The Incorporated Owners of Jade Mansion v. Chan Lan Nui

LDBM000087/2001

LDBM 87 OF 2001

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 87 OF 2001

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Coram: H. H. Judge Chow, Presiding Officer of the Lands Tribunal

Date of Decision: 5 September 2001

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D E C I S I O N

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1.By this summons the Respondent applied for the following orders: -

'1. The Applicant's Notice of Application (being described in terms of "Notice of Application to Lands Tribunal under the Building Management Application No. 88/2001)("the said Notice of Application") issued herein and/or the alleged/purported service thereof be set aside on the grounds that the said Notice of Application was irregularly and/or defectively issued and/or served.

2. Further or in the alternative, this Honourable Tribunal may give further directions (as it may have jurisdiction and/or power to give) regarding the future conduct of these proceedings including but not limited to the matters as follows: -

(a) The Applicant do rectify (and/or amend) the said Notice of Application as well as to file and serve the rectified Notice of Application properly;

(b) Leave be granted to the Respondent to file and serve her Notice of Opposition to the Rectified Notice of Application (if any) within 7 days from the date of the service of the same; and

3. The date of hearing in the proceedings fixed to be heard on Monday, the 13th day of August 2001 (pursuant to the order of Presiding Officer, His Honour Judge Chow, made on 10th May 2001) be vacated and adjourned sine die with liberty to either party to restore;

4. The Applicant do specifically produce the following documents and allow for inspection thereof (including the making of copies thereof) to the Respondent: -

"A post office returned or undelivered hand-written envelope made to the name of the Respondent or to Ms. Fong Yin Yu by the Applicant (or its agents or servants) and addressed to Room 5, 19th Floor, Block A, Jade Court, Kennedy Town Plaza, No. 48 Kennedy Town, Hong Kong."

5. Such further order/directions as this Honourable Tribunal thinks just.'

2.Background

On 19.2.2001, the Applicant filed a Notice of Application in the Lands Tribunal ("the Tribunal") and served a copy of the same on the Respondent on 21.2.2001. An affirmation of service made by a clerk to Messrs. Y. T. Szeto & Co., a Mr. Ip Wai Hung Harry, was filed on 22.2.2001. The contents of this affirmation are as follows: -

"I did on Wednesday, the 21st of February 2001 serve Chan Lan nui, the person named as the Respondent in the above-mentioned Application with a sealed copy of the Application of which the document now shown to me and marked exhibit "YWHH - 1" is also a true copy by sending the same to the Respondent by ordinary post addressed to the Respondent at Shop No. 1 on Ground Floor, Jade Mansion, No. 34A Fort Street, Hong Kong being the Respondent's last known or usual place of business in Hong Kong."

3.The Notice of Application so served on the Respondent was stamped with a chop of the Tribunal bearing the words "蓋印副本 SEALED COPY". The names of the Applicant and the Respondent appear on it, but the case number is LDBM 88/2001. The contents of the letter dated 20.2.2001 which accompanied the Notice of Application are as follows: -

"Re : Building Management Application No. 88 of 2001

We refer to the captioned Application and send you herewith, by way of service, a sealed copy of Notice of Application filed on 19th February 2001 for your attention."

4.According to the affirmation of Mak Suk Kuen Sofia, the Applicant's solicitor, her firm Messrs. Y. T. Szeto & Co. was informed on 24.2.2001 by a clerk of the Lands Tribunal that the number allotted to the application was incorrect and it should be LDBM 87 of 2001 instead. Her firm therefore wrote to the Respondent on the same day, informing her of the correct number of the Application. The contents of the said letter are as follows: -

"Re : Lands Tribunal Application No. LDBM 87 of 2001

We refer to our letter dated 20th February enclosing a sealed copy of the Notice of Application to Lands Tribunal under the Building Management Ordinance.

Please note that the said sealed copy of Application was issued out of the Lands Tribunal under Application No. LDBM 87 of 2001."

5.According to the affirmation of Mdm. Fong Yin Yu, the Respondent's daughter, she received these 2 letters on or about 8.4.2001, and the Respondent instructed Messrs. Krishnan & Tsang, Solicitors on 11.4.2001 to represent her in respect of this matter.

6.On 23.3.2001, the Applicant applied to the Registrar of the Tribunal for listing of its application for hearing, and the Assistant Registrar fixed a call-over hearing on 19.4.2001. On 19.4.2001, the parties appeared me for the first time. Mr. Krishnan for the Respondent informed me that on 8.4.2001, the Respondent was given by an estate agent a letter from Messrs. Y. T. Szeto & Co. in relation to Building Management Application No. 88 of 2001. He said that the Respondent had never received the original application and he asked me for an adjournment for 14 days because he needed to make enquiries with the Applicant in relation to all the details about this case. I therefore adjourned the call-over hearing to 10.5.2001.

7.At the resumed call-over hearing on 10.5.2001, Mr. Krishnan informed me that he did not have a notice of application in relation to LDBM 87/2001 and that the Building Management Application issued from the Registry of the Tribunal clearly stated LDBM 88 of 2001. So he was embarrassed as to which application, LDBM 87 or 88 of 2001, he should put the notice of opposition to. But Mr. Tao for the Applicant informed me that his firm had informed the Respondent about the mistake of the case number prior to their application for setting down. No application having been to me on that day by Mr. Krishnan, I fixed the case to be tried on 13.8.2001. I further gave the Respondent 7 days to file and serve its notice of opposition.

8.On 2.8.2001, the Respondent took out the present summons, which was estimated to last for 15 minutes. On 7.8.2001, I heard the summons, but was unable to finish it. I therefore adjourned it to 13.8.2001.

9.The affirmation of Mr. Krishnan dated 11.8.2001 reveals that on 10.5.2001 he went down to the Registry of the Tribunal to conduct a search of the court records of the Tribunal in relation to the Notice of Application - LDBM 87/2001 and the Notice of Application - LDBM 88/2001. He found out that there was a Notice of Application - LDBM 87/2001 in the court file record of that case which was numbered as "Notice of Application No. 87 of 2001". He learned at the Registry that a clerk of the Registry had erroneously issued and sealed the "Notice of Application - LDBM 88/2001" in respect of the correct cause record of the cause between the Applicant and the Respondent out of the Registry, instead of the "Notice of Application - LDBM 87/2001". He also found out from his enquiries and discussions with the clerks at the Registry of the Tribunal that the Applicant was also the Applicant in "Notice of Application - LDBM 88/2001" and that the present solicitors on the Tribunal's record as acting for the Applicant in these proceedings are also the solicitors acting for the Applicant as the Applicant in the Notice of Application - LDBM 88/2001 as recorded in the Tribunal's Registry in relation to another Respondent (who is named a "Ho Lo Kwai Fong").'

10.Save and except for the numbers, the contents of the copy of the Notice of Application LDBM 88/2001 served on the Respondent and the contents of LDBM 87/2001 are exactly the same. It is apparent that the wrong application number was assigned to the former.

11.On 18.4.2001, Messrs. Y. T. Szeto & Co. wrote to Messrs. Krishnan & Tsang a "without prejudice" letter (See page 31 of the Respondent's Bundle of documents) which stated: -

"Re: Memorandum of Charge by Memorial No. 8214317
Lands Tribunal Building Management Application No. LDBM 87 of 2001

We thank you for your letter marked "Without Prejudice" and dated 17th April 2001. First of all, we wish to point out that: -
1. The only Application pending in the Lands Tribunal between our Client and Madam Chan Lan Nui is the Lands Tribunal Building Management Application No. LDBM 87 of 2001......................"

12.On 10.5.2001, Mr. Krishnan must have searched the relevant court files. By that time he must have already received the letters dated 20.2.2001, 24.2.2001 and 18.4.2001 from Messrs. Y. T. Szeto & Co. It must be apparent to him that the Notice of Application served on the Respondent was the case between The Incorporated Owners of Jade Mansion and Chan Lan Nui. It could not be the Notice of Application LDBM 88/2001 between the Incorporated Owners of Jade Garden and Ho Lo Kwai Fong. It must be apparent to him that the case number, namely LDBM 88/2001, marked on the copy of Notice of Application served on the Respondent was a mistake. The case number should be LDBM 87/2001.

13.In his affirmation, Mr. Krishnan did not refer to the letter dated 18.4.2001 issued by Y. T. Szeto & Co. In paragraph 10 of his affirmation, he said ".............. I was still unaware of the true position and labouring under the impression that there were in fact 2 different applications in relation to the Respondent." I find it difficult to accept that statement in light of the above-mentioned matters. The above-mentioned documents should have removed any doubt, if any, that might have passed his mind.

14.Application item 1 of the summons

The summons was taken out under Orders 2 and 6 of the Rules of the High Court. Order 6 provides for various rules governing matters relating to a writ. In the present case, what is involved is a notice of application. I simply fail to see how Order 6 has any relevancy to this case.

15.Order 2 of the Rules of High Court reads: -

"1. Non-compliance with Rules (O. 2, r. 1)

(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

(2) Subject to paragraph (3), the Court may, on the ground that there has been such failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed."

16.Rule 31 of the Lands Tribunal Rules is in line with O. 2, r. 1. It provides that "any failure on the part of any person to comply with the provisions of these Rules shall not render the proceedings or anything done in pursuance thereof invalid, unless the Tribunal so directs".

17.The person who begins or purports to begin any proceedings must be a party to the proceedings, because apart from him nobody will be qualified to do so. Clearly the rules are to be followed by an intended party or the parties to the proceedings. Did the Applicant commit any breach of the rules, whether the Rules of the High Court, or the Lands Tribunal Rules? The simple answer is "no", because the mistake of assigning the wrong application number was committed by the staff of the registry, and not by the Applicant. Rule 77(c) of the Tribunal Rules specifically provides that proceedings under the Building Management Ordinance shall be commenced by an applicant by filing with the Registrar a notice of application substantially in accordance with Form 29. The Applicant did follow this rule. The wrong assignment of the application number is without his knowledge and has nothing to do with him. Therefore Order 2(1), and Rule 31 of the Lands Tribunal Rules do not apply to this case.

18.Even if the rules do apply to this case, the mistake of assigning the wrong application number to the Notice of Application when it was issued out of the Registry is only an irregularity in the administrative step undertaken by a clerk of the Tribunal; it does not affect the substance of the application. Therefore it should not be set aside.

19.The Lands Tribunal Rules were enacted under section 10(3) of the Lands Tribunal Ordinance, which provides that the Chief Justice may make rules prescribing the form of any document to be made or issued by any party or intending party for the purpose of any proceedings before the Tribunal, and the practice and procedure to be followed in any proceedings before the Tribunal. Therefore the rules of the Lands Tribunal Rules are to be followed only by the parties and intending party. They are not intended to be followed by clerks of the Registry. However the clerks are under administrative duties to provide a correct case number to an application. This is an administrative step in the routine business of the Tribunal. If a mistake is made in this respect, there is no provision in the Lands Tribunal Rules by which the clerk can invoke in order to have the application number rectified. What the clerk can do is to rectify the application number administratively. In the present proceedings, the mistake in question was detected by the Registry on or before 24.2.2001, and that caused Messrs. Y. T. Szeto & Co. to send to the Respondent the letter dated 24.2.2001. The wrong application number has already been rectified by the Registry well before 2.8.2001. The rectification is evidenced by the bar code label attached to the Notice of Application bearing the application number LDBM 87/2001. When the clerk took the administrative step to rectify application number LDBM 88/2001 to LDBM 87/2001, the wrong application number LDBM 88/2001 no longer existed. The application number for the Notice of Application is thereafter LDBM 87/2001. Thus there is nothing for me to set aside, rectify or amend in so far as the Notice of Application filed with the Registry is concerned. For these reasons, application items 1 and 2 of the Summons must fail.

20.Rule 6 of the Lands Tribunal Rules provides that a copy of every document filed or lodged with the Registry shall be served by the party who lodged or filed it on the other party. The Applicant did serve on the Respondent a copy of the Notice of Application it filed with the Registry on the Respondent. The application number is not correct. But the Applicant has already informed the Respondent the correct application number by its letter dated 24.2.2001. The Respondent could not have been misled or prejudiced, and the mistake in the application number is not a fundamental mistake. I therefore would not set aside the said service.

21.Application item 2 of the summons

As said before, the Notice of Application kept in the court file has been rectified. The application number LDBM 88/2001 is no longer in existence. So there is nothing to rectify or amend. As for the copy of Notice of Application served on the Respondent, no rectification or amendment can be made to it, because according to Rule 12(1) of the Lands Tribunal Rules a party may make an amendment to a document filed or lodged in any proceedings. The copy of Notice of Application served on the Respondent is not a document filed or lodged with the Registry. Therefore no amendment or rectification can be made to it.

22.Application item 3 of the summons

If application items 1 and 2 of the summons succeed, I must make an order in terms of application item 3. But since application items 1 and 2 fail, application item 3 must also fail.

23.On 13.8.2001, the hearing of the present utilized the whole day. I had to adjourn the trial sine dine, pending the outcome of this hearing. If not for this fact, I would have dismissed application item 3. Since the trial on 13.8.2001 was adjourned, I do not have to make an order for this application item.

24.Application item 4 of the summons

Regarding the application for the production of the envelope in question, the relevant section applicable is section 10(2)(b) of the Lands Tribunal Ordinance, which reads: -

"(2) Without prejudice to the generality of the powers vested in it under subsection (1), the Tribunal may -

(a) ...........................

(b) order any party to any proceedings before it -

(i) to produce to the Tribunal any document which it may require and which is in the power of such party to produce; and

(ii) to afford to any other party to the proceedings an opportunity to examine any such document or copy thereof and to take copies thereof;"

(Underlines provided)

25.I was not informed as to why the Tribunal may require this envelope. The only piece of information available in this regard can be found in paragraphs 8 and 9 of the affirmation of Fong Yin Yu, the Respondent's daughter, in which she said: -

'8. ......... Then, on or about 8th April 2001, the said Mr. Ng ........ handed over 4 letters from the Management Office (contained in separate envelopes) to me.............. Upon receipt of the said 4 letters, I approached the Management Office the next day.......... 9. Further, on or about the 9th of April, 2001, when I approached the Management Office upon receiving the 4 said letters, I was shown by an officer at the Management Office, a Mr. Yam, a hand-written envelope (addressed to my previous address at Kennedy Town) showing clearly on it, the Chinese words to the effect, "Post Office; Address Unknown". In this connection, upon taking legal advice with our solicitors recently, and, when, on their advice, I called up the Mr. Yam on 26th April, 2001 to request him to hand over that envelope to me, I was clearly told by him that that letter had already been sent by the Management to the applicant's lawyers.'

(Underlines provided)

This piece of information does not show how the envelope can be relevant to this case. I do not see what purpose it would serve if I make the order as requested.

26.There is no merit in the Respondent's applications. Accordingly I dismiss the summons, save and except item 3, in respect of which no order is made.

27.I order that the costs of and occasioned by this application be paid by the Respondent to the Applicant, to be taxed, if not agreed.

Representation:

The Applicant : Absent

The Respondent : Absent