Ng Yui Tong v. Taikoo Shing (Management) Ltd
Read the full judgment text of LDBM 191/2018 on BabelCite. This Lands Tribunal judgment was delivered on 27 May 2021.
1. The applicant applies for leave to appeal against my judgment dated 5 March 2021 (“the Judgment”). The Judgment was given after trial of three sets of proceedings (consolidated) brought by the applicant, an owner of Taikoo Shing, against Taikoo Shing (Management) Limited as the respondent.
Cited by 4 cases · Cites 3 cases
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LDBM 191/2018, LDBM 196/2018 and LDBM 116/2019 [2021] HKLdT 34 LDBM 191/2018 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 191 OF 2018 _________________ BETWEEN
_________________ LDBM 196/2018 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 196 OF 2018 _________________ BETWEEN
_________________ LDBM 116/2019 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 116 OF 2019 _________________ BETWEEN
_________________ (Consolidated pursuant to the Order of His Honour Judge Michael Wong dated 23 June 2020) Before: Deputy District Judge Michelle Soong, Presiding Officer of the Lands Tribunal, in Court Date of Hearing: 20 April 2021 Date of Decision: 27 May 2021 _________________ D E C I S I O N _________________ 1.The applicant applies for leave to appeal against my judgment dated 5 March 2021 (“the Judgment”). The Judgment was given after trial of three sets of proceedings (consolidated) brought by the applicant, an owner of Taikoo Shing, against Taikoo Shing (Management) Limited as the respondent. 2.In LDBM 116/2019, the applicant contends that the respondent has no power to organize recreational activities for the residents under the Deed of Mutual Covenant (“DMC”). 3.In LDBM 191/2018, the applicant challenges a decision made by the owners of Stage III resolving to do certain repair or renovation works on the planters outside each of their apartments. 4.In LDBM 196/2018, the applicant challenges certain expenses being included in the budget for the estate in 2018 which the applicant considers objectionable. 5.The applicant claims that his intended appeal concerns matter of great and general public importance and that he has a reasonable chance of success in his appeal. His intended grounds of appeal are set out in his affirmation dated 1 April 2021 (“the applicant’s affirmation”) and his written submissions (“the applicant’s submissions”) which was handed up to the tribunal during the leave hearing. 6.The detailed background of and parties’ arguments in each set of proceedings are set out in the Judgment and shall not be repeated here. LDBM 116/2019 7.Subject to one single point below, one cannot deduce from the applicant’s affirmation what is being contended as constituting a ground of appeal. The applicant raised new arguments which were not raised whether properly or at all at trial. 8.First, he raises in paragraph 3(1) of the applicant’s affirmation that Part VIA of the Building Management Ordinance, Cap.344 (“BMO”) shall prevail in case of inconsistency between it and the DMC. But he has not explained which DMC provision(s) and how such provision(s) is/are inconsistent with Part VIA. 9.If, as I surmise, the applicant is challenging that the creation or operation of the Management Liaison Council (“MLC”) and the various Sub-committees are inconsistent with Part VIA, this was not pleaded nor argued by the parties at trial[1]. In any event, I do not see why and how the MLC and the Sub-committees are inconsistent with Part VIA or Schedule 7 of the BMO. 10.The applicant mentions about sections 34C, 34E and 34D of the BMO (which are under Part VIA) but it is far from clear how these provisions constitute ground of appeal. 11.The applicant only has some more elaboration in relation to section 34I which provides that:-
12.It seems that the applicant’s complaint now is that the respondent’s use of the common area for the purpose of holding activities and for putting up decorations etc. are in contravention of section 34I. This is different from the articulation of the issues by the applicant at trial[2]. As this argument was never properly or clearly articulated by the applicant or addressed by the parties, it is natural that the Judgment would not deal with such non-issue but would focus on the essential issue in dispute being whether on the construction of the DMC in particular Clause 7(a) the respondent has the power to organize recreational activities. 13.In any event, since it is my finding that on a proper construction of the DMC provisions, the respondent shall have the power to organize recreational activities for the residents of Taikoo Shing, I fail to see why the use of the common area for holding activities organized for the common enjoyment of residents would offend section 34C which clearly is to target at unauthorized conversion of common parts for private use and unreasonable use of common parts causing interference, nuisance or hazard. The suggestion that the act of putting some decorations at the common parts of the development for the eye-pleasure and atmospheric enjoyment of the residents during festivals constitutes a conversion of common parts for private use causing nuisance and hence offends section 34C is absurd and cynical if it is what the applicant means. 14.In paragraph 3(1)(h) and (g) of the applicant’s affirmation, he further challenges how the management fee has been collected. He complains that the respondent provided the activities to a small group of residents, but sought contributions from only the residential owners, not all owners, this was an infringement of the prescribed way of collection of management fee and was unfair to the applicant. The exact meaning of this contention is not entirely clear. Anyway, this was not pleaded or argued at trial and no evidence was adduced in this regard. I did not rule on anything about the collection of management fees in the Judgment. 15.In paragraph 3(2) of the applicant’s affirmation, it is said that I erred in saying that the applicant did not bring legal proceedings against the MLC or the Recreational Sub-committee. I am afraid the applicant misunderstood paragraph 43 of the Judgment as I actually did not suggest that the applicant should commence proceedings against the MLC or the Recreational Sub-committee. What was said in paragraph 43 was that the applicant did not, in the current proceedings, challenge the power of the MLC and the Recreational Sub-Committee to resolve about recreational activities on behalf of the residents. 16.In paragraph 3(3) of the applicant’s affirmation, it seems that he is reiterating that the respondent could not in the current proceedings contend they have power to organize recreational activities because such a position is contrary to the legal advice they previously obtained. 17.As stated in paragraphs 68 and 24 of the Judgment, I agree with the respondent that the two letters of advice from the respondent’s legal advisers are no more than opinions which cannot oust or override the tribunal’s jurisdiction to construe the DMC and to rule the case. The applicant’s contention that the respondent shall be estopped from, in these proceedings, taking a position that is inconsistent with the legal advice they previously obtained is without legal basis. 18.To conclude, no point appears to have been advanced in the applicant’s affirmation as to why the Judgment is erroneous in law in respect of the true construction of the DMC or the organization of the activities. 19.I will now deal with the applicant’s written submissions which was handed up during the leave hearing. 20.Paragraphs 1 to 4 of the applicant’s submissions relate to the construction of Clause 7(a) of the DMC which have already been dealt with in paragraphs 52 to 63 of the Judgment. The applicant did not explain why the Judgment is erroneous. 21.Paragraphs 5 to 7 of the applicant’s submissions relate to Clause 7(c) of the DMC which is an exemption of liability clause. The applicant seeks to demonstrate the legal threshold for establishing “dishonesty” by reference to the case Great Source Enterprise Ltd v Sino Estates Management Ltd [3]. In my view, this case is not relevant to our present concern as we have not even come to the stage of considering the relevant test. As mentioned in paragraph 75 of the judgment, the applicant has not particularized or adduced any evidence to show criminal liability, dishonesty or willful negligence on the part of the respondent. 22.The applicant also quotes extracts from Great Source Enterprise Ltd v Sino Estates Management Ltd on the issue of whether the Control of Exemption Clauses Ordinance (Cap.71) (“CECO”) applies to a DMC. This is again irrelevant as I already explained in paragraph 73 of the Judgment that the CECO does not apply to the DMC in question because the DMC had been made before the CECO came into force. 23.In paragraph 7 of the applicant’s submissions, he contends that the various decisions of the MLC and the Recreational Sub-committee infringed his rights as he did not have the opportunity to raise objections in relation to the proposed activities. Again, this was not a pleaded issue. No argument was made and no evidence was adduced on the decision-making process of each and every decision of the MLC and the Recreational Sub-Committee concerning social or recreational activities. LDBM 191/2018 24.The applicant contends that I was wrong in placing focus on the mosaic tiles on face of the planters and completely ignored the fact that the planter was a fixture. Paragraph 3(4) of the applicant’s affirmation asserts that planters are fixtures and cannot form part of the common parts of the building. I do not see the basis of such a contention as well as the suggestion that the planter is a fixture of the applicant’s property. 25.In paragraph 8 of the applicant’s submissions, he raised that since the entire planter is not a load bearing part of the building and since it is not within the common parts set out in Schedule 1 of the BMO, it is not common parts but should be in his private ownership. Such argument has been dealt with in paragraphs 82 to 88 of the Judgment. 26.In paragraph 3(4) and (5) of the applicant’s affirmation, he contends that the planters are not common parts under the DMC in reliance of the case Incorporated Owners of No.27A Chatham Road Kowloon v Mr Lee or Unlawful Occupier (Lee Kai Kong) & Another (九龍漆咸道 27A 號業主立案法團 訴 李啟剛及另一人) [4] wherein Woo JA (as he then was) said that when an owner owns certain undivided shares and at the same time owns certain part of the building which has not been assigned with any undivided shares, then this owner should be entitled to the exclusive use of such area even though it is without undivided shares. The applicant says that as the planter has not been assigned with any undivided shares and since it is connected with his unit, it should be regarded as owned by the applicant. 27.In my view, the applicant’s reliance on this case is misconceived. The distinguishing feature of that case is that, the part without undivided share in that case (which was the roof) was clearly assigned to certain owners who also own undivided shares of certain units whereas in the present case, the planter was not assigned to the applicant by express wording nor does it form part of the pink area on the assignment plan showing the demised area upon the applicant’s acquiring his unit. 28.In paragraph 3(6) to (8) of the applicant’s affirmation, he challenges that the contribution towards the planters was not calculation in accordance with the DMC. This argument lacks particulars and, again, was not properly raised or substantively argued by both parties. Paragraph 3(7) of the applicant’s affirmation is particularly incomprehensible. 29.Paragraph 3(9) and (10) of the applicant’s affirmation is about exemption clause but the applicant’s exact contention is far from clear. Paragraphs 75 of the Judgment simply concluded that even if the holding of activities were not permitted on a true construction of the DMC, no claim for damages against the respondent would lie. The applicant has not explained why I erred in law in paragraph 75 of the Judgment. LDBM 196/2018 30.Paragraphs 3(11) to (14) of the applicant’s affirmation fail to identify any finding in the Judgment that is erroneous in law. CONCLUSION 31.Section 11(2) of the LTO provides that:-
32.Section 11AA(1) LTO provides that no appeal may be made under section 11(2) unless leave to appeal has been granted by either the Tribunal or the Court of Appeal. 33.Section 11AA(6) LTO provides that such leave shall not be granted unless either 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. 34.The applicant’s application for leave to appeal must fail as he fails to show any basis on which the Judgment is erroneous in law and I see no reasonable prospect of success in his intended appeal. 35.Both parties agree that costs of the leave application should follow the result of the leave application, I therefore order the applicant to pay the respondent’s costs of this application, to be taxed on the District Court scale if not agreed.
Mr. Ng Yui Tong, the applicant of LDBM 191/2018, LDBM 196/2018 and LDBM 116/2019 (Consolidated), appeared in person Mr. Arian Law of Mayer Brown, for the respondent of LDBM 191/2018, LDBM 196/2018 and LDBM 116/2019 (Consolidated) [1] In fact, the applicant himself substantively mentioned about the MLC and the Sub-committees as well as the various DMC provisions relating to these bodies in his Reply which means he all along was well aware of the existence of these bodies and the relevant DMC clauses. But the applicant has never challenged or taken issue about these bodies being inconsistent with the BMO. As a matter of fact, the applicant himself has been a member of the MLC for quite a number of years. [2] Bundle D, Tab 2, p.32, applicant’s opening submissions. [3] [2004] 4 HKC 49, LDBM 167/2001. [4] CACV 2238/2001, unreported, 25 October 2002. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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