Darren Robert Barton v. Discovery Bay Services Management Ltd

CAMP 17/2020

[2020] HKCA 350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 17 OF 2020

(ON AN INTENDED APPEAL FROM LDBM NO 23 OF 2018)

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JUDGMENT

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Hon Chu JA giving the judgment of the Court:

1.This is the respondent’s renewed application for leave to appeal against the judgment of Deputy District Judge W Y Ho (“the Judge”), sitting as a presiding officer of the Lands Tribunal, given on 28 December 2018[1]. In the judgment, the Judge granted part of the applicant’s application for declaratory relief but dismissed the other reliefs sought and made a costs order nisi against the respondent.

2.The respondent’s application for leave to appeal against the judgment, and the applicant’s application for leave to appeal out of time were both dismissed by the Judge by her decision dated 10 January 2020.[2]

3.The respondent seeks an oral hearing of this application.  We have considered the papers lodged for the application and the written submissions of the parties.  We are of the view that it is appropriate to determine this application without an oral hearing on the basis of written submissions only pursuant to Order 59 rule 2A(5) of the Rules of the High Court, Cap. 4A.  We refuse the respondent’s request and have proceeded to consider the application.  Our determination appears below.   

The facts

4.The applicant is and was at all material times the chairman of the village owners’ committee (“VOC”) of the Parkridge Village (“the Village”), which is one of the 16 villages in Discovery Bay.  The owners of the Village are bound by a sub-Deed of Mutual Covenant dated 30 September 1982 (“the Sub-DMC”).  The respondent is the Manager of the Village appointed by Sub-DMC. 

5.On 11 January 2018, an annual general meeting of the owners (“the January Meeting”) was duly convened for the purposes of, inter alia, electing the chairman, vice-chairman and committee members of the VOC.  The applicant presided over the meeting as the chairman and the respondent acted as the secretary.

6.At the January meeting, nominations of candidates were received for the offices of chairman, vice-chairman and committee members of the VOC.  The respondent does not dispute that the nominations were validly made at the Meeting.[3]

7.After nominations for chairman were made, at least one owner present at the Meeting demanded that the election be voted on a poll instead of upon a show of hands.  The applicant directed that a poll vote would be held between 9:00 am on 18 January 2018 and 5:00 pm on 8 February 2018.  He further directed that this should be held at the local management office of the Village where voting papers would be collected in a double-locked box, which would be counted just after 5:00 pm on 8 February 2018.[4]  The applicant made similar directions when demands for a poll were made after nominations for vice-chairman and committee members of the VOC were made.[5]  Some owners present at the meeting expressed disagreement to the applicant’s direction on the poll vote.  Thereafter, the applicant declared the meeting closed.[6]

8.By an email dated 12 January 2018 to the respondent’s staff[7], the applicant reiterated the direction he gave at the meeting, and set out further directions on the voting arrangement, including that owners or their proxy, after being positively identified by their identity cards, would be given the ballot paper and the vote had to be casted while they were inside the local management office.  He also directed that ballot papers removed from the management office would be invalidated and the owner would not be re-issued with another ballot paper.

9.The respondent replied by email on 17 January 2018[8] informing the applicant that it had sought legal advice on whether the applicant was empowered to make the direction at the January Meeting that “the poll vote be carried out by all owners at outside the Meeting”, and that the legal advice concluded that the applicant did not have such authority and his direction had no effect. 

10.On the same day, the respondent issued to the owners of the Village a management notice dated 17 January 2018 enclosing the legal advice (“the 17 January Notice”).  The notice stated that the direction given by the applicant at the January Meeting had no effect since he had no authority to direct that the voting for the election of the VOC members by way of a poll be conducted outside the owners’ meeting, that the poll vote directed by the applicant would not be held, and that the respondent would in due course convene a new owners’ meeting for the election of the VOC members. 

11.On 27 April 2018, the respondent issued a notice to the owners of the Village (“the 27 April Notice”) to convene an owners’ meeting on 24 May 2018 for the election of the VOC members.

LDBM 23/2018

12.On 22 January 2018, the applicant commenced LDBM 23/2018 in the Lands Tribunal.  The core dispute was the validity of the direction made by the applicant at the Meeting that a poll vote be held between 9:00 am on 18 January 2018 and 5:00 pm on 8 February 2018.  The respondent referred to this direction as “the Direction for Poll Vote”[9] while the applicant and the Judge referred to it as “the Directed Poll Vote”[10].  We will adopt the abbreviation used by the Judge.

13.In the Amended Notice of Application dated 20 September 2018, the applicant applied for orders of declaration that the Directed Poll Vote is valid, and the 17 January Notice and 27 April Notice are invalid, as well as injunctions to restrain the respondent from acting to prevent the carrying into effect of the direction on poll vote, conducting the meeting proposed in the 27 April Notice and passing any resolution for the formation of the VOC at the proposed meeting or other meeting(s).

14.By its Amended Notice of Opposition dated 2 October 2018, the respondent contested the application on the ground that having regard to the provisions in the Sub-DMC, the Directed Poll Vote is irregular, ultra vires and invalid and not binding on the respondent and the owners of the Village, that the respondent is entitled to convene a fresh meeting and that the Notice of Meeting is validly issued.

The Sub-DMC

15.The following provisions in Section VIII(A) of the Sub-DMC are directly relevant to the dispute between the parties[11]:

Clause 2:

At least once in every calendar year thereafter, the Owners of the Village shall meet for the purpose of electing such officers and members as aforesaid and transacting any other business of which due notice is given in the notice convening the Meeting.

Clause 3:

The Owners of the Village may further meet from time to time as occasion may require to discuss and decide matters concerning the Village and they shall meet whenever required by the Manager.

Clause 4:

The Meeting of the Owners of the Village shall be convened by the Manager by at least 7 days’ notice in writing specifying the time and place of the Meeting and the subjects to be discussed.

Clause 10:

All resolutions put to the vote of the Meeting shall be decided on a show of hands unless a poll is (before or on the declaration of the result of the show of hands) demanded by at least one Owner (or by the representative of the Manager or the Registered Owner) entitled to be present and present in person at the Meeting. A poll, if demanded, shall be taken at such time and in such manner as the Chairman shall direct.

Clause 11:

On a show of hands, every Owner entitled to be present and present either in person or by a duly authorised representative at the Meeting shall have one vote. In case of a poll, every Owner of an Undivided Share including the Registered Owner and the Manager shall have one vote either personally or through his duly authorised representative for every Undivided Share held by him.

Clause 14:

All resolutions passed at a Meeting duly convened and held shall be binding on all Owners insofar as the Village is concerned but such resolutions shall not be binding on the Manager or conflict with the provisions of this Sub-Deed, the Principal Deed or the City Rules or any decision of the City Owners’ Committee.

Clause 17:

The Chairman, the Vice-Chairman and any other offices of the Village Owners’ Committee shall be elected in the following manner. The candidates for election shall be proposed and seconded by any Owners present in person or by duly authorised representative at the Meeting. As soon as all candidates have been proposed and seconded and provided that such candidate’s consent to be elected their names will be put before the Meeting who will vote thereon.

The Judge’s decision

16.At the trial before the Judge, the issues to be tried were agreed between counsel to be the following:[12]

(1)     Whether the Directed Poll Vote for the election of the chairman, vice-chairman and committee members of the VOC was validly made;

(2)     Whether the January Meeting was closed or concluded on 11 January 2018;

(3)     Whether the nominations for the offices of the VOC continued to be valid for voting thereon for the purpose of the Directed Poll Vote; and

(4)     Whether the 17 January Notice and the 27 April Notice are valid.

17.On issue (1), the Judge concluded that the Directed Poll Vote was in accordance with the Sub-DMC, notably clause 10, and rejected the argument that it enlarged the power of voting by directing the poll vote to take place outside the physical meeting of 11 January 2018.  Her reasons are encapsulated in §§18 to 27.  Principally, the Judge considered that clause 17 only required (i) the proposing and seconding of candidates, and (ii) the putting of the candidates’ names before the physical meeting for voting.  Once the candidates’ names were put to vote at the meeting, clause 10 came in which provided that the voting would either be by show of hands or by poll.  If by poll, clause 10 further provided that it shall be taken in the manner as directed by the chairman, with no restrictions on how the chairman should direct the time and manner for the poll to be held. The Judge also considered that the Directed Poll Vote was merely a voting procedure, not a meeting in itself, and did not require the holding of another meeting.  She therefore did not regard the difficulties and problems that the respondent said would arise for a poll vote conducted outside a physical meeting to be material or relevant.

18.On issue (2), the Judge pointed out that clause 17 did not require the election of the VOC to be concluded at the meeting held on 11 January 2018, and the applicant’s use of the word “closed” was not determinative.  Having considered The Queen v Wimbledon Local Board (1882) 8 QBD 459 at 465, Shaw v Tati Concessions Ltd [1913] 1 Ch 292, Jackson & Ors v Hamlyn & Ors [1953] Ch 577 and Holmes & Anor v Keyes & Ors [1959] Ch 199, she held that the January Meeting had not been concluded, but remained open as far as the election of the VOC members was concerned. 

19.On issue (3), the Judge noted there was no challenge as to the validity of the nominations of the candidates to the offices of the VOC made at the January Meeting, which was duly convened. She therefore found the nominations remained valid for the purpose of the Directed Poll Vote.

20.On issue (4), the Judge was of the view the 17 January Notice did not have the effect of setting aside the Directed Poll Vote as contended by the parties; it merely announced that the respondent would not carry out the poll vote in the manner directed by the applicant.  The Judge further considered that the respondent was empowered by Clauses 3 and 4 to convene owners’ meeting, thus the 27 April Notice could not be said to be invalid.  However, as the Directed Poll Vote was valid and the January Meeting remained open for the purpose of the election of VOC members, the respondent should not have issued the 27 April Notice which in effect sought to override the Directed Poll Vote, and any resolution regarding the election of the VOC members, if passed, might be liable to be set aside. 

21.In conclusion, the Judge granted a declaration that the Directed Poll Vote made at the Meeting is valid.  She, however, refused to grant the declarations that the 17 January Notice and 27 April Notice are invalid.  She also refused to grant the injunctions sought by the applicant for the reasons set out in §§44 to 54 of the Judgment, which need not be gone into as they are not engaged in this application.

Application for leave to appeal

22.Under section 11 of the Lands Tribunal Ordinance, Cap. 17, a party may appeal to the Court of Appeal against a judgment of the Lands Tribunal on the ground that it is erroneous in point of law.  Section 11AA(1) also provides that no appeal may be made unless leave to appeal has been granted by the Lands Tribunal or the Court of Appeal.  Section 11AA(6) further provides that leave to appeal shall not be granted unless the Lands Tribunal or the Court of Appeal is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.

23.In the draft notice of appeal, the respondent advances nine proposed grounds of appeal as follows:

(1)     The Judge’s holding that the Directed Poll Vote could take place outside the Meeting is contradictory to, or inconsistent with, the express wording of Clause 17, which requires the election (whether by show of hand or by poll) to take place at an owner’s meeting.

(2)     The Judge erred in construing the words “a poll, if demanded, shall be taken at such time and in such manner as the Chairman shall direct” in Clause 10 in isolation and not in the context of the whole of the Sub-DMC, in particular Section VIII(A).

(3)     The Judge erred in failing to appreciate the significance of McMillan v Le Roi Mining Co [1906] 1 Ch 331, which is indistinguishable, and to apply it.

(4)     The Judge failed to consider Clause 11, which requires the attendance of an owner or his proxy at an owners’ meeting in order to vote when a poll is taken, thus erred in holding that the Directed Poll Vote is valid even though it was to take place outside an owners’ meeting.

(5)     The Judge erred in failing to consider and give effect to Clauses 12 and 13, which would be rendered inoperative or surplus by the Directed Poll Vote.

(6)     The Judge erred in failing to hold that the Directed Poll Vote, in allowing proxies to be lodged after the Meeting and at any time from 18 January to 8 February 2018, is invalid as contrary to the principle that further proxies may not be lodged after the meeting at which the poll was demanded and prior to the holding of the poll unless the article provides otherwise.

(7)     The Judge erred in failing to appreciate that her holding that the Directed Poll Vote does not require another meeting to be held and could take place outside the Meeting is contrary to The Queen v Wimbledon Local Board (1882) 8 QBD 459.

(8)     The Judge erred in failing to construe Clause 10 in the context of the factual and legal background of the Sub-DMC, and the practical objects that Clauses 10, 11 and 17 intend to achieve.

(9)     The Judge erred in failing to hold that in the absence of other business, the poll should be taken immediately, and if time does not allow that, there must be adjournment for that purpose

(respectively “Ground (1)” to “Ground (9)”). 

24.The respondent also contends that there are other reasons in the interest of justice that leave to appeal ought to be granted.  It is said that the Judgment carried grave consequences for the election of members of owners’ committees of multi-storey buildings with a deed of mutual covenant containing provisions similar to those in the Sub-DMC.  It is also said that there is no Hong Kong authority on this area such that a decision from the Court of Appeal is highly desirable.  

Reasons for our decision

25.This application is only concerned with the validity of the Directed Poll Vote.  The parties have defined Directed Poll Vote (and the Judge has adopted) as the direction made by the applicant at the January Meeting that a poll vote be held between 18 January 2018 and 8 February 2018[13]. It is important to recognize this as it impacts on the proper understanding of the Judge’s holding on the validity of the Directed Poll Vote and the assessment of the merits of the respondent’s proposed grounds of appeal.  In considering the proposed grounds of appeal, it is also necessary to first consider the Sub-DMC and the applicable common law principles. 

26.The following provisions in the Sub-DMC are of direct relevance to the issue:

(1)     Clause 17 sets out the procedure for election of VOC members.  It provides that: (a) nominations for the candidates shall be proposed and seconded by owners present in person or by proxy at the owners’ meeting; and (b) as soon as all candidates have been proposed and seconded and they have given consent to be elected, the names of the candidates will be put before the meeting for a vote to be taken.

(2)     Clause 10 prescribes the method of voting.  It can be either by a show of hands, or by poll if it is demanded by at least one owner (or his proxy) who is entitled to be present and is present in person at the owners’ meeting.  When a poll is demanded, Clause 10 further provides that it is to be taken at such time and in such manner as the chairman of the meeting shall direct.

(3)     Clause 11 regulates how the vote is to be reckoned on the taking of a poll.  It provides that every owner of an Undivided Share[14], including the Registered Owner and the Manager (i.e. the respondent), shall have one vote either personally or through proxy for every Undivided Share held by him.

27.As to the applicable common law principles concerning the taking of a poll on a future date, the relevant principles from the various authorities cited by counsel can be summarized as follows:

(1)     In the absence of stipulation to the contrary in the articles, a poll needs not be taken at the meeting at which the demand for it is made.  Where the power and duty of making arrangements for the poll is given to the chairman, he may direct that the poll take place at some future time: Re MAC Services Group Ltd[2010] NSWSC 1474 at §§18 and 22.

(2)     A poll directed to take place on a future date is not a new meeting; it is a mode of ascertaining the sense of the meeting: The Queen v Wimbledon Local Board, supra, at 465.

(3)     Where a poll is to be taken, or the result of a poll is to be declared, on  a day subsequent to the date of the meeting at which the resolution was put, the original meeting is not adjourned but continues for the purpose of taking the poll until the poll is closed and the result is declared: Shaw v Tati Concessions Ltd, supra, at 297; Spiller v Mayo (Rhodesia) Development Co (1908) Ltd [1926] WN 78 at 79; Jackson & Ors v Hamlyn & Ors, supra, at 588-589; Holmes & Anor v Keyes & Ors, supra, at 210-211, 214, 216 and Re MAC Services Group Ltd, supra, at §22.

(4)     If a poll, once demanded and directed, has not reached its ordained conclusion when those present at the meeting disperse, the meeting continues to that conclusion despite their departure: Re MAC Services Group Ltd, supra, at §25. 

28.We turn next to consider the merits of the proposed grounds of appeal. 

29.Ground (1)

29.1   We agree with the applicant[15] that this ground stems from a misreading of the Judge’s judgment. 

29.2   The Judge said at §23 that “[t]he Directed Poll Vote is not a meeting in itself and does not require another meeting to be held”, and in §28 that she did not accept “the applicant has enlarged the power of voting by directing the poll vote to take place outside the physical meeting of 11 January 2018.”  

29.3   Contrary to what the respondent seems to think, the Judge did not in these paragraphs hold that the poll vote contemplated by the Directed Poll Vote did not have to take place at an owners’ meeting, or that it could take place outside an owners’ meeting. Under the Directed Poll Vote, the poll was to take place at some future time after the Meeting.  As held in Wimbledon Local Board, supra, a poll is a mode of ascertaining the sense of the meeting.  The poll contemplated by the Directed Poll Vote is not in the nature of a new meeting.  It is a part of the January Meeting, which is continued for the purpose of the poll until the result is declared: see the cases cited in §27(3) above.  This point was made clear by the Judge in the decision refusing leave to appeal (at §34) in which she pointed out that as the applicant had directed a poll on the election of the VOC members, this agenda item has not been concluded and the January Meeting remains “open”. 

30.Ground (2)

30.1   The respondent’s complaint under this ground is that the Judge did not take into account Clauses 1, 2, 5, 9, 12, 14 and 17, all of which show that an owner must attend an owners’ meeting either personally or by proxy in order to vote.  It is said that the Judge therefore erred in construing Clause 10 as permitting the poll vote contemplated by the Directed Poll Vote to take place outside an owners’ meeting.  

30.2   As in the case of Ground (1), this ground arises out of a misreading of the judgment.  Given that, in law, a poll is part of the meeting at which the poll is demanded, there is no question of the poll vote contemplated by the Directed Poll Vote taking place outside an owners’ meeting.

31.Ground (3)

31.1   This ground is based on the decision in McMillan v Le Roi Mining Co, supra.  In that case, the articles of a company provided that “votes may be given either personally or by proxy”, if a poll was demanded, it should be taken “in such manner and at such time and place as the chairman of the meeting directs”; and “at a poll every member present in person or by proxy shall have one vote for every share held by him”.   At a general meeting, a poll was demanded, the chairman directed that it should be taken by means of polling papers signed by the members and delivered to the offices of the company on or before a specified time and day.  Joyce J held that such a mode of taking the poll was unauthorized and invalid because the articles required the personal attendance of the members or their proxy at the voting.

31.2   The respondent argues, and we accept, that Joyce J’s decision was based on a consideration of all the relevant articles of the company, and that in construing Clause 10 the Judge should have regard to other clauses in the Sub-DMC that are relevant. But we do not agree that the Judge should have followed McMillan and held the Directed Poll Vote to be invalid.  In our view, the case is clearly distinguishable.  In McMillan (at 332), the article of the company provides that “at a poll every member present in person or by proxy shall have one vote for every share held by him” (emphasis added).  In the present case, for the reasons given under Ground (4) below, we do not accept that Clause 11 requires the personal attendance of an owner or his proxy when voting under the poll.    

31.3   It is also to be noted that the applicant had directed that the owner or his proxy had to obtain the ballot paper(s) at the local management office and to immediately cast the vote(s) while at the office, and that ballot paper removed from the office would be invalid and the owner would not be re-issued with new ballot paper(s). An owner or his proxy has to personally attend the local management office and cast his vote there and then.  This is unlike the direction given in McMillan, which only requires the delivery to the company of signed voting paper by the prescribed day and time.  The shareholder or his proxy does not have to attend in person to vote, which is the reason why the Court held that it does not meet the requirement of the company’s articles.

32.Ground (4)

32.1   This ground complains that the Judge failed to consider Clause 11 which requires the personal attendance of an owner or his proxy at the taking of a poll, and erroneously held that the Directed Poll Vote which directed the poll vote to take place outside an owners’ meeting is valid. 

32.2   As discussed under Grounds (1) and (2), the respondent is mistaken in contending that the poll vote contemplated by the Directed Poll Vote would take place outside an owners’ meeting.  This alone will be sufficient to dispose of this ground.  

32.3   In any event, we do not accept the respondent’s contention that Clause 11 requires an owner or his proxy to be present in person to vote when a poll is demanded.  The second part of the clause states that “In case of a poll, every owner of an Undivided Share including the Registered Owner and the Manager shall have one vote either personally or through his duly authorized representative for every Undivided Share held by him” (emphasis added).  What this part provides is that an owner shall have one vote for every Undivided Share held by him, and the votes can be casted in two ways, either personally or through a duly authorized representative.

32.4   The respondent submits that the word “personally” imports a requirement that votes have to be given personally or in person by an owner or his proxy.  We do not agree.  The word “personally” is used to contrast the other alternative of voting through a duly authorized representative.  We are of the view that Clause 11 does not require personal attendance of the owner or his proxy at the voting when a poll is taken.  This is to be contrasted with the first part of Clause 11 dealing with voting by a show of hands.  It provides that “On a show of hands, every Owner entitled to be present and present either in person or by a duly authorised representative at the Meeting shall have one vote” (emphasis added). Clearly, on a show of hands, an owner or his proxy has to be present in order to vote.  The omission of the words “entitled to be present and present” from the second part dealing with the taking of a poll highlights the difference in the requirements between a show of hands and the taking of a poll. 

33.Ground (5)

33.1   The argument under this ground is that the Directed Poll Vote will render Clauses 12 and 13 inoperative. 

33.2   Clause 12 provides that the Chairman shall gave a second or casting vote if there is an equality of vote.  It is argued that if the poll is permitted to take place outside an owners’ meeting, there would be no occasion for the Chairman of the meeting to make a second or casting vote.  Again, this argument is based on the premise that the poll vote under the Directed Poll Vote is to take place outside an owners’ meeting.  For reasons given above, this is a mistaken premise.

33.3   As for Clause 13, it disentitles an owner who has defaulted in paying management fees from attending and voting at an owners’ meeting.  It is said that while such an owner’s views will be ignored and his votes disregarded: Rightop Investment Ltd & Anor v Yu Tsui Sheung & Ors [2005] 1 HKC 550, at §77, the clause will be inoperative or surplus with the Directed Poll Vote.  We are unable to discern the basis for this argument.  Since the January Meeting is continued for the purpose of taking the poll under the Directed Poll Vote, the restriction on attendance and voting by owners in default will continue to apply for the duration of the poll vote.  The Directed Poll Vote will not prevent the operation of Clause 13.

34.Ground (6)

34.1   The argument under this ground is that the Directed Poll Vote permits proxies to be lodged after the January Meeting up to 8 February 2018, and this contravenes the principle that further proxies may not be lodged after the meeting at which the poll was demanded and prior to the holding of the poll unless the article provides otherwise: Shaw v Tati Concessions Limited, supra, at 297 and Jackson & Ors v Hamlyn & Ors, supra, at 589. 

34.2   We agree with the applicant that the concern about expanding the voting to further proxies is irrelevant.  The Directed Poll Vote as defined by the parties has not provided for the possibility of further proxies being lodged after the Meeting. 

35.Ground (7)

35.1   This ground complains that the Judge’s holding that the Directed Poll Vote does not require another meeting to be held and could take place outside the Meeting is contrary to The Queen v Wimbledon Local Board, supra. 

35.2   Similar to Grounds (1), (2) and (4), this is based on a mistaken premise.  As explained above, it is not the Judge’s holding that the poll vote under the Directed Poll Vote was to, or could, take place outside an owners’ meeting.  In law, the poll vote would be a continuation of the Meeting.  There is, thus, no conflict between the Judge’s holding and the holding in Wimbledon Local Board that the meeting at which a poll is demanded will continue for the purpose of taking the poll.  We also do not see the use of ballot box and the local management office for casting the votes as being inconsistent with the poll vote being a continuation of the Meeting.

36.Ground (8)

36.1   Relying on Jumbo King Ltd v Faithful Properties Ltd & Ors [1999] 2 HKCFAR 279, at 296E, the respondent argues that the Judge failed to construe Clause 10 in the context of the factual and legal background of the Sub-DMC, and the practical objects that Clauses 10, 11 and 17 intend to achieve. 

36.2   Specifically, the respondent made three points.  The first is that the electoral law in Hong Kong does not permit voting other than by personal attendance.  The second is that under section 3 of the Multi-storey Buildings (Owners Incorporation) Ordinance 1970, Cap. 344, which was in force when the Sub-DMC was created and has since been repealed, election of members of management committee would be done at an owners’ meeting.  Accordingly, the respondent argues, it could not have been the intention of the parties to the Sub-DMC to confer on the chairman the power to make directions for the taking of a poll that are inconsistent with the electoral law in Hong Kong and/or the statutory framework under Cap. 344. 

36.3   The third point is that there are practical benefits intended by Clauses 10, 11 and 17. Briefly stated, they intend that: (i) election of members of the VOC is done at an owners’ meeting, (ii) candidates for members of the VOC are nominated by owners present in person or through his proxy at an owners’ meeting; (iii) as soon as the candidates have been proposed and seconded, their names will be put before the owners’ meeting for voting thereon; (iv) the voting will initially be by a show of hands where every owner entitled to be present and present in person or by proxy at the meeting shall have one vote; and (v) if a poll is duly demanded, every owner of an Undivided Share shall have one vote for every Undivided Share held by him, and (vi) the votes in a poll will be recorded in documentary form.  The respondent argues that the Judge should have considered that in the light of all these, it could not have been the intention of the parties to the Sub-DMC that a poll vote could take place outside an owners’ meeting.

36.4   This ground is fraught with a number of difficulties.  First, as Mr Ng for the respondent accepts, this is a new ground not argued at trial.  We do not accept that there are exceptional reasons for allowing it to be run in the proposed appeal. Second, the poll vote contemplated by the Directed Poll Vote was to be part of the January Meeting, and not, as the respondent erroneously think, was to take place outside an owners’ meeting.  The very basis of the complaint under this ground is therefore gone.  Third, the respondent has not demonstrated why the electoral law and the repealed legislation are relevant context or background to be taken into account when construing Clause 10.  There is, in short, no merit in this ground.    

37.Ground (9)

37.1   The last ground argues that the Judge failed to follow the statement in R v D’Oyly (1840) 12 A & E 139 at [159] that “in the absence of other business, the poll should be taken immediately: if time does not allow of that, there must be an adjournment for the purpose”.  Reliance is also placed on Jackson & Ors v Hamlyn & Ors, supra and Holmes & Anor v Keyes & Ors, supra.  It is also said that the applicant should have directed the poll vote to be taken immediately or alternatively adjourned the Meeting for the poll vote to be taken at an owners’ meeting which would be a continuation of the Meeting where owners would be entitled to be present and to record their votes.

37.2   The facts of R v D’Oyly and Jackson v Hamlyn are, however, different.  In D’Oyly at [141], the notice given by the chairman prior to the meeting specifically stated that if a poll should be demanded and granted, it will be deferred to the end of the business of the meeting, “and will be opened and proceeded with at the usual place of polling … immediately after the close of such other business, till five o’clock of that day, and will be continued for three successive days ...”  This provides the context to Lord Denman CJ’s statement set out above.  Likewise, in Jackson v Hamlyn at 586, the company’s article provides that “A poll duly demanded … shall be taken immediately at the meeting without adjournment”.  Hence, Upjohn J stated (at 587) that “having regard to article 67 that poll had to be taken immediately at the meeting.”

37.3   As for Holmes v Keyes, the company’s article states “If a poll be demanded …, it shall be taken at such time and place and in such manner as the chairman shall direct” (at 208).  As in Clause 10, it gives the chairman a discretion to decide on the time, place and manner for the taking of the poll.  While, as a matter of fact, the voting took place at the meeting at which the poll was demanded, the timing of the voting is not an issue in the case, and the court had not made any holding as to when a poll should be held.  Instead, it referred to, and approved, Spiller v Mayo (Rhodesia) Development Co (1908) Ltd, supra, in which the voting took place a week after the direction for a poll was given.

37.4   In our view, the three cases relied on by the respondent do not establish any principle that requires a poll to be taken immediately at the meeting at which the poll is demanded.  On the other hand, it was held in Re MAC Services Group Ltd that where, as in this case, the power and duty of making arrangements for the voting under a poll is given to the chairman and there is no restriction in the articles, he can direct the voting to take place at some future time.

38.For the above reasons, the proposed grounds do not enjoy reasonable prospect of success.

39.We do not accept the respondent’s submission that there are other reasons in the interest of justice for granting leave to appeal.  As this case and this judgment show, cases relating to election of members of owners’ committees are heavily fact-sensitive.  Much depends on the wording of the provisions in the deed of mutual covenant and the events that transpire at the meeting in question.  In the present application, there is no real disagreement on the relevant legal principles.   

40.In conclusion, we refuse the application. 

41.Applying the normal rule of costs follow the event, we order the respondent to pay the applicant the costs of this application.  We will summarily assess the applicant’s costs.  Having considered the statement of costs provided by the applicant, we are of the view that the work done and the amount of costs claimed are reasonable, and will allow the costs claimed in full.

Disposition

42.Accordingly, we dismiss the respondent’s summons and order the respondent to pay the applicant the costs of the application summarily assessed at $57,220.

43.As the application is totally without merit, we further make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court that no party may under rule 2A(7) request our determination to be reconsidered at an oral hearing inter partes.

Miss Carol Wong instructed by Li & Partners for the applicant.

Mr Lawrence K F Ng instructed by S K Lam, Alfred Chan & Co for the respondent.