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

LDBM 256/2018

[2026] HKLdT 10

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO.256 OF 2018

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BETWEEN

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DECISION

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A. Leave sought to appeal against costs order

1.I adopt in this decision the same abbreviations in my Decision dated 29 August 2025 (the Decision)[1]. Unless specifically referred to named documents, all reference to paragraph numbers herein (para) and to footnote numbers herein are to those of the Decision.

2.The Decision was made by this Tribunal on the determination of the Summons taken out by the Applicant (CC) pursuant to ss.12(1) & (2) of LTO[2].

3.At para 155(1) & 155(2), this Tribunal ordered respectively the 4^th Respondent (FI) and the 5^th Respondent (SG) personally to pay CC the costs of these proceedings, including the costs of the Trial between CC and IO, as ordered by this Tribunal against IO in the Trial Judgment[3] as it was later varied and made absolute[4] (the Costs Order vs R4, the Costs Order vs R5, and collectively the 2 Costs Orders).

4.Dissatisfied with the Costs Order vs R4 and the Costs Order vs R5 made against them respectively, FI and SG applied for leave to appeal to the Court of Appeal by way of Interlocutory Application filed respectively on 26 September 2025 (FI’s Application) and 12 September 2025 (SG’s Application).

5.CC opposed both FI’s Application and SG’s Application. This is my decision disposing of both applications on paper after receiving written submissions and additional authorities from two counsels from CC, FI and SG each.

B. Background to the Trial Judgment

6.These can be found in Sections B & C of the Decision. For present purposes, the following points may be highlighted.

B1. FI and Mao

7.FI (corporate owner of Flat 9B), was formerly the 3^rd respondent to this application taken out by CC against three respondents (the second respondent, Top Property, was then manager of the Building) and had filed its NOO (and a witness statement of Mao (Mao’s W/S), its director and shareholder) to defend this application.

8.Mao (茅) served as FI’s AR under BMO to MC from 2015 to 2020 (and thereafter served as AR of M&P, corporate owner of Flats 12AB, to MC). Mao was also a shareholder and director of M&P and STL (corporate owner of Flat 9A).

9.One firm of solicitors initially represented both FI and IO (the 1^st respondent) in this application. FI later struck out CC’s claim against it for lack of locus standi and ceased to be a party to this application. The Trial ultimately proceeded against IO alone with IO acting in person.

B2. SG and Mok

10.Mok (莫), a director and shareholder of SG (corporate owner of Flat 4B), and SG’s AR to MC under BMO as well as MC Chairman, conducted IO’s defence in person before this Tribunal at the Trial as IO’s authorized representative pursuant to s.26 of LTO. MC Chairman Mok had made witness statements as IO’s witness and called himself at the Trial as IO’s sole factual witness.

B3. Relief granted to CC against IO after the Trial

11.By way of relief granted after the Trial, CC obtained in the Trial Judgment a mandatory order compelling IO to perform its duties under the DMC and BMO to enforce against FI provisions of the DMC and BMO, inter alia, to require FI to remove the Glass Door, fill up the Opening that FI had caused to be erected and made (the Opening and the Glass Door collectively Subject UBWs), and to require FI to reinstate wall of 9/F Protected Lobby that FI had damaged, including, if necessary, by IO taking out enforcement proceedings against FI.

B4. Subject UBWs erected by FI

12.By erecting Subject UBWs in 2012 (making of the Opening at that side of wall of 9/F Protected Lobby adjoining Flat 9B FI owned at door B location) and in 2013 (installing the Glass Door at the Opening) in breach of s.14(1) of BO, FI obtained and enjoyed the Direct Access that it does not otherwise enjoy.

B5. Order and litigation leading to the Settlement Agreement between FI & IO, and BA 2014 Letter to FI

13.Pursuant to s.24(1) of BO, BA had served the 2012 Order on FI requiring FI’s “reinstatement (還原)”. IO had thereafter sued FI in 2013 LT Proceedings. Afterwards, FI and IO reached the Settlement Agreement to stay 2013 LT Proceedings. In 2014, FI had received from BA BA 2014 Letter regarding the 2012 Order after engaging a contractor called PIL to install the Glass Door at the Opening.

B6. MBIS Notice to IO prescribing inspection (& report of UBWs) and repairs of common parts

14.In 2015, BA served on IO MBIS Notice requiring prescribed inspection and repairs to all common parts (including 9/F Protected Lobby and its wall adjoining Flat 9B). Subject UBWs (and other Private UBWs) were required under BO to be reported to BA in inspection report prepared by RI appointed to comply with MBIS Notice.

15.First RI appointed by IO i.e. AHL was dismissed by IO after finishing its inspection report. Second RI appointed by IO i.e. K&H had its second inspection report already submitted to BA withdrawn at IO’s demand. And IO had threatened Top Property with legal action after Top Property demanded FI to remove Subject UBWs.

B7. Two MC Resolution ratifying Subject UBWs

16.Attending MC members, consisting of, inter alia, MC Chairman Mok, Mao and, Mao’s personal secretary, Hung (who also served as AR of STL to MC under BMO) (Mok, Mao and Hung collectively MMH), had unanimously resolved at MC meetings by way of 2019 MC Resolution (and signed the 2019 Statement (嚴正聲明) referred therein) and 2023 MC Resolution to approve or ratify FI’s conversion of common parts of 9/F Protected Lobby to its private use by way of Subject UBWs on the purported grounds of the 2012 Order, the 2013 LT Proceedings, the Settlement Agreement and BA 2014 Letter.

B8. All IO’s defence rejected after the Trial

17.In the Trial Judgment, this Tribunal disbelieved Mok, found him a liar after hearing him in the box, and rejected all IO’s defence to these proceedings in its Amended NOO settled by two counsels (i.e. the 2012 Order, the 2013 LT Proceedings, the Settlement Agreement, BA 2014 Letter and the Two MC Resolutions) on the applicable law and/or its findings of fact made after considering all evidence adduced by CC and IO at the Trial.

B9. CC’s case against IO proven at the Trial

18.In the Trial Judgment, this Tribunal found CC to have proven its case against IO of IO having been condoning FI’s breaches of the DMC, BMO, BO and its subsidiary regulations on fire-resistant structure and safe means of escape by way of Subject UBWs in deliberate and flagrant breach of IO’s own statutory duties under BMO, the MBIS Notice and those of the DMC.

C. Procedural History of the Summons

19.The aforesaid history can be found at Sections A and D of the Decision. For present purpose, some additional matters are highlighted below to resolve FI’s Application.

C1. CC’s reliance of evidence at the Trial and Trial Findings

20.After it prevailed, and obtained its relief, against IO in the Trial Judgment after the Trial held against IO (which lasted as many as 6 days), CC took out the Summons, and sought the 2 Costs Orders against FI and SG (both not being a party to the Trial) relying on the evidence of the Trial and the Trial Findings.

21.CC had set out in Ng’s 2^nd Affirmation filed in support of the Summons, among others, the following evidence adduced at the Trial or the following Trial Findings (as the case may be):

(1) the 2012 Order served on FI that required its “reinstatement” was directed at the Opening at door B location whereas both the 2013 LT Proceedings against FI and the Settlement Agreement made by FI related to an entirely different subject matter, namely, door A at the opposite wall of 9/F Protected Lobby[5];

(2) PIL engaged by FI had not, by way of simplified procedure for class III minor works, reported installation of the Glass Door (nor submitted the Certificate of Completion) to BA, and Subject UBWs remained illegal structure under BO despite FI had received BA 2014 Letter[6];

(3) CC had previously made known to FI of its allegations of false and misleading allegations contained in Mao’s W/S regarding matters on (2) above by writing to, and serving Amended NOA and Amended Reply filed against CC in these proceedings on, FI[7].

(4) Mok had also made it clear in his supplemental witness statement that IO had relied on FI’s allegations of minor works being carried out under BO to defend against CC’s claim in its NOO[8];

(5) IO, knowing of its statutory duties and in deliberate breach of them, had failed to enforce the DMC and BMO against FI’s breaches of them but passed the Two MC Resolution to condone FI by allowing FI to keep Subject UBWs[9];

(6) Among all MC members, Mok and Mao were the two who “mostly” handled the MBIS Notice and they were “on friendly terms”[10];

(7) AHL had reported Subject UBWs and other Private UBWs in its inspection report, and recommended for their removal but was dismissed by IO for its refusal to rectify[11];

(8) K&H’s second inspection report also included Subject UBWs and other Private UBWs despite IO had demanded it to prepare two inspection reports, with the one submitted to BA not containing them. K&H resigned after it was forced by IO to withdraw from BA its second report already submitted to BA[12];

(9) IO had threatened Top Property with legal action (and later terminated its manager contract) for having said in its NOO as the 2^nd respondent in this application that it had advised MC Chairman Mok and FI’s AR to MC that Subject UBWs were found “problematic” in K&H’s report (but that MC took no follow-up thereafter) and for having later written to FI to demand for their removal[13]; and

(10) IO (or MC), in not complying with MBIS Notice for as long as over 7 years to condone FI, had been in derelict of its duties and had sacrificed the interest of all owners of the Building[14].

C2. Four grounds advanced by CC to seek the 2 Costs Order

22.As was recorded in Section E of the Decision, CC puts forward a total of 4 Grounds to seek the 2 Costs Orders (Ground 1 to Ground 4 respectively).

23.It should be noted that:

(1) CC had asserted as part of Ground 2 that SG and FI had “exercised practical control” on MC (or IO) over 3 matters i.e. 1) removal of Subject UBWs; 2) compliance of MBIS Notice; and 3) defence of these proceedings (which assertion of control over MC (or IO) was, of course, not in issue at the Trial between CC and IO) and repeated as part of Ground 1 that SG and FI had control of MC over 1) removal of Subject UBWs.

(2) Not a word of “collusion”, “conspiracy” or “fraud” was put forward by CC in Ground 1 or Ground 2.

(3) On Ground 3 against FI, CC’s only assertion at para 24 to 28 of Ng’s 2^nd Affirmation (under Section E entitled “improper and/or dishonest conduct of Mok and Mao in this litigation”) is that FI had been guilty of impropriety in this litigation by reason of false and misleading allegations, and false document (i.e. the Certificate of Completion) contained in Mao’s W/S regarding alleged minor works carried out by PIL on FI’s behalf that found its way into the Trial as part of IO’s case and evidence at the Trial.

(4) CC did not rely in Ground 4 on mere “impecuniosity of IO”.

C3. First Stage of the Summons

24.By consent of CC and FI, this Tribunal joined FI as R4 for costs purpose at the first stage of the Summons and gave directions for filing affidavit evidence as they agreed. After hearing SG’s counsels at an oral hearing, this Tribunal also joined SG as R5 for same purpose with similar directions. No parties sought directions like discovery or oral examination of deponents.

C4. FI’s reply to evidence at the Trial and Trial Findings

25.Two months and more than two months respectively after CC filed Ng’s 2^nd Affirmation, legal teams for SG and FI filed Mok’s Affirmation and Mao’s 2^nd Affirmation to oppose the Summons and to respond to CC’s allegations (including CC’s reliance on evidence adduced at the Trial and the Trial Findings) and CC’s 4 grounds for seeking the 2 Costs Order stated in Ng’s 2^nd Affirmation.

26.Mao (of FI) had, among others, seen fit to reply or respond in Mao’s 2^nd Affirmation to say that:

(1) Ng’s allegations against him (or FI) were “very serious” and that it would be “procedurally unfair” for this Tribunal to apply such of the Trial Findings made against Mok or IO directly against FI or to condemn FI without hearing FI as a party to the Trial[15];

(2) the decision to terminate AHL’s appointment as RI was made by IO at 2016 EGM[16]. And the decision to require K&H to prepare two inspection reports was made by MC at its meeting held on 19 July 2018. K&H’s RI’s contract was not terminated by IO but that K&H resigned on its own in 2019[17];

(3) the Trial Findings are not binding on FI at law as it was not a party to the Trial[18];

(4) Mok had not fully or properly explained all pertinent matters to this Tribunal at the Trial such that he (Mao) needs to “draw some very important background facts to the attention of this Tribunal” as the Trial Judgment does “not represent the truth” but was a mere “product of the [judicial] system”[19];

(i) the Direct Access was in fact not the sole access from Flat 9B owned by FI to 9/F Lift Lobby as Mok had admitted at the Trial (and was accepted by this Tribunal in the Trial Judgment)[20];

(ii) after the 2012 Order was made against FI, IO had taken out 2013 LT Proceedings against FI as a result. After FI and IO had reached the Settlement Agreement, FI had in 2013 arranged for “minor works” to be carried out by its contractor at the opening at door B location by “installing” the Glass Door to implement the terms of the Settlement Agreement. Afterwards, BA sent BA 2014 Letter to FI informing it that the 2012 Order had been rescinded[21]; and

(iii) based on the aforesaid FI’s implementation of the Settlement Agreement, IO had no right (and this Tribunal should not compel IO) to demand FI removing the Glass Door or filling up the Opening[22].

C5. Second Stage of the Summons

27.After CC had subsequently filed Ng’s 3^rd Affirmation by way of reply to Mok’s Affirmation and Mao’s 2^nd Affirmation, two counsels each for FI, SG and CC lastly addressed this Tribunal orally at the 2^nd stage hearing of the Summons (the Hearing).

28.For the record, counsels for FI at Section C3 of FI’s skeleton submission dated 17 April 2025 for the Hearing submitted that the Trial Findings are, with no exception, inadmissible against FI as a stranger to the Trial, relying on 193E-F[23] of Symphony case.

29.Big Island case that this Tribunal cited in Section F of, and acted on in, the Decision was not among 19 authorities FI cited in its list of authorities for the Hearing.

30.Nor were the two cases of 1) Barndeal Ltd v London Borough of Richmond-Upon-Thames[24] (Barndeal case) and 2) Chung Wah Steel Works Co Ltd v Chan Kwong Kwan[25] (Chung Wah Steel case) cited at [14] of Big Island case (and now found at para 23.2 of FI’s Leave Submissions in support of alleged “misdirection in law” made by this Tribunal) cited in FI’s list of authorities for the Hearing.

31.As far as memory of this Tribunal goes, two counsels for FI instructed for the Hearing (and now instructed for FI’s Application) never cited at the 2^nd stage of the Summons, including at the Hearing, 1) [14] of Big Island case, 2) Barndeal case or 3) Chung Wah Steel case. Neither did counsels for SG or CC.

D. Fact-specific jurisdiction and an exercise of discretion

32.This Tribunal at Section F of the Decision refers to legal principles applicable to the Summons. Among others, they include:

(1) the overall consideration, or the ultimate question, in such application is whether it would be in the interest of justice to make the costs order sought. This is inevitably to some extent a fact-specific jurisdiction with a number of different considerations in play. It also involves an exercise of discretion and limited assistance is likely to be gained from other decisions.

(2) There are two situations where it would be appropriate to make a non-party costs order.

(i) The first is where the third party is considered to be a real party interested in the outcome of the suit.

(ii) 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 that there be some other conduct on his part in relation to the litigation that makes it just and reasonable to make the costs order sought against him (for example, giving dishonest evidence and/or knowingly running a false claim).

E. Overview of the Decision

33.The approach adopted, and the rulings and factual findings made, by this Tribunal in the Decision could be summarized by way of the following 20 points (Point 1 to Point 20 respectively).

E1. Points 1 & 2 - Attribution Issue against SG and FI respectively

(1) At para 57(12), as against SG, having considered pertinent BMO provisions and bearing in mind the context of the Summons, this Tribunal first held that conducts made, and knowledge acquired, by Mok in his capacity of MC member as SG’s AR could be attributable to SG on general agency principles, with Mok treated as SG’s “directing mind and will” if required, due to, among others, the following reasons:

(i) Mok was at all material times an agent appointed and authorized by SG, corporate owner of the Building and itself a corporate MC member at BMO, to serve as SG’s representative to MC. But not for his status as AR of SG, he would not, and could not, have been chosen as MC Chairman: para 57(7); and

(ii) Mok was authorized by MC to conduct these proceedings on IO’s behalf and to give evidence as IO’s witness at the Trial in his capacity of MC Chairman and not otherwise. In that capacity as MC Chairman, Mok remained SG’s authorized agent/representative to MC at all times: para 57(10) (Point 1).

(2) For similar reasons, at para 58, this Tribunal also held that Mao’s conduct and knowledge, while serving as AR of FI to MC are all attributable to FI (Point 2).

E2. Points 3 & 4 - Admissibility Issue against FI and SG respectively

(3) At para 60-62 & 65, as against FI, this Tribunal quoted, and held on, the affidavit evidence adduced on the Summons and found in hearing bundle (HB) that evidence adduced by CC and IO at the Trial and the Trial Findings are, by way of exception to a general exclusionary rule, admissible against FI in my determination of the Summons for the following two reasons:

(i) FI (or Mao) had a very close connection with these proceedings from its beginning until the Trial in terms of FI erecting Subject UBWs that IO had allegedly failed to enforce DMC and BMO provisions against, being a former party to these proceedings, providing as many as 5 grounds of defence related to FI (or Mao) for IO to deploy at the Trial, with Mao (one of two MC members handling “mostly” with the MBIS Notice) and Hung resolving at MC meetings for IO to defend these proceedings, and subsequently assisting IO’s conduct of these proceedings up to closing submissions indirectly albeit not as a party thereto: para 63(1)-(11); and

(ii) Any alleged unfairness or injustice that FI now complains of if it be bound by evidence of the Trial and the Trial Findings on the applicable case law is the result of FI’s own election to strike out CC’s application against it knowing CC’s allegations, and relief sought, against IO in these proceedings, its own election not to join as a party to these proceedings thereafter despite CC’s reminders of its allegations against FI (and Mao), and its own election to provide only limited (and not full) assistance to IO’s conduct of these proceedings indirectly: para 64(1)-(15) (Point 3).

(4) At para 66, this Tribunal also find that SG (with Mok as its AR) has close connection with these proceedings that it suffers no injustice by being bound by the evidence presented by IO and CC at the Trial and the Trial Findings, which are also admissible against SG in my determination of the Summons (Point 4).

E3 Points 5 & 6 - FI “caused” these proceeding for its “benefit” and it is not in IO’s interest to defend, especially defending alone

(5) Having decided against FI and SG respectively on the Admissibility Issue, on top of considering 1) affidavit evidence filed by CC, FI and SG on the Summons, this Tribunal started also referring to 2) evidence adduced at the Trial and 3) the Trial Findings (these 3 sources of evidence admissible on the Summons collectively the Totality of Evidence), held at para 67(1)-(5) that FI had caused these proceeding to begin and to continue until the Trial by erecting Subject UBWs and maintaining them despite CC’s demands for their removal (and by its control with SG over MC’s defence of these proceedings and handling of MBIS Notice) and rejected FI’s contrary submissions at para 68 by finding that:

(i) FI personally enjoyed continuing benefit for having erected, and for maintaining, Subject UBWs: para 70 & 71.

(ii) IO’s stance in defending these proceedings was dictated by real and apparent/perceived benefit to FI in the above status quo: para 72.

(iii) All the other owners suffered divers continuing detriments while IO sought to preserve status quo in defending these proceedings for FI’s benefit: para 73.

(iv) IO had in truth no arguable ground to defend these proceedings as was ultimately proven by the Trial Judgment: para 74 (Point 5).

(6) Accordingly, it was, this Tribunal held at para 75, not in IO’s interest to defend these proceedings (nor for IO to defend against CC alone) to benefit FI. This is especially the case when IO

(i) got no funding from FI for this application (and the Trial) and had to fall back on its limited fund from all owners;

(ii) had no evidential and legal support by way of FI as co-respondent or third party at the Trial, and no costs recourse from FI as third party in the event of losing the Trial; and

(iii) got no legal protection from FI’s running same and different grounds to those run by IO at the Trial in any future enforcement proceedings that IO be compelled to take against FI after losing the Trial: para 76-79 (Point 6).

E4. Point 7 - MMH in effective “control” of MC over removal of Subject UBWs, handling of MBIS Notice and these proceedings “in the respective interests of FI and SG” and for their respective benefits

(7) This Tribunal went on to reject submissions of FI and SG at para 80-83[26] (both of them by reference to minutes of MC meetings, and the many unanimous and collective decisions of attending MC members recorded therein, on Subject UBWs, handling of MBIS Notice and defence of these proceedings) that Mao and Mok respectively, as minority member of MC, did not (and could not) control MC at all material times by reference to, among others, the following salient evidence admissible against FI (and SG) on the Summons:

(i) At all material times, Mok and Mao were on “friendly terms” and were 2 MC members who “mostly” handled MBIS Notice. As MC members, they had taken their turn at divers critical moments to have decided against, and had taken every means open to them to delay as long as they could, MC’s removal of Subject UBWs and other private UBWs that were required to be reported to BA by RIs appointed under MBIS Notice and MC’s compliance with MBIS Notice: para 85(1), 85(2), 85(4), 85(8), 85(9), 85(11)-(25).

(ii) MC had not called for general meetings of IO to be held for important decisions on above matters concerned to be discussed, and resolved, by all owners but kept the decision making to themselves with MMH attending all concerned MC meetings collectively holding the majority votes: para 86, 86(1)-(3).

(iii) Mao did not recuse himself (nor declared FI’s self-interest) at the two MC meetings that resolved to pass the two MC Resolutions to benefit FI: para 86(6).

(iv) The contents of the 2019 Statement purporting to explain the 2019 MC Resolution are far from the truth to the knowledge of Mao and Mok, and purported reliance of BA 2014 Letter for passing the 2023 MC Resolution recorded on minute was contrary to the Trial Findings and the terms of the letter itself: para 86(7) & (8).

(v) MC members apparently took no independent legal advice from its legal advisers before or when they made these and other important decisions above on their own at concerned MC meetings (nor discussed the pros and cons, or the merits and costs, of defending these proceedings) and they did not see fit to have written to FI a single letter before the Trial requesting FI to remove Subject UBWs to avoid a costly legal battle between IO and CC: para 86(9)-(12).

(vi) Other MC members attending these MC meetings concerned gave no evidence on the Summons to explain why they shared same view of MMH, or decided or resolved in the same ways as MMH did, as recorded on the minutes of MC meetings: para 86(4) & (5).

(vii) IO had no arguable ground to defend these proceedings, whose defence was not in IO’s interest but in FI’s interest to the knowledge of MMH: para 86(13)-(15).

(viii) MC had over the year in flagrant beach of IO’s duties under BMO and the DMC obstructed and/or delayed compliance of MBIS Notice, and removal of Subject UBWS to the detriment of all owners of the Building: para 86(16) & (17).

On the Totality of Evidence, this Tribunal came to conclude at para 87 and 88, by drawing the only reasonable inference, that MMH had, in the self-interest of FI and SG, effectively controlled MC over 1) handling of MBIS Notice, 2) removal of Subject UBWs and 3) defence of these proceedings for the respective benefits of FI and SG. It does not matter that other MC members had acted “independently” as alleged or otherwise (Point 7).

E5. Point 8 - IO’s defence of these proceeding also “benefits” SG (or Mok)

(8) Considering the Totality of Evidence, this Tribunal rejected SG’s contrary submission at para 83 and maintained its findings in the Trial Judgment that Mok could benefit from IO defending the status quo in these proceedings by exonerating FI (or Mao) for its misconducts over Subject UBWs and handling of MBIS Notice and/or Mok’s own past misconducts over the same as MC Chairman. That enabled Mok to maintain his friendship with Mao and/or his reputation as MC Chairman and such intangible and indirect benefit to Mok (as AR of SG to MC) could be attributable to SG and, on the case law, be considered as “benefit” of SG for making a non-party costs order against it: para 90 & 91 (Point 8)[27].

E6. Point 9 - SG also responsible for “causing” these proceedings

(9) But not for MMH’s effective control of MC on the above important matters and Mok’s control, and conduct, of IO’s defence of these proceedings, including giving evidence thereof, these proceedings would not, this Tribunal held, have started nor continued until the end of the Trial. This Tribunal therefore also found SG responsible for causing these proceedings: para 92 (Point 9).

E7. Point 10 - FI and SG each a “real party” to these proceedings

(10) This Tribunal therefore concluded at para 94 that each of FI and SG is a “real party” to these proceedings (Point 10).

E8. Point 11 - Ground 1 and Ground 2 proven against FI & SG respectively

(11) Ground 1 and Ground 2 are thus both made out against FI and SG respectively: para 95 (Point 11).

E9. Point 12 - FI guilty of impropriety in this litigation

(12) This Tribunal found that FI, while it was a party to these proceedings, had committed “serious impropriety” in these proceedings in bad faith by putting forwards false evidence by filing Mao’s W/S (containing false allegations of 1) an alleged door at door B location being replaced by the Glass Door and 2) alleged submission of the Certificate of Completion to BA by PIL on its behalf) verified by Mao by way of his statement of truth, which false evidence and false document had found their way into the Trial as part of IO’s case and evidence at the Trial such that it had forced (or caused) CC to have incurred substantial costs to rebut these false evidence before and at the Trial: para 100-112 (Point 12).

E10. Point 13 - SG also guilty of impropriety in this litigation

(13) Mok, in his capacity as MC Chairman, had also, this Tribunal held, committed “serious impropriety” in this litigation by giving false evidence himself and knowingly running a false defence, and such misconducts of him in bad faith in conducting and maintaining IO’s false defence by means of such false evidence have compelled CC to continue these proceedings until the conclusion of the Trial, incurring unnecessarily substantial costs in the process: para 114 to 117 (Point 13).

E11. Point 14 - Ground 3 proven against FI & SG respectively

(14) Hence, Ground 3 is also made out against FI and SG respectively: para 118 (Point 14).

E12. Point 15 - Ground 4 made out but insufficient alone for discretion to be exercised against FI or SG

(15) At para 119(1)-(5) & 120, CC had, this Tribunal held, made out its factual premises in support of Ground 4 of, inter alia, dire financial situation of IO, and CC (and CDL)’s liability as owner of the Building to contribute to IO’s costs of these proceedings after IO loses the same but not the other way round. But this Tribunal agreed with submissions of FI and SG that it is insufficient on its own to warrant exercising s.12(2) of LTO against them: para 122-124, 125(4), 126, 130, 140 & 141 (Point 15).

E13. Point 16 - No weight given to SG’s lack of warning objection

(16) Having considered, inter alia, Mok’s evidence and the case law about giving timeous warning of seeking non-party costs order, this Tribunal decided to give no weight to the lack of warning objection raised by SG: para 131 to 139 (Point 16).

E14. Points 17 to 20 - Discretion exercised against FI & SG respectively in the interests of justice on Grounds 1 & 2, Ground 3 alone, Grounds 1 to 3, or Grounds 1 to 4

(17) Considering Ground 1 and Ground 2 together as they are intertwined (as Ground 1 also requires effective control of SG and FI over MC), this Tribunal found it in the interests of justice to make the 2 Costs Orders respectively against FI and SG (despite protection given to Mok under s.29A(1) of BMO[28] as MC member if he has acted in good faith or in a reasonable manner) and disagreed with FI’s (and SG’s) incorrect or incomplete description of the true circumstances of this tripartite building management dispute: para 142 to 148 (Point 17).

(18) This Tribunal also found Ground 3 alone sufficient to warrant exercising its discretion to make the 2 Costs Orders respectively against FI and SG: para 149 & 150 (Point 18).

(19) In any event, this Tribunal also found it sufficient on Ground 1, Ground 2 and Ground 3 combined to make the 2 Costs Orders respectively against FI and SG: para 151 (Point 19).

(20) In any event, this Tribunal found all 4 Grounds combined sufficient to exercise its discretion against FI and SG respectively as Ground 4 adds weight to CC’s overall case against them on the Summons. The outcome envisaged on Ground 4 is, this Tribunal agreed with CC’s submissions, unjust, if not manifestly unjust, to CC in the circumstances of this building management dispute: para 121, 152 to 154(1)-(7) (Point 20).

F. Rules and principles on leave to appeal

34.Under s.11(2) of LTO, any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is “erroneous in point of law”.

35.As to “error of law”, this has been explained by Bokhary PJ at [32-33] of Kwong Mile Services Ltd v Commissioner of Inland Revenue[29], which exposition was applied by the Court of Appeal on appeal from Lands Tribunal at [19] of Chu Hoi (International) Ltd v Chow Kwok Fong (No 2)[30].

36.S.11AA(1) of the LTO requires leave to be granted by the Tribunal before an appeal under s.11(2) can be made. S.11AA(5)(a) of LTO provides that leave to appeal may be granted in respect of a particular issue arising out of the judgment, order or decision. S.11AA(6) of LTO further provides that “leave to appeal shall not be granted” unless the Tribunal is “satisfied” that:

(a) the appeal has a “reasonable prospect of success”; or

(b) there is “some other reason in the interests of justice” why the appeal should be heard.

37.A “reasonable prospect of success” on the above first limb at s.11AA(6)(a) of LTO means an appeal with a prospect that is more than fanciful without having to be probable: [17] of SMSE v KL[31], applied recently by the Court of Appeal on appeal from Lands Tribunal at [24] of The Incorporated Owners of Hung Wai Building v Sunny Elegant Ltd & Ors[32].

38.Leave may be granted under the second “interests of justice” limb at s.11AA(6)(b) of LTO if the question is one of general principle, decided for the first time; or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage: Hong Kong Civil Procedure 2026, Vol 1, §59/2A/4 at p.1278.

39.An appeal is not an occasion for regurgitating arguments already advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge: [16] of Progetto Jewellery Co Ltd v Lau Chiu Ying[33], applied at [25] of IO of Hung Wai Building, supra.

40.The Court of Appeal will not interfere with the exercise of a judge’s discretion in the award of costs unless it was shown that he failed to exercise the discretion, or exercised it upon a false principle, or did not exercise it judicially. An appeal against the exercise of discretion will not be entertained unless it is shown that the discretion was not exercised at all, or that the judge made some error of law or facts or was in disregard of principle, or that he took into account irrelevant matters, or that the decision was “plainly wrong” or was “outside the generous ambit within which a reasonable disagreement is possible”: [14] of Mark Richard Charlton Sutherland v CRB[34].

41.Absent palpable error in the exercise of discretion on costs, the mere fact that appellate judges might have exercised the discretion differently is not sufficient to interfere with the decision of the judge below: [36-38] of Progetto Jewellery Co Ltd, supra.

G. Grounds of appeal raised by FI and SG

42.SG’s grounds of appeal were set out in a draft Notice of Appeal annexed to a letter dated 19 September 2025 from its solicitors to this Tribunal (SG’s NOA).

43.Reading SG’s NOA and SG’s written submissions lodged for SG’s Application (SG’s Leave Submissions & SG Reply Submissions), SG contended that this Tribunal made alleged errors of law in the Decision on Points 1, 7, 8, 9, 10, 13 and 17.

44.FI’s grounds of appeal were set out in a draft Notice of Appeal exhibited as “TLCE-1” to Affirmation of Tse Lap Chung Edward filed on 26 September 2025 (FI’s NOA).

45.Reading FI’s NOA and FI’s written submissions lodged for FI’s Application (FI’s Leave Submissions & FI’s Reply Submissions), FI contended that this Tribunal committed alleged errors of law in the Decision on its “approach” in addressing “all crucial issues” on Grounds 1 and 2, on Points 3, 5, 6, 7, 10, 12, 17 and 20.

46.On top of relying on 1^st limb at s.11AA(6)(a) of LTO, both FI and SG contended that leave to appeal should also be granted by this Tribunal as per 2^nd limb at s.11AA(6)(b) of LTO.

47.Counsels for CC had lodged one set of consolidated written submissions to oppose both FI’s Application and SG’s Application (CC’s Leave Submissions) on both limbs of s.11AA(6) of LTO.

48.This Tribunal has fully considered FI’s NOA, FI’s Leave & Reply Submissions, SG’s NOA, SG’s Leave & Reply Submissions, CC’s Leave Submissions, and all additional authorities that FI, SG and CC have provided.

H. Discussion

H1. Intended appeal of SG against Point 1

49.I refer to para 1 of SG’s NOA (and Section C of SG’s Leave Submissions). This ground is, I think, devoid of merits for the reasons below:

(1) SG merely repeated its failed reliance of [95] of Incorporated Owners of Wing Ming Industrial Centre without pointing out how this Tribunal’s view of this case at para 57(2) was incorrect.

(2) SG did not completely quote, nor focus on all pertinent words of para 11(1) & (2) of Schedule 2 of BMO at para 10(1) & (2) of SG’s Leave Submissions.

(i) SG has omitted reference to the first few important words of para 11(1) of Schedule 2 of BMO which reads: “Where an owner or other person, being a body corporate, is appointed as a member of a management committee under this Schedule[35] (bold and italics supplied)”.

(ii) Para 11(1) of Schedule 2 of BMO went on to say: “that body corporate may appoint a director or other officer of that body or some other individual to act as its representative (authorized representative (獲授權代表) i.e. AR) for the purpose of this Ordinance as if[36] [AR] were a member of the management committee in his own right and paragraph 4(1), 4(2)(a), (b), (c), (d) and (f), (3), (4) and (5) shall apply to the [AR] (italics, underline and bold supplied)”.

(iii) Therefore, for reasons given at para 57(3)-(6) and not otherwise, para 11(2) of Schedule 2 of BMO starts with the words “If an [AR] ceases to be a member of a management committee under paragraph 4(2)(a), (b), (c), (d) or (f) or (4), the body corporate may appoint another [AR] in his place… (italics and bold supplied)”.

(3) SG in its submissions wrongly assumes that only BMO and no other law govern relationship between corporate MC member and AR that it appoints as its representative to MC. As the word AR suggests and as was pointed out at para 57(7) & (12), general agency principles apply as AR is an agent of corporate MC member.

(4) Nowhere is it indicated in para 11(2) of Schedule 2 of BMO that a corporate MC member can only appoint another AR in place of an AR previously appointed by it in the limited circumstances of paragraph 4(2)(a), (b), (c), (d) or (f) or (4) of Schedule 2 as SG sought to argue at footnote 2 of SG’s Leave Submissions.

(5) On general agency principles, an agent’s authority to act comes from the principal. Ordinarily, it can be revoked, or the agent be replaced, if the principal sees fit to do so after appointment: see also last sentence to para 57(10).

(6) I agree with para 24 of CC’s Leave Submissions that it cannot be the intention of the legislature that an AR, once appointed, has a mandatory tenure to remain in MC against the will or interest of the corporate MC member that appoints him or her to MC.

(7) An AR “duly authorized” and “appointed” by a corporate owner (or corporate MC member) to serve as its “representative” to MC under BMO is, I think, a different animal from a director appointed to the board of directors of a company under Companies Ordinance, Cap.622. And Mok did not give evidence at the Trial as a mere director in his personal capacity. So, 194A of Symphony case cited at footnote 3 of SG’s NOA does not assist SG.

(8) This Tribunal had plainly taken into consideration those factual matters mentioned in para 1(d)(i)-(iv) of SG’s NOA: see para 55, 56 and 57(10).

(9) Regarding para 1(c) of SG’s NOA, the evidence given by Mok at para 6 and 10 of Mok’s Affirmation (which this Tribunal had also considered at para 57(11)) is that SG (through its board of directors) had at all material times appointed/authorized Mok to act as SG’s AR to MC and given Mok a free hand, or full and unfettered discretion, on IO’s affairs for Mok to decide and to act as Mok sees fit, including, one thinks, voting as MC Chairman at MC meetings and giving evidence as IO’s factual witness at the Trial. Hence, Mok could, I think, be treated as SG’s “directing mind and will” if required: para 57(12).

(10) If SG was (or came to be) dissatisfied with Mok’s decisions or actions regarding IO’s affairs, it could, one thinks, take such action(s) as general agency principles allow it to do as the principal that duly authorized or appointed Mok as its agent in the first place, including terminating his appointment as SG’s AR to MC.

(11) As was made clear at para 57(10), though Mok was authorized by MC collectively to conduct IO’s defence at the Trial, to make witness statement, and to give evidence, as IO’s witness, he so conducted or took those actions in his dual capacities of 1) MC Chairman authorized by MC collectively and, importantly, as 2) SG’s AR (or duly authorized agent/representative) to MC. The latter (or second) capacity of Mok had by no means disappeared at the Trial.

50.Hence, I do not find it arguable that it is erroneous at law for me to attribute MC Chairman Mok’s conducts and knowledge to SG as per Point 1.

H2. Intended appeal of FI against Point 3

51.I refer to para 2 to 4 of FI’s NOA (and Section D2 of FI’s Leave Submissions[37] and Section C of FI’s Reply Submissions).

52.Looking at para 15 of FI’s Reply Submissions, FI now accepts that 193G of Symphony case allows for exception or departure from a general rule of inadmissibility (the Admissibility Exception). FI’s current complaint is that this Tribunal “erred in finding [the Admissibility Exception] applied on the facts…”.

53.Having so identified FI’s current complaint, for the following reasons, para 2 of FI’s NOA is, I think, unmeritorious:

(1) The matters in para 63(1)-(11) are plainly all relevant considerations in the context of the Summons for this Tribunal to take into account to assess if FI has a sufficiently close connection with these proceedings to trigger the Admissibility Exception.

(2) In considering the above matters, this Tribunal did have regard to those matters that FI complained in para 2.1, 2.3, 2.4, 2.5 and 2.6 of FI’s NOA that this Tribunal had allegedly “failed to have sufficient or any regard” to.

(3) For the alleged matter complained at para 2.2 of FI’s NOA, there is no evidence of the claimed “fact” that MC had unanimously approved Mok and Mao to handle MBIS Notice as such. There is no such resolution produced before this Tribunal.

(4) This Tribunal always remembered that this is a tripartite building management dispute involving two corporate owners in dispute (i.e. FI and CC) and IO (see para 1 & 143). But this case is much more than a simple case of 2 arguing owners (both not being MC members) with IO deciding independently in one owner’s favour.

(5) Whether MC collectively “made its own judgment” to agree with one of two disputing owners “in discharge of its duties” as claimed by FI or only “sided with FI” “in breach of its duties” as it was under “practical control of FI and SG” as claimed by CC on Ground 1 and Ground 2 should, I think, be left to be determined at a later stage of the Summons.

(6) This Tribunal should not, one thinks, pre-judge the merits of the Summons when it was still at a preliminary stage of deciding admissibility of evidence of the Trial and the Trial Findings for the purpose of the Summons.

(7) Having considered all those relevant matters at para 63(1)-(11), it is, I think, perfectly open to this Tribunal to take the view that FI had a very close connection with these proceedings from its beginning to the conclusion of the Trial.

(8) Regarding para 1.1(i) of FI’s NOA, this Tribunal had nowhere in para 63(3) considered on Point 3 the conduct of SG (or Mok) as complained by FI. This Tribunal had merely quoted the affidavit evidence concerned in full at para 63(3). In assessing FI’s connection with these proceedings, the focus of this Tribunal at para 63(3) remains on Mao as MC member “mostly” handling MBIS Notice. In deciding this Admissibility Issue against FI, this Tribunal had only considered matters relating to FI and no more. FI had, I am afraid, misread the Decision in this respect.

54.Para 3, para 4 (but exclusive of para 4.1, 4.3 and 4.4[38]) and para 4.2 of FI’s NOA are, I think, equally unmeritorious for the reasons below:

(1) The matters in para 64(1)-(13) complained of at para 3.1 to 3.4 of FI’s NOA are also plainly relevant matter in the context of the Summons for this Tribunal to consider to see if FI, if it be bound by the evidence of the Trial and the Trial Findings, suffers any alleged injustice or unfairness now (but not earlier) complained by it.

(2) As the case law stood in 2019 (indeed also until today), it was not a blanket rule against admissibility of trial evidence and trial findings. The Admissibility Exception remains (as FI now at last accepts) even after FI drops out of these proceedings after a successful strike-out for CC having no locus to sue it directly under BMO.

(3) By filing its NOO and Mao’s W/S through its solicitors to defend CC’s claim prior to its successful strike-out, and with IO raising in its NOO filed by the same solicitor firm the same 3 defences to CC’s claim related to FI one way or another (i.e. the 2012 Order, the 2013 LT Proceedings and the Settlement Agreement) as FI itself did, FI knew full well in 2019 that:

(i) the subject matter in dispute in, or the underlying cause of, these proceedings is Subject UBWs erected by FI itself;

(ii) the issues to be resolved (and the findings to be made) on CC’s NOA at any future trial (even solely between CC and IO if FI succeeds in its strike-out) will definitely involve FI over, inter alia, the history and status of Subject UBWs, FI’s same 3 defence to CC’s claim, FI’s alleged breaches of BMO, BO and the DMC, and IO’s future enforcement against FI over Subject UBWs; and

(iii) there is a possibility that IO may be compelled after trial by an order of court to take enforcement proceedings against FI itself over Subject UBWs i.e. CC’s claim against FI itself may not end for ever even after its successful strike-out.

(4) FI certainly had a choice itself to decide with its then legal representative whether to apply or not to 1) strike out CC’s claim for lack of locus or 2) join as a third party after its successful strike-out. It is just and fair that FI be bound by consequences of its own choices made with legal representation.

(5) This is, as was made clear at para 64(8) & (11), especially the case when CC’s solicitors had written to FI in November 2022 and March 2023 reminding FI of CC’s allegations against IO and FI (inclusive of false allegations in Mao’s W/S), and supplying FI with Amended NOA (footnote 96) and Amended Reply (footnote 93) to enlighten FI of CC’s amended case to be run at the Trial, and possible findings to be made at the Trial.

(6) Even if FI had elected for the above 1^st choice and against the above 2^nd choice at (4) above, FI clearly then had the motive/interest explained at (2) & (3) above, the evidence (e.g. the Certificate of Completion), the witness (e.g. Mao, if not PIL), the information (e.g. from occupants of Flats 9B and 9A on access route to 9/F Lift Lobby, if not other grounds against IO’s enforcement proceedings that FI now asserts against CC on the Summons), the ability and the chance (and FI had clearly made use of such chance and some of these materials, if supporting the Two MC Resolutions is not included) to change (or, at least, attempting to change) the result of the Trial, including the Trial Findings to be made therein and any resultant enforcement proceedings that IO may be forced to bring against FI.

(7) FI cannot equally, one thinks, now complains of alleged unfairness or injustice in our context when it could have done or supplied more to affect the result of the Trial and the Trial Findings but had not done so before the Trial concluded.

(8) Well aware of the evidence adduced at the Trial and the Trial Findings as the trial judge and well aware that the determination of the Summon is a summary procedure (para 52), this Tribunal cannot, I think, be faulted for reasons given at para 63 & 64 for coming to the view that FI now suffers no injustice or unfairness if such evidence and findings be admitted against FI for the purpose of the Summons.

(9) Though the Summons is summary in nature, it should be stressed that, by its two-stage procedure, its first stage serves to “filter” away unfounded application amounting to abuse of process[39] and, importantly, its second stage gives FI a reasonable opportunity to be heard: see O.62, r.6A(1) of Rules of High Court[40].

55.I now move to heading (a) in Section D2 of FI’s Leave Submissions entitled “misdirection in law (NOA §4)” and para 23 to 25 of them.

56.Nowhere in FI’s NOA (including para 4 thereof) did FI complain that this Tribunal had committed any alleged “misdirection in law” by reference to 1) [14] of Big Island case, 2) Barndeal case or 3) Chung Wah Steel case.

57.For reasons given at Section C5 above, the said alleged “misdirection in law” now claimed by FI in FI’s Leave Submissions is a new point not taken before this Tribunal at the 2^nd stage of the Summons and not found in FI’s NOA.

58.It is accordingly up to the Court of Appeal to decide whether to allow FI to take this new point on appeal when FI has acted contrary to principle at [39] above.

59.Were the Court of Appeal minded to do so, I do not think this new point meritorious either for the following reasons:

(1) [14] of Big Island case does not, I think, expressly on its terms “qualify” [13] of Big Island case on the “close connection” test of the Admissibility Issue (nor did, I think, Au-Yeung J. so intended) as submitted by FI at para 23.1 of FI’s Leave Submissions[41].

(2) [13] and [14] of Big Island case each has, I note, different authorities in support, and no repetition of authority between the two.

(3) Reading Big Island case[42], Barndeal case[43] and Chung Wah Steel case[44] in their proper context, [14] of Big Island case deals in fact, I think, with the different issue of evidential difficulty an applicant advancing serious allegations to seek a non-party costs order faces in its summary procedure when such allegations had not previously been put to the said non-party, as was stressed by the crucial words “the court can only act on evidence” found at [19] of Barndeal case and also [13] of Chung Wah Steel case.

(4) Indeed, as Section D of Big Island case shows, evidence and findings at trial admitted under the “close connection” test enabled Au-Yeung J. to make a non-party costs order against Mr Lee in that case (and her ladyship did not find the summary procedure an obstacle for her doing so notwithstanding Mr Lee’s incredible bare assertions and procedural objections made on his behalf).

(5) [14] of Big Island case has thus, I think, nothing to do with the Admissibility Issue against FI at Point 3 as claimed by FI.

(6) After the evidence of the Trial and the Trial Findings have been ruled admissible against FI on Point 3, whether CC manages to prove at a later stage Ground 1 to Ground 3 against FI when FI (and Mao) had elected not to participate in the Trial such that CC could not have put its case to FI(and Mao) at the Trial is, I think, altogether a different issue to be considered on the specific points concerned below: see footnote [39] above.

(7) Were [14] of Big Island case really intended to “qualify” [13] thereof (and touch upon the Admissibility Issue against FI at Point 3) as FI submitted, in the circumstances of this tripartite building management dispute where CC had no direct right to sue FI (but had to pursue FI indirectly through IO) and that FI itself had elected to apply to strike out CC’s claim to avoid being a party at the Trial, it is, I think, still open to this Tribunal for reasons at para 63 and 64 to conclude that FI does not suffer alleged injustice or unfairness from being bound by the evidence of the Trial and the Trial Findings.

60.For the above reasons, this Tribunal is entitled to rule against FI on Point 3 as it did at para 65 and FI has failed to show any alleged error of law on the Admissibility Issue against it.

H3. Intended appeal of FI against Points 5 & 6

61.Contrary to para 5.1, 5.2, 5.3 of FI’s NOA, the matters in para 67(1)-(3) & (5), 70(1)-(5) and 71 are, I think, plainly relevant to consideration of Point 5 i.e. whether FI had “caused” these proceeding to begin and continue, and whether FI had enjoyed “continuing benefit” from erecting, and keeping, Subject UBWs.

62.And, contrary to para 5.4 & 5.5 of FI’s NOA, it is, I think, perfectly open to this Tribunal for the reasons and evidence given at para 72(1)-(7) and 73(1)-(4) to find as it held at para 72 and para 73 respectively that IO’s stance in defending these proceedings was dictated by the “real or perceived benefit” to FI and that IO “has been suffering” from divers “detriments” from the preservation of the status quo. The so-called “fact” in para 5.5 of FI’s NOA that FI criticized this Tribunal for failing to have “any or sufficient regard” is, I think, contrary to MMH having control of MC in the respective interests of SG and FI as was found by this Tribunal at Point 7.

63.The Trial Findings, rebuttal made by this Tribunal at para 74(1) to (8) against contrary submissions advanced by FI at its skeleton submissions lodged for the Hearing and against Mao’s attempts at para 24 to 35 of Mao’s 2^nd Affirmation to re-open the Trial Findings do allow this Tribunal to conclude that IO had no arguable ground to defend these proceedings as per para 74 & 75. It was also supported by the defeat of IO after the Trial.

64.In response to para 5.6 of FI’s NOA, This Tribunal never held that IO (or MC) knew that IO had no arguable defence. As para 86(9) makes clear, MC did not even bother to obtain independent legal advice, nor discuss the merits, of defending these proceedings before or at concerned MC meetings making these important decisions.

65.That IO was aware that it could join FI as third party after judgment of CACV 96/2021 was handed down and after CC’s solicitors’ 2 letters to it in November 2022 and March 2023 (para 77) is plainly relevant to whether defending these proceedings alone to benefit FI was in IO’s interest or not in IO’s interest (see para 75 & 76). As this Tribunal found for reasons and evidence stated at Section K of the Decision, FI and SG had effectively controlled MC over, inter alia, IO’s handling of these proceedings such that IO did not join FI as a third party to these proceedings (para 79).

66.Para 5.7 of FI’s NOA is thus not tenable at all.

67.As regard para 74(3)-(4) that FI criticized at para 4.1 and 4.3 of FI’s NOA against Points 5 and 6 in substance, FI’s complaint therein was, I think, totally unfounded for reasons below.

(1) Save for those necessary for resolving CC’s case in Amended NOA against IO, including costs between them, this Tribunal was at pains to avoid making adverse findings in the Trial Judgment against persons other than CC, IO (or MC) or witnesses called by CC and IO at the Trial (see para 29 of Trial Judgment);

(2) This Tribunal therefore made no adverse finding in the Trial Judgment against FI or Mao personally (save except against Mao acting as MC member on behalf of IO/MC);

(3) Admitting evidence of the Trial and the Trial Findings into the Summons as admissible evidence against FI and SG after ruling on the Admissibility Issue, in considering Ground 1 to Ground 4 CC put forward against FI and Mao, this Tribunal had no choice but to consider, decide and, if required, make findings on the Summons, including making fresh findings for the first time against FI and Mao personally, on the Totality of Evidence while bearing in mind that the Summons is one of summary procedure.

(4) There is, I would point out, plenty of evidence admissible on the Summons and referred to at various parts of the Decision[45], including oral evidence (or factual admissions) from Mok, oral evidence of Ng, letters of confirmation from BA, expert evidence given by experts called by CC and IO at the Trial, and further affidavit evidence filed by parties on the Summons that allows this Tribunal at its 2^nd stage to infer and find for the first time, inter alia, that Mao (or FI) knew of the falsity of 1) the Certificate of Completion sourced from Mao’s W/S that was verified by his statement of truth and 2) the explanations for MC passing the 2019 MC Resolution given in the 2019 Statement that he signed as a MC member.

68.Lastly, in response to para 1.1(ii) of FI’s NOA, the focus of para 72(1)-(2) was on these proceedings to FI’s benefit while the focus of para 74(1)-(2) was on IO having no arguable defence to them. For para 76-79, the focus was of defending these proceedings (especially defending alone) not in IO’s interest. And the focus of para 67(5) was on FI “causing” these proceeding by FI and SG controlling[46] MC’s conduct of these proceedings and compliance of MBIS Notice. Such focuses were, I think, correct and proper on the opposing contentions of CC and FI on Points 5 and 6.

69.Hence, all FI’s complaints against findings of facts made by this Tribunal at Points 5 and 6 are unsustainable.

H4. Intended appeal of FI & SG against Point 7

70.I start with para 2 of SG’s NOA, which, I think, is untenable and in breach of principle at [39] above.

71.CC had not expressly asserted “conspiracy” between FI and SG at Ground 2. SG’s complaint of no evidence of conspiracy at para 2(b)(iii) of SG’s NOA is thus, I think, neither here nor there. What matters is whether there is evidence to prove practical control over MC by FI and SG and the answer is positive.

72.This Tribunal has considered (and has given such weight as it sees fit to) all such matters SG complained at para 2(b)(i)[47] & (ii), para 2(c)(i)-(iv)[48] of SG’s NOA.

73.Such matters in para 85 and 86 that SG complained to be “irrelevant” or “contradictory” to Point 7 at para 2(d)(i)-(iv) and para 2(e)(i) & (ii) of SG’s NOA are, I think, plainly relevant and material circumstantial evidences to be considered as a whole (and not to be considered in isolation each as SG submitted) by this Tribunal to reach conclusion, if any, on the Totality of Evidence on whether SG and FI had, in the respective interests of SG and FI, effectively exercised control over MC over the 3 related and inter-connected subject matters of 1) Subject UBWs, 2) MBIS Notice, and 3) these proceedings, for the respective benefits of SG and FI.

74.On the Totality of Evidence, including matters highlighted at para 85 and 86, contrary to para 2(f) of SG’s NOA, it is, I think, perfectly open to this Tribunal to draw the inference (and make its finding) at para 87 as per Point 7.

75.I now turn to para 6 to 10 of FI’s NOA, which are, I think, equally untenable and in breach of principle at [39] above.

76.The matters FI complained about at para 7, 8, 10.1, 10.2, 10.3, 10.4 and 10.5 of FI’s NOA are, I think, all plainly relevant and material circumstantial evidence to be considered by this Tribunal as a whole to decide if CC manages to make good its Ground 2 on the Totality of Evidence.

77.CC had not expressly asserted at Ground 2 “collusion” between FI and SG or that their control over MC was “fraudulent” or “unlawfully obtained”. FI’s complaint at para 1.2 of FI’s NOA of no such evidence or finding in the Decision to that effect is, I think, also neither here nor there. I repeat last sentence of [70] above herein.

78.This Tribunal has, I would point out, never lost sight in the Decision of attending MC members, including so-called “independent” members other than MMH, making unanimous decisions and resolutions by so-called “consensus” on the 3 related subject matters at Ground 2 (see para 81, 82, 84 & 86).

79.But the undeniable fact is that there was no evidence from these other attending MC members explaining why they, without the benefit of independent legal advice, saw fit to join MMH in decisions and resolutions that were not in IO’s interest and were in breach of IO’s duties as found by this Tribunal (and there was no evidence to show that such other MC members had been approached to explain on oath, or that they were unwilling to explain on oath).

80.As to FI’s complaint of alleged error of “approach” made by this Tribunal at para 1 & 1.1(iii) of FI’s NOA, as CC asserted SG and FI controlling (and not FI alone controlling) MC as part of Ground 2 (and repeated as part of Ground 1), it is, I think, necessary and absolutely right and proper for this Tribunal to consider conducts of SG and FI conjunctively on the Totality of Evidence to decide if CC manages to make out such control of SG and FI over MC on Ground 2 (and on Ground 1) or not.

81.FI, as CC had rightly pointed out, produced no authority to support its submissions that this Tribunal had erred at law in its above “approach" in assessing the admissible evidence to resolve the above issue of alleged control by SG and FI over MC.

82.[20] of Dymocks case cited by FI at para 8.1 of FI’s Reply Submissions suggests, I think, no more than that a casual link is required to exist between costs sought to be recovered and non-party’s involvement with the proceedings. It gives no clue on the issue of “approach” in assessing the admissible evidence raised by FI for the first time at para 1 of FI’s NOA.

83.As far as the memory of this Tribunal goes, FI’s counsels never at the 2^nd stage of the Summons addressed this Tribunal on any “approach” in considering the evidence, save except on the Admissibility Issue as against FI. This is also a new point raised by FI on FI’s Application.

84.On the findings of this Tribunal on the Summons, as SG and FI had effectively controlled MC as per Point 7, both had, I think, caused CC to have incurred costs to prosecute these proceedings against IO to the end (see para 148).

85.Lastly, FI’s criticism of para 85(1), 85(11)-(25), 86(1), 86(3) & 86(7) at para 4.1 of FI’s NOA and of para 85(11) & 86(7) at para 4.3 of FI’s NOA are, this Tribunal must point out, incorrect and/or based on misreading of those paragraphs of the Decision. In so far as it is necessary, this Tribunal repeats [66] above herein.

86.Accordingly, this Tribunal cannot, I think, be faulted to have arrived at the factual conclusion that SG and FI had effectively controlled MC as per Point 7 in line with Ground 2 (and Ground 1).

H5. Intended appeal of SG against Points 8 & 9

87.This was put forward by SG as para 3 of SG’s NOA and related submissions are found at Section E of SG’s Leave Submissions and Section E of SG’s Reply Submissions.

88.Para 3 of SG’s NOA is, I think, also unsustainable for the following reasons:

(1) [15] of Big Island referred to at para 28(2) of SG’s Leave Submissions had been cited by SG at para 9 of its skeleton submissions lodged for the Hearing and had thus already been considered by this Tribunal at para 52.

(2) But, the Totality of Evidence (inclusive of Mok’s own admissions in the box at the Trial) points, one thinks, strongly towards Mok having the said “motive” (動機) of “exonerating” himself and FI (or Mao) and having obtained the intangible and indirect benefit of “maintaining” his own reputation as MC Chairman and his friendship with Mao until the Trial.

(3) Mok had been cross-examined at the Trial regarding 1) his friendship with Mao[49]; 2) FI’s past conducts over Subject UBWs and Mao’s handling of MBIS Notice[50]; 3) his past own conducts as MC Chairman over the same[51]. That Mok has served as MC Chairman for as long as 14 years until the Trial was also not in issue at the Trial[52]. There is thus no shortage of evidence at the Trial proving the above motive of Mok and benefit enjoyed by him.

(4) It is, I think, perfectly open to this Tribunal on the evidence of the Trial to have found at [133(3)] of the Trial Judgment of Mok having the above “motive” at the material time.

(5) At para 10 & 33 of Ng’s 2^nd Affirmation, CC had relied on the said “motive” of Mok found at [133(3)] of the Trial Judgment in its case against SG on the Summons. In response to CC’s allegation of such “motive” on his part, Mok in Mok’s Affirmation only saw fit:

(i) to admit again that he had “offered himself as candidate” for MC Chairmanship and was “elected unopposed” in the last 3 elections in 2018, 2020 and 2022[53];

(ii) to deny having the above “motive” attributed to him at [133(3)] of the Trial Judgment (and added that, in any event, SG should not be responsible for that);

(iii) to say that he decided not to repeat details of IO’s cases of the 2013 LT Proceedings, the Settlement Agreement and BA 2014 Letter rejected after the Trial, but to point out they were “consensus of MC as a whole all the times”[54], that he had “relied on assertions of FI regarding its remedial work” (i.e. PIL’s installation of the Glass Door) and that he had allegedly “misunderstood” BA 2014 Letter[55].

(6) Mok (or SG) had, one thinks, every opportunity at the 2^nd stage of the Summons (if not at the Trial when Mok was cross-examined) to meet CC’s case against SG at Point 8.

(7) Against the above background of strong admissible evidence on the Summons, Mok’s feeble denial and his incredible explanations in Mok’s Affirmation above, notwithstanding the summary nature of the Summons that this Tribunal was well aware, this Tribunal cannot, I think, be faulted to have found in the Decision of Mok having enjoyed until the Trial the benefit of maintaining his friendship with Mao and his own reputation as MC Chairman at para 90 and that there was nothing unfair or improper for this Tribunal doing so.

89.In so far SG relies on the same submissions it made on the Attribution Issue in its intended appeal against Point 8, I repeat my views in section H1 above (including that of Mok being “directing mind and will” of SG if required).

90.It should be noted that nowhere in its Leave Submissions (or in para 3 of SG’s NOA) did SG contend that this Tribunal had erred at law in relying on the two cases at para 91[56] to conclude that Mok’s intangible and indirect benefit above could be considered as “benefit” for the purpose of making a non-party costs order.

91.As such, it is, I think, futile and hopeless for SG to repeat its failed submissions against Point 8 in breach of principle at [39] above.

92.Given that this Tribunal had found SG’s intended appeal against Point 7 unarguable, SG’s intended appeal against Point 9 resting solely on that falls away, I think, as well.

H6. Intended appeal of FI and SG against Point 10

93.This intended appeal by way of para 4 of SG’s NOA depends on the merits of para 1 to 3 of SG’s NOA. As this Tribunal has found para 1 to 3 of SG’s NOA having no merit above, para 4 of SG’s NOA is, I think, also without merit.

94.Moving to para 11 of FI’s NOA which rests on para 1 to 10 of FI’s NOA, many complaints mounted by FI at para 1 to 10 of FI’s NOA have been dealt with above and will not be addressed again here. The remainders are in fact related to Ground 3 (or Point 12) against FI and their treatment will soon follow below.

95.Regarding para 1.1(iv) of FI’s NOA, I repeat [79]-[83] above herein in answer thereto. As CC rightly stressed, on the law stated at para 42, FI need not be the only real party to this litigation. As such, there is nothing improper or wrong for this Tribunal to approach the conducts of FI and SG conjunctively at para 94, and it is open to this Tribunal to conclude that FI is a real party to this litigation (and SG is also a real party to this litigation) as per Point 10.

96.FI (and SG)’s intended appeal against Point 10 is thus, I conclude, bound to fail.

H7. Intended appeal of FI against Point 12

97.I refer to para 12, 12.1 and 12.2 of FI’s NOA, and para 4.1 (confined to complaint against para 105, 107-111), para 4.3 (confined to complaint against para 105, 108 & 109) and para 4.4 (confined to complaint against para 107) of FI’s NOA.

98.Para 12 of FI’s NOA is general and un-particularized. Para 12.1 of FI’s NOA repeats FI’s failed challenge to the Admissibility Issue above by way of para 2 & 3 of FI’s NOA. The rest of para 12.1 and the entire para 12.2 of FI’s NOA are repetition of FI’s complaint against Point 12 at para 4 of FI’s NOA.

99.It is, I think, no use for FI to repeat at para 27.3 of FI’s Leave Submissions that Mao’s W/S was not evidence adopted by Mao on oath as IO’s witness at the Trial. That was already taken on board by this Tribunal at para 97.

100.The crux for Ground 3 against FI, as per para 100 & 112, is whether FI was guilty of impropriety in this litigation that caused CC to incur unnecessary costs to prosecute the Trial to its end.

101.In FI’s Leave Submissions, FI did not deny (nor could, I think, FI deny) that it had, through its same solicitors with IO, filed Mao’s W/S to defend CC’s claim while it was 3^rd respondent to this litigation and that its contents (and its exhibit including Certificate of Completion purportedly filed by PIL on its behalf to BA) became part of IO’s evidence at the Trial of this litigation (as they were adopted by Mok on oath and produced by IO at the Trial).

102.I repeat herein the different ways or manners this Tribunal had to approach the evidence admissible at the Trial to prepare the Trial Judgment (and the Totality of Evidence admissible on the Summons to prepare the Decision) stated at [66] above. The state of evidence as at the end of the Trial and as at the end of the 2^nd stage of the Summons are thus different.

103.The criticisms of FI against this Tribunal made at para 4.1 and 4.3 of FI’s NOA against para 105, 107, 108, 109, 110 & 111 (and made at para 27.1 and 27.2 of FI’s Leave Submissions) are, I would point out, incorrect and/or based on FI’s misreading of these paragraphs of the Decision.

104.Looking at Sections C2 and C4 above, Mao (or FI) had full and plenty opportunity to answer Ground 3 by giving whatever evidence he liked and producing whatever documents he liked on the Summons.

105.Mao (or FI) did so and assisted by FI’s lawyers.

106.Indeed, contrary to para 4.4 of FI’s NOA, Mao (or FI) did try to re-open the Trial Findings on the Direct Access being the sole access from Flat 9B to 9/F Lift Lobby (as Mok admitted at the Trial) to argue that IO had an arguable defence to these proceedings.

107.If Mao (or FI) elected (as observed in para 107) not to deal with particular CC’s allegations like para 103-105 on Ground 3 contained in Ng’s 2^nd Affirmation quoting the evidence of the Trial and the Trial Findings despite previous reminder letter from CC’s solicitors to it in March 2023, FI had, one thinks, only itself to blame for the consequences that flow from its own choice.

108.Notwithstanding that the Summons is summary in nature, this Tribunal is, I think, not obliged at law to accept whatever Mao claimed in Mao’s 2^nd Affirmation at its face value and abandon critical analysis of his assertions against the Totality of Evidence, including contemporaneous documents and third party documents from BA, and expert evidence given by experts of IO and CC on simplified procedures under BO and BA’s practice of dealing with UBWs as part of IO’s duties of complying with MBIS Notice.

109.For the above reasons, contrary to para 27.3 of FI’s Leave Submissions and para 12.1 & 12.2 of FI’s NOA, this Tribunal is, I think, perfectly entitled to find, for the first time at para 105, that Mao knew of the falsity of the two material statements in Mao’s W/S referred to at para 103 and their likelihood of interfering the future course of justice of this litigation at the time when he verified them by his statement of truth for then 3^rd respondent (i.e. FI) in this litigation.

110.Accordingly, FI’s intended appeal against Point 12 is, I think, also unarguable and doomed to fail.

H8. Intended appeal of SG against Point 13

111.I refer to para 5 of SG’s NOA (and Section G of SG’s Leave Submissions). This complaint stands or falls with SG’s complaint on the Attribution Issue. For my views on the Attribution Issue, this intended appeal is, I think, also without substance.

H9. Intended appeal of FI & SG against Point 17

112.I refer to para 1.3 of FI’s NOA regarding para 143 and 144.

113.The above complaint is, I think, mere repetition in breach of principle [39] above of FI’s failed and simplistic submissions at the 2^nd stage of the Summons that this Tribunal must have regard to the context of this tripartite building management dispute between 2 arguing owners and IO, whose independent decision in discharge of its duties must side with one of the 2 owners.

114.FI had, I agree with CC, simply ignored para 144 where this Tribunal had pointed out the true and complete picture on the findings in the Decision is that IO had sided with FI (or, more correctly, had condoned FI’s breaches of the DMC, BMO and BO) over Subject UBWs to benefit FI in deliberate breach of IO’s own duties as FI and SG had controlled MC over Subject UBWS, the handling of these proceedings and MBIS Notice.

115.On the findings in the Decision, MC had not in discharge of IO’s duties made its own judgment in FI’s favour uninfluenced by FI.

116.I also refer to para 2(c)(iv) of SG’s NOA referring to protection given to MC members under former s.29A of BMO before it was amended on 13 July 2025.

117.The short answer to SG’s complaint here, as was made clear at para 146, is that such protection is not absolute or unqualified. To avail of the above protection, an MC member must act in good faith and in a reasonable manner. SG’s AR to MC i.e. Mok never did as such over Subject UBWs and these proceedings.

118.Hence, the above complaints of FI and SG against Point 17 are also, I think, bound to fail.

H10. Intended appeal of FI against Point 20

119.I refer to para 13 of FI’s NOA, inclusive of para 13.1 to 13.3 thereof. This complaint is also, I think, misconceived for the following reasons:

(1) For reasons stated above, FI’s challenges to the Decision by way of para 1 to 12 of FI’s NOA had no substance at all.

(2) The matters in para 13.2 and 13.3 of FI’s NOA had already, I think, been considered by this Tribunal to arrive at its conclusion at Point 15 in FI’s favour i.e. Ground 4 alone is insufficient to warrant exercising s.12(2) of LTO. In other words, the fact of CC (a corporate owner) pursuing an impecunious IO in litigation is not by itself in the interests of justice to warrant a non-party costs order against FI.

(3) However, the crux of Ground 4 is rather costs injustice to CC i.e. CC, as corporate owner, had to contribute towards its own costs (and not the other way round) when it pursued impecunious IO successfully for the common good but was forced by FI to incur great costs to prosecute this litigation when FI and SG as real parties had controlled IO and caused IO to defend it for their respective benefits by running false defence and adducing false evidence.

(4) As such, it is, I think, proper and necessary for this Tribunal to consider “impecuniosity of IO” as one relevant background fact to assess if CC suffers any costs injustice as it claimed after making out Ground 1 to Ground 3 against FI.

120.This intended appeal of FI against Point 20 is therefore, I think, not arguable either.

I. Intended appeals by FI and SG having no reasonable prospect of success

121.In view of my conclusions given at Section H above, the respective appeals by FI and SG against the Costs Order vs R4 and the Costs Order vs R5 have, I think, no reasonable prospect of success on appeal.

122.It is worth especially pointing out that both FI and SG did not challenge Point 18. Had I erred at law on any point per Ground 1 and/or Ground 2 as alleged, Ground 3 alone made out against FI and SG still suffices to warrant this Tribunal making the Costs Order vs R4 and the Costs Order vs R5 against FI and SG respectively in the interests of justice.

123.Hence, both FI and SG fail to satisfy this Tribunal of the first limb at s.11AA(6)(a) of LTO.

J. No other reason in the interests of justice to allow FI or SG pursuing their intended appeals

124.As said above, both SG and FI in addition rely on the 2^nd limb at s.11AA(6)(b) of LTO.

125.SG submitted at Section H of SG’s Leave Submissions that the Court of Appeal had not previously had the opportunity to address:

(1) a building management case in which non-party costs order has been made personally against a MC member purporting to act on behalf of an owners’ corporation notwithstanding protection given to MC member under s.29A of BMO; and

(2) the question whether the conduct of an AR appointed by a corporate MC member under para 11(1) of Schedule 2 of BMO to serve in MC should be attributed to the corporate owner for the purpose of non-party costs order application.

Leave to appeal, said SG, ought to be granted so that the Court of Appeal could give guidance on the above two points of law of general principle and/or importance to the public advantage.

126.At para 31 of FI’s Leave Submissions, FI also submitted that questions of principle arising on the facts of this case in the context of building management (in particular those contentions raised at para 1 to 4 of FI’s NOA) are important and of wide implication. They have so far not been addressed locally and are worthy of consideration by the Court of Appeal to the public advantage.

127.I am, however, not persuaded by the above submissions of SG and FI for the following reasons.

(1) The dearth of first instance decisions of non-party costs order in the context of building management dispute (only two Lands Tribunal decisions on s.12(2) of LTO were found by CC[57]) reinforces the impression, and experience, of this Tribunal that rarely was non-party costs order sought in building management disputes.

(2) It is therefore questionable whether guidance, if any, to be given by the Court of Appeal on appeal from this case is of any importance to the public advantage.

(3) In any event, considering the number of authorities cited by counsels to this Tribunal at the 2^nd stage of the Summons, the number of common law jurisdictions, and the various levels of courts, they come from, guidance, including appellate guidance, on principles on making of non-party costs order is not lacking.

(4) As Lord Brown pointed out in Dymocks case (endorsed by Chu JA, as she then was, at [74] of local Edwin Leung case on appeal), the ultimate question is whether in all the circumstances it is just to make the non-party costs order (per s.12(2) of LTO), and this is inevitably to some extent a fact-specific jurisdiction and there will often be a number of different consideration in play (para 38 and 39).

(5) A non-party costs order involves an exercise of discretion. Limited assistance is likely to be gained from the citation of other first instance decisions. The reported cases could not provide a comprehensive checklist of factors that must be present in every case before the discretion can be exercised. What may be sufficient to justify the exercise of the discretion in one case should not be treated as necessary in a different case (para 49 and 50).

(6) This case is, I think, no exception to the useful reminders in (4) and (5) above.

(7) Considering FI’s NOA and SG’s NOA, the points against which FI and SG intended to appeal are in fact or substance mostly factual findings made by this Tribunal on the evidences of this case (e.g. Points 5, 6, 7, 8, 9, 10 and 12) and/or exercise of discretion by this Tribunal in the circumstances of this case (e.g. Points 3 and 20).

(8) On Point 3, FI now at last accepts the existence of the Admissibility Exception on Symphony case but dispute its application to the facts of this case. And, 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 (para 48).

(9) While Point 17 involves former (not current) s.29A of BMO that prevailed before 13 July 2025, its application to this case boils down to the factual issues whether MC Chairman Mok had acted in good faith or in a reasonable manner.

(10) While Point 1 involves the construction of certain paragraphs of Schedule 2 of BMO, it is, in my view, straightforward and simple. The determination of the Attribution Issue against SG in this case revolves more on general agency principles and factual evidence of SG granting full authority and discretion to Mok as its authorized agent/representative to MC.

(11) Accordingly, any decision by the Court of Appeal on appeal by FI and/or SG against one or two of the 2 Costs Orders, I agree with CC, would necessarily be case-specific and fact-dependent, offering limited precedential value or guidance for future building management cases, if any, where non-party costs order is sought.

(12) Lastly, FI’s complaint made for the first time in FI’s Leave Submissions of alleged “misdirection at law” made by this Tribunal is a “new” point not taken below and not contained in FI’s NOA. So is FI’s complaint of wrong “approach” adopted by this Tribunal complained at para 1 of FI’s NOA a “new” point. It is, I think, wholly unclear at this stage if these new points would be allowed by the Court of Appeal to be taken on appeal.

128.FI and SG therefore also fail to satisfy this Tribunal of the 2^nd limb at s.11AA(6)(b) of LTO.

K. Disposition

129.On my conclusions at [123] and [128] above, I dismiss FI’s Application

130.On the same two conclusions above, I also dismiss SG’s Application.

L. Costs Order Nisi

131.At the moment, this Tribunal sees nothing to depart the general rule of costs following the event.

132.I therefore make costs order nisi in FI’s Application that costs of the same be paid by FI to CC with certificate for 2 counsels, to be taxed on High Court scale if not agreed.

133.And I make costs order nisi in SG’s Application that costs of the same be paid by SG to CC with certificate for 2 counsels, to be taxed on High Court scale if not agreed.

134.Each of the above 2 costs orders nisi would become absolute if none of the two parties concerned makes application to vary within 14 days of this decision.

Lawrence KF NG and Henry CHENG, instructed by C.W. Chan & Co., for the Applicant

Mike LUI SC and Cristian TSANG, instructed by Fred Kan & Co., for the 4^th Respondent

Anson WONG Yu Yat and Jonathan IP, instructed by V. Hau & Chow, for the 5^th Respondent