The Incorporated Owners of Chun Fai Garden v. SIU Siu-hing t/a Chung Shing Management Co.

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 285 of 1999

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D E C I S I O N

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1. The matter arose out of an application for the stay of the hearing of LDBM 285/1999, pending the outcome of a judicial review under HCAL 77/2000 for which leave was granted on 11th April 2000. The application for stay was made on 18th April 2000, which was the 1st day of the 3 days set down for trial.

2. An order was made staying the hearing of LDBM 285/1999. The respondent was ordered to pay the applicant's costs of and incidental to the hearing for 18th, 19th and 20th April 2000, to be taxed if not agreed.

3. The respondent sought a review of the costs order. Both parties filed in witness statements and called their witnesses.

4. The respondent's solicitor Mr. Yu Tai Fung Devlin had the conduct of LDBM 285/1999 & HCAL 77/2000.

5. HCAL 77/2000 was an application by the respondent in LDBM 285/1999 for judicial review of the decision of the Land Registrar in issuing a Certificate of Registration under s.8(1) of the Building Management Ordinance Cap. 344, to the owners of Chun Fai Garden. The owners became The Incorporated Owners of Chun Fai Garden. This is the applicant. If the respondent succeeded on the judicial review, the applicant would have no locus standi to proceed with the present application.

6. The respondent's solicitor filed the Notice of Application for leave to apply for judicial review at High Court on 18th February 2000. He filed an affidavit confirming the application at High Court on 2nd March 2000. On 14th March 2000, during the call-over for LDBM 285/1999, the Lands Tribunal was informed that the application for leave would be heard on 14th April 2000. The actual date was 11th April 2000. LDBM 285/1999 was set down for hearing from 18th to 20th April 2000. The solicitor for the respondent, Mr. YU gave evidence in court that after leave was obtained for judicial review on 11th April 2000, he instructed his clerk Mr. Clinton Chan Chi Kin to inform the applicant's solicitors of the result, and to obtain their consent to an adjournment of LDBM 285/1999, vacating the hearing dates and saving costs.

7. In his affidavit, Mr. YU affirmed that he instructed Mr. CHAN to do so on 12th April 2000, and Mr. CHAN reported that he spoke to Mr. Alan Man of Ivan Tang & Co., the Applicant's Solicitors. It was said that Mr. Man would have no objection if proceedings in another lot of cases LDBM 330-338/1999, between the Respondent and some owners to be heard on 13th April 2000 were also to be stayed. As the respondent objected to this, Mr. Yu told Mr. Chan to inform the applicant's solicitors.

8. Mr. Chan later reported that he called Mr. Man again with the information. There was no consent. On Saturday 15th April 2000 at 2:15p.m., Mr. Yu faxed a letter to the applicant's solicitor seeking consent for stay of the proceedings. This was not forthcoming.

9. On 18th April 2000, the application was stayed with costs against the Respondent.

10. Mr. Clinton Chan confirmed the matter relating to HCAL 77/2000.

11. His affidavit was that Mr. Yu asked him to contact the Applicant's Solicitor on 11th April 2000 after the judicial review hearing.

12. He rang up Mr. Alan Man of Ivan Tang & Co. around 11a.m. on 12th April 2000 informing him of the outcome of the judicial review, asking for stay of LDBM 285/1999. It is Mr. Chan's evidence that Mr. Man asked for LDBM 330-338/1999 to be stayed as well. He then reported this to Mr. Yu. Mr. Chan again called Mr. Man and told him the condition was not acceptable, and that the application for adjournment was to be made at the court hearing.

13. The only documentary evidence of significance was the letter dated 15th April 2000, faxed from the respondent's solicitor to the applicant's solicitor after 2 p.m. on 15th April 2000. In this letter, there is no reference to any previous telephone conversation between the applicant & the respondent's solicitors. Mr. Yu explained that this was due to the letter being prepared by another clerk, not Mr. Chan, and he only have sight of it on his return to the office at about 1:30p.m. on Saturday 15th April 2000. Because of his shortcomings as a typist, he decided not to amend the letter, and just signed and faxed it.

14. There is no attendance notes on the telephone conversations between Mr. Chan & Mr. Man. Mr. Alan Man of the applicant's solicitors denied ever receiving such telephone calls. His evidence was that he was unlikely to be in the office on the morning of 12th April 2000. He had no indepth dealing with the case. It was assigned to him to prepare brief to counsel and to ensure that counsel prepared the trial bundle. He took over from another colleague who had left the firm.

15. He had no knowledge of the other cases involving the respondent. He would not be in a position to state conditions off-hand as alleged by Chan, without instructions.

16. The cases LDBM 330-338/99 had been transferred from Small Claim Tribunal to Lands Tribunal, was heard in Court 2 on 13th April 2000 and judgment had been delivered. In those cases the respondent in this application was the applicant. The respondents in those cases were individual owners. Those owners were not legally represented at any time. The applicant was not a party. From the record, the solicitors for the applicant in LDBM 285/99 was not involved in those cases. This is found as a fact.

17. The Lands Tribunal does not accept that the applicant's solicitors would have put forward such a condition for stay.

18. Other than the letter dated 15th April 2000, faxed in afternoon of the same day, there was nothing on record of the respondent informing the applicant of the intention to apply for stay.

19. For this case, of some complexity, the applicant's solicitor has a duty to ensure the trial preparation, including briefing of counsel, was done properly. He did not have a duty to await the outcome of the respondent's leave application, especially since the reported hearing date was to be 14th April 2000, the Friday before the trial date on Tuesday 18th April 2000. There was the possibility that leave might not be granted.

20. I have considered all the evidence available with care, and can find no reason to set aside the costs order.

21. Order dated 18th April 2000 is to stand.