Wong Sui Fung and Another v. Yip Siu Keung

LDBM 248/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 248 of 2000

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Decision

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1. On 1.11.2000, the Applicants applied to strike out the sentence "It was built at the time when the Applicant was the Chairman of the owners' committee of the Estate" contained in Paragraph 5(d) of the Notice of Opposition. Upon dismissing the application on 22.11.2000, I imposed the following orders nisi as to costs :-

(1) The Respondent is to pay the Applicant's costs for preparation of the submission for the hearing on 17.11.2000. Subject to that the Applicant is to pay the Respondent the costs of the strike out application.

(2) The Respondent is to pay the Applicant the costs for the adjournment granted on 1.11.2000 for the purpose of amending Para. 5(d) of the Notice of Opposition.

2. The Respondent contested the order nisi, submitting that the order absolute on costs should be made to the effect that the Applicants were to pay the Respondent the costs for the adjournment, the preparation of the submission and the strike out application.

The adjournment

3. During the hearing of the strike out application on 1.11.2000, the Respondent's Counsel, Miss Chan, admitted that there was a mistake in the above-said sentence in Paragraph 5(d) of the Notice of Opposition in that the words "the Applicant" should read as "the Applicant's husband". I then granted an application made by Miss Chan for the hearing to be adjourned to 17.11.2000, in order to allow the Respondent to amend the said Paragraph 5(d), with costs reserved. If not for the adjournment applied for by the Respondent, the hearing of the strike out application would have been completed on 1.11.2000. It is the Respondent who asked for the adjournment, causing the hearing be continued on another occasion; it must logically follow that he must pay the costs for the adjournment.

The preparation of the written submission by the Applicant

4. When granting the application for adjournment to 17.11.2000, I made an order that the Respondent was to serve and file the proposed amended Paragraph 5(d) in 7 days' time. But the Respondent only filed and served the amended paragraph 5(d) on 16.11.2000, 8 days after the expiry of the 7 days' time granted by me. By the time the Applicant received the proposed amended Paragraph 5(d), in the afternoon on 16.11.2000, the Applicant had already filed in her written submission.

5. On 17.11.2000, the Applicant did not pursue the strike out application. Mr. Law Chiu Yuen, a consultant of the Respondent's Solicitors, submitted in his affirmation that "since the Applicants did not pursue the strike out application, and it is clear from the Court's decision that in any event, the Court would have dismissed the application had it been pursued by the Applicants, there is no reason why the Respondent should be ordered to bear the Applicants' costs for preparation of their written submission. As stated above, the written submission solely dealt with the striking out matter but nothing else."

6. Miss Courbet, the solicitor for the Applicants, submitted that they never received the amendment (before the filing of the written submission) and so thought that the hearing had to proceed. By the time they received the amended Notice of Opposition, she had already prepared the written submission. The Respondent did not serve the amended Notice of Opposition on time, and the Applicant had to prepare for the hearing on 17.11.2000.

7. Her submission is correct. The issue is not whether the written submission referred to the amendment, and therefore bearing no relevance to the hearing, as submitted by the Respondent's Counsel. The written submission, of course, would not refer to the amendment because by the time it was completed, the Applicants' solicitor had not received the amended Notice of Opposition. The issue is, had the Respondent compiled with the order made on 1.11.2000, or alternatively served the amended Notice of Opposition on the Applicants long before 17.11.2000, then Miss Courbet would not have to waste time in preparing for the written submission for the strike out application.

8. There is absolutely no merit in the Respondent's argument. I therefore make the order nisi absolute, and I further order that the Respondent is to bear the Applicants' costs for the hearing on 5th Jan., 2001, to be taxed, if not agreed.