Ho Suk Mi, also known as Ho Suk Mi Winifred v. The Incorporated Owners of Kam Ying Court (Ii)

LDBM 298/2015

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO 298 OF 2015

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REASONS FOR DECISION

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1.By a summons filed on 31 December 2015 (“the R’s Summons”), the respondent is asking for the Amended Notice of Application (“Amended NOA”) in this case be struck out and dismissed on the ground that it disclosed no reasonable cause of action.

2.By a summons filed on 11 February 2016 (“the A’s Summons”), the applicant is asking for leave to add Mr Chan Chiu Yin (“Chan”) as the 2^nd applicant in this case and for consequential directions for leave to re-amend the Amended NOA.

3.At the hearing on 16 February 2016 for both summonses, it is ordered that the Amended NOA be struck out and the A’s Summons be dismissed with costs to the respondent.  I have indicated detailed reasons will be handed down in due course.  This is the reasons for the decision.

Background

4.Chan is the owner of a unit within Kam Ying Court (“the Estate”) and the applicant is the wife of Chan.  On 30 September 2015, the applicant filed the Notice of Application (“NOA”) in this case on the basis that she was being authorised by Chan to handle all disputes between Chan and the Incorporation Owners (“IO”). In the NOA and the subsequent Amended NOA filed on 8 January 2016, the applicant alleged that despite repeated requests, the IO still failed to allow her, being a person authorised in writing by an owner, to inspect the books of accounts of the IO.

5.In the Notice of Opposition filed by the respondent on 6 November 2015, it is denied that the applicant has the locus standi in making this application. Hence, the R’s Summons was being taken out.

6.By an order dated 14 January 2016, the R’s Summons was adjourned for argument on 16 February 2016.  In the meantime, the A’s Summons was being filed. 

The Parties’s Contention

7.Mr Tsui for the respondent submitted that the applicant has no locus to sue since she is not an owner of any unit in the Estate as required by section 45 of the Building Management Ordinance (“BMO”).  Since the applicant has no legal capacity to commence these proceedings, the Amended NOA should be struck out. The merits of the applicant’s case is not something to be considered at this stage and the joining of Chan as suggested in the A’s Summons cannot change the capacity of the applicant in any event.  So A’s Summons should also be dismissed.

8.Mr Mak for the applicant had very fairly agreed that the applicant had no locus to sue in this case.  But he relied on Order 15 rule 6 of the Rules of High Court (“RHC”) and submitted that “mere misjoinder or non-joinder which is capable of being remedied will not defeat a claim and is no defence” (§15/6/1 of Hong Kong Civil Procedure 2016 Volume 1).  So the fact that Chan had not initiated these proceedings should not be fatal to the application and the R’s Summons should be dismissed.  It is also mentioned in the written submissions of Mr Mak that there is genuine dispute and cause of action between the applicant and the IO since the IO is under a duty to permit the applicant to inspect the books of account under section 27 BMO.  At the end of his written submission, Mr Mak also asked this Tribunal to transfer this case to the Court of First Instance should this Tribunal not with him since section 45 BMO only concerns whether a person could initiate an application in this Tribunal, it does not destroy the statutory rights of inspection provided by the BMO to the applicant. 

Discussion

9.Section 27(2) of the BMO imposed on an IO the duty to permit any person authorised by an owner to inspect the books of document.  The applicant, being authorised by Chan, did have the right to ask the IO for an inspection.  But this does not confer on the applicant the locus to commence any legal proceedings to enforce the right of an owner to inspect any document.  The right to inspect the document on behalf of an owner cannot equate to the right to enforce the right of an owner in court.  There are specific provisions in the BMO governing the capacity to commence proceedings at this Tribunal.

10.Section 45 BMO reads :

“(1) The Tribunal shall have jurisdiction to hear and determine any proceedings specified in Schedule 10.

(2) No person other than a person to whom this section applies shall be competent to commence any proceedings referred to in subsection (1).

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(4) This section applies to the following persons, namely –

(a) an owner;

(aa) the Authority;

(b) a person referred to in section 3(1)(a) or (b);

(c) a management committee;

(d) a corporation;

(e) a manager within the meaning of Part VIA;

(f) an owners’ committee within the meaning of that Part;

(g) a registered mortgagee;

(h) an administrator;

(i) with leave of the tribunal, the tenants’ representative; or

(j) with leave of the tribunal, any other person specified in an instrument which is registered in the Land Registry including a deed of mutual covenant (if any).”

11.So, unless the applicant falls within the named persons in section 45(4), according to section 45(2), she is not competent to commence any proceedings in this Tribunal.  There is no dispute that the applicant does not fall within any of the named persons stipulated so it is beyond argument that she has no locus to sue in these proceedings and has no cause of action disclosed.  Whether there is any genuine dispute between Chan, the applicant or the IO is neither here nor there.  As rightly pointed out by Mr Tsui, merits of the case itself is not something to be considered in the consideration of a striking out application.

12.Furthermore, Schedule 6 of BMO is the provision stipulating the right to the seeking of a court order for the inspection of documents.  Para 1B Schedule 6 BMO provided that “… an owner may apply to the court for an order authorising 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” (my emphasis).  The application by the applicant in this case falls squarely into para 1B of Schedule 6 which provided that only an owner is entitled to apply to the court for an order.  The Amended NOA named the applicant and not Chan as the one applying for the order, this is apparently not in line with para 1B of Schedule 6.  And the wordings of para 1B Schedule 6 also rebuts the allegation that the applicant did have the statutory right to seek for an order for inspection.

13.And I do not accept that O.15 r.6 RHC can assist the applicant.  As stated at §15/6/1 of Hong Kong Civil Procedure 2016, “(T)his rule, however, has not altered the legal principles with regard to parties to actions, and, in no way qualifies the necessity for having before the court the proper parties necessary for determining the point at issue” (at page 317) (my emphasis).  This utterly refuted the contention that O.15 r.6 RHC can be interpreted to confer on someone the capacity to sue when he or she is never a proper party to commence the proceedings.

14.The applicant is also relying on O.15 r.6 RHC in support of the A’s Summons for leave to further amend the Amended NOA by adding Chan as the 2^nd applicant. As stated at §15/6/1 of Hong Kong Civil Procedure 2016, “these are all provisions designed to save rather than to destroy, to cure that which is capable of cure” (at page 316) (my emphasis).  The applicant’s situation is not something capable of cure by way of adding Chan since the applicant’s status to sue will remain the same even with Chan being added as the 2^nd applicant.  The applicant should never be a party in these proceedings.  The proper course is to remove the applicant and named Chan as the party instead but this is apparently not the situation as revealed from the version of the Re-Amended NOA attached to the A’s Summons.

15.Mr Mak for the applicant had also mentioned about transferring this case to the Court of First Instance in his written submission.  Not only that there is no such application before this Tribunal, there is nothing to justify a transfer.  The claim for inspection is within the jurisdiction of this Tribunal and should not be transferred.  The claim being struck out is due to the fact that the applicant has no capacity to sue.  Whether it is in this Tribunal or at the Court of First Instance, her capacity remained defective and since the applicant is framing her claim under the BMO, para 1B Schedule 6 will still be applicable be it in this Tribunal or at the Court of First Instance.  The contention of the applicant in this regard is clearly misconceived.

16.Having heard from the parties, I agree with the respondent that the applicant, who is not a person named in section 45(4) BMO, has no locus to commence the proceedings in this case and her claim should be struck out.  And the application to add Chan as a 2^nd applicant in this case cannot salvage the shortcomings of the applicant’s capacity to sue, hence the A’s Summons should be dismissed as well.

Mr Andy L W Mak, instructed by Alan Ho & Co, for the applicant

Mr Wilfred Tsui Chi Keung, instructed by Simon C W Yung & Co, for the respondent