CHEN KUN MING v. THE INCORPORATED OWNERS OF TAI ON BUILDING, SHAU KEI WAN

[English Translation — 英譯本]

CACV 279/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 279 OF 2007

(ON APPEAL FROM LDBM NO. 171 OF 2006)

----------------------

----------------------

--------------------------

JUDGMENT

--------------------------

Hon Yeung JA (giving the judgment of the Court): 

1.  The Appellant Mr. Chen Kun Ming is the owner of Flat 1218, 12th Floor, Tai On Building, 57-87 Shau Kei Wan Road (hereinafter “Tai On Building”) and the Respondent is the Incorporated Owners of Tai On Building (hereinafter “the Corporation”).

2.  On 31 July 2006, Mr. Chen applied to the Lands Tribunal for an order, pursuant to paragraph 3 of Schedule 6 and paragraphs 1(7) and 2(5)(b) of Schedule 7 to the Building Management Ordinance, Cap. 344 of the Laws of Hong Kong, requiring the Corporation to supply Mr. Chen with various documents upon payment of reasonable photocopying charges by him. Such documents included:

(1)  Copies of the audit reports for the years 2004 and 2005;

(2)  The tender quotation offered by the contractor whose tender was accepted for the repair works on public fixed electrical installations (WR2) in the building in 2002 and the Corporation’s itemized list of expenses showing expenses incurred in the works upon completion of the works;

(3)  The tender quotation offered by the contractor whose tender was accepted for the lift replacement works in 2003 and the Corporation’s itemized list of expenses showing expenses incurred in the works upon completion of the works;

(4)  The tender quotation offered by the contractor whose tender was accepted for the fire-fighting installation improvement works in 2003 and the Corporation’s itemized list of expenses showing expenses incurred in the works upon completion of the works;

(5)  The tender quotation offered by the contractor whose tender was accepted for carrying out the works specified in the external wall repair order of the Buildings Department in 2004;

(6)  Pursuant to paragraph 2(5)(a) of Schedule 7 to the Building Management Ordinance, Cap. 344 of the Laws of Hong Kong, Mr. Chen requested the Corporation to make available within a reasonable time for his inspection the itemized invoices issued by the contractors to the Corporation in respect of each project, counterfoils of  the cheques drawn by the Corporation in relation to expenses incurred in each project, and the written proposals for the said projects prior to tender-calling;

(7)  Costs of the present case were to be borne by the opposite (party).

3.  On 6 December 2006 the Corporation, through its solicitors, filed a Notice of Opposition which set out its position as follows:

(1)       The Respondent (the Corporation) agreed to supply the audit reports being sought in item 1 of the Application, on condition that the Applicant (Mr. Chen) paid the requisite photocopying charges. Regarding the audit report for the financial year 2005, however, as the accounting firm engaged by the Respondent had not yet prepared to collect the report, the Respondent was unable to supply it for the time being.

(2)       The Corporation agreed to supply copies of the tender documents and the income and expenditure accounts being sought in items 2, 3, 4 and 5, on condition that Mr. Chen paid the relevant photocopying charges.

(3)       The projects referred to in the tender documents had just been completed and the income and expenditure accounts relating to the various projects were still being compiled, and hence no such accounts could be supplied to the owners of Tai On Building. However, upon completion of compilation of the income and expenditure accounts, copies would be supplied to Mr. Chen.

(4)       The Corporation refused to supply to Mr. Chen the documents being sought in item 6, on the ground that those documents were not covered by paragraph 3 of Schedule 6 to the Building Management Ordinance.

4. Mr. Chen raised two points in response to the position taken by the Corporation:

(1)       Mr. Chen took the view that, as the Corporation was required to prepare the income and expenditure account and balance sheet of a financial year within two months after the end of that year, and the Inland Revenue Department required a financial report of a particular year to be filed not later than July of that year, the Corporation should have the audit report of the year in question.

(2)       Mr. Chen did not object to paying reasonable photocopying charges, but he took issue with the rate of such charges at $3 per page as sought by the Corporation.  He considered that a reasonable rate should only be 20 cents per page.

(3)       Mr. Chen said that the accounting records and accounting documents about the expenses and receipts relating to the projects which he was seeking did not need compilation, and that such records should be ready following completion of the projects, and therefore the Corporation should not delay the supply of the records and documents.

(4)       Mr. Chen emphasized that the Corporation had the duty to supply to him the itemized invoices for each project and counterfoils of the cheques drawn by the Corporation in respect of expenses incurred in each project.  Mr. Chen pointed out that paragraph 2(5) of Schedule 7 to the Building Management Ordinance required the manager to:

“(a)  permit any owner, at any reasonable time, to inspect the books or records of account and any income and expenditure account or balance sheet; and

(b)  on payment of a reasonable copying charge, supply any owner with a copy of any record or document requested by him.”

5. Mr. Chen and the Corporation were unable to resolve their disputes, and the case was heard before Judge Yung in the Lands Tribunal on 16 July 2007.

6. Judge Yung ruled against Mr. Chen and dismissed his application with costs.

7. Mr. Chen applied to Judge Yung for leave to appeal.  On 14 August 2007, Judge Yung dismissed his application with costs on a full indemnity basis.

8. Mr. Chen now appeals to this Court.

9. As a result of the parties’ incomplete understanding of the relevant legislation and their attitude towards each other, what should be simple and easily resolvable matters have not only been complicated but have also led to unnecessary litigation.

10. Section 27 of the Building Management Ordinance provides as follows:

“(1) … a management committee shall maintain proper books or records of account and other financial records and shall prepare, not later than 15 months after the date of the registration of the corporation and thereafter every 12 months, an income and expenditure account and a balance sheet, which shall be signed by the chairman of the management committee and the secretary or the treasurer of the management committee, and shall be laid before the corporation at the annual general meeting of the corporation convened in accordance with paragraph 1(1) of Schedule 3.

…

The management committee shall permit the Authority, an authorized officer, the tenants’ representative, an owner, a registered mortgagee or any person authorized in writing in that behalf by an owner or registered mortgagee to inspect the books of account at any reasonable time.

(4) Schedule 6 shall have effect with respect to the maintenance of proper books or records of account and other records (including the keeping of such accounts and records), the preparation of summaries of income and expenditure and the supply of copies of any documents in respect of those accounts and summaries.”

11. Schedule 6 of the Ordinance provides that:

“(1) All bills, invoices, vouchers, receipts and other documents referred to in the books or records of account and other records maintained under section 27(1) shall be kept by the management committee for such period, being not less than 6 years, as the corporation may determine.

(2) Within 1 month after each consecutive period of 3 months, or such shorter period as the management committee may select, the treasurer shall prepare a summary of the income and expenditure of the corporation in respect of that period, and display a copy of the summary in a prominent place in the building.

(3) If the tenants’ representative, an owner, a registered mortgagee or any person duty authorized in writing in that behalf by an owner or registered mortgagee requests in writing the corporation to supply him with copies of —

(a) the income and expenditure account and the balance sheet prepared under section 27(1); or

(b) a summary of the income and expenditure of the corporation prepared under paragraph 2,

the treasurer shall, on the payment of such reasonable copying charge as the management committee may determine, supply such copies to that person.”

12. Schedule 7 to the Ordinance provides for the determination of the total amount of management expenses of a building.  Under Schedule 7, the manager is required to prepare an expenditure budget in respect of each financial year and also maintain proper books or records of account and other financial records.  Within 2 months after the end of each financial year, he shall prepare an income and expenditure account and balance sheet for that year.  Each income and expenditure account and balance sheet shall include details of a “special fund” as well as an estimate of the time when there will be a need to draw on that fund and the amount of money that will be then needed.

13. Paragraph 2 of Schedule 7 to the Ordinance contains the following provisions in respect of the keeping of accounts:

“(1) The manager shall maintain proper books or records of account and other financial records and shall keep all bills, invoices, vouchers, receipts and other documents referred to in those books and records for at least 6 years.

…

(5) The manager shall —

(a) permit any owner, at any reasonable time, to inspect the books or records of account and any income and expenditure account or balance sheet; and

(b) on payment of a reasonable copying charge, supply any owner with a copy of any record or document requested by him.”

14. The express objectives of the Building Management Ordinance are to facilitate the incorporation of owners and to provide for the management of buildings or groups of buildings and for matters incidental thereto or connected therewith.

15. The owners’ incorporation and the manager have the duty to manage the building and the duty to properly account to the owners and other relevant persons in respect of the management of the building.

16. In order to monitor the owners’ incorporation and the manager effectively to ensure that they discharge their duties impartially and properly, the legislation confers on the owners and other relevant persons the right to inspect basic documents relating to the management of the building and the right to request the incorporation to supply them with such documents as and when necessary.

17. However, the legislation is not there to encourage or allow any individual with an ulterior motive to deliberately and unreasonably stir up trouble and interfere with or obstruct the normal operation of the incorporation and the manager under the pretext of monitoring them.  Nor does the legislation empower the owners or other relevant persons to freely inspect all documents relating to the management of the building or obtain copies of all such documents.

18. It appears from Schedules 6 and 7 to the Building Management Ordinance that the documents which an owners’ incorporation is required to keep in connection with the accounts are different from the documents which the owners are permitted to inspect and of which they are permitted to obtain copies.  Under paragraph 1 of Schedule 6 and paragraph 2(1) of Schedule 7, the documents which the incorporation is required to keep include “all bills, invoices, vouchers, receipts and other documents”, but it does not follow that the owners are entitled to freely inspect these documents or obtain copies thereof.

19. Under paragraph 3 of Schedule 6, an owner is only entitled to obtain copies of the following documents:

“(a) the income and expenditure account and the balance sheet prepared under section 27(1); or

(b) a summary of the income and expenditure of the corporation prepared under paragraph 2.”

20. Paragraph 1(7) of Schedule 7 allows an owner to ask for a copy of any draft budget, budget or revised budget, and paragraph 2(5) only empowers an owner to inspect the books or records of account and any income and expenditure account or balance sheet.  The documents referred to in paragraph 2(5)(b), of which an owner is entitled to obtain copies, are confined to the documents set out in paragraph 2(5)(a), namely books or records of account or any income and expenditure account or balance sheet.

21. An owner does not have the right to inspect “all bills, invoices, vouchers, receipts and other documents” or obtain copies thereof, even though the incorporation has the duty to keep these documents for at least 6 years.

22. It is not difficult to appreciate the rationale behind the statutory provisions.  Property management may well involve tens of thousands of bills, invoices, vouchers, receipts and other documents.  To allow individual owners to inspect such an enormous quantity of documents and obtain copies thereof at will is, it goes without saying, to impose a tremendous burden on the incorporation, and such a burden is also unnecessary.

23. Generally speaking, in order to sufficiently monitor the operation of the incorporation, an owner needs to inspect nothing other than the books, records of account, income and expenditure account, balance sheet or summary of the income and expenditure.  The law should not and will not presume any corrupt practices or false accounting on the part of the incorporation.  If such illegal activities do take place, they should be dealt with by law enforcement agencies.  An owner should not and is not in a position to assume that the incorporation will act against the law.

24. The statutory provisions are at once logical and reasonable and have taken into account the interests of various parties.

25. Mr. Chen has not stated clearly why he wants to inspect “the itemized invoices issued by the contractors to the Corporation in respect of each project, counterfoil of the cheques drawn by the Corporation in relation to expenses incurred in each project, and the written proposals for the said projects prior to tender-calling”.  Nor is he entitled to make this request.

26. It was through regular procedures and on the basis of the confidence of the majority of the owners that the Corporation assumed the power to manage Tai On Building.  If Mr. Chen considers the Corporation unreliable, it is open to him to seek to remove the Corporation through proper avenues.  But if the majority of the owners trust the Corporation, Mr. Chan cannot override the majority view and adopt an attitude of distrust towards the Corporation.

27. It has been held in a number of cases that the “record or document” referred to in paragraph 2(5)(b) of Schedule 7 means the “books or records of account and any income and expenditure account or balance sheet” referred to in paragraph 2(5)(a) and does not include itemized invoices concerning the projects, the counterfoil of the cheque in respect of each item of expense, or written proposals for the projects prior to tender-calling. (See Law Yan v Kong Shum Union Property Management Co Ltd [2007] 2 HKLRD 310, and Leung Kong Keung v Hong Yip Services Co Ltd, unrep., LDBM Nos. 18 & 19/2002)

28. In fact, Schedule 6 to the Building Management Ordinance was amended on 1 August 2007.  The amended Schedule 6 reads as follows:

“1. All bills, invoices, vouchers, receipts and other documents referred to in the books or records of account and other records maintained under section 27(1) shall be kept by the management committee for such period, being not less than 6 years, as the corporation may determine.

1A. The management committee shall ―

(a) at the request of not less than 5% of the owners, permit those owners or any person appointed by those owners to inspect any bills, invoices, vouchers, receipts or other documents referred to in paragraph 1 at any reasonable time; and

(b) permit any person authorized by the court to inspect any bills, invoices, vouchers, receipts or other documents referred to in paragraph 1 at any reasonable time.

1B. For the purposes of paragraph 1A(b), an owner may apply to the court for an order authorizing the owner, or any other person named in the application, to inspect any bills, invoices, vouchers, receipts or other documents referred to in paragraph 1.

1C. The court may make an order under paragraph 1B only if it is satisfied that —

(a) the application is made in good faith; and

(b) the inspection applied for is for a proper purpose.”

29. Under the amended Schedule 6, any owner who seeks to inspect the bills, invoices, vouchers, receipts and other documents referred to in the books or records of account and other records must meet one of the following two requirements:

1. He must have the support of not less than 5% of the owners; or

2. He must be authorized by the court.

30. In order to be authorized by the court to inspect the bills, invoices, vouchers, receipts and other documents, an owner has to apply to the court and the court must be satisfied that the application is made in good faith and for a proper purpose.

31. The objectives of amending Schedule 6 are twofold: on the one hand, to relax the statutory restrictions so that owners may, under specified conditions, inspect certain documents which they were not entitled to inspect prior to the amendment of Schedule 6; and on the other hand, to prevent vexatious owners from causing trouble to a corporation by seeking to inspect documents without any reason or proper purpose.

32. Prior to the amendment of Schedule 6, an owner had no right whatsoever to inspect trifling documents such as project invoices and counterfoils of cheques in respect of project expenses.  Item 6 of Mr. Chen’s application, made before Schedule 6 was amended, is a totally groundless request.  Even if Mr. Chen’s request were made subsequent to the amendment of Schedule 6, his application would still not meet the requirements set out in paragraphs 1A, 1B and 1C of the Schedule.

33. It is clear that item 6 of Mr. Chan’s application was made by reason of his distrust of and prejudice against the Corporation.  Mr. Chan produces as exhibit a Code of Practice on Procurement of Supplies, Goods and Services issued under section 44 of the Building Management Ordinance (Cap. 344 of the Laws of Hong Kong).  Mr. Chan submits that his position is supported by the Code of Practice and maintains that he is entitled to inspect documents such as account books and invoices and request the Corporation to supply copies of those documents.

34. We do not agree with this submission.  The Code of Practice is merely a document issued under section 44 of the Building Management Ordinance in respect of the procurement of supplies, goods and services.  The scope of the Code of Practice cannot exceed that of the Ordinance itself.

35. The first half of paragraph 9 of the Code of Practice stipulates that a corporation shall maintain and keep in safe custody for a period of not less than 6 years all tender documents, copies of contracts, accounts and invoices.  This is the same as the provision in paragraph 1 of Schedule 6 and paragraph 2(1) of Schedule 7.

36. The second half of paragraph 9 of the Code of Practice states that “the management committee shall also permit the Authority, the tenants’ representative, an owner, a registered mortgagee or any other person authorized in writing by an owner or a registered mortgagee to be his representative to inspect the relevant documents at any reasonable time.”

37. Mr. Chen should not assume that the relevant documents referred to in the second half of paragraph 9 of the Code of Practice are the tender documents, copies of contracts, accounts and invoices referred to in the first half of paragraph 9.  In any event, it is unnecessary for us to make a final decision on this point, because the application of the Code of Practice is spelt out in paragraph 1 thereof, which provides as follows:

“Any supplies, goods or services the value of which exceeds or is likely to exceed ―

(a) the sum of $100,000 or such other sum in substitution therefor as the Authority (Secretary for Home Affairs) may specify by notice in the Gazette; or

(b) a sum which is equivalent to 20% of the annual budget of the corporation or such other percentage in substitution therefor as may be approved by the corporation by a resolution passed at a general meeting,

whichever is the lesser, shall be procured by invitation to tender.”

38. At trial, Mr. Chen did not rely on the Code of Practice as support for his arguments, and hence the Tribunal did not address or rule on the application of the Code.  Mr. Chen cannot invoke the Code of Practice for the first time at the appeal stage in order to justify the requests that he made to the Corporation.

39. As stated above, according to paragraph 3 of Schedule 6 to the Building Management Ordinances, Mr. Chen is only entitled to request the Corporation in writing to supply him with copies of:

(a) the income and expenditure account and balance sheet prepared under section 27(1); or

(b) a summary of the income and expenditure of the corporation prepared under paragraph 2.

And under paragraph 2(5) of Schedule 7, the Corporation is only required to:

(a) permit any owner, at any reasonable time, to inspect the books or records of account and any income and expenditure account or balance sheet; and

(b) on payment of a reasonable copying charge, supply any owner with a copy of any record or document requested by him.”

40. Mr. Chen is not entitled to seek inspection of the documents specified in item 6 of his Application, still less obtain copies of those documents.

41. For those documents which Mr. Chen is entitled to inspect, the Corporation is of course under the duty to produce the documents and, upon Mr. Chen’s request, supply him with copies thereof.

42. To found an action on the failure of the Corporation to supply him with documents, the applicant must establish the following:

(1) The applicant made a valid request for the documents in question; and

(2) The applicant having made the valid request, the Corporation declined the request.

43. In Speed Gainer Ltd v The Incorporated Owners of Malahon Apartments & Another unrep., CACV 336/2004, the Court of Appeal pointed out clearly that “there could be no breach of the [corporation’s] obligation to permit inspection without a valid request or demand for inspection followed by a wrongful failure to permit inspection”, and it is such a breach that constitutes a reasonable cause of action.

44. Starting from 2002, Mr. Chen repeatedly asked the Corporation directly or through the Eastern District Office for permission to inspect the documents and for photocopies of the documents, but all along the Corporation never gave a positive response to Mr. Chen’s requests or provided any explanation.

45. On 31 July 2006, Mr. Chen filed his application in the Lands Tribunal.  Only then did the Corporation, through its solicitors, express its willingness to supply Mr. Chen with some of the documents that he asked for in the Notice of Application.

46. On 12 September 2006, the solicitors acting for the Corporation (“the Corporation’s solicitors”) informed Mr. Chen that the Corporation would supply him with items 1 to 5 of the documents which he asked for, subject, however, to payment by Mr. Chen of photocopying charges at $3 per page.  The Corporation’s solicitors also informed Mr. Chen that if he continued with the litigation, “the Corporation will definitely fight to the end and you shall be liable for costs of any vexatious litigation.”

47. On 15 February 2007, the Corporation’s solicitors wrote to Mr. Chen, stating that the Corporation would make a concession and offering to settle the dispute on the following terms:

“(1) The Corporation will charge a photocopying fee of only 50 cents per page for the documents supplied to Mr. Chen on 12 September 2006;

(2) The Corporation will charge a photocopying fee of 50 cents per page for supplying to Mr. Chen the documents he asks for, including:

A. A copy of the auditor’s report on the Corporation as at 31 March 2006,

B. A copy of the itemized list setting out expenses incurred in the public installation works at the building upon completion of the works,

C. A copy of the itemized list setting out expenses incurred in the lift replacement works at the building upon completion of the works,

D. A copy of the itemized list setting out expenses incurred in the external repair works at the building upon completion of the works,

E. A copy of the itemized list setting out expenses incurred in the fire-fighting installation improvement works at the building upon completion of the works.”

48. The Corporation’s solicitors also proposed to arrange for the original documents to be inspected by Mr. Chan on a day to be agreed by both parties and in the presence of staff members of the District Office.

49. On 24 February 2007, Mr. Chen again asked the Corporation for invoices and counterfoils of cheques in respect of expenses incurred in the various projects and also requested the Corporation to arrange for an inspection and supply copies of the documents if needed.

50. On 15 March 2007, the Corporation’s solicitors informed Mr. Chen that the Corporation would not supply him with the invoices and counterfoils of cheques in respect of expenses incurred in the various projects.  The Corporation’s solicitors also requested Mr. Chen to give them a definite reply by 19 March 2007 as to whether he would accept the offer for settlement which they put forward on 15 February 2007.

51. On 16 March 2007, Mr. Chen informed the Corporation’s solicitors that he was willing to accept the offer for settlement which they put forward on 15 February 2007, and requested them to arrange a date and time for the delivery and receipt of the documents.

52. On 20 March 2007, the Corporation’s solicitors wrote to Mr. Chen to ascertain his intentions.  Thereafter, Mr. Chen withdrew his previous acceptance, indicating that he was only prepared to pay photocopying charges at 20 cents per page and insisting on obtaining the remaining documents.

53. On 22 March 2007, the case was heard in the Lands Tribunal.  After discussion, the Judge adjourned the case sine die.  It was proposed that the Corporation would send the invoices and cheque counterfoils in respect of the various projects to the Eastern District Office and Mr. Chen would inspect those documents at one sitting under the supervision of the District Office.  However, the District Office did not accept the proposal, and the Corporation would arrange for Mr. Chen to inspect the documents at another location.

54. On 13 April 2007, Mr. Chen wrote to the Corporation’s solicitors, requesting them to arrange for the inspection and delivery of the documents as soon as possible.

55. On 25 April 2007, the Corporation’s solicitors invited Mr. Chen to go to their office at 3 p.m. on one of three days, namely 2, 3 or 4 May 2007, to inspect the documents, and they said they would charge photocopying fees of 50 cents per page.

56. Mr. Chen made no response.  Instead, on 25 April 2007, he applied to set down the case for trial.

57. On 2 May 2007, the Corporation’s solicitors wrote to Mr. Chen again, indicating that they would postpone the proposed date for inspection of the documents to 8, 9 or 10 May 2007.

58. On 5 May 2007, Mr. Chen replied in writing to the letter from the Corporation’s solicitors.  Mr. Chen’s letter of reply runs as follows:

“I acknowledge receipt of your letters dated 25 April and 2 May of this year, by which you invite me to go to your office to inspect the records of account and documents [which form the subject matter] of the case LDBM No. 171/2006.  It merely repeats the matters stated in your letter dated 15 February 2007 and lacks sincerity.  I already wrote you a letter on 24 February 2007, asking you why there was no mention of the invoices issued by the contractors upon completion of the projects and the Corporation’s records of account, cheque counterfoils or duplicate copies of the cheques in respect of expenses incurred in the projects, all of which, as stated in the Notice of Application in the case 171/2006, I requested to inspect.

You have no sincerity to supply me with the documents and the records of account in respect of expenses incurred in the projects, all of which, as stated in the Notice of Application in the case LDBM No. 171/2006, I request to inspect.”

59. We have set out at length the course of events for the purpose of showing that, although initially the Corporation did not respond properly to Mr. Chen’s requests for inspection and copies of the documents and the matter dragged on for a long time, Mr. Chen’s approach to the matter became extremely unreasonable after he filed his application in the Lands Tribunal and after the Corporation’s solicitors came into the picture and handled the matter.

60. The Corporation’s solicitors wrote to Mr. Chen on 15 February 2007 with a settlement proposal, which Mr. Chen unequivocally accepted on 16 March 2007.

61. Subsequently, however, Mr. Chen changed his mind.  He first indicated that he was unwilling to pay photocopying charges of 50 cents per page.  Later, he even insisted on inspecting the documents, including invoices, cheques drawn by the Corporation and their counterfoils, which he had previously decided not to inspect.

62. As explained above, there was no basis on which Mr. Chen could inspect those documents or seek copies thereof.  Furthermore, he had already indicated that he had decided not to inspect those documents or ask for copies thereof.

63. After the case was adjourned sine die, the Corporation made a concession by indicating its willingness to permit Mr. Chen to inspect the invoices and cheque counterfoils in respect of the works and the Corporation’s solicitors twice arranged for Mr. Chen to inspect and receive the documents.  However, Mr. Chen made no response and instead applied to set down the case for trial.  He acted vexatiously by sending a letter to the Corporation’s solicitors on 5 May 2007 and accusing them of a lack of sincerity.

64. The trial judge pointed out, in our view quite understandably, that Mr. Chen was merely making up excuses in order to avoid paying the photocopying charges of 50 cents per page.

65. On the evidence as a whole, in particular the unreasonable attitude which Mr. Chen adopted when he responded to the proposals of the Corporation’s solicitors, the trial judge was perfectly justified in dismissing Mr. Chen’s application.

66. Emphasis should be placed on the fact that, irrespective of whether Mr. Chen was entitled to do so, the Corporation had agreed to permit him to inspect the documents as per his request and also supply him with copies of the documents upon payment of photocopying charges of 50 cents per page.  However, having accepted the proposal, Mr. Chen resiled therefrom and even gave up his right to inspect the documents and obtain copies thereof on the ground that the Corporation’s solicitors lacked sincerity.  This being the case, Mr. Chen cannot expect that the Court to allow his application and grant him the relief which he seeks, namely to inspect the documents or obtain copies thereof.

67. The only aspect which we feel is open to question concerns the costs order made by the trial judge.

68. The background to the present case shows that over a span of several years, Mr. Chen made repeated requests to the Corporation for inspection of the documents, but the Corporation never properly made any positive response.  It was only after Mr. Chen filed his application in the Lands Tribunal and after the Corporation’s solicitors became involved in handling the matter that the Corporation dealt with Mr. Chen’s requests through its solicitors.

69. Mr. Chen did have a valid cause of action when he filed his application in the Lands Tribunal.  It was only that he came to adopt a very unreasonable attitude as the case developed.

70. Had the trial judge taken into account the fact that over a span of several years the Corporation neither properly responded to Mr. Chen’s requests to inspect and obtain the documents which he was entitled to do, nor explained to him why he was not entitled to inspect certain documents or obtain copies thereof; had the trial judge not mistakenly thought that Mr. Chen had no cause of action; and had the trial judge considered the fact that at an early stage the Corporation’s solicitors had unreasonably asked Mr. Chen to pay photocopying charges of $3 per page, then he might not have ordered Mr. Chen to bear all the costs.

71. Although costs orders are made at the discretion of the judge, if the judge in exercising his discretion overlooked factors which he should have taken into account or acted on mistakes of fact, the appellate court can intervene and vary the costs order made by the judge.

72. In our judgment, having regard to the background to the present case, a fairer approach is to order each party to bear his own costs of the whole action including the trial, application for review and the appeal.

73. We dismiss Mr. Chen’s appeal but also set aside all costs orders made against him and order that each party shall bear his own costs.