Whole Grand Ltd v. The Incorporated Owners of Bo Fung Building

LDBM 57/2019

[2023] HKLdT 2

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 57 OF 2019

_________________

_________________

Before: Deputy District Judge Michelle Soong, Presiding Officer of the Lands Tribunal, in Court

Date of Hearing: 26 November 2021

Date of Decision: 6 January 2023

_________________

D E C I S I O N

__________________

1.This is the applicant’s application for leave to appeal against my judgment given on 30 July 2021 (“the Judgment”) based on two main grounds:- (1) pleading ground (Ground 1); and (2) findings ground (Grounds 2, 3 and 4).

2.The applicant is represented by Mr Tommy Ho and the respondent is represented by Ms Becky Wong.

PLEADING GROUND (GROUND 1)

3.Under the pleading ground, the applicant’s Counsel submits that:-

(1)  The applicant did not plead about the alteration which was only mentioned in the respondent’s expert report as a statement of fact.

(2)  The main dispute between the parties is whether the applicant has the right to use and enjoy the lift.

(3)  If the tribunal held that the applicant did not have such right under the DMC, it should be the end of the applicant’s claim.  But if the tribunal arrived at the conclusion that the applicant had such right, the tribunal should decide whether the subject resolution was validly passed and correctly implemented.

(4)  The tribunal erred in ignoring the validity of the passing and the implementation of the resolution and erred in taking into account the alteration which is not the pleaded case of either the applicant or the respondent.

(5)  It is wrong for the tribunal to say that the applicant is seeking an unqualified right to use and enjoy the lift.

Unpleaded Issue of Alteration

4.As stated in paragraph 56 of the Judgment, the alteration was not only mentioned in the respondent’s expert report, but was actually brought up by the applicant’s Counsel during cross-examination of the respondent’s factual witness:-

“56. … However, when the applicant’s counsel, Mr Tommy Ho, cross-examined the respondent’s factual witness Mr Chui, Mr Ho took the initiative to ask the witness if he knew that the current Shops 4 and 5 was not the same as the original plan. Mr Chui answered that it seemed to look a bit different without elaborating further. I asked Mr Chui to clarify whether he actually knew about the situation or details of the Alterations to the original plans and he answered in the negative.”

5.Not only did the applicant’s Counsel brought up the question of alteration, he also mentioned about it in footnote 1 of his written closing submissions which further refers to certain documents/plans in evidence in that regard[1]. The respondent’s Counsel even verbally exchanged with the bench about the alteration in his oral submissions without taking any objection to the tribunal’s follow-up questions.  Under such circumstances, I cannot see why the applicant can, in the present leave application, object to the tribunal’s taking into consideration the issue or evidence which were actually brought up by the applicant themselves at trial.

6.In reply to this submission, the respondent submits that whilst the word “alteration” was not used, the consequences of the alteration (i.e. the creation of an escalator connecting the ground floor and the cockloft and the creation of a staircase connecting the cockloft with 1/F) have never been disputed by the parties but actually formed part of their respective case.  Ms Becky Wong further submits that the configuration after the alteration is clearly relevant to the determination of the validity of the respondent’s concern over security and nuisance. This, which I agree, precisely constituted the reason why the security and nuisance problems relating to the alteration are discussed in the Judgment.

Validity of the Resolution

7.The applicant says that the tribunal erred in ignoring the validity of the passing and the implementation of the resolution.  This I cannot agree.

8.Paragraphs 70 to 75 of the Judgment set out the DMC provisions which give the manager the power to impose restrictions, including restrictions on the use of the lift as imposed in the resolution.  Paragraphs 76 to 90 of the Judgment discussed the reasonableness of the resolution.  In paragraph 101 of the Judgment, I said that:-

“101. As for other arguments about resolution being ultra vires of the power under the DMC, the closure of the lift being ultra vires of the contents of the resolution, the passing of the subject resolution being equivalent to a rewriting of the DMC etc., I have no intention to discuss each and every one of them separately because these arguments are unconvincing and peripheral and could be disposed of by the above analysis in any event.”

9.Clearly, having ruled that under the DMC the manager had the power to impose restrictions on the use of the lift and that the particular restriction imposed was reasonable, I did not consider it necessary to separately discuss each and every argument of the applicant about the resolution because those arguments were, in my view, of peripheral significance and unconvincing.  The applicant’s unnatural way of construing the wording of the resolution as well as the subsequent implementation were twisted and disingenuous. Instead of ignoring the applicant’s argument as alleged, I simply was not persuaded by them having considered them on merits.

10.I remark in passing that apparently the applicant’s counsel consciously chose not to fairly set out their arguments early by just filing a short 13-page opening submissions (consists of 40 paragraphs) to give only a brief outline of the action.[2]  The applicant’s arguments were afterwards considerably expanded into a 62-page final written submissions (consists of 233 paragraphs) submitted at the end of the trial containing a variety of arguments some had not been raised before.  Such being the case, the applicant only have themselves to blame if the court had to exercise some degree of discretion to prioritize the discussion of arguments in the Judgment instead of individually discuss all of them in full.

Applicant not seeking Unqualified Right

11.Counsel for the applicant submits that it is wrong for the tribunal to say that the applicant is seeking an unqualified right to use and enjoy lift.

12.As rightly pointed out by the respondent’s Counsel, it has never been the applicant’s pleaded case that the applicant is willing to accept the imposition of reasonable restrictions.  When summarizing the applicant’s evidence, I highlighted the following in paragraphs 86 to 89 of the Judgment:-

“86.  From the oral testimony of the applicant’s factual witness, Madam Wong Fan Antenor, it is crystal clear that the applicant actually has no awareness of the obligation on their part to comply with the DMC or to reasonably see to it that their tenants would comply with it.  Madam Wong said with a “none-of-my-business” attitude that she would not know how their tenant was going to use the lift, would not know the operation of the tenant’s business and it would be the tenant’s own responsibility, instead of the applicant’s responsibility, to comply with the rules.

87.  Under cross-examination, Madam Wong repeatedly said that the applicant had the right to use Lift A.  At some point of her oral evidence, she criticized the respondent for not proposing reasonable measures for their consideration.  But Madam Wong could not answer when the respondent’s counsel pointed out to her that in none of the pre-action correspondences had the applicant ever expressed its willingness to comply with the reasonable measures to be imposed by the respondent.

88.  The chairman of the respondent, Mr Chui, confirmed during oral evidence that in all the meetings which Madam Wong had attended on behalf of the applicant, she was requesting full and unrestricted right to use Lift A and did not manifest any willingness to negotiate or compromise.

89.  I believe Mr Chui to be telling the truth and believe that the applicant’s attitude in this matter has always been – to assert an absolute right to use the lift with no obligation on their part to concede, reconcile or resolve.  That sort of assertion and attitude certainly would not meet with the tribunal’s approval on the simple and basic rationale that one cannot claim full rights from others without performing obligations of their own.”

13.It is my observation based on all the materials before me, including the oral testimony of the factual witnesses, that in their interaction with the respondent the applicant had been asserting an absolute right with an uncompromising attitude instead of acting reasonably with a view to resolving the deadlock.

14.More importantly, at trial I specifically asked the applicant’s Counsel to confirm whether the applicant was still seeking an absolute and unrestricted right to use the lift by that time.  Mr Ho answered in the affirmative during his closing submissions.  I do not see how the tribunal can be said to be erred in stating a position taken by the applicant as openly confirmed by their Counsel at trial.

15.Paragraph 79 of the Judgment states that the applicant’s case is premised on their having an absolute right to use the lift on the true and proper construction of the DMC provisions. In paragraph 80 of the Judgment, I assumed that the reasonableness of the measures taken by the respondent was in issue and went on to analyze in paragraphs 81 to 83 the reasonableness of the measures in the circumstances of the case taking into account some salient features and designs of the building in question.

16.In paragraph 90, I concluded that:-

“I do not consider it unreasonable for the manager and the respondent not to provide lift service to 1/F in light of the circumstances of the present case. The circumstances include, inter alia, their valid concerns over security and nuisance, the features in the physical layout of the Building, the applicant’s attitude and behavior as well as the lack of means of access for the residential owners to commute between the ground floor and their units as compared to the better accessibility of 1/F (which justified the giving of priority to the residential owners over 1/F visitors on the use of lifts).”

17.It could be seen that the tribunal did not just end the analyses after dealing with the question of absolute right to use the lift, but went on to discuss on the assumption that the applicant recognized the respondent’s power to restrict the use of lift (in other words, absolute right to use the lift no longer pursued) subject to the requirement of reasonableness. As both scenarios (i.e. absolute right or not) have been dealt with, this ground of appeal (i.e. the tribunal erred in saying that the applicant asserted an absolute right) could unlikely take the applicant’s intended appeal anywhere.

FINDINGS GROUND

Ground 2

18.The applicant’s counsel raises the followings:- (a) the tribunal wrongly took into consideration the alteration and gave undue weight to the same; (b) the nuisance and security concern were mere speculation; (c) there is no justification to find that the alterations have opened up a major security loophole; and (d) there is no evidence or valid reason to support the finding that security or nuisance issues may arise if the lift is re-opened. 

19.The relevance of the alteration has been discussed in paragraphs 4 to 6 above.  The nuisance and security concerns were not mere speculations but are exactly the core of the respondent’s complaints as supported by evidence. Paragraphs 81 to 85 of the Judgment are the analyses on this question which I shall not repeat.

Ground 3

20.The applicant complained that the tribunal:- (a) failed to adjudicate on the validity of the resolution; (b) was wrong to find that the Lands Tribunal has no jurisdiction to determine whether the Disability Discrimination Ordinance (“DDP”) or Building (Planning) Regulations (“BPR”) is offended; and (c) was wrong to find that the applicant had never expressed its willingness to comply with the reasonable measures for the use of the lift as the evidence of such willingness had never been challenged. 

21.The alleged failure to adjudicate on the resolution has been discussed in paragraphs 7 to 10 above and shall not be repeated.

22.Regarding the DDO and BPR, the applicant submits that the violations of the said ordinances are “self-explanatory” and was simply a matter of interpretation. I do not endorse the applicant’s over-simplification and over-generalization of the DDO and BPR issues.  The alleged lack of complexity in establishing any offence or violation under the DDO or BPR, even if true (which I do not agree), still could not rectify the Lands Tribunal’s lack of jurisdiction to hear and determine matters under those ordinances.

23.As for the allegation that the applicant was willing to abide by the reasonable measures over the use of lift and such had never been challenged by the respondent, apparently it is not true.  The respondent’s Counsel, Ms Beckly Wong, strongly denies having made no challenge to such belated self-serving statement of the applicant.  Ms Wong points out that she did in fact specifically put questions to the applicant’s factual witness, Madam Wong, during cross-examinations to challenge the applicant’s willingness and sincerity to resolve.[3]

24.As said in paragraphs 86 to 89 of the Judgment, even at the time of trial, Madam Wong was highly expressive of an uncompromising attitude.  It was from all the evidence available that I found it hard to believe that Madam Wong/the applicant had been sincere, cooperative and reasonable in trying to resolve the matter with the respondent at the material times.

Ground 4

25.The applicant says that the tribunal was wrong to find that it was reasonable for the respondent and its predecessor to implement the closure of the lift.  The imposition of conditions was only introduced in 2020, the introduction of which cannot exonerate the respondent’s liability in denying the applicant the right to use the lift from October 2010 to October 2020.

26.As mentioned in paragraphs 15 and 16 above, the tribunal analyzed the reasonableness of the measures taken in paragraphs 80 to 83 of the Judgment and concluded in paragraph 90 that they were reasonable having taken into account the factual circumstances of the case including the applicant’s very confrontational attitude and their refusal or failure to take any step to address or at least alleviate the respondent’s valid concerns. Those discussions shall not be repeated. As the “impositions of conditions in 2020” had no impact on the conclusion, since when it could “exonerate” the respondent is actually a misplaced focus on the part of the applicant.

CONCLUSION

27.Having considered all the intended grounds of appeal, I am not satisfied that the applicant’s intended appeal has a reasonable prospect of success, nor do I find some other reasons in the interests of justice why the appeal should be heard.  The applicant’s application for leave to appeal is therefore dismissed with costs to the respondent (with Counsel’s certificate) to be taxed on the District Court scale if not agreed.

Mr Tommy Ho instructed by Howell & Co, for the Applicant, present

Ms Becky Wong instructed by Chung & Kwan, for the Respondent, present