THE INCORORATED OWNERS OF KA WING BUILDING v. CHOW CHUI CHUI AND OTHERS

LDBM 108/2013

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 108 OF 2013

__________________________

________________

________________

D E C I S I O N

________________

1.  The summons before me was taken out on 12 August 2013 by Messrs. Chung & Kwan (“the 108 Summons”) representing the respondents herein except the 5^th one (“to be called collectively as the Respondents”).

2.  By the present summons, the Respondents asked that :

	(i)	the title of the Applicant herein (“the I.O.”) be amended by substituting with: -
		(a)	The individual names of those said to be elected to be substituting members of the Management Committee (“the Substituting Members”) or any of them as the applicants in the title; and
		(b)	The I.O. shall remain as a nominal party in this Action.
	(ii)	Or alternatively, the question whether the I.O. is the proper party to bring the application herein be determined as the preliminary issue.

Background

3.  There are altogether 2 Applications taken out in the Tribunal, namely LDBM 108/2013 and LDBM 299/2012.  Originally both Applications were commenced in the name of the I.O. as the applicant, but the I.O. in the two Applications is represented by different law firms.

LDBM 299/2012

4.  The Application was taken out on 9 November 2012 in the name of the I.O. who was and still is represented by Messrs. Chung & Kwan (“the 299 Application”).  At an owners’ meeting held on 5 August 2012 (“the Meeting”) the 6 Respondents therein through election were said to have become “the Substituting Members”.  The relief claimed in the 299 Application is for a declaration that the resolutions purportedly passed at the Meeting are null and void and have no binding effect on the owners.

LDBM 108/2013

5.  The Application dated 17 April 2013 was also taken out in the name of the I.O. who was and still is represented by Messrs. Baker & McKenzie (“the 108 Application”).  The Respondents are original members of the Management Committee (“the Original Members”).  The relief claimed under the 108 Application is for an order that the Respondents do surrender and produce:

	(i)	documents and properties of the I.O. pursuant to paragraph 5 of Schedule 2 to the Building Management Ordinance (“the BMO”); and
	(ii)	moveable property in respect of the control, management and administration of the Building that is under their control pursuant to paragraph 8 of Schedule 7 of the BMO.

The 299 Summonses

6.  There are two Summonses under the 299 Application.  One was taken out by Messrs. Baker and McKenzie on 12 August 2013 asking to  strike out the 299 Application (“the Summons to Strike Out ”); the other is on joinder of parties (“the Joinder Summons”) taken out by Messrs. Chung & Kwan on 27 September 2013.

7.  By the Summons to Strike Out the Respondents, the Substituting Members, asked for a declaration that the I.O. is not the proper Applicant in these proceedings; and that the 299 Application be struck out for this reason.

8.  By the Joinder Summons which was said to be taken out for and on behalf of the I.O., court’s leave was sought for 6 individuals to be joined as the 1^st to 6^th Applicants and the I.O. to remain as a nominal Applicant numbered 7.  The 6 individuals are the Original Members, i.e. the Respondents in the 108 Application.

9.  At the hearing the Respondents, the Substituting Members, asked for leave to withdraw their Application to Strike Out subject to costs to be argued.  Further the Joinder Summons was not opposed but also subject to argument on costs to be heard at the conclusion of the substantive trial on the 2 Applications.  Application for leave to withdraw was granted and leave was also granted for the 6 individuals, the Originating Members, to join as Applicants; the 2 Summonses under the 299 Application were therefore disposed of.

The 108 Summons

10.  This is the summons which has to be decided by this Tribunal.  As mentioned above, the Respondents therein asked that

	(i)	the title of the Applicant herein (“the I.O.”) be amended by substituting with: -
		(a)	The individual names of the Substituting Members or any of them as the applicants in the title; and
		(b)	The I.O. shall remain as a nominal party in this Action.
	(ii)	Or alternatively, the question whether the I.O. is the proper party to bring the application herein be determined as the preliminary issue.

11.  Much had been submitted by Mr Chan of Messrs. Chung & Kwan on when a suit should be taken out by an I.O. and when it should be taken out in the name of the Substituting Members.  He relied on Fidelity Realty Limited v. Management Committee of The Incorporated Owners of Hong Chiang building & Ors. [2005] 1 HKLRD 309.  It was submitted that since the dispute was mainly between Original Members and the Substituting Members, the 108 Application should be taken out in the name of individuals as, at the end, it should not be the I.O. to be sanctioned with costs.

12.  In my judgment, the relief asked for by Mr Chan has some inherent flaws.  It is a fundamental principle that no one could be forced to sue.  It is provided under Order 15 rule 6 (4) of the District Court Rules that:

“No person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorized.”

13.  It is also said at paragraph 15/4/12 of Hong Kong Civil Procedure 2013 that:

“Where two or more persons are entitled to any relief jointly, as where a contract is made with several persons jointly, all such persons must join in the action as plaintiffs, or if any of them will not join as plaintiff, he must be made a defendant. The defendant may apply to compel the plaintiff to join his co-contractor either as a co-plaintiff, if he consents, or as co-defendant, if he does not;….”

14.  I am of the view that for this reason alone, paragraph (i) of the Respondents’ summons must be dismissed.

15.  The Respondents also ask that the question whether the I.O. is the proper party to bring the 108 Application be determined as a preliminary issue.

16.  After hearing submissions I am of the view that on the face of it, only the I.O. has the locus to bring the proceedings against the Respondents because the ownership of the subject Documents, Properties and Moveable Properties is with the I.O. and they do not belong to any individuals and thus the I.O. is the proper party to bring the proceedings against the Respondents.  Further although a Management Committee can sue under s. 45 of the BMO, as the office of the Substituting Members is now in dispute, it would be an issue as to whether the Management Committee has the locus to commence the proceedings.  Further, the complaint raised by Mr Chan is not whether it should be commenced by the Management Committee or the I.O., his contention is that the proceedings should be commenced by individual Substituting Members.  To conclude, I cannot, with respect, agree with his contention that the I.O. is not a proper party to sue.

17.  For these reasons, the relief asked for by way of the 108 Summons is refused.  Argument on costs shall be adjourned to be heard together with the costs of the two summonses taken out under the 229 Application at the conclusion of the substantive hearing of the two Applications.