THE INCORPORATED OWNERS OF SANG WOO BUILDING v. CHOU YING AND OTHERS

LDBM 154/2021

[2025] HKLdT 19

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 154 OF 2021

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BETWEEN

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D E C I S I O N

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APPLICATION

1.  At the hearing on 21 January 2025 (“Hearing”), the applicant made a number of applications. Some of them were determined at the Hearing. What were left to be dealt with in this Decision were four summonses as follows: -

(1) three summonses for leave to administer interrogatories respectively on the 1^st and 2^nd respondents, the 3^rd respondent and the 4^th respondent (collectively, “Three Summonses”).

(2) a summons filed on 7 January 2025 seeking time extension for the parties to seek counsel advice and to take out interlocutory applications.

BACKGROUND

2.  This action concerns the erection of an advertising signage board (“Board”) on the roof (“Roof”) of the building known as Sang Woo Building (“Building”).

3.  The applicant is the incorporated owners of the Building. The registered owners of the Roof were the 1^st and 2^nd respondents between 6 November 2008 and 30 November 2022, and thereafter, the 4^th Respondent until now.

THE APPLICANT’S CASE

4.  The applicant’s case as stated in the Notice of Application[1] (“NOA”) can be summarized as follows: -

(a) By a licensing agreement dated 30 April 2008, the 3^rd respondent was granted by the then registered owner of the Roof (“Former Owner”) a licence to sub-license to another company[2] the right to erect and use an advertising signage board on the Roof. The licence was for a term of three years ending on 31 October 2010, with an option to renew up to 30 April 2014.

(b) The Board has been in existence since then until now notwithstanding the applicant’s repeated demands for the removal of it and the subsequent changes of the legal ownership of the Roof from the Former Owner to the 1^st and 2^nd respondents and further to the 4^th respondent.

(c) The 3^rd respondent has had the control and management of the Board since 30 April 2008.

(d) The applicant complains that the 1^st to 4^th respondents[3] had caused or permitted to cause the erection of the Board and an illegal structure on the Roof and the common parts without its written consent, and accordingly, committed continuing breaches of the deed of mutual covenants of the Building[4] (“DMC”), including, in gist,:

(i) without its consent, erect or affix things or structures to the exterior or common areas of the Building under clause 4(n) and 9(j);

(ii) make alteration or damage the walls of the Building, or cause inconvenience to the other occupiers under clause 9(a);

(iii) affix, exhibit the exterior walls, main roof, top roof of the Building advertisement under clause 9(k).

(e) The applicant claims for, other than injunctive and declaratory relief and costs, damages, which are particularized in paragraph 22 of the NOA (“Paragraph 22”) as follows:-

“22. As a result of the matters pleaded above, the applicant suffered loss and damage.

PARTICULARS OF LOSS AND DAMAGE

22.1 …..[claim for the cost of the reinstatement]

22.2 The 1^st, 2^nd and 4^th respondents have been acting in breach of the Deed [DMC]. The applicant, as the incorporated owners of the Building, is entitled to the benefits the 1^st, 2^nd and 4^th respondents had obtained as a result of such breach, including the licensing fees from the 3^rd respondent. The applicant reserves its right to plead further upon discovery.

22.3 The 3^rd respondent have been acting in breach of the Deed. The applicant, as the incorporated owners of the Building, is entitled to the benefits the 3^rd respondents had obtained as a result of such breach, including sub-licensing fees and/ or advertising fees from the third party advertisers. The applicant reserves its right to plead further upon discovery.

And the applicant hereby applies and prays for:-

(1) [a mandatory injunction against all respondents for removal of the Board and the illegal structures];

(1.1) [ a declaration to give effect to removal of the Board and the illegal structures];

(1.2) Damages (to be ascertained/ assessed and/ or subject to discovery);

(2) Costs of this action; and

(3) Further and/ or other relief.”

THE INTERROGATORIES

5.  Each of the Three Summonses (annexed with a set of interrogatories) was taken out by the applicant purportedly pursuant to Order 26 rule 1(2) of the Rules of the High Court (Cap. 4A) ( “RHC”) as follows:-

(1) by the Summons against the 1^st and 2^nd respondents filed on 4 October 2024 as amended on 27 November 2024, the applicant seeks to interrogate each of them about, during the period of their legal ownership of the Roof, :-

(a) the date(s) and duration(s) of the agreement(s) regarding the use of the Board signed by either or both of them as the owner(s) of the Roof with the 3^rd respondent and/or others; and

(b) the incomes they received therefrom.

(2) by the Summons against the 4^th respondent filed on 4 October 2024 as amended on 5 December 2024, the applicant seeks to interrogate the 4^th respondent about, during the period of the 4^th respondent’s legal ownership of the Roof, :

(a) the date(s) and duration(s) of the agreement(s) regarding the use of the Board signed by it as the owner of the Roof with the 3^rd respondent and/or others; and

(b) the incomes it received therefrom.

(3) by the Summons against the 3^rd respondent filed on 4 October 2024 as amended on 6 December 2024, the applicant seeks to interrogate the 3^rd respondent about, from 6 November 2008 until now,

(a) the date(s) and duration(s) of the agreement(s) regarding its use of the Board it signed with the 1^st, 2^nd and 4^th respondents respectively; and

(b) the rental payment(s) it made to the 1^st, 2^nd and 4^th respondents respectively for renting the Board.

(c) identity of its customers who have (had) rented or have (had) the use of the Board through the 3^rd respondent and the rental payments made in the past and at present.

(collectively, “Subject Interrogatories”)

LEGAL PRINCIPLES

6.  The parties have no disagreement on the well-settled legal principles governing administration of interrogatories as elaborated in Lee Nui Foon v Ocean Park Corp (No 2) [1995] 2 HKC 395 and more recently, in Ng Shek Wai v Hong Kong Institute of Certified Public Accountants [2019] HKCFI 2439, which can be summarized as follows:-

(a) Interrogatories must relate to a matter in question between the parties. They must be necessary either for disposing fairly of the cause or matter, or for saving costs. They must not be fishing or oppressive. They must not be questions which go to the evidence the opposing party intends to adduce. They must not be effectively asking for documents or discovery. The Court retains an overriding discretion as to whether or not to allow them to be administered.

(b) In determining whether the interrogatories relate to a matter in question between the parties, the relevant test is one akin to the Peruvian Guano test in discovery. The right to interrogate was not confined to facts directly in issue, but extends to any fact the existence or non-existence of which was relevant to the existence or non-existence of the facts directly in issue.

(c) Interrogatories will be ordered only where they are necessary either for disposing fairly of the cause or matter, or for saving costs. It is “necessary” if the matter to which it referred was relevant and it would probably prejudice a party or disrupt the fluency of the trial if its full emergence only occurred at trial: Salt & Light Development Inc & Anor v Sjtu Sunway Software Industry Ltd [2006] 2 HKC 440 at §§18 -19.

(d) It is inappropriate to request information ascertainable by cross-examination at the trial unless the party questioning can establish that it is essential for the proper preparation of his case that such information is made available to him before trial, in the sense that if the matter is left until cross-examination at the trial that party will, or probably will, be irreparably prejudiced in the conduct of the trial: Salt & Light Development Inc & Anor v Sjtu Sunway Software Industry Ltd [2006] 2 HKC 440 at §18.

PROCEDURAL MATTER

7.  Pursuant to Order 26 rule 3(1) of RHC, interrogatories can be served twice without order. The party on whom interrogatories without order is served may apply to the Court within 14 days for such interrogatories to be withdrawn pursuant to under rule 3(2).

8.  However, the Subject Interrogatories were not served in accordance with the aforesaid procedures. Instead, the applicant simply took out the Three Summonses for leave to administer the Subject Interrogatories on the 1^st to 4^th respondents. At the Hearing, all parties confirmed that they would not take issue on this procedural irregularity and waived their respective rights under Order 26 rule 3.

9.  In the circumstances, this Tribunal is in effect invited to exercise a discretion to decide whether to allow the administration of the Subject Interrogatories.

10.  The Notices of Opposition have been filed and witness statements have been exchanged. No direction for split trial of issue of liability and quantum have been sought by the parties. The applicant’s claim of damages falls to be assessed at the trial.

ANALYSIS

11.  At the Hearing, Ms. Yeung, counsel for the applicant, revised the applicant’s written submissions and confirmed that, for the present application purpose, the applicant’s claim is strictly and solely premised on a breach of the DMC[5].

RELEVANCE AND NECESSITY

12.  In the initial written submissions, the applicant contended that the relevance and necessity of the Subject Interrogatories should not be in issue for “they arise out of the [applicant’s] claim for damages to be assessed on the basis of benefits obtained by the respective Respondents (i.e. licensing fees and sub-licensing fees) as pleaded in paragraph 22.2 and 22.3 of the Applicant’s Grounds and Particulars” (“Damages Claim”).

13.  The applicant said that the 3^rd respondent had all along been occupying the Roof and using the Board since 2008. It averred that it is the 1^st and 2^nd respondents’ case that the 3^rd respondent had carried out improvement works over the Board between 2012 and 2015, and that the witness statements filed for the 3^rd and 4^th respondents also showed that even after the 4^th respondent became the registered owner of the Roof, the 3^rd respondent had continued to occupy the Roof, control the Board and arrange third party insurance in respect of the Board throughout the years.

14.  On such basis, the applicant contended that the 3^rd respondent’s use of the Board must be on the strength of the licenses granted by the other respondents during the respective periods of the respondents’ ownerships of the Roof, hence, the licensing fees generated therefrom and received by the 1^st, 2^nd and 4^th respondents as well as the sub-licensing fees plausibly received by the 3^rd respondent were directly relevant and necessary for quantification of the Damages Claim.

15.  Understandably, such contentions met with immediate objections from all the respondents. They complained that even taking the applicant’s case to the highest, the applicant’s alleged entitlement to the purported benefits received by the respondents as stated in the NOA is without legal basis. There is no factual or legal basis giving rise to the Damages Claim, which is akin to a claim for an account of profits or disgorgement damages, for a breach of a deed of mutual covenant, and accordingly, the Subject Interrogatories are plainly irrelevant and unnecessary.

16.  In the applicant’s written submissions in reply dated 20 January 2025 (“Applicant’s Reply Submissions”), Ms Yeung clarified that the Damages Claim should not be mischaracterized as one of account of profits, disgorgement remedy or restitutionary remedy of any sort, nor should it be regarded as a claim basing on any cause of action in restitution such as unjust enrichment or seeking restitutionary remedy. She confirmed that the only legal basis upon which the Damages Claim is made is:

“grounded on the principle of Wrotham Park damages, alternatively referred to as negotiating damages or user damages, which is based on the hypothetical fee to release the Respondents from the obligations under the DMC. If liability is found against the Respondents, damages assessed to compensate the IO for the loss of a valuable asset created or protected by the right to control the use of the property as it had been wrongfully used.”

17.  Ms Yeung stresses that as the “negotiating damages” (the Wrotham Park damages) is not a restitutionary remedy but a form of compensatory damages with the “benefit” being taken to be the objective value of the wrongful use, the applicant’s claim for negotiating damages has therefore been sufficiently set out in the NOA, being the damages stated to be measured by the “benefits” received by the respondent as particularized in Paragraph 22.

18.  With respect, I am unable to accept such submissions. I share the view with Mr Chan, counsel for the 3^rd and 4^th respondents, that the NOA now stands does not support a claim for negotiating damages and the Damages Claim cannot be interpreted as a claim for negotiating damages.

19.  I should start with the applicant’s stated claim in the NOA. I would have thought that there should be no dispute that the relevance and necessity of the Subjective Interrogatories should be determined by reference to the NOA, which should form the basis of the applicant’s claim and raise the issues to be determined by the Tribunal. Indeed, the applicant, in its written submissions, does not only expressly adopt such position, it goes further to assert that the NOA is a pleading and its pleaded case has raised a claim for negotiating damages.

20.  However, when challenged by all the respondents about the insufficiency and inadequacy of the NOA which does not provide for a claim for the negotiating damages, Ms Yeung changes to argue that the NOA should not be considered as in the nature of pleadings by which parties are bound, but merely as an indication of the issues which are likely to be raised. In reliance on section 10(5)(a) of the Lands Tribunal Ordinance, Cap. 17, which provides that “the proceedings of the Tribunal shall be conducted with as much informality as is consistent with attaining justice”, the applicant argues that Paragraph 22 forms the proper basis for a claim for negotiating damages because it has stated that its damages are to be assessed on the basis of the “benefits obtained by the Respondents”.

21.  I am not convinced. The implication of section 10(5)(a) should not be overstated. It has indeed been reviewed by the Court of Appeal in Grand Power International Ltd v Chan Sing Hoi Enterprises Ltd and Others [2020] 2 HKLRD 142 §§40-43. The present case shares many similarities to that case. This is not a simple building management dispute. The applicant has had the privilege of the assistance of a legal team right from the start of the proceedings and has been prosecuting its claim in a rigorous manner. The notice of application has been amended thrice and a formal reply has been filed in reply to the notices of opposition of the respondents. The parties set out their respective cases with such details that are in no way different from a pleading. Witness statements for the applicant were also prepared with the assistance of the legal team. The present application has also been handled by counsel.

22.  Hence, I am unable to accept that justice could best be served by allowing the applicant to turn to deny the real nature and binding effect of the NOA. Suffices it to say that, even if the NOA should be considered as only giving an indication of the issues which are likely to be raised (which I do not take such view for this case), I am not persuaded that a claim for negotiating damages has been indicated in the NOA for the reasons set out below.

23.  Ms Yeung describes the damages claimed by the applicant as “negotiating damages” or “Wrotham Park damages”, following the leading English authority of Wrotham Park Estate Company Ltd v Parkside Homes Ltd [1974] 1 WLR 798. She contends that negotiating damages are general damages and therefore, Paragraph 22 provides sufficient basis for it.

24.  Mr Chan disagrees to such proposition. He seeks support from the Singaporean case of Phua Seng Hua and Others v Kwee Seng Chio Peter & Anor [2022] SGHC(A) 11 §§39-47 as well as the UK case of Lighthouse Carrwood Ltd v Luckett [2007] EWHC 2866 (QB) to contend that negotiating damages have to be specifically pleaded and in the Phua Seng Hua case §§41-42, being expressly regarded as special damages.

25.  To understand the parties’ arguments, it is necessary to go through the legal principles relating to the claim for negotiating damages, which have been reviewed by the UK Supreme Court in Morris-Garner & Anor v One Step (Support) Ltd [2019] AC 649. One of the main issues in that case was that “where a party was in breach of contract, in what, if any, circumstances was the other party to the contract entitled to seek ‘negotiating damages’ assessed by reference to a hypothetical negotiation between the parties, for such amount as might reasonably have been demanded by the claimant for releasing the defendants from their obligations” (653C).

26.  In that case, in recognition of the peculiar nature of negotiating damages being “an award based on a hypothetical release fee depends on considering the outcome if the contact had not performed but had been replaced by a different contract.”, negotiating damages are still recognized as compatible with the compensatory purpose of an award of contractual damages. The “imaginary negotiation” is regarded as a tool for arriving at the economic value of the right which has been breached, considered as an asset. The real question is as to the circumstances in which that value constitutes the measure of the claimant’s loss (688C-D).

27.  The conclusion of that case, which are relevant to the present application, can be concisely summarized as follows (689H-690E):-

(1) Common law damages for breach of contract are intended to compensate the claimant for loss or damage resulting from the non-performance of the obligation in question. They are therefore normally based on the difference between the effect of performance and non-performance upon the claimant’s situation.

(2) It is for the claimant to establish that a loss has been incurred, in the sense that he is in a less favourable situation, either economically or in some other respect, than he would have been in if the contract had been performed.

(3) Common law damages for breach of contract cannot be awarded merely for the purpose of depriving the defendant of profits made as a result of the breach, other than exceptional circumstances.

(4) Where the breach of a contractual obligation has caused the claimant to suffer economic loss, that loss should be measured or estimated as accurately and reliably as the nature of the case permits.

(5) Damages assessed by reference to the value of the use wrongfully made of property are readily awarded at the common law for the invasion of rights to tangible moveable or immoveable property.

(6) The rationale of such awards is that the person who makes wrongful use of property, where its use is commercially valuable, prevents the owner from exercising a valuable right to control its use, and should therefore compensate him for the loss of the value of the exercise of that right. He takes something for nothing, for which the owner was entitled to require payment.

(7) Negotiating damages can be awarded for breach of contract where the loss suffered by the claimant is appropriately measured by reference to the economic value of the right which has been breached, considered as an asset. That may be the position where the breach of contract results in the loss of a valuable asset created or protected by the right which was infringed. The rationale is that the claimant has in substance then deprived of a valuable asset, and his loss can therefore be measured by determining the economic value of the right in question, considered as an asset.

28.  Applying the legal requirements of claiming for negotiating damages to the present case, it is clear to me that the applicant’s stated case in the NOA does not provide for a claim for negotiating damages. The necessary elements for forming the basis of such a claim are missing. There is plainly no substance in the NOA giving rise to such a claim.

29.  In reliance on Paragraph 22, Ms Yeung contends that the applicant is entitled to elevate its claim for negotiating damages basing on the use of the word “benefits” (of the respondents obtained as a result of the breach) because “If licensing fees were indeed received, they would form a clear basis for quantification of the IO’s claim.”. Such reliance is misplaced and the contention is devoid of logic. Plainly, what exactly is the applicant’s damage and loss as well as how and why the applicant “is entitled to the benefits the 1^st, 2^nd and 4^th respondents had obtained” from the use of the Board are not provided for in Paragraph 22.

30.  Strictly, such contention is unjustified and in direct contradiction to the trite law that common law damages for breach of contract cannot be awarded merely for the purpose of depriving the defendant of profits made as a result of the breach, other than exceptional circumstances as reiterated in the One Stop case.

31.  Even taking the applicant’s case to the highest by reading prayer (1.2) into the context of Paragraph 22, the combined effect of the word “benefits” (obtained by the respondent) and the prayer for “Damages (to be ascertained/ assessed and/ or subject to discovery)” does not have an effect of couching the Damages Claim as a claim for negotiating damages as the applicant suggests.

32.  Not only that the NOA has not provided for the necessary elements for forming the basis for a claim of negotiating damages, the applicant was unable to articulate, even at the Hearing, what exactly its claim for negotiating damages is, other than putting forward a general statement in the Applicant’s Reply Submissions that it claims for “damages assessed to compensate the IO for the loss of a valuable asset created or protected by the right to control the use of the property as it had been wrongfully used.”

33.  Undoubtedly, such a general statement does not advance the applicant’s position any further and after all, cannot rectify the defective NOA. Unsurprisingly, none of the respondents had been made aware of the applicant’s intended claim for negotiating damages and were understandably taken by surprise when being served with the Applicant’s Reply Submissions.

34.  In the NOA, there is no mention of any wording asking to compensate the applicant for the loss of a valuable asset created or protected by the right to control the use of the property as it had been wrongfully used. Nor are there any wording giving an effect of claiming damages which is based on the hypothetical fee to release the respondents from the obligations under the DMC.

35.  Needless to say, the “valuable asset”, the “right to control” and the “property” being wrongfully used are not identified. How the respondents’ breach of the DMC had resulted in the loss of the (undefined) valuable asset is unaccounted for, not even the indicative wordings as “negotiating damages”, “Wrotham Damages”, “user damages” and “hypothetical release fee” are provided for.

36.  Likewise, the quantification of damages basing on the hypothetical fee to release the Respondents from the obligations under the DMC is not even mentioned. The factual basis for ascertaining the economic value of the “right” or the “valuable asset” and for valuation to be arrived at by reference to a hypothetical fee the claimant might reasonably have demanded for the relaxation of the obligation in question is missing. Nor is there any indication of any hypothetical situation where the respondents would have negotiated with the applicant to be released from the obligations under the DMC.

37.  There is plainly no indication at all that there is a claim for “notional release fee”, which is the essential characteristics of a claim for negotiating damages. Thus considered, I fail to see how the NOA as it now stands can give rise to a claim for negotiating damages.

38.  In my view, Ms Yeung’s contention that negotiating damages are general damages which need not be specifically stated/ pleaded is misconceived. She fails to justify how the facts warranting the grant of negotiating damages can be presumed in law to be the natural, direct or probable consequences of the action complained of or how they follow from the action complained of in the ordinary course.

39.  It is apparent to me that negotiating damages are case-specific and fact-sensitive. They cover specific financial losses caused by the breach. They are to be measured and calculated basing on a bargain for the release of the contractual obligation, on a hypothetical basis. It invites the court to consider a hypothetical bargain between the parties in a manner constructed by the applicant, making reference to the potential loss of past and future financial value of rights, considered as assets.

40.  Thus viewed, I am unable to accept negotiating damages being presumed by the law. Rather, I take the view that the facts giving rise to a need to compensate the applicant for its loss and damage of an identified economic valuable asset by assessing the damages basing on a hypothetical bargain for a reasonable notional release fees for releasing the respondent from its contractual obligation must be specifically stated/ pleaded. The respondents should not be kept in the dark until the damages are fall to be assessed, depriving its rights to challenge such claim in the pleadings and to adduce witness or expert evidence to contest.

41.  The prejudice caused to the respondents must be avoided as expressed at §58 of the case of Lighthouse Carrwood Ltd, which is extracted as follows:

“I do not propose to deal with this at any length, satisfied as I am that the application for Wrotham Park damages has little merit. It has not been pleaded. It sprang out of nowhere on Monday morning. It did not give the Defendant any opportunity to deal with it. He would have had to be allowed to have the opportunity to bring evidence of the factors which would have been used in the hypothetical negotiation…..”

42.  In that case, the whole claim was struck out as it was not able to advance any case on damages. The requirement that negotiating damages should be specifically pleaded is echoed by the Phua Seng Hua case, which expressly classified negotiating damages as special damages.

43.  Thus analyzed, as the NOA now stands, the applicant is not allowed to pursue a claim for negotiating damages. Hence, the Subject Interrogatories are not related to a matter in question between the parties. Nor are they necessary for disposing fairly of the cause or matter, or for saving costs. Otherwise, the respondents would have been irremediably prejudiced as they were deprived of a fair chance to know what was the applicant’s claim against them, to defend the claim and to adduce evidence on matters relating to the claim and the quantification. Solely for this reason, the Three Summonses should be dismissed.

44.  For completeness sake, I should briefly deal with the other grounds of opposition of the respondents.

45.  In view of the applicant’s contention that the Subject Interrogatories go only to the question of the quantum of damages, the respondents stress that generally leave to administer interrogatories as to the quantum of damages is rarely asked for or allowed and it would only be allowed where it is considered necessary either for disposing fairly of the cause or matter or for saving costs: Hong Kong Civil Procedure 2025 V.1 §26/4/23.

46.  For the reasons aforesaid, I accept, as the NOA now stands, the Subject Interrogatories are not necessary either for disposing fairly of the cause or matter or for saving costs. The applicant’s claim for damages (allegedly to be solely for negotiating damages) is without legal basis and is bound to fail.

47.  Besides, the Subject Interrogatories ask for the dates, durations of and incomes received from the written agreement(s) that the respondents had signed as to the use of the Board, if such agreements exist. They were framed apparently with the object of identifying all the signed written agreements for the purpose of ascertaining whether the respondents have ever received any benefits generated from the use of the Board without their consents, and the actual amounts received therefrom, if any.

48.  The present application is premised on the fact that the 3^rd respondent had entered into a license agreement with the Former Owner for the erection and the use of the Board and its actual use of the Board subsequently. Indeed, it is clear from the applicant’s submissions, NOA and witness statements that the applicant knows nothing about the financial arrangements relating to the use of the Board among the respondents. It does not even know whether the respondents have ever received any financial benefits generated from the use of the Board.

49.  While it is an important function of interrogatories to gain information not within the knowledge of the party applying, but they should be confined to facts which there is some reason to think true, and interrogatories will not be allowed which are designed to solely illicit information that goes to the opponent’s case and not the applying party’s own case which is insufficiently pleaded: Hong Kong Civil Procedures 2025 V.1 §26/4/9.

50.  Interrogatories should not be used to enable a party to see if it can find some factual basis or evidence, of which at present he knows nothing, and which might possibly from that it might be able to or worth building a claim for damages. As Mr Wong, counsel for the 1^st and 2^nd respondents, puts it, the Subject Interrogatories are basically asking “tell us what you did”, which should not be allowed: Rockwell International Corporation & Anor v Serck Industries Limited [1988] FSR 187. Upon enquiry, the applicant is unable to disprove the suggestion that the Subject Interrogatories amount to fishing exercise.

51.  Besides, on the assumption that the applicant has solid evidence for proof of the fact that there exist some signed written agreements, the applicant should make application for discovery of documents under Order 24 RHC instead of going for interrogatories.

52.  In further consideration of the fact that the Subject Interrogatories merely ask for the particulars of the signed written agreements and absent any solid basis to suggest that there have been no other forms of agreement relating to the use of the Board, the applicant plainly fails to show how the answers to the Subject Interrogatories will help in establishing what matters or causes can be disposed of, while leaving the question of whether there have been any other forms of agreements relating to the use of the Boards unknown.

53.  Viewed in this light, I accept Mr Wong’s submissions that in asking for the particulars of the signed written agreements, if such agreements exit, the applicant is essentially making discovery attempts while seeking to circumvent the requirements for a formal discovery application under Order 24 RHC that should not be allowed. Nor should interrogatory be allowed for identifying the documents so as to mount a specific discovery application: Robinson and Others v Budgctt & Co [1884] WN 94 applied in Lee Nui Foon; Hong Kong Civil Procedure 2025, V.1 §26/4/12(h).

54.  Further, with the inadequacy and insufficiency of the NOA, the applicant fails to justify its departure from the usual cost-saving exercise that the proper course for it to take is to obtain the information on quantum through cross-examination instead of by the Subject Interrogatories: Hong Kong Civil Procedure 2025 V.1 §26/4/12(a). Nor does it substantiate the needs to seek information since 2008, spanning over a long period of 14 years.

DISPOSITION

55.  Having considered all the documents and submissions of all parties, I order that: -

(1) the Three Summonses be dismissed.

(2) the time for the parties to seek counsel advice, if necessary, and for taking out all interlocutory applications, if any, be extended for 35 days from the date hereof.

(3) there be a costs order nisi that the applicant do pay:-

(a) the costs of the Summons against the 1^st and 2^nd respondents filed on 4 October 2024 as amended on 27 November 2024 to the 1^st and 2^nd respondents including all costs reserved, with certificate for counsel, to be summarily assessed on a party and party basis, on the District Court Scale.

(b) the costs of the Summons against the 3^rd respondent filed on 4 October 2024 as amended on 6 December 2024 to the 3^rd respondent including all costs reserved, with certificate for counsel, to be summarily assessed on a party and party basis, on the District Court Scale.

(c) the costs of the Summons against the 4^th respondent filed on 4 October 2024 as amended on 5 December 2024 to the 4^th respondent including all costs reserved, with certificate for counsel, to be summarily assessed on a party and party basis, on the District Court Scale.

(d) the costs of the Summons filed on 7 January 2025 to the 1^st to 4^th respondents including all costs reserved, with certificate for counsel, to be summarily assessed on a party and party basis, on the District Court Scale.

(4) For summary assessment of costs, the respondents shall lodge and serve its statements of costs within 7 days from the date hereof. The applicant shall lodge and serve its statements of objection within 7 days thereafter. The summary assessment of costs shall be conducted on papers thereafter no matter whether the applicant has lodged any statement of objection. The assessed costs shall be paid by the applicant forthwith after the summary assessment.

(5) This Order Nisi shall become absolute in the absence of application to vary by filing of Form 1 within 14 days from the date hereof.

56.  I should add that the summary assessments of costs of the other applications pursuant to the orders made by this Tribunal at the Hearing are to be processed in accordance with the same procedure as set out in paragraph 55(4) above.

57.  I thank all Counsel for their assistance.