GALLIUM DEVELOPMENT LTD AND OTHERS v. WINNING PROPERTIES MANAGEMENT LTD AND ANOTHER

CACV 186/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL APPEAL NO. 186 OF 2003

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REASONS FOR DECISION

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1. At the adjourned directions hearing on 16 October 2003, I ruled that the setting down of the present appeal on 7 July 2003 was regular. These are the reasons for my decision.

Background

2. In order to understand the background leading to the present dispute, it is useful to briefly set out the nature of the appeal. This is an appeal by the 2nd Respondent in a Lands Tribunal action against the judgment of His Honour Judge Yung sitting as the Presiding Officer of the Lands Tribunal handed down on 24 June 2003 (" the Judgment"). The dispute before the Lands Tribunal, briefly stated, involved 23 Applicants which/who were or are owners of units of offices in a building comprising 3 floors of a shopping arcade, that is, the 1st, 2nd and 3rd floors of the building ("the shopping arcade"). The 1st Respondent was the manager of the building and the 2nd Respondent an owner of about 70 percent of the building. The Applicants' claim was in respect of the wrongful conversion by the 2nd Respondent of the common parts of the shopping arcade as a result of the alteration works carried out by the 2nd Respondent to its own private use, the improper use of the sinking fund and the excessive remuneration charged by the 1st Respondent, which fund and remuneration were governed by the relevant provisions in the Deed of Mutual Covenant applicable to the shopping arcade. Various relief including the reinstatement of the shopping arcade was sought.

3. In the Judgment, the Presiding Officer found in favour of the Applicants in relation to their claim in respect of the unlawful conversion of the common areas of the shopping arcade to the private use of the 2nd Respondent but rejected all of the Applicants' other complaints or claims. He ordered the 2nd Respondent to pay damages to the Applicants, which quantum was calculated according to the share of the contribution the Applicants had made towards the costs of the said alteration works carried out by the 2nd Respondent. In the Judgment, the Presiding Officer left the calculation of the amount of damages to be agreed by the parties and gave them liberty to apply in the event of dispute. The issue of costs was also deferred until the parties were given an opportunity to be heard.

The Setting Down of the Appeal

4. On 7 July 2003, the appellant set down the appeal by lodging with the Appeal Registry a copy of the Judgment and two copies of the Notice of Appeal, one of which was endorsed with the amount of the fee paid and the other endorsed with a certificate of the date of service of the notice. The appeal was accordingly entered in the list of appeals with an appeal number allotted to the notice.

The dispute

5. Mr. Kam for the Respondent (i.e. the Applicants in the Lands Tribunal action) initially contested the regularity of the setting down of the present appeal on the following grounds:

(i)	The Appellant had failed to lodge a copy of the sealed order or judgment in accordance with Order 59 r. 5 of the High Court Rules ("HCR").
(ii)	The appeal was against the reasoned judgment of the Tribunal and was not permissible under Order 59 r.4 of the HCR.
(iii)	There was no decision or order of the Tribunal to be appealed against, as the Presiding Officer had not yet determined the actual amount of damages payable and the costs.

6. The Appellant's solicitors responded to the said contentions by arguing that the setting down was governed by Order 60A r. 4 of the HCR and not by Order 59 r.5. In light of this argument by the Appellant's solicitors, Mr. Kam, while still maintaining his original contentions, additionally contended that the setting down was still invalid under Order 60A r.4 as it was not an appeal on a question of law.

7. Counsel for the Appellant, Mr. Hingorani, contended that the present appeal was governed by s.11(2) of the Lands Tribunal Ordinance (Cap.17) ("the LTO") and Order 60A r.4 of the HCR and that the appeal had been set down in accordance with these provisions.

8. The arguments put forward by the parties can be categorised into the following four main issues in dispute and I will deal with each one in turn: -

(1)	Whether the setting down of an appeal form the Lands Tribunals is governed by Order 59 r.5 or by Order 60A r.4 of the HCR?
(2)	Whether a sealed copy of order or judgment is required for setting down?
(3)	Whether the present appeal is an appeal against a reasoned judgment, therefore falling foul of Order 50 r.4 of the HCR?
(4)	Whether the present appeal is an appeal on a point of law?

Whether the setting down of an appeal form the Lands Tribunals is governed by Order 59 r.5 or by Order 60A r.4 of the HCR?

9. The present appeal is a civil appeal to the Court of Appeal and a useful starting point is to examine the ambit of Order 59 of the HCR. Order 59 rule 1 provides:

"This Order applies, subject to the provisions of these rules with respect to particular appeals, to every appeal to the Court of Appeal..." (Emphasis added)

10. From the wording of Order 59 r.1 of the HCR, this rule is expressly subject to the rules of a particular appeal and it is by no means an all-embracing provision. To ascertain if the present appeal is governed by any other rules other than those of Order 59 of the HCR, it is important to examine the substantive legislation governing appeals from the Lands Tribunal to the Court of Appeal. The statutory right of appeal from the Lands Tribunal is found in s.11 (2) of the LTO:

"...any party to proceedings before the Lands Tribunal may appeal to the Court of Appeal against a determination or order of the tribunal on the ground that such determination or order is erroneous in point of law". (Emphasis added)

11. According to s.11 (2) of the LTO, the power of appeal to the Court of Appeal is confined to a very narrow scope, that is, only on a point of law. In the HCR, there are two separate and distinct rules regarding appeals on a point of law and by way of case stated from tribunals. They are Order 60A and Order 61 of the HCR. Order 60A of the HCR is only found in Hong Kong and similar provisions are not found in the former English Rules of the Supreme Court. According to its self-explanatory title, Order 60A of the HCR governs "appeals from tribunals to Court of Appeal on question of law other than by way of case stated". Appeals from tribunals by way of case stated are governed by Order 61of the HCR, which rules are modeled upon the former Order 61 of the Rules of the Supreme Court with the exception that the English Order 61 rule 1 governing specifically appeals by way of case stated from the Lands Tribunal is not found in Order 61 of the HCR. The reason for the omission is explained in paragraph 61/2/1 of the commentary of the Hong Kong Civil Procedure (2002) ("HKCP"):

"In Hong Kong, however, appeals from the Lands Tribunal are made pursuant to s.11 (2) of the Lands Tribunal Ordinance to the Court of Appeal in respect only of a point of law. Order 60A therefore governs such appeals. It is for that reason that r.1 has been omitted." (Emphasis added)

12. The said commentary by the learned editors of the HKCP is very clear and I therefore take the view that appeals from the Lands Tribunal are governed by Order 60A of the HCR. I therefore reject Mr. Kam's submissions that the present setting down is governed by Order 59 r.5 of the HCR and rule that it should be governed by Order 60A r.4 of the HCR.

Whether a sealed copy of order or judgment is required for setting down?

13. As I have ruled that the present setting down is governed by Order 60A r.4 of the HCR, the answer to the second question above is plainly in the negative. According to Order 60A r.4 of the HCR, there is only one time limit prescribed for setting down an appeal, that is, within 7 days after service of a notice of appeal. In this rule, there is no reference to any sealed copy of order or judgment. By contrast, Order 59 r.5 of the HCR, in addition to the same time limit provided in Order 60A r.4, further provides an alternative time limit running from the date on which the judgment or order appealed against was sealed. This additional time limit for setting down provided in Order 59 r.5 of the HCR is omitted in Order 60A r.4 of the HCR. The said omission in my view is plainly due to the provision for the different time limit for serving a notice of appeal in respect of these two rules.

14. For an appeal from the Lands Tribunals, the time limit to serve a notice of appeal is governed by s.11 (4) of the LTO, which provides that the time for serving a notice of appeal is from the date of the making of the determination or order appealed against. As the time limit in respect of appeals from the Lands Tribunal does not run from the date of the order being sealed, it would be absurd to make reference to any sealed copy of an order. On the other hand, Order 59 r.4 provides for a time limit to run from the date on which the judgment or order of the court below was sealed or otherwise perfected, hence an alternative time limit with reference to an order being sealed.

15. In the circumstances, Mr. Kam's argument that an appeal cannot be set down without a sealed copy of the order cannot be accepted. I wish to add that the lodging of a sealed copy of the order is not a requirement for setting down even under Order 59 r.5 of the HCR when an appeal is set down within 7 days of the service of a notice of appeal. The reference to a sealed copy of the order appealed against in Order 59 r.5 of the HCR is only for the purpose of reckoning time limit for setting down.

Whether the present appeal is an appeal against a reasoned judgment, therefore falling foul of Order 59 r.4 of the HCR?

16. In respect of this argument, Mr. Kam further contended that the said judgment being appealed against did not constitute a decision or order. In support of his argument, he relied on paragraph 59/4/2 of the HKCP and submitted that an appeal against a reasoned judgment was not permissible. As I have found s.11 (2) of the LTO and Order 60A of the HCR apply to the present appeal, the issue of whether the present appeal is an appeal against a reasoned judgment becomes irrelevant. According to s.11 (2) of the LTO, there is a right of appeal in respect of point of law against any erroneous determination or order. Different to other types of appeals, an appeal from the Lands Tribunal can be brought against an erroneous determination.

17. I do not think Mr. Kam seeks to argue that the decision by the Presiding Officer in finding the Appellant liable to pay damages is not a determination. It is patently clear that the present appeal is not an appeal against a reasoned judgment. It is an appeal against a determination. If the said decision made by the Presiding Officer is found to be a judgment, I do not find that it is an appeal against a reasoned judgment. According to the English Court of Appeal decision of Onslow v Commissioners of Inland Revenue (1890) 25Q.B.D.465 cited in paragraph 59/4/2 of the HKCP, a judgment is a decision obtained in an action, and every other decision is an order (as per Lord Esher M.R. at p.466).

18. Mr. Hingorani submitted that the Presiding Officer had made a number of decisions by referring to the various parts and pages of the Judgment. While it is true that the Presiding Officer had ruled on various issues in dispute, those decisions in my view are not "judgments' within the meaning expounded by Lord Esher. The true sense of a judgment in my view is the order by the Presiding Officer against the Appellant to pay damages to the Applicants (Respondent) on the basis of the share of the contributions they have made towards the costs of alteration works. This order bears all the essential characteristics of a judgment or order under Order 59 r.4 of the HCR expounded in Onslow, " a judgment obtained in an action by which a previously existing liability ... is ascertained or established" (at p.466).

19. Further, I am of the view that the said order by the Presiding Officer is not a judgment on liability only. The Presiding Officer had in fact decided the basis of the calculation of the damages payable. Although the parties are still disputing the calculation, the amount of damages payable by the Appellant is ascertainable as it is only a matter of arithmetic calculation in terms of dollars and cents. The decision therefore is a judgment whereby an existing liability is established.

Whether the present appeal is an appeal on a point of law?

20. I now come to the final issue as to whether the appeal is an appeal on a point of law. According to the first paragraph of the Notice of Appeal, the Appellant is seeking to set aside the Presiding Officer's order of awarding damages in favour of the Applicants, which damages are the share of contribution made by the Applicants towards the costs of the relevant alteration works. Like all appeals, the Appellant also seeks the costs of the appeal and the costs of the hearing below. In the Notice, the Appellant sets out two grounds of appeal. For the present purpose, I do not feel it is necessary for me to scrutinize each ground in order to be satisfied that the Appeal is within the requirement of s. 11(2) of the LTO so long as a point of law is disclosed in the Grounds of Appeal. Having considered the grounds, I am satisfied that the grounds of appeal on the whole relate generally to the interpretation of section 34I of the Building Management Ordinance and the meaning and intent of the term "owners committee" referred to in the said Ordinance, which is a question of law.

Other issue

21. Mr. Kam further complained that the appeal on costs was not proper when the Presiding Officer had not ruled on the issue of costs. I agree that it is quite unusual for an appellant to seek costs from the Court of Appeal when the issue of costs has not been determined in the court below. I however do not think it invalidates the appeal as the Appellant is not appealing against any costs order. The Appellant is simply seeking costs as a form of consequential relief prayed for in the Notice.

Conclusion

22. For the reasons above, I find that the present appeal has been validly set down in accordance with Order 60A r.4 of the HCR. Sitting as a Registrar of the Civil Appeals in respect of the present case, I find it is appropriate for me to summarize the procedure governing an appeal from the Lands Tribunal to the Court of Appeal:

(1)	The appeal must be against a determination or order of the Tribunal in respect of a point of law and the procedures of appeal relating to time for appealing or setting down are governed by Order 60A of the HCR;
(2)	The time for serving a notice of appeal is 21 days from the date on which the determination or order of the Tribunal was made;
(3)	Within 7 days after service of the notice of appeal, the appellant must set down the appeal by lodging:
	(a)	A copy of the decision or order of the Tribunal (which copy order does not have to be sealed);
	(b)	2 copies of the notice of appeal, one of which with an endorsement of the fee payment and the other with a certificate of the date of the service of the notice.

23. The above merely serves as a general guidance and is not meant to be exhaustive as rules 9 and 10 of Order 59 of the HCR are also applicable to an appeal from the Lands Tribunal (Order 60A r.5 of the HCR).

24. With a view to give currency to the matters raised in the present dispute and with the permission of the parties, I authorize the publication of the Reasons for my decision.

25. Lastly, I am indebted to the helpful assistance given by counsel in the present case.