馬耀倫 v. 李錦成

HCMP 869 /2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 869 OF 2011

(ON AN INTENDED APPEAL FROM LDBM NO. 21 OF 2011)

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BETWEEN

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D E C I S I O N

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Hon Tang Acting CJHC:

1.  I have had the benefit of reading Fok JA’s judgment in draft. I agree with it and have nothing to add.

Hon Fok JA:

2.  The respondent applies by summons dated 13 May 2011 for leave to appeal, pursuant to section 11AA of the Lands Tribunal Ordinance (Cap. 17), from a decision of the Presiding Officer of the Lands Tribunal dated 11 March 2011 in which he declined to strike out the Notice of Application filed by the applicant on 21 January 2011.

3.  Leave to appeal was refused by the Presiding Officer on 4 May 2011, leading to this issue of this summons.

4.  The Notice of Application identified paragraph 1(2) of Schedule 3 of the Building Management Ordinance (Cap. 344) as the basis of the application.  That paragraph requires the chairman of a management committee (a) to convene a general meeting of the corporation at the request of not less than 5% of the owners for the purposes specified by the owners within 14 days of receiving the request and (b) to hold the general meeting within 45 days of receiving the request.

5.  The respondent applied to strike out under Order 18 rule 19 of the Rules of the High Court as disclosing no reasonable cause of action.  The Notice of Application did not state that the applicant was an owner, or that the respondent was the chairman of the management committee, or that not less than 5% of the owners had requested a general meeting of the corporation to be convened for a specified purpose.

6.  However, by the time of the hearing before the Presiding Officer, on 28 February 2011 and 11 March 2011, the applicant had filed its first batch of evidence (albeit not in strict compliance with Practice Direction No. LTPD: BM No. 1 of 2009 issued on 21 May 2009, since that required the evidence to be served at the same time as the Notice of Application was filed).  Nevertheless, it is not suggested that, with that evidence in hand, the respondent does not know the basis of the application for the convening of a general meeting under paragraph 1(2) of Schedule 3 and the Presiding Officer held that the respondent would be informed of the applicant’s case by reading the first batch of the applicant’s evidence.

7.  The proposed appeal seeks to argue, in reliance on the decision in Great Source Enterprise Limited v Sino Estates Management Limited, unrep., CACV 253 of 2003, 7.5.04, that the Notice of Application itself must contain sufficient facts so as properly to inform the respondent of the nature and/or basis of the applicant’s case so that a reasoned response could be made by the respondent in his Notice of Opposition.

8.  However, a Notice of Application is not in the nature of a formal pleading and, in my opinion, the case of Great Source Enterprise Limited v Sino Estates Management Limited does not support the strict approach contended for by the respondent.  On the contrary, the majority in that case declined to strike out the notice of application there and proceeded on the basis that, so long as the notice of application contained sufficient information for the other party to know the nature of the applicant’s case so that a reasoned response could be made, it was not intended that the notice of application should be subject to minute examination.

9.  Once the first batch of the applicant’s evidence was served, the nature of its case as to why it required the respondent to convene a general meeting of the corporation was apparent and the respondent could accordingly file its Notice of Opposition.  It is not suggested by the applicant that this is not the case and its proposed appeal is intended to proceed on the narrow basis that the court should ignore the subsequent materials served by the applicant.

10.  In my judgment, the proposed appeal does not have a reasonable prospect of success, as submitted by the respondent in its skeleton submissions for leave to appeal, nor is it contended that there is any other reason in the interests of justice why the appeal should be heard.

11.  I consider the application to be totally devoid of merit and I would therefore dismiss it with an order under Order 59 rule 2A(8) that no party may request the determination to be reconsidered at an oral hearing inter partes.

12.  No statement of opposition has been filed by the respondent and I therefore do not propose to make any order in respect of the costs of the application.