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[English Translation – 英譯本]
CACV 4011/2001
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 4011 OF 2001
(ON APPEAL FROM LDBM NO. 32 OF 2001)
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LAU YING HAN (劉影嫻) |
Applicant |
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THE 11TH MANAGEMENT COMMITTEE OF THE INCORPORATED OWNERS OF TAI ON BUILDING |
2nd Respondent |
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Before: Hon Leong CJHC, Woo and Yuen JJA in Court
Date of Hearing: 9 July 2002
Date of Delivery of Written Judgment: 22 July 2002
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JUDGMENT
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Hon Leong CJHC (delivering the judgment of the Court):
1. Madam Lau Ying Han, the Applicant herein, is an owner of Tai On Building (hereinafter “the Building”) and was Vice-Chairperson of the 10th Management Committee of the Incorporated Owners of the Building. The Chairperson of that Management Committee was Madam Lui Bo Hing (呂寶卿), the 1st Respondent herein.
2. On 7 January 2001, an extraordinary general meeting was held among the owners of the Building. The meeting was convened by the 1st Respondent, and a notice of the meeting had, in accordance with the provisions of the Building Management Ordinance, been served twice on all the owners 14 days prior to the meeting, on 22 and 24 December 2000 respectively. The first item on the agenda as stated in the notice was: “To pass a resolution re-electing the Committee”. The legality of the two notices is not in dispute.
3. At the commencement of the meeting on 7 January 2001, 182 owners were in attendance and 379 attendance proxy forms were presented. In the course of the meeting, some controversy arose among the attendees, following which some of them left the meeting. In the end, only 30 owners continued the meeting, although the number of proxy forms remained unchanged. The meeting proceeded to elect the 11th Management Committee to replace the existing 10th Management Committee.
4. The Applicant was dissatisfied with the outcome of the meeting on the ground that the meeting was unfair and unlawful. She therefore applied to the Lands Tribunal for the following declarations:
(1) That the 1st Respondent had no power to convene the owners’ meeting on 7 January 2001;
(2) That the resolutions passed at the meeting were invalid;
(3) That the 10th Management Committee was still valid;
(4) That the 11th Management Committee elected at the meeting was invalid.
5. On 5 December 2001, Presiding Officer Chow of the Lands Tribunal dismissed the application and made the following orders:
(1) That the 1st Respondent was entitled to convene the owners’ meeting on 7 January 2001;
(2) That the resolutions passed at the meeting were valid;
(3) That the 11th Management Committee was a lawful management committee;
(4) That the 10th Management Committee had been replaced by the 11th Management Committee.
6. The Applicant now appeals to this Court in respect of rulings (2) to (4) above. No appeal is lodged against ruling (1), and the present appeal is not brought against the 1st Respondent.
7. The main ground of appeal put forward by the Applicant is: as the owners’ meeting had not resolved to dismiss the 10th Management Committee which was still operative, the resolution passed at the meeting to elect the 11th Management Committee was invalid and the 11th Management Committee thereby elected was also inoperative.
8. Mr Chung, Counsel for the Applicant, has indicated to us that the Applicant neither disputes the lawfulness of the owners’ general meeting held on 7 January 2001 nor disputes that the word “re-electing” in the first item of the agenda (i.e. “To pass a resolution re-electing the Committee”) includes ceasing all the functions of the then operative management committee and electing a new management committee and that the word “Committee” in the same item means “Management Committee”. The Applicant’s ground of appeal is, Mr Chung submits, very narrow in ambit: the general meeting should have resolved to remove the members of the existing management committee from their office before proceeding to elect a new management committee. Mr Chung submits that this is the requirement under paragraph 4(2)(f) of Schedule 2 to the Building Management Ordinance and that the general meeting had to comply with that requirement, failing which the results of the election would be null and void. Mr Chung submits that the general meeting had indeed failed to comply with that requirement, as a result of which the 10th Management Committee is still operative.
9. The provision in paragraph 4(2) of Schedule 2 to the Building Management Ordinance which is relevant to the present case is set out below:
“(2) A member of a management committee shall cease to be a member of the committee if he —
(f) is removed from office by resolution of the corporation.
10. In my view, the above statutory provision only sets out the circumstances under which a member of a management committee shall cease to be a member of the committee. Generally speaking, once a person is elected at an annual general meeting to the office of a member of a management committee, that person should hold the office until the next annual general meeting. During this period, if any of the circumstances set out under paragraph 4(2) arises, the relevant person cannot continue to serve as a member of the management committee. The vacancy created by the cessation of that person’s membership may be filled by having a new member elected at a general meeting. If none of the circumstances set out under the said paragraph arises and the owners’ incorporation considers it necessary to replace all the members of the management committee, the incorporation may convene an owners’ extraordinary general meeting, at which new members are elected to replace the existing ones. In my judgment, the first resolution passed at the general meeting on 7 January 2001 is neither unlawful nor invalid.
11. According to the minutes of the owners’ general meeting on 7 January 2001, the first resolution was passed under the following circumstances:
“(1) Resolution to pass the first item of the agenda
A. Cheung Ming proposed to re-elect the 10th Management Committee
Leung Fung Yee seconded.
406 votes for the proposal.
B. Lui Bo Hing proposed to elect 11 persons to the new Management Committee.
Wan So Lan seconded.
405 votes for the proposal.
C. List of votes of candidates for membership of the 11th Management Committee …”
12. The above shows that two resolutions were passed on that day. The first resolution was A, which aimed to dispose of the then existing Management Committee. To “re-elect” means to produce new members by way of an election. Its meaning covers the removal of the members of the existing Committee from office and the election of new members. Following Resolution A was the second resolution B, by which new members were elected to constitute the new Management Committee.
13. In my view, even if there were provisions requiring the election to follow the two steps suggested by Mr Chung, namely that the meeting should have resolved to remove the existing members from office before proceeding to elect new members as replacements, the resolutions passed at the general meeting in question met such a requirement. In any event, this is of course not a statutory requirement that must be complied with.
14. For the above reasons, I see nothing incorrect in the ruling of Presiding Officer Chow. I dismiss the appeal and make an order nisi that the Applicant is to pay to the 2nd Respondent costs of this appeal.
15. The 2nd Respondent has applied by way of summons to strike out the Applicant’s appeal on the ground that it does not involve any issue of law. The Lands Tribunal Ordinance stipulates that an appeal against a judgment of that Tribunal must involve a question of law, otherwise the Court of Appeal should not entertain the appeal.
16. I do not agree that the Applicant’s appeal does not involve any question of law. The interpretation of paragraph 4(2) of Schedule 2 and the application of that particular provision to the present case are both questions of law. I dismiss the 2nd Respondent’s summons and make an order nisi that the 2nd Respondent is to pay to the Applicant costs of the summons.
Hon Woo JA:
17. I concur with the judgments of my two learned friends. This means that both the present appeal and the 2nd Respondent’s summons are to be dismissed. I also concur with the costs orders that Leong CJHC has proposed to make, as set out in paragraphs 14 and 16 above.
Hon Yuen JA:
18. I agree that the appeal is to be dismissed, the reason being that, on 7 January 2001, the owners’ incorporation resolved to remove all the members of the 10th Management Committee from office, in accordance with the requirement under paragraph 4(2)(f) of Schedule 2 to the Building Management Ordinance.
19. I have taken into account section 6 of the said Ordinance:
“Schedule 2 shall have effect with respect to the composition and procedure of a management committee.”
and also paragraph 12 of Schedule 2:
“In the event of any inconsistency between this Schedule and the terms of a deed of mutual covenant or any other agreement, this Schedule shall prevail.”
20. From this, it can be discerned that the legislative intent is to provide, by virtue of Schedule 2, a complete set of rules and mechanism to govern the composition and procedure of a management committee of a building.
21. As can be seen from paragraphs 3 and 5 of Schedule 2, the term of office of the members of a management committee is from their election at one annual general meeting to the next annual general meeting, and their appointment will be terminated only upon the occurrence of any of the circumstances set out in paragraph 4.
22. In my judgment, therefore, the rules in Schedule 2 do not allow an owners’ incorporation to terminate the appointment of a member of the management committee during the term of that member’s office save and except under the circumstances specified in paragraph 4(2).
23. Applying the above principles to the present case, I am of the view that the first resolution (A) passed on 7 January 2001 complied with the requirement under paragraph 4(2)(f) of Schedule 2, and that the words “re-elect the 10th Management Committee” was but a polite way of saying that all the members of that Management Committee were removed from office.
Hon Leong CJHC:
24. We dismiss both the appeal and the 2nd Respondent’s summons. We also make orders nisi that the Applicant is to pay to the 2nd Respondent costs of this appeal and that the 2nd Respondent is to pay the Applicant costs of the said summons.
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(Arthur Leong)
Chief Judge of the High Court
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(K H Woo)
Justice of Appeal
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(Maria Yuen)
Justice of Appeal
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Mr Hylas Chung, instructed by Richard Tai & Co, for the Applicant.
Mr Vincent Chun, instructed by SK Lam, Alfred Chan & Co, for the 2nd Respondent.
Translated by Mr. Edmund Cham, Solicitor
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