XCHRX THE INCORPORATED OWNERS OF WINNER BUILDING v. WAI MAU SEZ AND OTHERS

HCA 20180/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 20180 OF 1998

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J U D G M E N T

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1. This is an application by the plaintiff corporation for summary judgment against defendant owners who are refusing to pay their share of expenses incurred by the plaintiff in works done to their building.

2. The defendants deny the plaintiff's authority to do this work without a resolution of the owners in general meeting, but this is not in issue. The works (even if they were works of improvement rather than repair or renovation) could be authorised by such a resolution. The issue is whether there was any such resolution.

3. A valid resolution requires that its content be set out in the notice convening the meeting. Here there are substantial grounds for contending that the notice of 24 July 1997 did not do this. Further, the notice must be properly served. There are substantial grounds for contending that, at that date, notice by way of placement in an owner's letter box was not good service and that this irregularity is not cured by section 37 of the Building Management Ordinance, Cap. 344 especially where, as here, a number of defendant owners in fact deny receiving the notice.

4. Lastly, there is a dispute as to whether the voting at the meeting said to have authorised the works was in accordance with the provisions of the law requiring one vote to be accorded to each undivided share of each owner; if this point had stood alone, I would not have held that it was sufficient to deny the plaintiff summary judgment.

5. The position overall is that there are substantial grounds of objection to the plaintiff's claim which should be considered at a trial if the parties cannot compromise their differences, a course which will, in the end, cost them less in lawyer's fees than the prosecution of this action.

6. There will be unconditional leave to defend. The costs will be costs in the cause.