THE INCORPORATED OWNERS OF TAK HAY BUILDING v. LAI MING KWONG

[English Translation]
CACV 171/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 171 OF 2006

(ON APPEAL FROM LDBM 229 OF 2005)

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J U D G M E N T

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

Background

1. The applicant herein is the Incorporated Owners of Tak Hay Building, 1-9 Tak Cheong Lane, Yau Ma Tei, Kowloon.  The respondent is the owner of Flat C, 12/F of the building.  From August 2002 to November 2003 the respondent failed to pay management fees in the sum of $480 per month, totalling $7,680.

2. The applicant filed a claim with the Small Claims Tribunal against the respondent for recovery of the arrears.  The Small Claims Tribunal transferred the case to the Lands Tribunal (“the Tribunal”).  The respondent filed a notice of opposition, challenging the legal status of the applicant.  The respondent also counterclaimed against the applicant for the provision of documents and information relating to the owners’ corporation.

3. Having heard the case, Deputy Judge Wong (as he then was) of the Tribunal ruled that the respondent was liable to pay the arrears to the applicant and dismissed the respondent’s counterclaim.  The respondent appeals against that ruling.

Appeal on a point of law

4. Section 11(2) of the Lands Tribunal Ordinance (Cap. 17) allows any party to proceedings to appeal to the Court of Appeal against a determination of the Tribunal on the ground that the determination is erroneous in point of law.  Order 60A Rule 2 of the Rules of the High Court expressly provides that a notice of appeal from the Tribunal must set out the grounds of the appeal and the question of law to be decided by the Court of Appeal.  A notice of appeal which has not been prepared in accordance with the relevant provisions is liable to be set aside by the court upon application by the opposite party (see Chan Cheuk Tong v. Director of Lands [1996] 3 HKC 485).  The notice of appeal in the present case does not set out the questions of law to be determined by us, and indeed we do not think any question of law has arisen that justifies this appeal.

Ruling of Deputy Judge Wong

5. The respondent resisted the applicant’s claim for arrears of management fees on the ground that the applicant’s legal status was called into question.  As Deputy Judge Wong expressly states in his judgment, the applicant has provided documentary evidence to show that it was incorporated via proper procedures.  Furthermore, even if the management committee of the applicant has not been re-appointed for more than 15 months, it does not follow that the applicant or its management committee would become powerless or invalid (see Incorporated Owners of Finance Building v. Bright Hill Management Consultants Co. Ltd., CACV 386/2000).

6. As the respondent had admitted that he defaulted on the management fees,  and the argument that the applicant lacked legal status had been rejected, the respondent must be held liable to pay the management fees to the applicant.

7. On the respondent’s counterclaim, Deputy Judge Wong held that although the respondent had repeatedly requested the applicant to produce the documents, he failed to show that the applicant had declined his requests.  The Judge went on to hold that the applicant had in fact repeatedly informed the respondent that it would supply the documents he wished to inspect and would produce minutes of meetings at the hearing in the Small Claims Tribunal for his inspection, but the respondent had rejected these suggestions.  Furthermore, the applicant showed the relevant documents at an owners’ meeting, but the respondent did not attend that meeting.  The Judge held that the respondent was only entitled to obtain from the applicant the documents specified in section 27, Schedule 6 paragraph 3 and Schedule 7 paragraph 2(5) of the Building Management Ordinance, Cap. 344.  The Judge further held that only two of the 13 documents sought by the respondent satisfied the requirements of section 27, the remaining 11 documents being irrelevant to section 27.  In any event, the Judge held that the respondent had failed to show that he had requested the applicant to provide the two documents and that his requests had been rejected.

8. Deputy Judge Wong’s ruling is essentially a ruling of facts.  We neither see any legal principle being involved in the ruling nor find anything improper in it.

Conclusion

9. For the above reasons, the appeal is dismissed.

Costs

10. The respondent, whose appeal is dismissed, has to pay the applicant’s costs of appeal, save and except the fees of the applicant’s counsel in attending the hearing on 4 July 2007.  Upon receiving a notice of appeal, an applicant is entitled to seek legal assistance from a lawyer, but since a solicitor does not have a right of audience in the Court of Appeal, he can instruct counsel to represent an applicant in opposing the appeal.  This, however, does not mean that once counsel attends the hearing, his fees will as a matter of course be covered in the costs that the losing party has to pay the winning party.  A lawyer cannot expect the court to automatically order the losing party to pay for the legal fees of the other side in respect of work that serves no real purpose.  Prior to the hearing, the court had inquired of the applicant’s legal representative about the provision of a written submission, but Mr Lee Yee Hung, counsel for the applicant, failed to furnish any written submission to the court prior to the present appeal.  We therefore did not allow him to make any submission in court regarding the present appeal.  Mr Lee argued that he had not provided a written submission because the Practice Directions did not require the other party to an appeal to do so.   He said he did not consider it necessary to provide a written submission as the respondent had not done the same.  He even said that after hearing the respondent’s submission in court, he would then address the court in reply if necessary.

11. With respect, we find this a very constricted point of view.  Neither party was represented at the hearing before the Tribunal.  The respondent is also unrepresented in the present appeal.  The party who is represented has a duty to assist the court by providing a written submission which sets out the background of the appeal and the issues involved, so that the court and the respondent can understand the issues when the hearing commences.  Written submissions have become an indispensable part of the court procedure.  Save in exceptional circumstances, the court will not allow counsel who has not submitted a written submission to make an oral submission to the court.  The respondent stated in his notice of appeal that the grounds of appeal could be found in the documents that he submitted.  In the circumstances, even if the respondent had not supplied a written submission on his appeal, counsel for the applicant was not kept in the dark about the respondent’s arguments and could have provided a written submission as appropriate prior to the hearing.

12. In our judgment, as counsel failed to provide the court with material assistance, the costs payable by the respondent will not include costs of counsel for the applicant.  In addition, unless Messrs. Y. T. Szeto & Co., solicitors for the applicant, notifies the court within 14 days that it will not charge its client (i.e. the applicant) counsel’s fees, it shall within the same period submit a written statement to explain why it can shift the counsel’s fees to the applicant instead of paying those fees by itself.  We shall give further directions or orders upon receiving the written statement. 

Our suggestions

13. We must point out that the Court of Appeal notices that many of the appeals from the Lands Tribunal, particularly those in which the appellants are unrepresented, do not present issues on point of law as required by the relevant legislative provisions.  This problem arises from an absence of a requirement to obtain leave of the Tribunal or the Court of Appeal before proceeding with this type of appeal.  By contrast, appeals from other tribunals, such as the Small Claims Tribunal and the Labour Tribunal, can only proceed after leave is granted even though they do involve issues of law.  It is in our view necessary to consider amending the Lands Tribunal Ordinance so that no appeal from a decision of the Tribunal can be brought unless leave is obtained which confirms that a question of law is involved; otherwise this type of appeal would only be a sheer waste of resources, costs and time of the Court of Appeal.