The Incorporated Owners of Ho on Mansion v. Herman H M Hui & Co

HCMP 1608/2019

[2020] HKCFI 812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1608 OF 2019

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Before: Ms Recorder Yvonne Cheng SC in Chambers

Date of Written Submissions by Plaintiff: 23 March 2020

Date of Written Submissions by Defendant: 1 April 2020

Date of Written Submission in reply by Plaintiff: 2 April 2020

Date of Judgment: 20 May 2020

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J U D G M E N T

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A. INTRODUCTION

A1.    The application before the court

1.By an originating summons of 30 September 2019 (“the Originating Summons”), the Plaintiff seeks an order for the Defendant to deliver up to the Plaintiff “all the papers, documents and property in the custody, control or power of the Defendant or its Agents to which the Plaintiff is entitled … relating to … [the] Defendant’s handling as the Plaintiff’s legal representative” of various matters.

2.The matter was originally set down for argument on 2 April 2020, but was adjourned pursuant to the general adjournment of court proceedings announced by the Judiciary by reason of public health considerations. By the Plaintiff’s solicitors’ email of 24 March 2020 and the Defendant’s letter of 25 March 2020, the parties indicated that they did not seek to call or cross examine any witnesses, and agreed that the Originating Summons should be determined on the papers.

A2.    The background

3.Unless otherwise indicated, the following background is common ground.

4.Hui Heon Ming Herman (“Mr Hui”) is the sole proprietor of the Defendant, and an owner of a unit in Ho On Mansions. He served as a member of the management committee of the Plaintiff (“the MC”) during a period from some time in 2016 to December 2018.

5.The Plaintiff retained the Defendant in relation to certain aspects of:

5.1  inspection and repair work under the Building Department’s Mandatory Window Inspection Scheme and Mandatory Building Inspection Scheme (“the Repair Work”) in about the second half of 2016 (“the 1st Retainer”);

5.2  waterproofing work and the installation of a new emergency lighting system (“the Installation Work”) in about late 2017 (“the 2nd Retainer”).

6.There was no formal written retainer for either of these retainers.

7.On 11 February 2019, the Plaintiff retained Messrs Huen & Partners as general legal consultant and also in relation to matters arising from the Repair Work and the Installation Work.

8.A dispute has arisen between the Plaintiff and Defendant as to whether certain documents, said by the Plaintiff to be in the Defendant’s possession, custody or power, should be delivered up to the Plaintiff.

A3.    The documents sought

9.The Originating Summons contained a somewhat circular and vague description of the scope of the documents being sought (“documents to which the Plaintiff is entitled…”). The Plaintiff’s position[1] is that the documents sought are set out in paragraph 15 of the Affirmation of Chiu Pui Fong of 30 September 2019 (“Chiu I”):

“ (1) All relevant contracts, in both their original and settled forms;

(2) Records of owners’ contributions;

(3) Owners’ payment notices and receipts from banks;

(4) Bank monthly statements of the client account;

(5) Correspondence with owners, letters of demand to owners, and receipts issued on behalf of the Plaintiff to owners;

(6) Records for payments to building contractors and receipts from the contractors;

(7) Correspondence with third party consultants and contractors;

(8) Information and records as to any ongoing legal action for outstanding payments;

(9) An up-to-date income and expenditure account.”

B.     PROCEDURAL ISSUES

B1.    Whether O.106 r.3 applies

10.The Originating Summons contains a marginal note referring to O.106 r.3 of the Rules of the High Court, and to s.65(1) of the Legal Practitioners Ordinance, Cap.159 (“the LPO”).

11.The Defendant argues that O.106 r.3 does not apply to the present case.

12.Whilst I agree with the Defendant on this point, it is of no consequence, since O.106 r.5 applies. O.106 r.5 requires any originating summons by which an application under the LPO is made to be in the form of Form No.10 in Appendix A, that is, the expedited form (which was the form used for the Originating Summons). The Plaintiff relies on s.65(1) LPO, which provides (inter alia) that the jurisdiction of the court to make orders for the delivery up by a solicitor of deeds, documents or papers in his possession, custody or power is extended to cases in which no business has been done by the solicitor in the court.

13.I will therefore only briefly set out my reasons as to why I disagree with the Plaintiff’s argument that O.106 r.3 applies.

14.The Plaintiff relies on O.106 r.3(1), which refers to the court’s jurisdiction to make an order for the delivery up by a solicitor of “money or securities”. The Plaintiff’s written submissions argue that a client’s papers constitute “securities” as they provide a form of collateral assurance (pursuant to a lien) that his solicitor should be paid. This is not the natural meaning of “securities” in the context of the rule. In any event, the Defendant does not assert any lien over the Plaintiff’s documents, so even on the Plaintiff’s interpretation of O.106 r.3(1), the documents sought do not come within the definition of “securities”.

B2.    Whether further directions should be given for the conduct of the case

15.Having indicated that there was no intention to call witnesses or cross examine witnesses, and having agreed to the determination of the Originating Summons on the papers on the basis that written submissions would be filed (without any further filing of evidence), the written submissions of counsel for the Defendant (Mr Roger So) nevertheless made the following points:

15.1     there were three factual issues between the parties which give rise to the question of whether the matter was suitable for summary determination and whether the originating summons procedure was the appropriate originating process;

15.2     the Originating Summons should either be dismissed, or further directions should be given for the conduct of the case (but no submission was made as to what such directions might be).

16.The written reply submissions of counsel for the Plaintiff (Mr Tam Nok Ting) pointed out that the Defendant appeared to have proceeded on a misapprehension that the Plaintiff’s application was for a summary disposal or for directions, but that this was not the case, and that the parties had agreed to the determination of the Originating Summons on the papers. The Plaintiff further submitted that the Defendant had been given opportunities to seek directions for the conduct of the case, but had not done so.

17.The Defendant did not respond further to the Plaintiff’s written reply submissions.

18.I would note that in the present case, prior to the filing of its written submissions, the Defendant had not previously suggested[2] that the originating summons procedure was inappropriate. Whilst this would not preclude the court from revisiting the appropriateness of the originating summons procedure (for example, where there has been a change in circumstances), the factual issues raised by the Defendant do not, in my view, constitute a basis to do so in the present case. I will address those issues further below. 

19.Furthermore, in the light of the parties’ stances that they neither sought to call nor to cross-examine witnesses (or indeed to file any further affidavits), it is unclear what exactly is the nature of the Defendant’s objection to the originating summons procedure: even if there are issues of fact between the parties, it is apparently the parties’ stance that the court should nevertheless determine them without the assistance of any further or oral evidence.

20.Accordingly, I do not agree that this matter should be dealt with at this stage by simply giving further directions.

C.     THE APPLICABLE LEGAL PRINCIPLES

21.In Wentworth v De Montfort (1988) 15 NSWLR 348, the New South Wales Court of Appeal reviewed a number of (English) authorities relating to the ownership of documents in the possession of a solicitor. Hope JA, with whom the other two members of the court agreed, made the following observations.

21.1  Although solicitors may in particular circumstances receive or create a document as an agent for their client, this is commonly not the case. The distinction between principal and agent and professional person and client is well established (citing Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205 and Chantrey Martin (A Firm) v Martin [1953] 2 QB 286). If a solicitor is acting only as agent for a client who is his principal in the doing of some act, the ordinary rules of agency apply to him, and documents brought into existence or received by him when so acting belong to the client. In the case of a professional person and his client, different principles apply. (See 351G to 353F.)

21.2  Documents held by a solicitor relating to a client, including financial records, do not necessarily belong to the client (353F).

21.3  The principles which are to be applied do not form a coherent whole (353F).

21.4  Some particular examples and statements which throw some light on the matter include (353G to 355F):

21.4.1  Ex parte Horsfall (1827) 7 B&C 528, where Lord Tenterden held that drafts and copies of certain deeds in the custody of an attorney were the property of his client on the ground that he who pays for the draft by law has a right to the possession of them;

21.4.2  Chantrey Martin, in which Jenkins LJ distinguished Ex parte Horsfall and expressed his view that that certain types of documents made by a solicitor for his own information in the course of his business would be owned by him;

21.4.3  Re Thomson (1855) 20 Beav 545; 24 LJ Ch 599 in which Sir John Romilly MR held that a client is not entitled to copies of letters written by the client’s solicitor which have been entered in his letter books. The client is entitled to copies of those copies, but must pay for them. It was also held that letters written by the solicitor to third parties,[3] relating exclusively to the client’s business, are held by the solicitor as agent for the client and the client is entitled to them, the solicitor being entitled to make and keep copies;

21.4.4  Howard v Gunn (1863) 32 Beav 462, in which Sir John Romilly MR held that a letter written by a solicitor for a client to a third party belonged to the client;

21.4.5  Gibbon v Pease [1905] 1 KB 810, where the English Court of Appeal held that a building owner was entitled to require his architect to hand over plans which had been prepared by the architect in the course of performing his contractual obligations to carry out building alterations;

21.4.6  Re Ellis & Ellis [1908] WN (Eng) 215, where a firm of solicitors was found on the facts to have acted as an agent for a client in managing his affairs and receiving and paying sums on his behalf, and was held liable to deliver up not only an account of monies received, but also vouchers for payments made.

21.4.7  Cordery on Solicitors, 8th ed (1988), which suggested that documents coming into existence during the currency of the retainer and for the purposes of business transacted by the solicitor pursuant to the retainer fell into four broad categories:

“(i) Documents prepared by the solicitor for the benefit of the client and which may be said to have been paid for by the client, belong to the client.

(ii) Documents prepared by the solicitor for his own benefit or protection the preparation of which is not regarded as an item chargeable against the client, belong to the solicitor.

(iii) Documents sent by the client to the solicitor during the course of the retainer, the property in which was intended at the date of despatch to pass from the client to the solicitor, belong to the solicitor.

(iv) Documents prepared by a third party during the course of the retainer and sent to the solicitor (other than at the solicitor's expense), belong to the client.”

Incidentally, it should be noted that a subsequent version of this passage Cordery (to essentially the same effect) is cited in the Law Society Guidance Note on Storage and Destruction of Old Files (dated 25 June 2012), itself cited in Principle 5.23 of The Hong Kong Solicitors’ Guide to Professional Conduct, Third Edition.

21.5  A number of considerations could be discerned from these decisions and statements as being relevant in the determination of ownership. These included whether or not the client was charged for the creation of the document, and whether the solicitor created the document for his client’s benefit and protection, or did so for his own benefit and protection. (See 355F.)

21.6  In many cases a solicitor would have mixed reasons for creating a document (355G to 356B).

“Thus if on his client's instructions he writes a letter of demand to a third party, it would be his duty to keep a copy of the letter, for the client may have to prove the sending of the letter and its contents, and the copy kept by the solicitor may be essential for this purpose. On the other hand the solicitor would want a copy for his own protection in order, for example, to be able to prove to his client that he had sent the letter of demand, and also for the purposes of making up a bill of costs. In such a case, the clients would be entitled to a copy of the letter and the solicitor would be entitled to charge him for it. On the other hand the solicitor would be entitled to keep a copy for his own records and absent some special agreement would not be entitled to charge the client for making that copy. Again if on his client's instructions the solicitor pays money to a third party and obtains a receipt, the receipt is obviously of benefit for the client for it is evidence that the third party has been paid. It is also evidence for the solicitor that he has carried out his client's instructions and would be needed by him if any questions as to payments out of his trust account were raised. Again in this case I should have thought that the client was entitled to the original receipt, but that the solicitor was entitled to retain a copy.”

21.7  Where a solicitor receives and holds money in trust for his clients, he has legal title to his records of his dealings with the client’s money in the trust account, while he is trustee. The client is entitled to inspect them, and to have information about them, but they are not the client’s property. Normally, when a trustee ceases to hold office, either on appointment of a new trustee or the determination of the trust, he would be required to hand over all trust property to the new trustee or the beneficiaries. This would generally apply to a trustee who is a solicitor, but there are important qualifications in some cases. If he is solicitor as well as trustee, he is required by law to maintain and retain proper financial records. He is entitled to retain those records, some of which may refer to other clients as well as the trust, but the beneficiary should be provided with copies if asked for. Other records which he makes as solicitor and not as trustee are subject to the same principles as would apply as if he were not a trustee. (See 356C to G.)

D.     The nine categories of documents

D1.    “All relevant contracts, in both their original and settled forms”

22.  Under this category, the Plaintiff seeks delivery up of:

22.1  the originals of settled contracts relevant to the Repair Work insofar as they were prepared by the Defendant;[4]

22.2  the originals of contracts relevant to both the Repair Work and Installation Work insofar as they were prepared by third party contractors and consultants.[5]

D1.1  Originals of contracts settled by the Defendant

23.The Plaintiff claims entitlement to the originals of contract(s) relating to the Repair Work settled by the Defendant on the basis that the Defendant prepared them pursuant to the 1st Retainer for the benefit of the Plaintiff, and that the Plaintiff paid for them.

24.The basis for the Plaintiff’s claim that settlement of contracts fell within the scope of the 1st Retainer is that debit note number 7775 dated 1 March 2017 (“Debit Note 7775”) refers to the scope of professional services under the 1st Retainer as including 審閱大廈維修工程合約並作出修改及建議 (examining, amending and advising on building maintenance contract).

25.There is no suggestion that Mr Hui did not settle any contract(s) relating to the Repair Work or that such contract(s) are not in the custody, control or power of the Defendant. On the contrary, in paragraph 18 of the Affirmation of Hui Heon Ming Herman of 30 October 2019 (“Hui I”), Mr Hui states that some time after April 2019, the Defendant firm “retrieved all documents that [were] either in the Defendant’s possession in the course of performing its appointed role … or in my custody because of my capacity as members [sic]of the management committee.”

26.Instead, the Defendant says that the scope of the 1st Retainer did not include settlement of contracts. It says that the reference in Debit Note 7775 to examining, amending and advising on a building maintenance contract was a mistake, and points to the following as evidence of the limited scope of the 1st Retainer.

26.1  The Defendant’s quotation of 27 July 2016 had proposed a charge of $10,000 for work relating to contributions to the cost of repair work, and had separately indicated that if work such as drafting, approving or amending contracts was required, a fee proposal would be put forward. It should be noted that in Chiu I, the affirmation made by the current chairperson of the Plaintiff, it was stated that the source of information as to the scope of the 1st Retainer was this very quotation from the Defendant.

26.2  Paragraphs 4.5 and 4.6 of the minutes of the MC meeting of 20 October 2016 record that the Defendant was engaged on this basis.

26.3  Paragraphs 1 and 2 of the minutes of the MC meeting of 22 December 2016 record that Mr Hui had made amendments and suggestions to the drafting of a building maintenance contract on a pro-bono, no-liability basis, in his capacity as member of the MC, drawing on his legal knowledge.

26.4  Paragraph 1 of the minutes of the MC meeting of 12 January 2017 further recorded amendments to the minutes of the 2016 Ho On Mansions owners’ annual general meeting to state that the Defendant was engaged as legal consultant in relation to the collection of contributions towards building maintenance (rather than as general legal consultant for building maintenance).

26.5  Debit Note 7775 charged $10,000 in accordance with the original quotation, which had not included settlement of contracts.

27.In its affirmation evidence in reply, the Plaintiff has not put forward any evidence to rebut these points. The Plaintiff’s written submissions simply observe that the claim of mistake was not made until after the commencement of these proceedings.

28.The Plaintiff fails to discharge the burden of proving that the scope of the 1st Retainer included the settlement of contracts, and that therefore the Defendant is liable to deliver up contracts relating to the Repair Work on that basis.

29.The Plaintiff’s alternative argument is that even if Mr Hui was not acting in his professional capacity when settling the contract(s) relating to the Repair Work, and his settlement of the contract(s) did not fall within the scope of the 1st Retainer, the Plaintiff should nevertheless be entitled to delivery up of the originals of the settled contract(s) as they were “held out to be the result of negotiations between the Plaintiff and third party” contractors.[6] The Plaintiff cites Howard v Gunn (supra), where a solicitor unsuccessfully sought to restrain a company’s publication of a letter written by him in what he claimed was a personal capacity. The court held that as the letter appeared to have been written on behalf of the company’s directors, the solicitor could not claim property in it, and could not restrain publication by the company.

30.The Defendant’s argument is that Howard v Gunn was not relevant on the grounds that first, the solicitor in that case had acted in a general capacity, rather than on a limited scope as was the case with the Defendant; and second, if the solicitor had made it clear that the letter was not written in his official capacity then the court would have held that the letter was private. The argument, it seems, is that the Plaintiff was aware that Mr Hui was acting in his personal capacity, pro bono and on a no-liability basis, when he commented on the contracts (although there is no evidence as to whether he had also given such indications to third party contractors and consultants).  

31.It seems to me that whether Mr Hui had held out to the third party contracting party that he was the Plaintiff’s solicitor (as the Plaintiff says, albeit without evidential support), or whether he had made it clear to the Plaintiff that he was acting in his personal capacity rather than as remunerated solicitor (as the Defendant says), are not particularly relevant. What matters is that when settling the contract(s) relating to the Repair Work, Mr Hui was not acting for his own benefit, but for the Plaintiff. It is not suggested that in doing so, Mr Hui acquired ownership of the original contract. It is noteworthy that the Defendant has not sought to argue that as against “Mr Hui in person”, the Plaintiff would not have a good claim to the contract(s). The Defendant simply argues that the Plaintiff is not entitled (it is said) to demand them in these proceedings, and that whether the Plaintiff might have recourse against “Mr Hui in person” is irrelevant in the present proceedings.[7]

32.However, on the Defendant’s own case, any contract(s) relating to the Repair Work which may have been in Mr Hui’s possession were then “retrieved” by the Defendant some time after April 2019, with a view to handing them over to Messrs Huen and Partners in May 2019. This was ultimately unsuccessful because there was some dispute regarding the handover venue.[8] Any contract(s) relating to the Repair Work are therefore being held by the Defendant in its capacity as the solicitor formerly retained by the Plaintiff to provide certain services relating to the Repair Work. On the logic of the Defendant’s reasoning, the contract(s) are not held by “Mr Hui in person”, but by the Defendant as the Plaintiff’s former firm of solicitors (and it is therefore not necessary for me to further analyse whether there is any distinction, relevant for present purposes, between Mr Hui in his capacity as a member of the Plaintiff’s MC or Mr Hui in his capacity as the sole proprietor of the Defendant).

33.No further reason has been put forward as to why the Defendant, as the Plaintiff’s former solicitor, is entitled to withhold the contract(s) relating to the Repair Work from the Plaintiff.

34.I therefore rule that the Plaintiff is entitled to delivery up of the originals of settled contract(s) relating the Repair Work insofar as they were settled by Mr Hui.

D1.2  Originals of contracts prepared by third party contractors and consultants

35.The Plaintiff claims entitlement to the originals of contract(s), relating to both the Repair Work and the Installation Work, which were prepared by third party contractors and consultants, on the basis that they were not prepared for the Defendant’s benefit, and that the Plaintiff did not intend for the property in the documents to pass to the Defendant.

36.The Defendant does not suggest that it does not have the contract(s). It simply relies on the fact that the settlement of contract(s) in relation to either the Repair Work and the Installation Work did not fall within the scope of either the 1st or 2nd Retainer. I have dealt with the scope of the 1st Retainer above. In relation to the 2nd Retainer, there is no dispute that this did not include the settlement of contracts.

37.Again, even if these contract(s) were not settled by the Defendant in the course of its retainers, it does not follow that the Plaintiff is not entitled to ask the Defendant, the solicitors formerly acting for the Plaintiff in relation to certain aspects of both the Repair Work and Installation Work, to deliver them up. The Defendant has put forward no evidence to suggest that when these documents came into the possession of the Defendant,[9] this was on the basis that the Defendant had any property in them. The documents should therefore be delivered up.

D2.    “Records of owners’ contributions”

38.Under this category, the Plaintiff seeks the Defendant’s records of owners’ contributions in respect of the Repair Work and Installation Works. The point can be shortly disposed of. It is the Defendant’s evidence that the records were already provided under cover of the Defendant’s letter to the Plaintiff of 16 January 2019, in emails between Ms Backy Chan of the Defendant and Ms Kama Siu of the Plaintiff’s manager, and re-provided to Messrs Huen and Partners (together with documents under categories 6 and 9) under cover of a letter of 30 April 2019. This is not denied in the affirmations filed for the Plaintiff in reply, including the Affirmation of Siu Kit Yan of 4 December 2019 (“Siu”), that is, Ms Kama Siu, or the 2nd Affirmation of Huen Ho Yin (“Huen II”), a partner of Messrs Huen & Partners.

39.The Plaintiff’s argument[10] is that it is unclear whether the records are complete, or whether they are the relevant ones at all, and complains that the Defendant has not provided “documentary support” to assist the Plaintiff in verifying the sums.[11] However, this complaint is unparticularised. The Plaintiff has not sought to show the basis for alleging how the records provided may be incomplete, or the wrong records altogether. Nor has the Plaintiff explained what “documentary support” should be provided, or the basis for compelling the Defendant to provide the same.

40.In the circumstances, the Plaintiff has not established what more there is to deliver up under this category.

D3.    “Owners’ payment notices and receipts from banks”

41.Under this category, the Plaintiff seeks originals of receipts and payment notices issued by banks and received from owners of Ho On Mansions.[12]

42.The Plaintiff says that these bank slips are not information about the Defendant’s bank account, and that they were obtained by the Defendant acting as the Plaintiff’s agent, evidencing payments made to the Plaintiff. The Plaintiff does not now challenge the Defendant’s evidence that it did not open a separate bank account for the purpose of the two retainers, and received contributions from the owners of Ho On Mansions in a client account maintained by the Defendant.

43.The Defendant says that the bank slips constitute accounting records, and points to paragraph 2.1 of the UK Law Society Practice Note “Who Owns the File?” dated 16 January 2019 which says that “Accounting records, including vouchers and instructions, belong to the firm.” The practice note essentially accords with the analysis in Wentworth, discussed above.

44.However, the bank slips are not accounting records of the Defendant’s client account. Whilst they may evidence payment into the Defendant’s client account, they were issued to the owners of Ho On Mansions acknowledging receipt of their payment, and not to the Defendant. They are not records of the Defendant’s dealing with trust money; the payments into the account would have been made by the owners, not the Defendant. Upon cessation of the retainers, the Defendant should hand over the records (in which it has no property) to the new trustee or the beneficiaries: Wentworth at 356C-G.

45.The Defendant should therefore deliver up originals of receipts and payment notices issued by banks and received from owners of Ho On Mansions.

D4.    “Bank monthly statements of the client account”

46.Under this category, the Plaintiff seeks copies of the monthly bank statements of the Defendant’s client account.[13]

47.Both parties rely on Wentworth. The Plaintiff says that the Defendant has a duty to disclose information regarding the Plaintiff’s financial affairs as appearing on the records kept by the Defendant, and to provide a copy of such records. The Defendant says that whilst a client may be entitled to inspect bank statements and to be given information about them, this is not the relief sought by the Plaintiff.

48.In Wentworth, Hope JA dealt with the applicable principles at 356C to G. A solicitor who receives and holds money in trust for his clients must keep proper financial records. He holds the legal title to his records of his dealings with the client’s money in the trust account. The client is entitled to inspect them and have information about them, but they are not the client’s property. The solicitor is entitled to retain the records, some of which may refer to other clients as well as the trust, but the (client) beneficiary should be provided with copies if asked for.

49.Applying these principles, the Plaintiff is entitled to copies of the bank statements which show dealings with the Plaintiff’s funds, suitably redacted insofar as information relating to the Defendant’s other clients is concerned.

D5.    “Correspondence with owners, letters of demand to owners, and receipts issued on behalf of the Plaintiff to owners”

50.Under this category, the Plaintiff seeks (a) copies of letters of demand and other correspondence sent, and receipts issued, to owners of Ho On Mansions; and (b) originals of correspondence received from owners of Ho On Mansions.[14]

51.In its written submissions, the Defendant does not seek to argue that the Plaintiff is not entitled to call for delivery of these documents. Indeed, in its letter of 21 October 2019, it had previously offered to deliver up documents falling within category 5 (as described in Chiu I paragraph 15) to the Plaintiff. In its letter of 12 November 2019, the Defendant had also offered to allow the Plaintiff to inspect office copies of receipts for the Repair Work and Installation Work, and to release copies of letters dated 17 January 2017 and 26 May 2017 issued to owners in default of various instalments of payment for the Repair Work.

52.Rather, the Defendant’s current argument is that the documents have already been provided to the Plaintiff, either directly or via its agent, or that there is at least a triable issue as to whether the documents have been so provided.[15] I do not accept this argument.

52.1  The basis for the Defendant’s current argument that the documents have already been provided to the Plaintiff is (1) Hui I paragraphs 10 and 13 and (2) the Defendant’s letter of 17 May 2019 (see paragraph 66 of the Defendant’s written submissions).

52.2  Hui I paragraphs 10 and 13 do not refer to this category of documents (category 5) at all.

52.3  The Defendant’s letter of 17 May 2019 says:

“就退回之文件不足一事:-

第(2)項，管業經埋有相當完整紀錄；

第(3)項，屬相關業戶及本行内部文件;

第(5)項，可向管業經理查詢；

第(8)項，可向管業經理查詢.”

52.4  For category 5, the Defendant simply says that enquiries can be made with the property manager. This can be contrasted with its answer for category 2 (that the property manager has very complete records). It is also the same as the answer for category 8 (documents relating to ongoing legal actions for outstanding payments), but as the Defendant now says, no documents exist under category 8 at all. Hence the Defendant’s letter of 17 May 2019 does not indicate that documents under category 5 have been provided to the Plaintiff.

52.5  Furthermore, the Defendant’s subsequent letter of 21 October 2019, issued after the commencement of these proceedings and written for the purpose of setting out the Defendant’s stance in response to the Originating Summons and the affirmations in support (including Chiu I), states:

“That leaves item (5) in Paragraph 15 of the affirmation of Chiu which the Defendant is ready to deliver and report pending appointment with the Plaintiff.”

52.6  Paragraph 7(2) of the skeleton filed for the Defendant for the first hearing of the Originating Summons on 31 October 2019 (also prepared by Mr So) acknowledged that “category 5 is outstanding”, referring to the Defendant’s letter of 21 October 2019. No explanation has been given as to why the opposite position is currently taken in the Defendant’s written submissions.

52.7  There is also the Defendant’s letter of 12 November 2019 referred to above, in which at least some of the documents within category 5 were offered for inspection.

53.I therefore do not agree that there is any triable issue as to whether the documents under category 5 have already been provided by the Defendant.Accordingly, (a) copies of letters of demand and other correspondence sent, and receipts issued, to owners of Ho On Mansions (upon payment for the copies), and (b) originals of correspondence received from owners of Ho On Mansions, should be delivered up to the Plaintiff.

D6.    “Records for payments to building contractors and receipts from the contractors”

54.This category can be shortly disposed of. It is the Defendant’s evidence that the documents under categories 2, 6 and 9 were provided[16] to Messrs Huen & Partners under cover of a letter of 30 April 2019. This is not denied in Huen II.

55.The Plaintiff has not identified what, if anything, remains to be delivered up under this category.

D7.    “Correspondence with third party consultants and contractors”

56.Under this category, the Plaintiff seeks (a) copies of correspondence prepared by the Defendant and sent to third party consultants and contractors, and (b) originals of correspondence received from such persons.[17]

57.The Defendant does not deny that in principle, the Plaintiff should have such documents. However, it says that this category of documents has already been provided to the Plaintiff in that (according to Hui I paragraph 13):

“As to Category (7), material correspondences with consultant or contractor at the material time, if any, were copied to the Plaintiff or [its] manager”.

58.Siu paragraph 3 says that it is untrue that the Defendant copied correspondence to the Plaintiff’s manager, and refers to an email written to Mr Hui of 21 February 2019 making the same point.

59.The Defendant relies on the fact that there was no denial that the Defendant copied correspondence to the Plaintiff (as opposed to the Plaintiff’s manager).

60.Even if Hui I paragraph 13 is taken at the highest, it does not say that all correspondence was copied to the Plaintiff or its manager.

61.In any event, even if some of the correspondence was copied to the Plaintiff or its manager at the time, this does not preclude the Plaintiff from asking the Defendant for copies or originals (as the case may be) from the Defendant’s file. Under the principles discussed in section C above:

61.1  insofar as the Defendant prepared letters to contractors or consultants pursuant to the 1st and 2nd Retainers, the Plaintiff should be entitled to copies of the same from the Defendant’s file upon payment for the copies;[18]

61.2  insofar as the Defendant received letters from contractors or consultants relating to the Repair Work or Installation Work, the Plaintiff should be entitled to the originals of such letters.

62.The Defendant should therefore deliver up (a) copies of correspondence prepared by the Defendant and sent to third party consultants and contractors (upon payment for the copies), and (b) originals of correspondence received from such persons.

D8.    “Information and records as to any ongoing legal action for outstanding payments”

63.Hui I states that as at the date when the Defendant was discharged by the Plaintiff, there were no ongoing legal actions for outstanding payments conducted by the Defendant. The Plaintiff no longer asks for any documents under this category.

D9.    “An up-to-date income and expenditure account”

64.The Plaintiff has not identified what remains to be delivered up under this category. See section D6 above. 

E.     NO FACTUAL ISSUES RENDERING PROCEDURE INAPPROPRIATE

65.The Defendant’s written submissions say that there are three factual issues between the parties which give rise to the question of whether the originating summons procedure is the appropriate originating process. I have already earlier referred to the fact that both parties stated that they did not intend to call or cross-examine witnesses or file any further affidavits, so the desire to adduce oral or affidavit evidence does not constitute a reason to object to the originating summons procedure. I now set out my observations in relation to the three factual issues raised by the Defendant.

66.The first “factual issue” raised by the Defendant is that of whether the 1st and 2nd Retainers include settlement of the contracts. However, on the analysis above (see section D1), the answer to the issue does not affect the question of whether or not the Defendant is obliged to deliver up the contracts.

67.The second “factual issue” raised by the Defendant is that of whether the Defendant opened an account in the name of the Plaintiff. The Defendant says that it did not, and the Plaintiff does not now challenge this (see section D3 above). There is therefore no issue.

68.The third “factual issue” raised by the Defendant is that of whether the Plaintiff has already been provided with documents under categories 2, 5, 6, 7 and 9. In relation to categories 2, 6 and 9, the Plaintiff has not put forward evidence to challenge the Defendant’s. There is therefore no issue. In relation to category 5, for the reasons set out in section D5 above, I do not accept that the Defendant has identified any triable issue of fact. In relation to category 7, whether or not some of the correspondence was copied to the Plaintiff does not preclude from asking the Defendant for the documents now sought, as set out in section D7 above.

69.I therefore do not agree that there is any factual issue which renders the originating summons procedure inappropriate.

F.     DISPOSITION

70.I therefore order that the Defendant should deliver up documents to the Plaintiff under categories 1, 3, 4, 5 and 7 as indicated above.

71.I further make a costs order nisi that the costs of the Originating Summons should be to the Plaintiff, to be taxed if not agreed.

Mr Tam Nok Ting, instructed by Huen & Partners, for the Plaintiff

Mr Roger So, instructed by Herman H M Hui & Co, for the Defendant