any consequential delay due to his own choice.