LEUNG HO SING AND OTHERS v. SHUM YIU TUNG AND OTHERS

HCAL 36/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 36 OF 2007

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D E C I S I O N

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1.  Despite the heading of the application for leave form, the only person applying for judicial review is Karson Engineering Company Limited.

2.  Karson owns a unit in a Building.

3.  In Lands Tribunal (LDBM Case No. 153 of 2005) Karson sought an order that an administrator be approved under Building Management Ordinance (Cap.344) (BMO) s.31, that a 12^th Management Committee be appointed for the Building, and that an injunction restrain the Respondents (comprising some members of the 11^th Management Committee) from being re-appointed to the 12^th Management Committee.

4.  The Lands Tribunal held that the Incorporated Owners (IO) and other members of the 11^th Management Committee should have been joined to the Lands Tribunal application. Karson’s application was refused.  Costs were ordered against Karson.

5.  Karson (with other unit owners) appealed to the Court of Appeal (Civil Appeal No. 108 of 2006).

6.  By the time of appeal, the IO still had not been joined as a party.  When the Court of Appeal pointed this out, Karson’s counsel sought an adjournment in order to join the IO as well as the other members of the 11^th Management Committee as parties.

7.  But the Court of Appeal refused an adjournment and instead dismissed the appeal.  It did so because it did not think that the appeal had substantive merits.  Thus, in the Court’s view, even if the IO and other members of the 11^th Management Committee had been joined as parties, the appeal would still fail.

8.  The appeal would fail because its central allegation was that, pursuant to the BMO, the 11^th Management Committee could not continue to hold office following an Annual General Meeting on 14 April 2005.  But the Court observed that, read in context, the BMO provided that until the 12^th Management Committee had been voted in, the 11^th Management Committee could not be treated as having retired.

9.  The Court of Appeal awarded costs against Karson on an indemnity basis.  The Court did this because it thought that “the appeal should never have been prosecuted in the absence of the IO and the other members of the Management Committee”.  Further, the Court described the appeal as “incompetent from the start”.

10.  Karson now seeks leave to apply for judicial review against the judgment of the Lands Tribunal insofar as it ordered Karson to pay costs.  Karson says that it is so applying because the costs order was obtained by fraud.  The fraud is said to be the Respondents’ alleged concealment that they had been fully funded in the Lands Tribunal litigation by the IO.

11.  I do not believe that this is an appropriate case for judicial review.  I have 3 reasons for my view.

12.  First, this is not a type of case susceptible to judicial review.  This is not a situation where it is sought to review an administrative (as opposed to a judicial) proceeding.

13.  Second, assume that the costs order had been truly obtained by fraud.  The remedy would be to apply in the Lands Tribunal to set aside its judgment or at least that part of it relating to costs.  I do not accept the submission of Mr. Sui (appearing for Karson) that, unless judicial review is granted, there would be no remedy.

14.  Third, assume that (as Karson alleges) the IO indeed funded the Respondents and that this was neither known nor communicated to Karson.  I do not see how this amounts to any operative fraud. 

15.  Indeed, I do not see how, substantively, the matter has any relevance or bearing on the Land Tribunal’s decision (whether as to costs or anything else).

16.  Karson ought to have joined the IO to its application from the outset.  Its knowledge as to whether or not the IO was funding the Respondents is irrelevant to that simple procedural obligation.  The mere fact that the IO was rightly or wrongly funding the Respondents would not have made the IO a party to the Lands Tribunal proceedings.

17.  In any event, the Court of Appeal examined the merits of Karson’s contentions before the Lands Tribunal regardless of the non-joinder of the IO.  The Court of Appeal found that Karson’s application in the Lands Tribunal had no merits independently of any question of joinder.  In the premises, I am unable to see anything wrong in the costs orders made by the Lands Tribunal or the Court of Appeal.

18.  Thus, regardless of jurisdictional considerations, the substance of the proposed judicial review appears to me unarguable.

19.  For those reasons, leave to apply for judicial review is refused.  Karson’s application is dismissed.