Ng Yui Tong v. Taikoo Shing (Management) Ltd
Read the full judgment text of CAMP 133/2024 on BabelCite. This Court of Appeal judgment was delivered on 25 October 2024.
1. This is the applicant’s summons dated 22 July 2024 (“ the Summons ”) seeking leave to appeal to the Court of Appeal out of time against the order (“ the Order ”) of Deputy District Judge M Lam (“ the Judge ”) dated 30 April 2024. By the Order, the Judge dismissed the applicant’s claim commenced in the Lands Tribunal (ie, LDBM 1/2023). Her reasons were contained in the written Judgment handed down on 30 April 2024 (“ the Judgment ”): [2024] HKLdT 35 .
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CAMP 133/2024, [2024] HKCA 963 On Appeal From [2024] HKLdT 35 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO 133 OF 2024 (ON AN INTENDED APPEAL FROM LDBM NO 1 OF 2023) ________________________ BETWEEN
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________________________ D E C I S I O N ________________________ Hon Au JA (giving the Decision of the Court): A. INTRODUCTION 1.This is the applicant’s summons dated 22 July 2024 (“the Summons”) seeking leave to appeal to the Court of Appeal out of time against the order (“the Order”) of Deputy District Judge M Lam (“the Judge”) dated 30 April 2024. By the Order, the Judge dismissed the applicant’s claim commenced in the Lands Tribunal (ie, LDBM 1/2023). Her reasons were contained in the written Judgment handed down on 30 April 2024 (“the Judgment”): [2024] HKLdT 35. 2.The applicant first sought leave to appeal from the Judge. That was refused on 24 June 2024 after a hearing.[1] Pursuant to Order 59, rule 2B(3) of the Rules of the High Court (Cap 4A) (“RHC”), the applicant had until 8 July 2024[2] to further apply to this court for leave to appeal. However, the Summons was only taken out on 22 July 2024. The leave application was therefore made 14 days out of time. 3.This court has directed[3] for the application for leave to appeal out of time be dealt with on paper[4]. The parties have since filed their respective written submissions. B. BACKGROUND B1. The dispute in LDBM 1/2023 4.The applicant is the owner of a flat in Fu Shan Mansion of Taikoo Shing Estate (“the Estate”).[5] The Estate was developed in 12 stages, and each stage has its own deed of mutual covenant (“DMC”).[6] Fu Shan Mansion was a part of Stage III.[7] The respondent is the management company of the entire Estate.[8] 5.On 3 January 2023, the applicant commenced proceedings against the respondent in the Lands Tribunal (ie, LDBM 1/2023).[9] The applicant’s primary claim was that the respondent had no power under the DMC of Stage III of the Estate (“DMC III”) to install and operate the following new security appliances (“New Security Appliances”):[10]
6.As a corollary to the applicant’s primary claim, the applicant claimed, inter alia, that the expenses incurred in relation to the New Security Appliances did not fall within the annual budget of Stage III of the Estate (as prescribed by Clause 8(a) of the DMC III) and the respondent was not entitled to withdraw, use, or seek reimbursement from the management fund of Stage III of the Estate in respect of such expenses.[15] Similarly, the applicant also claimed that the respondent was not entitled to receive the remuneration charges under Clause 8(a)A(iv) of the DMC III which are attributable to the installation and operation of the New Security Appliances (“Charges”).[16] 7.There was no dispute by the respondent as to the installation and operation of the New Security Appliances; nor any dispute that it had received the Charges.[17] However, the respondent contended that the installation and operation of the New Security Appliances were within the ambit of what it is empowered to do under the DMC III. Accordingly, the expenses incurred in relation to the New Security Appliances and the Charges received, were legitimate expenses associated with its management of Stage III of the Estate and to be paid out of the management fund under the DMC III.[18] B2. The Judgment 8.As set out in [3] of the Judgment, the dispute between the parties is essentially one of construction of the DMC III. 9.In this connection, the Judge had regard to the construction of the DMC III given by the Court of Appeal (Chu VP, Au and Chow JJA) in Ng Yui Tong v Taikoo Shing (Management) Limited [2023] HKCA 297 (“the CA Judgment”).[19] Notably, the parties there and the parties in these proceedings are identical. While the activities complained of were different, the applicant had, in the other proceedings, also challenged the scope of the respondent’s management powers under the DMC III. Importantly, the Court of Appeal had, in this context, considered the construction of the DMC III referred to by the parties herein (including Recital (5), Clauses 7(a) and 7(a)(24)).[20] 10.Bearing in mind the factual context of the Estate, the purpose of the DMC III and the precise language used,[21] the Judge held that it is the clear intention of the DMC III to give the respondent wide powers of management by granting to it “full and unrestricted authority” to do the acts and things referred to in Clauses 7(a) and 7(a)(1)-(28) of the DMC III.[22] The powers given are not limited only to acts or things “necessary” or “requisite for” the management of Stage III of the Estate, but extend to those “in connection with” or “reasonably incidental” to its management.[23] 11.The Judge held that Recital (5) of the DMC III expressly provides the word “management” with a wide meaning to cover many aspects as “the management, operation, servicing, maintenance, repair, renovation, replacement, security, and insurance of” the land in relation to Stage III of the Estate and the buildings thereon and their equipment services and apparatus.[24] Moreover, the word “management” is not defined exhaustively in Recital (5), but is an inclusive one which includes all or any of the aforementioned activities.[25] The applicant’s narrow interpretation of Recital (5) that the respondent’s management powers are limited only to acts or things “necessary” or “requisite for” the management of Stage III of the Estate was expressly rejected.[26] 12.In view of the above, the Judge held that the installation and operation of the New Security Appliances were clearly works that are “in connection with” or “reasonably incidental” to the management of Stage III of the Estate, and thus fell within the scope of the “management” power of the respondent under Clause 7(a), including Clauses 7(a)(11) and 7(a)(24) of the DMC III.[27] Her reasoning was as follows:
B3. The Judge’s refusal to grant leave to appeal 13.On 27 May 2024, the applicant applied to the Judge for leave to appeal.[31] 14.The Judge dismissed the applicant’s leave to appeal application on the basis that, pursuant to section 11(2) of the Lands Tribunal Ordinance (Cap 17) (“the LTO”), the applicant had failed to satisfy the Tribunal that the Judgment was erroneous in law. Further, in accordance with section 11AA(6) of the LTO, the Judge did not consider the applicant’s intended appeal to have a reasonable prospect of success, or that there was some other reason in the interests of justice why it should be heard[32]. C. THE PRESENT APPLICATION C1. Applicable principles 15.The relevant approach to determining an application for extension of time to appeal is well established and has been conveniently summarized by Kwan JA (as Kwan VP then was) in Lee Chick Choi v Best Spirits Co Ltd (HCMP 371/2015, unreported, 21 May 2015)[33] at paragraph 19:
16.Further, where a delay is inexcusable even if insubstantial, a party seeking an extension of time must show a real prospect of success on the merits of the intended appeal: Secretary for Justice v Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125 at 129I applying Chiu Sin Chung v Yu Yan Yan Angela [1993] 1 HKLR 225 at p.229. 17.Bearing these principles in mind, we will now proceed to consider the applicant’s present application for an extension of time for leave to appeal. C2. Length and reasons for delay 18.As mentioned above, the present leave application was made 14 days out of time. In his supporting affirmation, the applicant explained that he was late in filing his application with this court as he was not legally represented, and thus, needed time to understand the Judgment and to prepare the application documents.[34] 19.We do not accept this as an excusable explanation for the 14-day delay: the mere fact that the applicant is not legally represented does not constitute a valid excuse for failing to comply with the court’s procedural rules. Furthermore, the applicant had already previously applied to the Judge for leave for appeal, there was no excuse to take out this reapplication before this court out of time. 20.Given the inexcusable delay, we now turn to consider whether the proposed grounds of appeal have a real prospect of success. C3. Merits of the intended appeal 21.The applicant has set out his proposed grounds of appeal in the Summons. In particular, the applicant contends that the Judge had erred in her construction of the DMC III by failing to have regard to the following matters[35]:
22.In elaboration of the above, the applicant’s written submissions state that the Judgment did not provide any legal analysis in relation to the installation and operation of the New Security Appliances, and why the clauses of the DMC III set out in the proposed grounds of appeal did not apply.[36] He contends that the Judge’s interpretation of the word “management” was without legal support and a result of the Judge’s failure to apply authorities which supported the applicant’s interpretation (ie, the word “management” in Recital (5) of the DMC III should be given a restrictive interpretation).[37] Lastly, the applicant submits that the Judge had erred in holding that the Control of Exemption Clauses Ordinance (Cap 71) (“the CECO”) did not apply in the present case.[38] 23.It is apparent that the applicant is merely repeating the arguments advanced before the Judge at trial in support of his construction of the DMC III. These arguments have already been considered, and for the reasons set out in the Judgment, rejected by the Judge. Having considered the proposed grounds of appeal set out in the Summons and the submissions advanced by the applicant, we are of the view that the applicant’s intended appeal has no real prospect of success. 24.Firstly, the Judge’s analysis of the DMC III (and the clauses thereof set out in the proposed grounds of appeal to the Summons) and its application to the installation and operation of the New Security Appliances have been set out in detail in [24] - [46] of the Judgment. The applicant’s allegation that the Judgment did not provide any legal analysis of the matter or that there had been a failure to have regard to such clauses in the DMC III is baseless and without merit. 25.Secondly, the Judge’s construction of the DMC III and the word “management” was guided by and in line with the CA Judgment, which concerns not only the same DMC III, but also the same clauses material to the determination of the scope of the respondent’s management powers. Construction of the DMC and its relevant clauses is a question of law, and hence, the CA Judgment as to the approach to their proper construction is applicable to the present case and binding on the Lands Tribunal. The applicant’s contended narrow construction of the word “management” was rejected by the Judge at [36] - [38] of the Judgment applying the CA Judgment. There is therefore no merit in the applicant’s submission[39] that the Judge erred in applying the CA Judgment and the Court of Appeal’s construction of Clauses 7(a) and 7(a)(24) of the DMC III for the reason that the activity complained of there was different. 26.In this respect, it is clear from [31] of the Judgment that the Judge was fully aware of the extent to which the two proceedings were similar, as well as different, in relation to the factual complaints to which the material clauses of the DMC III are to apply:
We also agree with the Judge’s above observations. 27.Thirdly, the applicant submits that these two authorities support his contended interpretation of the word “management”: The IO of Bayview Mansion v Chan Cheung Kit Mui Margaret (HCSA 32/1994, unreported, 23 June 1995) and Grace International Ltd v Incorporated Owners of Fontana Gardens & Ors [1996] 4 HKC 635). However, the Judge considered these two authorities and did not find them to be of assistance to the applicant’s contentions as they are distinguishable: [47] - [51] of the Judgment. The Judge is plainly right as these authorities were decided on the basis of the specific language used in the relevant deed of mutual covenants in those cases[40], and do not stand for the general legal proposition contended[41] by the applicant that there was no power or authority for the manager of a building to improve its amenities or upgrade its condition. 28.Fourthly, the applicant’s contention that the Judge had incorrectly held that the CECO did not apply in the present case is misconceived. As set out in [64] - [65] of the Judgment, all of the applicant’s complaints relating to the installation and operation of the New Security Appliances fell away as the Judge held that they were within the respondent’s powers under the DMC III. Hence, there was neither a need for the respondent to rely upon the exemption clause in Clause 7(c) of the DMC III, nor a need for the consideration of the CECO’s applicability. In any event, as recorded in [65] of the Judgment, no particulars or concrete evidence have been provided by the applicant to substantiate the existence of any alleged dishonesty on the part of the respondent. 29.For completeness, we have also considered the applicant’s contention in its written submissions that the Judgment contained various factual errors. There is no merit in any of these contentions:
30.In the premises, it is clear to us that the applicant’s intended appeal has no prospect of success. D. DISPOSITION 31.For the reasons set out above, the intended appeal plainly has no merits at all and it will be futile to extend time and grant leave to the applicant to appeal. We therefore dismiss the Summons. 32.There is no reason why costs should not follow the event. Further, we are of the view that the applicant’s present application is an abuse of process. Given that he has already had the benefit of the CA Judgment, the Judgment and the Decision re Leave, it must be obvious to the applicant that his intended appeal is plainly of no merit. The costs should be taxed summarily on an indemnity basis. 33.In this respect, the respondent in its statement of costs dated 23 August 2024 seeks the sum of $73,900[45]. We find it not excessive and will allow them in full. 34.In the premises, we order that costs of this application be to the respondent, and is taxed summarily on an indemnity basis to be $73,900. 35.As this application is entirely without merit, pursuant to Order 59, rule 2A(8) of the RHC, we further order that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes. 36.This judgment is written in English in view of the fact that the judgments below and the CA Judgment are all written in English. If required, the applicant may make an appointment with the clerk to this court for this judgment to be orally interpreted to him in Punti in the court’s premises.
Written Submissions by the applicant acting in person Written Submissions by Mr Nicholas Hunsworth, Solicitor Advocate, of Messrs Mayer Brown, for the respondent [1] Decision re Leave [2024] HKLdT56. [2] 14 days from the day of the refusal of leave made by the lower court. [3] Directions dated 26 July 2024 at §16. [4] Pursuant to Order 59, rule 2A(5) of the RHC. [5] [7] of the Judgment. [6] [5] of the Judgment. [7] [7] of the Judgment. [8] [8] of the Judgment. [9] [13] of the Judgment. [10] [15] - [16] of the Judgment. [11] [16(1)] of the Judgment. [12] [16(2)] of the Judgment. [13] [16(3)] of the Judgment. [14] [16(4)] of the Judgment. [15] [18(3) - (5)] and [19(1)] of the Judgment. [16] [18(3), (6)] and [19(4)] of the Judgment. [17] [21] of the Judgment. [18] [21] of the Judgment. [19] [23] of the Judgment. Further, the applicant’s application for leave to appeal the CA Judgment to the CFA was dismissed by the CA on 7 June 2023: [2023] HKCA 698, and by the CFA on 19 June 2024 pursuant to Rule 7(1) of the Hong Kong Court of Final Appeal Rules (Cap 484A). [20] [23] - [24], [32] of the CA Judgment. [21] [32] - [34] of the Judgment. [22] [35] of the Judgment. [23] [35] of the Judgment. [24] [36] of the Judgment [25] [37] of the Judgment. [26] [38] of the Judgment. [27] [46] of the Judgment. [28] [41] - [42] of the Judgment. [29] [43] - [44] of the Judgment. [30] [45] of the Judgment. [31] [1] of the Decision re Leave. [32] [33] of the Decision re Leave. [33] As recently applied in [28] of Peter John Coomber v Wong King Wah [2024] HKCA 440 per Au JA. [34] “申請人逾期提出上訴許可的解釋。申請人須花時間了解判案書的內容及擬備上訴理據等，鑒於申請人沒有律師代表及延誤之時間合共14天。” [35] “原審法官在詮釋太古城第三期（“第三期”）公契及建築物管理條例（“條例”）時拒絕根據以下的相關背景及情況作出裁定，犯了法律上的錯誤：…” [36] The applicant’s August Submissions at §13. [37] The applicant’s July Statement at §§5.2.1 - 5.2.2: “refusing with applicable authority”; “failed to appreciate the inherent restrictive of the word ‘management’”; “unable to disclose any other applicable authority”. [38] The applicant’s July Statement at §§6 - 9. [39] The applicant’s July Statement at §5.3.4. [40] Bayview Mansion: Clauses 4, 8, 10 of the DMC. The renovation works were not necessitated by a need to keep the building in good and tenantable repair, but were decoration works. The building was provided with a facelift but there is no power or authority in the DMC for the respondents to improve the amenities or upgrade the conditions of the building. There is only power to maintain and keep the existing amenities and condition of the building in a good and tenantable condition. Grace International: There is no reference whatsoever in the entire DMC to the improvement or upgrading of the building. While the extension of the lift to the basement would enhance the amenities, it could not be regarded as maintenance of the lobby. Where there is no power in the DMC to effect improvements or upgrading, this can only be done with the consent of all owners. [41] The applicant’s August Submissions at §11. [42] The applicant’s July Statement at §5.3.1. [43] The applicant’s July Statement at §5.3.2. [44] The applicant’s July Statement at §5.3.3. [45] Which includes a total sum of $47,300 as the costs of translation and perusal of the Summons, draft Grounds of Appeal and the applicant’s written statement. |
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