中紀投資有限公司 v. 青山道國際工業大廈業主立案法團 and Others
Read the full judgment text of LDBM 256/2018 on BabelCite. This Lands Tribunal judgment was delivered on 29 August 2025.
1. This is a contested non-party costs application made in the context of a building management dispute. It arose after an owners’ corporation was held after trial, by this Tribunal, to have deliberately failed to enforce provisions of deed of mutual covenant ( the DMC ) of the subject building ( the Building ) and provisions of Building Management Ordinance ( BMO ) [1] against an owner of the Building in total disregard of its duties under the DMC and BMO.
Cites 17 cases
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LDBM 256/2018 [2025] HKLdT 45 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO.256 OF 2018 __________________
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_____________________ D E C I S I O N _____________________ A. Introduction 1.This is a contested non-party costs application made in the context of a building management dispute. It arose after an owners’ corporation was held after trial, by this Tribunal, to have deliberately failed to enforce provisions of deed of mutual covenant (the DMC) of the subject building (the Building) and provisions of Building Management Ordinance (BMO)[1] against an owner of the Building in total disregard of its duties under the DMC and BMO. 2.After a 6-day trial between the Applicant company[2] (CC) and the 1st Respondent owners’ corporation[3] (IO) held from September 2023 to February 2024 (the Trial), CC prevailed and obtained its relief and was awarded costs of these proceedings on indemnity basis at High Court scale against IO[4] in a judgment written in Chinese handed down by this Tribunal on 7 August 2024 (the Trial Judgment)[5]. 3.On 21 August 2024, CC took out the subject summons (the Summons) seeking costs of these proceedings from Fun Islands Incorporation Limited[6] (FI) and Star Group Trading Limited[7] (SG) pursuant to ss.12(1) and (2) of Lands Tribunal Ordinance (LTO) [8]. 4.S.12(2) of LTO provides that the Lands Tribunal may make an order awarding costs against a party who is not a party to the relevant proceedings if the Tribunal is satisfied that it is in the interests of justice to do so. FI and SG both opposed the Summons. 5.By way of first stage of the Summons, this Tribunal in October 2024 ordered that FI and SG be joined as 4th Respondent and 5th Respondent respectively to these proceedings for costs purpose. 6.At the hearing of the second stage of the Summons, FI and SG maintained their opposition and this is the reserved decision of this Tribunal after hearing two counsels each from CC, FI and SG. Counsels for CC, FI and SG have respectively cited a total of 29, 19 and 6 authorities in their respective lists of authorities. This Tribunal is grateful for all their oral and written submissions. B. Parties, and procedural history, of these proceedings 7.The background of the parties to these proceedings, the history of these proceedings, and the key findings of this Tribunal in the Trial Judgment (Trial Findings)[9], are as follows. 8.At all material times, CC, FI and SG were, and are, respectively corporate owners of Flats 2A & 2B, Flat 9B, Flat 4B of the Building (Flats 2AB, Flat 9B and Flat 4B respectively)[10]. 9.At all material times, CC was effectively controlled by its director, Mr Ng Hin Chung[11] (Ng), who effectively also controlled at the same time Conqueror Development Ltd (CDL)[12] which owned Flats 11A & 11B of the Building (Flats 11AB)[13]. 10.At all material times since 2009, SG had appointed a director and shareholder of SG i.e. Mr Mok Poon Kwong (Mok)[14] as its “authorized representative” (AR)[15] to act as member of the management committee of IO (MC). Mok thereby became and acted as the chairman of MC (MC Chairman) at all material times[16]. 11.At all material times, Mr Mao Yau Fong, a director and shareholder of FI (Mao)[17], was also shareholder and director of STL Company Ltd (STL)[18] and M&P International Company Ltd (M&P) [19], the respective corporate owners of Flat 9A (Flat 9A), and of Flats 12A & 12B (Flats 12AB), of the Building. At all material times since about 2015, Mao, as FI’s AR (and M&P’s AR) served as a MC member. Mao’s personal secretary, Madam Hung (Hung)[20], appointed as STL’s AR, also served as a MC member at all material times since about 2015[21]. 12.In December 2018, CC filed its Notice of Application (NOA) against IO as the 1st Respondent, the then manager of the Building (Top Property)[22] as the 2nd Respondent, and FI as the 3rd Respondent. 13.A firm of solicitors thereafter represented both IO and FI. In May 2019, the same firm of solicitors filed FI’s Notice of Opposition (NOO) on the same day it filed IO’s NOO. In June 2019, the same firm filed Mao’s witness statement for FI on the same day it filed Mok’s witness statement for IO. 14.In November 2019, CC discontinued these proceedings as against Top Property. In December 2019, on FI’s application, the Lands Tribunal struck out NOA (and dismissed CC’s claims) against FI on the ground that CC lacks locus standi to sue FI. IO thereafter became the sole respondent to these proceedings until this Tribunal joined FI and SG for purpose of costs. 15.In November 2022, CC amended its NOA as against IO, and in May, June and August 2023 filed supplemental witness statements and expert evidence. IO in turn filed its Amended NOO settled by two counsels in January 2023, supplemental witness statements and expert evidence in May 2023. 16.On 15 May 2023, these proceedings as against IO were set down for trial to begin on 18 September 2023. In mid-July 2023, IO filed notice to act in person. Mok thereafter appeared as IO’s AR[23] before this Tribunal, and conducted IO’s case, at, inter alia, pre-trial review held on 5 September 2023 and at the Trial. During the Trial, IO called Mok as its sole factual witness. C. Key Trial Findings in Trial Judgment 17.In the Trial Judgment, this Tribunal first found that FI had, in about 2012, opened a hole on that side of the wall of the protected lobby adjoining Flat 9B (9/F Protected Lobby) [24] to make an opening at door B location (the Opening) [25]. In August/September 2013, FI further installed a glass door at the Opening (the Glass Door) [26]. 18.FI had maintained, this Tribunal found, up to the Trial the Opening and the Glass Door and used them as its direct access from Flat 9B (through the Glass Door at door B location, 9/F Protected Lobby and door A in turn) (the Direct Access) to 9/F lift lobby of the Building (9/F Lift Lobby). FI did not enjoy the Direct Access before it carried out these works[27]. 19.In coming to the above findings, this Tribunal rejected IO’s case that an order made against FI by the Building Authority (BA) in 2012 pursuant to s.24(1) of Buildings Ordinance (BO)[28] (2012 Order) was directed against door B (or any door at all). In fact, at the time of the making of the 2012 Order, there was no door at door B location; the 2012 Order was directed against the Opening only[29]. 20.This Tribunal also rejected IO’s case that the subject matter of proceedings commenced by IO in May 2013 at Lands Tribunal against FI (2013 LT Proceedings)[30], and of FI’s settlement agreement of the same reached with IO in June 2013 (the Settlement Agreement), was the Opening, or the Glass Door, at door B location. Their common subject matter was, in fact, door A adjoining 9/F Lift Lobby[31]. 21.Secondly, FI’s making of the Opening, and FI’s installation of the Glass Door, at door B location and FI’s subsequent retention of them up to the Trial were, this Tribunal held, unauthorized building works ((UBW); and the Opening and the Glass Door collectively Subject UBWs[32]) carried out by FI in breach of s.14(1) of BO and its subsidiary regulations concerning fire-resistant structures and safe means of escape[33], various provisions of the DMC[34] and of BMO[35] (as the 9/F Protected Lobby, and its wall adjoining Flat 9B, are “common parts” of the Building[36]). 22.In coming to the above holding, this Tribunal rejected IO’s case that FI, in installing the Glass Door at door B location in August/September 2013, had reported completion of such purported minor works by arranging Profitgo International Ltd (PIL)[37] to submit a certificate of completion of class III minor works under the “simplified requirements” (the Certificate of Completion) to BA pursuant to the provisions of Building (Minor Works) Regulation[38]. 23.This Tribunal also rejected IO’s case that FI had complied with the 2012 Order by “installing” the Glass Door at the Opening (which opening the 2012 Order expressly required FI’s “reinstatement”). The 2012 Order had therefore, this Tribunal held, never been discharged by BA; BA had merely suspended its enforcement in its letter to FI in 2014 (BA 2014 Letter). The Subject UBWs remained UBWs under BO and are liable to future enforcement by BA under Mandatory Building Inspection Scheme (MBIS) prescribed by BO[39]. 24.Except for s.34I(1)(a) of BMO which was not applicable, this Tribunal further rejected IO’s case that MC could have, by two resolutions passed at two MC meetings held on 10 June 2019 (2019 MC Resolution) and 11 April 2023 (2023 MC Resolution, collectively the two MC Resolutions), lawfully approved or ratified FI’s conversion of part of 9/F Protected Lobby to its private use. This Tribunal held that the the two MC resolutions could not, and did not, excuse IO’s breaches of BO and its subsidiary regulations, various DMC provisions and other BMO provisions[40]. 25.Thirdly, this Tribunal found that MC had condoned FI’s aforesaid breaches from about 2012 until the Trial[41]. In so doing, in total disregard of its statutory duties under s.18(1) of BMO and those of the DMC, IO had, this Tribunal held, deliberately not compiled with the requirements of a statutory notice issued by BA to it in July 2015 covering all common parts of the Building under MBIS (MBIS Notice), including that of reporting by inspection report submitted to BA UBWs discovered in inspections carried out by registered inspector (RI) appointed by IO[42]. 26.In arriving at findings above, the Tribunal rejected IO’s case that it had, since July 2015, actively sought to compile with the MBIS Notice. To the contrary, due to their having reported Subject UBWs, and other private UBWs, and recommended their removal in their inspection reports, IO had, this Tribunal found, dismissed its first RI by name of AHL Contract Management Ltd (AHL)[43] and demanded its second RI by name of Kwok, Hauser and Partners Ltd (K&H)[44] to withdraw its 2nd report from BA after submission. Moreover, IO, this Tribunal found, had threatened Top Property with legal action immediately after the latter had demanded FI to remove Subject UBWs[45]. 27.In the end, this Tribunal acceded to CC’s application and granted a mandatory order compelling IO to perform its duties under the DMC and BMO to enforce against FI provisions of the DMC and BMO to require FI’s removal of Subject UBWs and FI’s reinstatement of 9/F Protected Lobby, including, if necessary, by taking out legal proceedings against FI for the same[46]. 28.In so exercising its discretion, this Tribunal rejected IO’s last defence that CC did not come to the tribunal with “clean hands”[47] such that relief should be denied. D. Affidavit evidence for the Summons 29.In support of the Summons, Ng on behalf of CC filed his 2nd affirmation on 2 October 2024 (Ng’s 2nd Affirmation). 30.Mok on behalf of SG filed his affirmation on 4 December 2024 (Mok’s Affirmation), and Mao on behalf of FI filed his 2nd affirmation on 20 December 2024 (Mao’s 2nd Affirmation), in opposing the Summons. 31.In reply to the aforesaid, Ng on behalf of CC filed his 3rd affirmation on 20 February 2025 (Ng’s 3rd Affirmation). E. CC’s grounds for the Summons 32.CC submitted that costs order sought under the Summons should be made against FI and SG on the following 4 grounds[48]. 33.First, CC argued, it was FI’s erection of, and persistent refusal to remove, Subject UBWs, along with SG’s and FI’s control of MC (and thus IO) in resisting their removal (see second ground below), that caused CC to begin, and to continue until the Trial, these costly proceedings[49] (Ground 1). 34.Secondly, FI (through Mao) and SG (through Mok) had, CC said, exercised practical control over MC (or IO)’s persistent refusal, and delay, in complying with the MBIS Notice and removing the Subject UBWs, and/or IO’s management of these proceedings. Their actions prioritised the interests of their companies over IO’s obligations under the DMC and BMO, or the collective interests of all owners of the Building. They obtained personal benefit from IO defending these proceedings and IO’s defence was not for its own benefit, but rather for the benefit of SG and FI, which should be considered as real parties to these proceedings[50] (Ground 2). 35.Thirdly, FI (through Mao) and SG (through Mok) have, said CC, been guilty of impropriety in relation to these proceedings in that Mao and Mok had provided dishonest evidence, and the defences they presented were knowingly false. Such impropriety and bad faith makes it just to make a non-party costs order against FI and/or SG[51] (Ground 3). 36.Fourthly, IO’s financial situation, said CC, was that it would be unable to pay CC’s costs of these proceedings without collecting contributions from all owners of the Building. Failing the grant of non-party costs orders against SG and/or FI, it would, CC argued, be manifestly unjust and prejudicial to it if it, the successful party after the Trial, would, through no fault of its own, be required, as an owner of the Building, to contribute towards its costs of these proceedings payable by IO, the unsuccessful party after the Trial, under the Trial Judgment[52] (Ground 4). F. Legal principles on non-party costs application 37.Having considered parties’ detailed legal submissions[53], the overall consideration at the second stage of the Summons is, I think, whether it would be in the interest of justice to grant the costs order sought against the non-party: Leung Chung Ching Edwin v Estate of Leung On Mei Amy [2019] 1 HKLRD 109 (Edwin Leung case), at [72] per Chu JA (as she then was). 38.For principles as to how this discretion to order non-party costs is to be exercised, Chu JA (as she then was) had, at [74] of Edwin Leung case, endorsed summary at [25] & [29] of Lord Brown’s opinion given on behalf of the Judicial Committee of Privy Council in the New Zealand case of Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 WLR 2807 (Dymocks case). 39.Among other principles, non-party costs orders were said by Lord Brown in Dymocks case to be exceptional in the sense that they are outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expenses. The ultimate question is whether in all the circumstances it is just to make the order, and this is inevitably to some extent a fact-specific jurisdiction and there will often be a number of different consideration in play. 40.Chu JA (as she then was) had, at [73] of Edwin Leung case, also referred to judgment of Millett LJ (as he then was) in Metalloy Supplies Ltd v MA (UK) Ltd [1997] 1 WLR 1613 (Metalloy case), 1620B-E, where it was said that there are 2 situations where it would be appropriate to make a non-party costs order. 41.The first is where the third party is considered to be the real party interested in the outcome of the suit. And the second is where the third party has been responsible for bringing the proceedings and they have been brought in bad faith or for an ulterior purpose or there is some other conduct on his part which makes it just and reasonable to make the order sought against him. 42.On the first situation, it is not necessary for the non-party to be the only real party to the litigation. It is sufficient if he is a real party in very important and critical aspects: Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd [2018] 2 HKLRD 1145 (Big Island case), at [39] per Au-Yeung J[54]. 43.On the second situation, a non-party’s conduct in giving dishonest evidence or running a claim which he knows to be false in the primary proceedings is a relevant factor in deciding whether to order costs against him: [11] of Big Island case, per Au Yeung J[55]. Impropriety or the pursuit of speculative litigation may of itself support the making of an order against a non-party, but its absence does not preclude the making of such an order: [33] of Dymocks case, per Lord Brown. 44.In the different context of a director controlling or funding the company’s pursuit or defence of the litigation, it has been said that what matters most is whether it can be said that the director was seeking to benefit personally from the litigation. If the company’s stance was dictated by the real or perceived benefit to the director (whether financial, reputational or otherwise) or a personal windfall from the litigation, knowing that the company has no money to pay the other side’s costs if they lose, then it might be said that the director, not the company, was the “real party”: HJ InnoXcell Ltd v Teh Boon Khuan [2024] 5 HKLRD 462 (InnoXcell case), [29] & [31], per Simon Leung J[56]. 45.Alternatively, a non-party costs order may be made against a director where there is some form of impropriety or bad faith on his/her part which is causatively linked to the applicant unnecessarily incurring costs in the litigation. The touchstone is whether the director held a bona fide belief that the company had an arguable claim or defence and that it was in its best interest to advance. It is the impropriety in relation to the litigation, for which the non-party is to be regarded as responsible, that is relevant. 46.One example is where a director knew that the company had no genuine cause of action and knew that the company by virtue of its insolvency or financial state would be unable ultimately to pay the costs of the unsuccessful litigation, yet still prosecuted, defended and/or continued the proceedings for his own reasons: [32] & [33] of InnoXcell case, per Simon Leung J.[57] 47.In terms of evidence for non-party costs application, where the connection of the non-party with the original proceedings was so close that he will not suffer any injustice by allowing the admission of the evidence in the original proceedings, the evidence in the original proceedings is admissible against him in the non-party costs application: [13] of Big Island case, per Au Yeung J, applying 193G of Symphony Group Plc v Hodgson [1994] QB 179 (Symphony case). 48.Whether it is just and fair that a third party be bound by the evidence given at trial and the judge’s findings of facts in any given case depend on the nature and degree of his connection with the proceedings. Each case has to be considered on its own merits in order to ascertain whether the third party will suffer an injustice if he is held bound by the evidence and findings at trial: Deutsche Bank AG v Sebastian Holdings Inc [2016] 4 WLR 17 (Deutsche Bank case), at [17], [18] & [21], per Moore-Bick LJ[58]. 49.Since a non-party costs application involves an exercise of discretion, limited assistance is likely to be gained from the citation of other decisions at first instance in which judges have or have not granted an order of this kind: Ng Yuk Pui Kelly v Dung Wai Man & Others [2019] HKCFI 1157 (Kelly Ng case), at [12] per L. Chan J[59]. 50.It is wrong to treat the reported cases as providing a comprehensive checklist of factors that must be present in every case before the discretion can be exercised in any particular case. What may be sufficient to justify the exercise of the discretion in one case should not be treated as a necessary factor for the exercise of discretion in a different case: Systemcare v Services Design Technology [2012] 1 BCLC 14 (Systemcare case), [26], per Lewison J (as he then was)[60]. 51.An non-party costs order could be made without the judge finding that the case was exceptional, or that the non-party funded the proceedings, or that the party to the litigation became insolvent during the course of proceedings: [27], [33], [43], [47] of Systemcare case, per Lewison J (as he then was)[61]. 52.The court will treat a non-party costs application with caution and will only make a costs order in plain and straightforward cases. As non-party costs application is a summary procedure, it would not be appropriate to resolve dispute of facts on affirmations without the benefit of discovery or oral evidence: [9(a)] & [15] of Big Island case, per Au Yeung J, and [7] of Kelly Ng case, per L. Chan J. G. Conducts of Mok as MC member attributable to SG 53.In opposing the Summons, SG first submitted that Mok’s conducts (in particular his conduct of these proceedings) should not be attributable to it, at least for the purpose of deciding whether an non-party costs order should be made against it. 54.Citing [95] of Reyes J’s judgment in Wing Ming Garment Factory Ltd v The IO of Wing Ming Industrial Centre & Another (Wing Ming IO case)[62], SG submitted that, though Mok was AR of SG, pursuant to para 11(1) of Schedule 2 of BMO, Mok “may be treated as a member of the management committee in his own right, with the capacity to be appointed as chairman (original bold and italics)” and, thus, his conducts should not be attributable to SG for costs purpose[63]. 55.Mok conducted, SG added, the defence of IO in these proceedings as MC authorized Mok (instead of SG) to do so. All minutes of MC meetings concerned recorded that MC resolved to appoint “MC Chairman Mok”[64] (instead of SG) to instruct solicitors on IO’s behalf and/or to attend hearings to conduct IO’s case at the Trial[65]. 56.When Mok gave evidence at the Trial, he did so, SG emphasized, “as an individual and qua MC Chairman in his own right (original bold and italics)”, not as SG’s representative. Mok (instead of SG) was authorized by IO to make his witness statement. And, SG says, Mok never purported to give evidence, or make his witness statement, on behalf of SG[66]. 57.For the reasons below, I reject all SG’s submissions in this section above.
58.For avoidance of doubt, though FI did not take the same point of attribution, Mao’s conducts, and knowledge, at all material times while serving as AR of FI to MC are, for same reasons I explain in this section, be all properly attributable to FI. 59.Looking at minutes of annual general meetings of IO in the years of 2018[68], 2020[69] and 2022[70], para 4 of Mao’s witness statement for FI in these proceedings[71], and para 3 of FI’s NOO for these proceedings[72] put before me for the Summons, Mao was, I find, FI’s AR to MC from 2015 to 2017, and 2018 to 2020. Thereafter, Mao had served instead as AR of M&P to MC. H. Evidence of the Trial & Trial Findings admissible against FI on the Summons 60.Trial Findings and evidence adduced at the Trial are, FI submitted, inadmissible against it as a general rule according to Symphony case as it was a stranger to the Trial. This rule serves, FI says, to ensure a fair trial for the non-party as 1) parties are entitled to the independent judgment of a tribunal of the evidence actually before the tribunal; 2) it is unfair to rule against a non-party based on materials never addressed by it; and 3) it shields a non-party from prejudice arising from choices made by the original parties[73]. 61.Thus, it was said not proven as against FI, among others, that it had erected, and kept, Subject UBWs in breach of the DMC, BMO and BO etc., or that it had provided false evidence, as alleged by CC. FI, it stressed, was entitled at law not to participate at the Trial as CC had wrongly sued FI without locus standing in the first place. 62.Nonetheless, as [47] above shows, Symphony case itself also, I think, provides for exception to the above general rule. 63.On all the materials put before me on the Summons, FI had, I think, a very close connection with these proceedings from its beginning until the conclusion of the Trial.
64.For the following additional reasons on top of those in the preceding paragraph, FI suffers, I think, no unfairness or injustice if it is to be held to be bound by the evidence of the Trial and the Trial Findings.
65.All things considered, I conclude for reasons stated above that evidence adduced at the Trial and the Trial Findings are admissible against FI in my determination of the Summons. 66.For avoidance of doubt, though the point was not taken by SG, I also find SG (with Mok as its AR) having so close connection with these proceedings that SG suffers no injustice by being bound by the evidence of the Trial and the Trial Findings. They are therefore also admissible against SG in my determination of the Summons. I. FI caused these proceedings to begin and continue J. IO defended these proceedings not in its interest but to benefit FI personally 67.I agree with CC and find that FI had caused these costly proceeding to begin, and to continue for more than 5 years until the Trial Judgment, for the following reasons.
68.IO, FI submitted, had its “own good reasons”, and “arguable grounds”, to defend these proceedings and it was “in IO’s own interest” to defend them. The suggestion that “FI stands to benefit from these proceedings” is, FI argued, “farfetched” or “irrelevant”[104]. 69.I also reject all FI’s submissions above for the reasons given in the following paragraphs of this section. 70.FI obviously, I think, enjoyed benefit for having erected, and for maintaining, Subject UBWs at all material times.
71.Such continuing benefit to FI is no doubt, I think, a relevant consideration to be taken into account in deciding whether to make a non-party costs order against FI. 72.IO’s stance in defending these proceedings was also dictated, I think, by the real or perceived benefit to FI. This is apparent for the following reasons or evidence. And the bold attempt by FI to argue to the contrary wholly fails for reasons given by me below.
73.To the contrary, IO (and all/other owners of the Building) had, as I found in the Trial Judgment, suffered numerous detriments by December 2018 by reason of Subject UBWs (and other private UBWs to be mentioned below), and could, one thinks, suffer continuing detriment if the status quo existing in December 2018 is maintained for FI’s benefit.
74.On the Trial Findings, IO had in truth, I think, no arguable ground to defend these proceedings. Mao’s assertions at para 24 to 35 of Mao’s 2nd Affirmation, and FI’s contrary submissions in its skeleton, on specific points of the Trial Judgment made with the benefit of hindsight of reading the Trial Judgment and subsequent case law[120], are, I think, incapable of altering, and do not alter, the Trial Findings and my overall conclusions therein.
75.For all the reasons given in this section, IO had therefore, I think, no arguable ground to defend these proceedings. Defending these proceedings to maintain the status quo in fact does not benefit IO. The status quo in fact causes IO to suffer numerous continuing detriments. Hence, it is, I think, not in IO’s own interest to defend these proceedings (which is for benefit of FI). 76.Defending these proceedings is, I think, all the more so not in IO’s interest when IO:-
77.IO should, at the latest by November 2021, if not earlier, be aware that it could apply to Land Tribunal to join FI as third party to these proceedings: see decision of Court of Appeal handed down in November 2021 on joinder of STL in litigation over Flat 9A between CC and IO in CACV 96/2021[133]. Indeed, solicitors for CC had twice written to IO’s solicitors in November 2022 and March 2023 inviting IO to apply in vain[134]. 78.Joinder of FI as third party to these proceedings plainly offers IO divers obvious tactical advantages, including:-
79.But, IO, for reasons to be explained in next section, never availed itself of such application and had continued defending these proceedings alone for FI’s benefit using owners’ fund contributed by all owners of the Building. K. FI and SG together in effective control of MC 80.FI, it stressed, did not fund nor control IO’s defence. CC, said FI, produced no evidence to make good its claim of FI in control of MC (or IO). 81.MC, said FI by reference to evidence and exhibits, including minutes of MC meetings, in Mao’s 2nd Affirmation, always made IO’s own decisions, including those on the MBIS Notice, independently by majority rule. FI (or Mao) alone was in the minority of MC and could not control MC. Mao never controlled MC’s decisions nor IO’s handling of the MBIS Notice[136]. 82.SG had, it also submitted, never exercised any control of IO (or MC) in defending these proceedings. On the evidence and exhibits in Mok’s Affirmation, including minutes of MC meetings, SG stressed that 1) MC members themselves made all concerned decisions, including those on defending these proceedings, unanimously by consensus, and 2) Mok was merely one member of MC and acting on the collective decisions of MC. Mok, said SG, never conspired with Mao to control MC and there is no evidence to that effect. 83.SG should not, it added, be held responsible for having caused these proceedings. SG, it says, had nothing to do with the Subject UBWs. The dispute above UBW at Flat 4B (4B UBW) it owned, SG stressed, had already been settled prior to the commencement of these proceedings in December 2018. SG could not have been affected by the outcome of these proceedings. And SG did not stand to benefit from IO defending these proceedings[137]. 84.For the reasons that follow, I cannot agree with the above submissions of FI and SG. They focus mainly on what appear on the face of minutes of MC meetings. And these submissions do not give the full picture. One must have regard, I think, to the totality of the evidence adduced at the Trial, the Trial Findings and the evidence adduced on the Summons. 85.First, on the Trial Findings and the evidence adduced for the Summons highlighted below, as the two among all MC members that “mostly” handled the MBIS Notice, Mok as MC Chairman and Mao as MC member (the two of them being on “friendly terms [份熟友好]” according to Mok’s evidence at the Trial[138]) had, I think, taken their turn at critical moments to have decided against, and had taken every means open to them to delay as long as they could, removal of Subject UBWs and other private UBWs at the Building (including 4B UBW) and IO’s compliance with the MBIS Notice (in the above process, as shown below, Mok had, I think, reached his limit as far as he could, or would like to, go delaying removal of 4B UBW).
86.Secondly, though on the minutes of MC meetings produced by Mao and Mok in their affirmations, attending MC members had made all decisions, and passed resolutions (including the two MC Resolutions), over Subject UBWs, the handling of MBIS Notice and the defence of these proceedings unanimously, it should, I think, worth pointing out at the same time, and repeating my conclusions in earlier sections, that:
87.On the totality of the evidence, including the above salient ones, the only reasonable conclusion that one could come to, or the only reasonable inference that could be drawn, is, I think, that MMH (i.e. Mok for SG, Mao and Hung for FI) had, in the self-interest of SG and FI, effectively controlled MC at all material times over its handling of the MBIS Notice, removal of Subject UBWs and IO’s defending of these proceedings for the respective benefits of SG (see below) and FI (as explained above). 88.It does not matter, I think, whether or not other MC members attending these MC meetings with minority vote had, as alleged by Mok, acted “independently” in, what they believed, IO’s best interest, or had acted out of their self-interest or others’ interest. Were they to have any ulterior motive, they do not assist FI and SG. It simply means that these other MC members are at risk of having personal costs order made against them as well: Abdul Aziz Essa v Capital Globe Ltd & Anor [2012] 6 HKC 472, [33], per Barma J (as he then was). L. SG also caused these proceedings and benefitted personally 89.It is true that SG does not enjoy, I agree with SG, any tangible benefit arising directly from retention of Subject UBWs, or arising directly from the resolution of these proceedings. 90.But, notwithstanding Mok’s bare denial at para 16 of Mok’s Affirmation, on the totality of the evidence of the Trial, the Trial Findings and evidence adduced for the Summons, I maintain my earlier views expressed in the Trial Judgment that Mok could benefit from exonerating FI (or Mao) for its past misconducts over, inter alia, Subject UBWs and/or handling of the MBIS Notice and/or exonerating Mok’s own past misconducts as MC Chairman over the same [可能有動機替樂園（或茅）開脫，或為他作為主席的管委會的過去可能失責開脫] [183]. That enabled Mok to maintain his friendship with Mao and/or his reputation as MC Chairman within the Building. Such benefit above to Mok as AR of SG to MC could, at law, be attributable to SG for reasons I have already explained in section G above. 91.On the case law, Mok’s intangible and indirect benefit above, I agree with CC, could be considered as “benefit” for the purpose of making a non-party costs order against SG: see [44] above; The Creative Foundation v Dreamland Leisure Ltd & Ors [2016] 3 Costs LR 509, [8], [57-58] per Arnold J; and Latimer Management Consultants Ltd & Ors v Ellingham Investments Ltd & Anor [2007] 1 WLR 2569, [52] per Bernard Livesey QC. 92.But not for MMH’s effective control over MC (and IO) at all material times to resist and delay removal of Subject UBWs erected by FI, to resist and delay compliance of the MBIS Notice, and to defend, and to continue to defend, these proceedings for FI’s benefit, and also, for Mok’s control, and conduct, of, and in, these proceedings as MC Chairman and as IO’s factual witness (see section N below), these proceedings would not, I think, have been commenced in the first place, and would not have continued, at great legal costs, for 5 years against IO until the Trial. As such, I also agree with CC that SG should, like FI, be held responsible for causing these proceedings. M. FI and SG being the “real parties” to these proceedings 93.Both FI and SG denied in their skeletons being “real party” to these proceedings. So did Mok and Mao in Mok’s Affirmation and Mao’s 2nd Affirmation respectively. 94.However, on my findings and conclusions in sections G to L above, I am driven to conclude that both FI and SG should be considered “real party” to these proceedings (each of them is a real party in important and critical aspect of these proceedings). The two of them together controlled IO, and caused IO, to defend these costly proceedings in order to benefit from these proceedings personally. And, as shall be shown below, both FI and SG were guilty of impropriety in relation to these proceedings as well. 95.CC has therefore made out Ground 1 and Ground 2 against FI and SG. As to whether they (be it alone or together) warrant granting the costs order sought in the Summons, I would leave that important issue to “discretion” section below. N. SG and FI both guilty of impropriety in these proceedings at the expense of CC 96.There has, SG submitted, been no impropriety or bad faith on its part. Such serious allegations, said SG, have not been proven by cogent evidence. SG was at best “nominally” connected to these proceedings and Mok’s actions as MC Chairman in acting on the collective decisions of MC should not, SG says, be attributed to it[184]. 97.FI argued likewise. FI, it stressed, had taken no further step after its successful striking-out application and could not have thereafter acted improperly. It never participated in the Trial and Mao never gave evidence, let alone gave false evidence, at the Trial. Mao’s witness statement filed for FI was never adopted by him in the box, or adduced as IO’s evidence, at the Trial. 98.In any event, CC, said FI, had never incurred costs to deal with Mao’s witness statement at the Trial because it knew long ago that FI was no longer a party to these proceedings. If CC nonetheless chose to do so, FI could not be blamed for that[185]. 99.All the above submissions of SG and FI are, I think, without merit for the following reasons. 100.I start dealing with submissions given by FI, which focused on the Trial, which focus is, I think, too narrow when the real issue is whether FI was guilty of any impropriety in this litigation, for which FI is to be regarded as responsible for: see [45] above. 101.It cannot, I think, be denied that Mao made his witness statement for FI for this litigation while FI was a party to these proceedings. Mao had further verified its contents by signing on a statement of truth, which statement is solemn and carries serious consequence as a matter of law. 102.Under O.41A r.9(1), Rules of High Court[186], proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. Among the three elements to succeed in an application for contempt, the second one is that the statement has or would have interfered with the course of justice in some material respects. Actual interference with the course of justice is not required, provided that the making of the false statement was likely to cause such interference[187]. 103.Significantly, Mao had, as CC pointed out, made the following 2 material statements in his witness statement verified by his statement of truth i.e.
104.Mao was at all material times a shareholder and director of FI, which owned Flat 9B, received the 2012 Order from BA in 2012 and arranged the installation of the Glass Door by its contractor at the Opening in August/September 2013. 105.Considering the evidence adduced at the Trial and the Trial Findings, at the time of his signing his statement of truth in his witness statement for FI in about June 2019 (i.e. before FI succeeded in its striking out application 6 months later), Mao must, I think, have known of the falsity of, and had no honest belief of the truth of, the above 2 material statements and knew of their likelihood to interfere with the course of justice in these proceedings (i.e. when he gives evidence of them in the box in future or when Mok adopts them as his oral evidence in the box in future as per his witness statement for IO with similar contents[191] or in his supplemental witness statement, if any[192]). 106.CC had, in March 2023, made clear to FI (and Mao) of its serious allegations that Mao’s evidence in above respects in his witness statement are false when it invited FI to apply to join as a party. After the Trial Judgment was handed down in August 2024, the Trial Findings contrary to Mao’s statement in these respects cannot, one think, escape Mao’s attention. In any event, Ng had specifically repeated the said serious allegation against Mao by repeating para 17 and 18 of Mao’s witness statement in section E of Ng’s 2nd Affirmation 107.Nevertheless, in Mao’s 2nd Affirmation, Mao had, one notes, avoided specifically dealing with, or denying, these serious allegations raised by CC, including at para 34 thereof, where he no longer claimed that 1) the Glass Door was installed “to replace an existing old door at door B [取代當時在乙門洞口使用的舊門]”, or that 2) “PIL had submitted to BA the Certificate of Completion”, as he saw fit to verify these omitted contents by his signed statement of truth in his witness statement for FI over 5 years ago. 108.FI had avoided participating in the Trial. Mao had also avoided going into the witness stand at the Trial. But these false statements in Mao’s witness statement for FI, including the Certificate of Completion exhibited thereto as “MYF-5”, which statement was filed to Lands Tribunal in this litigation by FI’s then solicitors formerly also acting for IO in these proceedings, had found their way into the Trial as oral evidence of Mok, and as IO’s documentary evidence, for CC to tackle at the Trial. 109.And the above false statements (and false document) sourced from Mao are also, one notes, part of IO’s case that Mok had opened, and closed, for IO at the Trial (to the knowledge of Mao as MC member as he had assisted Mok in this respect) that CC must rebut at the Trial in order to prevail. After all, the alleged discharge of the 2012 Order was said to be one of the reasons for MC passing the two MC Resolutions (and one of the 3 positive defence for IO defending these proceedings alone for FI’s benefit until the conclusion of the Trial). 110.In order to deal with such false evidence and document adopted by Mok at the Trial (and sourced from FI or Mao) and not otherwise, CC had, I think, no choice but to have incurred substantial legal costs in amending NOA, in filing supplemental witness statements, in making enquiries with BA, in seeking and producing expert evidence, in cross-examining Mok and IO’s expert at the Trial[193], and in making factual and legal submissions on them. 111.But not for Mao’s “serious impropriety” regarding these false evidence put forward by FI in these proceedings before FI ceased to be a party, all the above substantial costs incurred by CC as a result could well have been saved. 112.Hence, I agree with CC, and conclude, that FI (or Mao) had committed serious impropriety in relation to these proceedings in bad faith, causing CC to incur legal costs unnecessarily in prosecuting these proceedings to its very end. 113.Turning to CC’s “impropriety” case against SG, I first repeat my reasons and conclusions at section G above. 114.Charged with the conduct of IO’s case at the Trial as MC Chairman in his capacity as SG’s AR, I regret to conclude that Mok had pursued IO’s defence at the Trial knowingly that it was false in material respects mentioned above, and that he called IO’s sole factual witness at the Trial knowing that his own evidence was also false in material respects mentioned above. Of course, Mok had also signed statement of truth to verify contents of his witness statement. 115.I can do no better than to repeat my observations about Mok’s credibility at the Trial i.e. there are so many discrepancies between his oral evidence and IO’s case on so many material respects that it is unheard of before. He had substantially revised his oral evidence in the stand as compared against contents of his witness statement and contents of documentary evidence adduced at the Trial [莫遭吳大律師盤問下，作出了大量和法團案情不一（或符合中紀案情）的招認，數量之多，所涉的關鍵之處之多，實屬少見。仔細比較，莫的庭上證供，和他的證人陳述書内容，在關鍵之處多處前後不一（莫大幅度修改或撤回其證人陳述書經他簽署屬實申述確認的眾多關鍵内容），也與呈堂關鍵文件的内容不符][194]. 116.At the trial, IO had, I find, put forward Mok, a witness “full of lies” [滿口謊言], “seeking to deceive this Tribunal” [嘗試欺瞞審裁處] “in an attempt to delay further the rectification of Subject UBWs” [企圖進一步拖延該違章建築的更正][195]. 117.Mok’s impropriety in this litigation − including his giving of false evidence and knowingly running a false defence – and his bad faith in conducting and maintaining IO’s false defence by means of false evidence have undoubtedly, I agree with CC, compelled (or caused) CC to continue these proceedings through to the conclusion of the Trial, incurring unnecessarily substantial costs in the process. 118.CC has therefore also made out Ground 3 against SG and FI. Again, I leave to “discretion” section below to consider whether this ground and/or other grounds established warrant me to exercise my discretion under s.12(2) of LTO. O. Manifestly unjust for CC to contribute its own costs of these proceedings 119.In support of this ground, Ng at para 36 and 37 of Ng’s 2nd Affirmation relied on the following facts (I accept them as they are not opposed by Mok or Mao in their affirmations filed for the Summons), namely that:
120.Therefore, the factual premises of CC for Ground 4 has, I think, been made out on the evidence before this Tribunal. 121.In its submissions, CC, it stressed, began these proceedings in the interest of all owners of the Building, in order to compel IO to comply with its duties under the DMC and BMO. Due to, said CC, misconducts of SG and FI, these proceedings against IO had to be pursued until the conclusion of the Trial before CC prevailed. Were non-party costs not awarded against SG and FI, it would, CC argued on the above facts, result in a manifestly unjust outcome – where CC (and its related company i.e. CDL), despite being the successful party at the Trial and through no fault of its own, would be unfairly penalized and required to bear its own costs[200]. 122.In opposing this ground, SG argued that any alleged costs unfairness to CC as CC might suggest does not per se justify making a non-party costs order against it.
123.Relying on [58]-[62] of judgment of UK Supreme Court in XYZ v Travelers Insurance Co Ltd [2019] 1 WLR 6075 (XYZ case), FI also opposed Ground 4 by submitting that any imbalance in cost liabilities caused by a losing party’s impecuniosity only supports a non-party costs order if that imbalance arose from the non-party’s conduct. But CC produced, said FI, no evidence to show that FI is the reason that IO lacks sufficient fund, necessitating it seeking contributions from all owners to pay legal costs. 124.FI next argued, by reference to [60]-[61] of XYZ case, that a party cannot rely on another’s impecuniosity to justify non-party costs liability if it knew about the asymmetry beforehand yet still chose to incur expenses litigating. CC, said FI, had known as early as on 5 December 2019 that IO had to resort to “management fees” payable by all owners to pay for its legal costs for litigation[202]. 125.With respect, XYZ case does not, I think, assist FI much on this ground. I give the following reasons.
126.This Tribunal therefore finds it more appropriate to consider this causation point raised by FI in “discretion” section below, where I am obliged on the case law to consider whether it is in the interest of justice on Ground 4 and/or other grounds established to grant the costs orders sought against FI and SG. 127.But, let me make a few observations here first.
128.Moving to SG’s opposing submissions on this ground, for similar reason of different context of building management in our case, I do not find it particularly helpful or suitable to apply the principle of “limited liability” to our case as SG had submitted. 129.Similarly, for reason of different context, I do not find the two cases of 1) Goldberg v Primelodge [2023] Costs LR 469 and 2) Transomas Ltd v Kheri Trading Ltd [2024] EWHC 1349 (Ch) cited by CC to support this ground entirely helpful or suitable, and I therefore do not address SG’s submissions in its skeleton on them. 130.In substance, SG’s submission, I think, also goes to whether Ground 4 alone justifies this Tribunal exercising its discretion under s.12(2) of LTO. Save except to give my observations at [127] above, I also defer my consideration of the remaining “undisposed” parts of SG’s submissions on this ground to “discretion” section below. P. Lack of timeous warning to SG 131.This is the last of SG’s submissions. CC’s failure to give a timeous warning of seeking non-party costs order against SG is, SG submitted, a material factor militating against the costs order sought in the Summons against it. 132.It is common ground that CC had given no prior warning of this costs application to SG (or Mok) before it took out the Summons in August 2024. 133.An important purpose of a timeous warning is to alert the non-party to the risks of being personally liable for the legal costs so that he may give due consideration to whether to play, or continue to play, a role in the proceedings and, if so, the extent of it, before taking any or any further step in the proceedings: [92] of Edwin Leung case, per Chu JA (as she then was). 134.However, absence of a warning to the non-party is simply one factor which the court will take into account in an appropriate case when deciding, whether, viewed overall, it would be unjust to exercise the discretion in favour of making an order for costs against the third party: [12] of Ng Yuk Pui case, per L. Chan J[210]. The importance of a warning varies from case to case and it might depend on the extent to which it would have affected the course of the proceedings: [73] of Big Island case, per Au Yeung J[211]. 135.If the third party against whom an order for costs is sought is the real party to the litigation, the absence of a warning may be of little consequence: [32] of Deutsche Bank case, per Moore-Bick LJ. Given my earlier finding that SG is a “real party” to these proceedings, this principle applies, I think, against SG. 136.Moreover, it is not open to a third party who had decided to pursue a claim with dishonest evidence in an attempt to deceive the court to complain that it has received no warning beforehand. The third party must bear the consequences of its futile deceitful exercise: [74] of Big Island case, per Au Yeung J[212]. Again, on my earlier findings of “impropriety” against SG, this principle, I think, also applies against SG in our case. 137.In any event, Mok never, I note, said in Mok’s Affirmation that he (or SG) would have acted otherwise than he (or it) did had he (or SG) received any timeous warning from CC beforehand. 138.As with Ground 4 and other grounds above, I will leave this one factor to be considered together with other factors in “discretion” section below, where I will consider the ultimate question whether it is just to make the order sought in the Summons. Q. Discretion exercised against SG and FI in these proceedings in the interests of justice 139.Considering all grounds (for Ground 4, at least its factual premises) made out by CC, the causation and warning points raised by FI and SG respectively, in the round, on the authorities cited, and for reasons given, in the last section, I first decide to give no weight to the warning point made by SG. 140.After careful consideration, Ground 4 per se, I agree with SG, is insufficient to warrant a non-party costs order against SG for my observations at [127] above. Put simply, this is a ground that could apply “across the board” in almost every building management dispute between an owner and its owners’ corporation. 141.I also agree with causation point raised by FI against Ground 4. CC had not complained, nor proven by evidence, that any alleged misconducts of SG or FI had turned IO into its financial situation as at 30 June 2024. After all, CC had engaged in other costly proceedings with IO (e.g. LDBM 118/2017 over Flat 9A) at the same time of these proceedings. Moreover, after, and knowing, the passing of the Contribution MC Resolution in December 2019, CC, as FI submitted, still pressed on incurring great costs to prosecute these proceedings to its end. As such, Ground 4 is, as I hold above, insufficient on its own for the purpose of the Summons. 142.Considering the way CC put forward them, Ground 1 and Ground 2 are, I note, intertwined, as Ground 1 also requires effective control of SG and FI over MC complained in Ground 2. I therefore find it appropriate to consider them together. 143.On Ground 1 and Ground 2 combined against FI, I beg to differ from FI’s incorrect description at para 3 to 7 of its skeleton of the circumstances of the subject tripartite building management dispute among CC, IO and FI over Subject UBWs. 144.The true circumstances on all the cogent evidence before this Tribunal adduced at the Trial and on the Summons, together with the Trial Findings, are that IO had sided with FI over Subject UBWs in FI’s favour and defended these proceedings caused by FI and SG to its very end for their benefit and to the detriment of all owners (as MC was under their joint control of FI and SG) in total disregard of IO’s duties under the DMC and BMO and in deliberate breach of the same. FI (not IO), is, as I find, a “real party” to these proceedings. 145.Regarding CC’s case on Ground 1 and Ground 2 combined against SG, in contra-distinction from the general scenario postulated by SG at [122(2)] above, by way of added features to our case, Mok, as MC Chairman by way of SG’s AR to MC, misconducted himself over removal of Subject UBWs, controlled MC together with Mao (and Hung) to side with FI, and caused IO to defend, and to continue defending, these proceedings alone for FI’s (and his) benefit until its conclusion in total disregard of IO’s duties under BO, the DMC and BMO. SG (not IO), as I find, is a “real party” to these proceeding as well. 146.This Tribunal at all times remembers protection given to a member of a management committee under former s.29A(1) of BMO that prevailed prior to 13 July 2025[213] (i.e. before commencement of Building Management (Amendment) Ordinance 2024). But, on my findings above, Mok as MC Chairman had, I regret, not to have acted in good faith or in a reasonable manner over Subject UBWs and these proceedings. 147.All things considered, I find it in the interests of justice to exercise my discretion under s.12(2) of LTO against SG and FI on Ground 1 and Ground 2 together. 148.For the record, let me make it clear that there is sufficient causal link between misconducts of FI and of SG on Ground 1 and Ground 2 and CC’s costs of these proceedings now sought to be recovered from them under the Summons. 149.Moving to Ground 3, on the authorities and in the particular circumstances of this case, this ground alone, I conclude, is also sufficient to warrant me exercising my discretion against SG and FI. 150.It is, I think, just and reasonable to hold FI and SG responsible for their serious improprieties in these proceedings, which have caused CC to have unnecessarily incurred substantial costs in order to overcome the false evidence and document adduced by, and the false defence of, IO in these proceedings conducted by Mok (as AR of SG) but with their origin from Mao (of FI). 151.Were I wrong on either my conclusion in [147] or [149] above, I am also convinced that it is in the interests of justice to make non-party costs order against SG and FI as sought in the Summons on Ground 1, Ground 2 and Ground 3 together. 152.Were I still wrong on my conclusion in the preceding paragraph, I also find it just on Grounds 1 to Ground 4 combined to exercise my discretion to make SG and FI personally liable to pay CC the costs of these proceedings payable by IO to it after the Trial. 153.While Ground 4 alone is insufficient for the above purpose, it adds, I think, weight to CC’s overall case on the Summons. 154.The outcome envisaged on Ground 4, I agree with CC, is unjust, if not manifestly unjust, in the particular circumstances of this building management dispute for the following reasons.
R. Disposition of the Summons 155.On my conclusion in the last section, I therefore make the orders below on para 2 of the Summons: -
S. Costs of the Summons 156.Costs normally follow the event. 157.As between the Applicant and the 4th Respondent, I make my first costs order nisi that all the costs of and incidental to the Summons, including all reserved costs and the costs of the hearing on 28 April 2025, together with certificate for two counsels for the Applicant, be paid by the 4th Respondent to the Applicant, to be taxed on High Court scale if not agreed. 158.And, as between the Applicant and the 5th Respondent, I make my second costs order nisi that all the costs of and incidental to the Summons, including all reserved costs and the costs of the hearing on 28 April 2025, together with certificate for two counsels for the Applicant, be paid by the 5th Respondent to the Applicant, to be taxed on High Court scale if not agreed. 159.Each of the above two costs order nisi shall become absolute if no application to vary the same is taken out by the parties concerned after expiry of 14 days from the handing down of this decision.
Lawrence KF NG leading Henry CHENG, instructed by C.W. Chan & Co., for the Applicant Mike LUI SC leading Cristian TSANG, instructed by Fred Kan & Co., for the 4th Respondent Anson WONG Yu Yat leading Jonathan IP, instructed by V. Hau & Chow, for the 5th Respondent [1] Cap.344 [2] Centre Chase Investment Limited, abbreviated as “中紀” in the Trial Judgment. [3] The Incorporated Owners of International Industrial Building, abbreviated as “法團” in the Trial Judgment [4] Together with certificate for 2 counsels for the Trial, after CC successfully applied to vary it on 7 October 2024 [5] [2024] HKLdT 66, costs order nisi at [239] & [240] [6] abbreviated as “樂園” in the Trial Judgment. [7] abbreviated as “群星” in the Trial Judgment. [8] Cap.17. S.12(1) & (2) of LTO are not materially different from s.52A(1) & (2) of High Court Ordinance, Cap.4, and all legal teams before me cited authorities on them and their UK and overseas equivalents. [9] As shall be seen below, FI objected to admissibility of Trial Findings as against it in the determination of the Summons. [10] [3], [5] & [18] of Trial Judgment [11] 伍顯中abbreviated as “伍” in the Trial Judgment. [12] 康強發展有限公司 [13] [3] of Trial Judgment [14] 莫泮光 abbreviated as “莫” in the Trial Judgment [15] 授權代表 [16] [2] & [18] of Trial Judgment [17] 茅幼方abbreviated as “茅” in the Trial Judgment [18] 森德利有限公司 [19] 茅氏國際有限公司 [20] 孔玉貞abbreviated as “孔” in the Trial Judgment [21] [5] of Trial Judgment [22] Top Property Services Co. Ltd. (置佳物業服務有限公司), abbreviated as “置佳” in the Trial Judgment [23] pursuant to r.26 of Lands Tribunal Rules, Cap.17A [24] abbreviated as “該防護門廊” in Trial Judgment [25] abbreviated as “該洞口” in Trial Judgment. Its location is called “【乙門】” [26] abbreviated as “該玻璃門” in Trial Judgment. Its location is also “【乙門】” [27] [10], [14], [19], [20], sections I1, I3, & I8 of Trial Judgment [28] Cap.123 [29] Section I3 of Trial Judgment [30] LDBM 148/2013 [31] [14], [20], [55], [58-61], sections I3 & I4, and [150] of Trial Judgment [32] abbreviated as “該違章建築” in Trial Judgment [33] Sections J5-J7 of Trial Judgment [34] Sections J1, J2 & J10 of Trial Judgment [35] Section J3, J4, J8 of Trial Judgment [36] Section I2 of Trial Judgment [37] 利銀國際有限公司 [38] Cap.123N [39] [14], [21], [152-153], section I6, and [157] of Trial Judgment [40] [16], [22], [92-93], [117], sections J11 & J12 of Trial Judgment [41] Section L of Trial Judgment [42] [64]. [67-69], [71], [80], [82-84], [88] & Section I7 of Trial Judgment [43] abbreviated as “藝建” in the Trial Judgment [44] abbreviated as “郭浩” in the Trial Judgment [45] [12], [15], [75-77],[90-91], [94-96], [98-99], section K, and [237] of Trial Judgment [46] Sections M & O of Trial Judgment [47] [17], [24], and section N of Trial Judgment [48] Their order as submitted by CC have been rearranged by this Tribunal [49] Section H of CC’s skeleton [50] Section G of CC’s skeleton [51] Section F of CC’s skeleton [52] Section I of CC’s skeleton [53] Section D of CC’s skeleton, section C of FI’s skeleton, section C of SG’s skeleton, and section A, D & E of CC’s reply skeleton [54] See also [24] of Dymocks case at 2815H. [55] Citing, among others, R+V Versicherung AG v Risk Insurance & Reinsurance Solutions SA [2006] EWCA Civ 314 at [15] & [16], per Chadwick LJ [56] Citing Goknur v Aytacli [2021] 4 WLR 101, [2021] EWCA Civ 1037 (Goknur case), whose [40] was cited with approval by Mimmie Chan J. at [11] of Hydrotech Waterproofing Solutions Ltd v Shun Yuen Construction Co Ltd [2023] HKCFI 601 [57] Citing Goknur case, Symphony case [58] Explaining Symphony case and citing Dymocks case at [19] & [20] [59] Citing [62] of Deutsche Bank case, per Moore-Bick LJ [60] Agreed by Ward LJ and Lloyd LJ [61] Having considered, inter alia, Symphony case, Dymocks case, and Metalloy case [62] unreported, HCA 8805/1993, 20 December 2007 [63] Para 16 of SG’s skeleton [64] “莫主席”、“莫泮光主席”、“主席莫泮光” [65] Para 17 of SG’s skeleton [66] Para 18 of SG’s skeleton [67] unreported, LDBM 208/2002, 17 February 2005 [68] Bundle for the 2nd stage hearing of the Summons (HB) p.333 [69] HB p.339 [70] Trial Bundle (TB) p.759 [71] HB p.747 [72] HB p.150 [73] Section C3 of FI’s skeleton [74] HB p.93, para 16(4) of Ng’s 2nd Affirmation [75] HB pp.148-157 [76] HB pp.706-727 [77] HB pp.572-574 [78] HB pp.576-588 [79] HB p.589 [80] HB p.593 [81] HB pp.590-591 [82] HB pp.455-457 [83] HB pp.458-461 [84] HB p.108-14 [85] HB pp.382-383, 385-387 [86] HB pp.398-401, 403-405, 407-413 [87] Centre Chase Investment Ltd v International Industrial Building, Castle Peak Road (IO) [2021] 5 HKLRD 457, [15.1], [15.2] per Yuen JA [88] HB p.465 [89] HB pp.745-760 [90] It reads: “The Tribunal may admit in evidence any statement, document, information or matter, whether or not it would otherwise be admissible in evidence and attach such weight to it as may be appropriate in the circumstances (italics supplied)”. [91] [63] of Trial Judgment. HB p.686. It became part of exhibit “MPK-6” of Mok’s witness statement for IO. [92] HB pp.687-689. It also became part of exhibit “MPK-6” of Mok’s witness statement for IO. [93] HB p.162(enclosing Amended Reply of CC) & p.731 [94] HB p.496[116], p.497[118] & p.511[165], found at pp.913-914 of Trial Bundle [95] Centre Chase Investment Ltd v International Industrial Building, Castle Peak Road (IO) [2021] 5 HKLRD 457 [96] HB pp.160-161 (enclosing Amended NOA of CC) [97] Deutsche Bank case was decided in 2015 And Big Island case was decided in 2018. [98] FI orally complained as late as on 28 April 2025 hearing that CC’s solicitors’ two letters to FI dated 21 November 2022 and 9 March 2023 gave no warning of seeking non-party costs order against FI. It should, however, be noted that Mao never responded to these 2 letters in Mao’s 2nd Affirmation to suggest that any such warning from CC would have caused FI to have acted differently as it did, such as applying to join as a party to these proceedings afterwards. [99] [70] of Trial Judgment, HB pp.763-766 [100] As events unfolded from August to December 2024 to be mentioned below, it did not take long for FI to comply with CC’s demands. Nor did FI complain to IO of any difficulty or great expenses in doing so. [101] [90] of Trial Judgment [102] [95] of Trial Judgment, HB p.773 [103] [102] of Trial Judgment [104] Section D3 of FI’s skeleton [105] HB p.256 (IO to FI dated 26 August 2024), p.257 (FI to IO dated 6 September 2024), p.258 (FI to IO dated 12 September 2024), pp.642-646 (CC to IO dated 7 November 2024 copied to FI), p.259 (IO to FI dated 8 November 2024), pp.648-649 (IO to FI dated 13 November 2024 copied to CC), p.647 (IO to CC dated 13 November 2024 copied to FI), pp.651-652 (FI to IO dated 21 November 2024 copied to CC), pp.542-543 (FI to manager of the Building dated 13 December 2024 coped to MC), pp.544-551 (FI to manager of the Building dated 18 December 2024 coped to MC, enclosing certificate of completion of Class I minor works) [106] HB p.568 [107] “因為除非法團成功抗辯，樂園並沒有任何【得益】可言” [108] [92] & [117] of Trial Judgment [109] [93] of Trial Judgment [110] To put the record straight, CC never sought an order in these proceedings compelling IO itself to restore 9/F to its original state. [111] [64] of Trial Judgment [112] [67-69], [75-77] & [211] of Trial Judgment [113] [71], [80], [82-84], [213-214] of Trial Judgment [114] [66] of Trial Judgment [115] [238] of Trial Judgment [116] [50], [51], section F5, 附件1，[143(4)], sections J5-J7 of Trial Judgment [117] [111], section J10 of Trial Judgment [118] S.18(1)(c) of BMO reads “… do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant (if any) for the control, management and administration of the building” [119] S.18(1)(b) of BMO reads “…carry out such work as may be ordered or required in respect of the common parts by any public officer or public body in exercise of the powers conferred by any Ordinance” [120] Section D3b of FI’s skeleton [121] [145] & [147(4)] of Trial Judgment [122] [154(1)] of Trial Judgment [123] [147] of Trial Judgment [124] [148], [149] of Trial Judgment [125] [113], [152], [153] of Trial Judgment [126] HB p.755 [127] HB p.152 [128] [92], [93] of Trial Judgment [129] [154] of Trial Judgment [130] Centre Chase Investment Ltd v International Building (Castle Peak Road) (IO) (No 3) [2025] 1 HKLRD 532, [46] per Cheung JA [131] Section J of Trial Judgment [132] Section N of Trial Judgment, especially [226(2)&(3)], [232(3)], [232(5)&(6)] of Trial Judgment [133] Centre Chase Investment Ltd v International Industrial Building, Castle Peak Road (IO) [2021] 5 HKLRD 457, [14-19] per Yuen JA [134] HB pp.163-165 [135] Failing such joinder of FI as third party, on top of new ground like issue estoppel and/or abuse of process raised by FI against IO, FI might require IO to re-litigate every issue already decided in these proceedings when IO is compelled by the Trial Judgment to take separate proceedings against FI afterwards. [136] Sections D1 & D2 of FI’s skeleton [137] Section E & G of SG’s skeleton [138] [133(3)] of Trial Judgment [139] HB p.585 [140] [147(2)-(4)] of Trial Judgment [141] [148] of Trial Judgment [142] [68] of Trial Judgment, HB p.92, para 16(1) of Ng’s 2nd Affirmation and Exhibit “NHC-17” [143] HB p.341-343 [144] 14 votes (or 260 shares) for resolution proposed as agenda one as against 9 invalid votes (or 131 shares) on it (i.e. not 9 abstain as claimed by Mok at para 26(1) of Mok’s Affirmation) [145] HB p.419 [146] HB pp.419 & 421 [147] HB p.420 [148] Abbreviated as “該41案” in Trial Judgment [149] See minute of MC meeting (attended by Mao as 12/F representative) dated 20 March 2017 at HB pp.364-368 [150] [17], footnote 11, [18], [133(2)] of Trial Judgment [151] HB pp.364-368, see also MC meeting held on 27 July 2017 at HB pp.370-374 [152] The last of them on 15 May 2017 [153] HB pp.767-769 [154] [133(4)] of Trial Judgment [155] HB pp.345-348 [156] HB p.354 [157] HB p.356-357 [158] HB p.359 [159] HB p.362 [160] [211] of Trial Judgment [161] [75-77], [212-213] of Trial Judgment [162] became CACV No.96/2021 on appeal [163] HB pp.194-229 [164] HB p.555-557 [165] [82-84]. [88], [214-215] of Trial Judgment [166] HB p.637 [167] [85] of Trial Judgment [168] [133(4)] of Trial Judgment [169] [72], [86], [90] of Trial Judgment [170] HB p.773, [95] of Trial Judgment [171] [220] of Trial Judgment [172] HB p.774 [173] [91], [94], [96] of Trial Judgment [174] [98], [99], [216-217] of Trial Judgment [175] [219(3)], [219(5)], [237] of Trial Judgment [176] [207-209] of Trial Judgment [177] [210], [238] of Trial Judgment [178] [237] of Trial Judgment [179] [237] of Trial Judgment [180] [104], [105], [107-108], [112], [160], [219(4)], [237] of Trial Judgment [181] Taken from para 23 of Mok’s Affirmation [182] [62] and section I6 of Trial Judgment [183] [133(3)] of Trial Judgment. The false evidence recorded in many parts of Mok’s witness statement, and Mok’s dishonest and evasive oral evidence at the Trial, reinforced my views: see section N below. [184] Section F of SG’s skeleton [185] Section D4 of FI’s skeleton [186] Cap.4A [187] Hong Kong Civil Procedure 2025, Volume 1, p.1026, commentary para 41A/9/1 [188] HB p.750 [189] HB p.754 [190] HB p.755 [191] See para 5.2, 15 and 16 (including Exhibit “MPK-6”) of Mok’s witness statement for IO at HB pp.654 and 657. Included in “MPK-6” are BA 2014 Letter and the Certificate of Completion, found at pp.503-511 of Trial Bundle. [192] See para 8 & 9 of Mok’s supplemental witness statement at HB pp.668-669, especially last 3 sentences of para 9, which read: “而在提供關於反對通知書的指示時，法團只依賴9B業主事後提供的表述，從而得出當時補救工程應為小型工程的結論 (bold supplied)”。 [193] [73], [74], [78], [79], [81], [101], [113], [119-121], [136] of Trial Judgment [194] [133(1)] of Trial Judgment [195] [237] of Trial Judgment [196] HB p.230 [197] HB p.231 [198] HB p.234, 134 shares voted for the resolution while 188 shares voted against it. [199] HB p.238 [200] Para 52 of CC’s skeleton [201] Section H of SG’s skeleton [202] Section E2 of FI’s skeleton [203] 6077H-6078B, [2], per Lord Briggs JSC (with whom Lady Black and Lord Kitchin JJSC agreed) [204] [30], per Lord Briggs JSC [205] It describes a situation where one side faces having to pay the other side’s costs if it loses, but the other side faces no such risk if it loses. Put the other way round, one side gets its costs if it wins, but not the other side if it wins: [20], [58], per Lord Briggs JSC [206] It arose for uninsured claimants in XYZ case because 1) their claims are outside cover provided by insurer; 2) the insured later went into insolvent administration; 3) their claims were made in group litigation together with claims of insured claimants providing for entitlement to recover costs on several, and not joint, basis; and 4) after disclosure of insurance cover of the insured, they nonetheless carried on hoping to get non-party costs order against the insurer if they succeed in their claims against the insured: [12], [61], [82], per Lord Briggs JSC [207] [65], [74], [80], [83], per Lord Briggs JSC. Lord Reed DPSC opined at [84], [106]-[112] that “exceptionality” is not a necessary pre-condition of an award of non-party costs order, explaining what Lord Goff in Aiden Shipping Co Ltd v Interbulk [1986] AC 965, 980F, meant was that cases in which it is just to make a non-party costs order form only a small proportion of the total. “Exceptionality” means no more than outside ordinary run of case: see [39] & [51] above. [208] Under s.17(1) of BMO, execution of a judgment or order made against a corporation may be issued (a) against any property of the corporation, or (b) with leave of the tribunal, against any owner. [209] An owners’ corporation could have, one imagines, funding from its liability insurer or from particular owner(s), sufficient assets of its own, or sufficiently large income source(s) other than owners’ contributions or management fees to pay legal costs awarded against it. But such situations are, I think, relatively rare, except, perhaps, for third party liability insurance over common parts and property of corporation, which is compulsory for owners’ corporations under s.28(1) of BMO. [210] Quoting [62] of Deutsche Bank case, per Moore-Bick LJ, who in turned referred to Dymocks case [211] Citing [32] of Deutsche Bank case, per Moore-Bick LJ, who in turned referred to Dymocks case [212] Citing R+V Versicherung AG v Risk Insurance & Reinsurance Solutions SA [2006] EWCA Civ 314 at [18] & [19], per Chadwick LJ [213] It reads: “No member of a management committee, acting in good faith and in a reasonable manner, shall be personally liable for any act done or default made by or on behalf of the corporation —(a) in the exercise or purported exercise of the powers conferred by this Ordinance on the corporation; or (b) in the performance or purported performance of the duties imposed by this Ordinance on the corporation (italics supplied)”. | ||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under LDBM 256/2018