Gallium Development Ltd. and Another v. Winning Properties Management Ltd. and Another

LDBM000121/2000

LDBM 121/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 121 of 2000

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

Date of Decision: 11 May 2001

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D E C I S I O N

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1. By the present summons, the Applicants applied to the Lands Tribunal for an order that the following point of law be tried as a point of law before the trial of this action : -

"1. Whether upon the construction of clause 4(5) of the Seventh Schedule of the Building Management Ordinance Cap. 344 ("the said Ordinance") the purported resolutions of the 2nd Respondent passed on 9th March, 1996; 15th April, 1996, 16th December, 1996 and 20th December, 1997 were contrary to clause 4 of the Seventh Schedule of the said Ordinance and did not empower the Respondents to utilize the said sum of HK$10,263,125.23 form the Sinking Fund as relied on by the Respondents under paragraph 18.4.3 of their Notice of Opposition.

2. Whether upon the construction of clause 27(1) of the DMC the purported resolutions of the 2nd Respondent passed on 9th March, 1996; 15th April, 1996; 16th December 1996 and 20th December, 1997 were null or void and of no effect and did not empower the Respondents to approve and/or rectify the Renovation Works or utilize the said sum of HK$10,263,125.23 from the Sinking Fund as relied on by the Respondents under paragraphs 8.3.6 and 18.4.3 of their Notice of Opposition."

(Underlines provided)

2. The summons was taken out under Rule 18 of the Lands Tribunal Rules, Cap. 17, which reads as follows : -

"(1) The President or a presiding officer may, on the application of any party, order any point of law which it is within the jurisdication of the President or a presiding officer to decide and which appears to be in issue in the proceedings to be disposed of at a preliminary hearing before the President or a presiding officer.

(2) If the decision on the point of law substantially disposes of the proceedings, the President or a presiding officer may order that the argument shall be treated as the hearing of the case or may make such other order as he thinks fit."

3. The essential requirements to be satisfied Rule 18 before this rule can be invoked are firstly that there is a point of law to be decided, secondly that the point of law is within the jurisdiction of President or a presiding officer to decide, and thirdly that the point of law appears to be in issue in the proceedings.

4. If there is a set of facts agreed between the parties, or admitted in the pleadings, then the Tribunal can apply to the set of facts the relevant legal rules, in order to solve the dispute between the parties. If the facts are in disputes, it will not be possible for the Tribunal to ascertain what point of law is applicable to the disputed facts, and whether the point of law (if any) is within the jurisdiction of the Tribunal to decide. Therefore in order to ascertain whether Rule 18 has been complied with, the Tribunal must firstly be satisfied that there is a set of agreed facts or a set of facts admitted in the pleadings. If this is satisfied, the Tribunal will then proceed to consider whether the point of law appears to be in issue in the proceedings.

5. Regarding the 2 "points of law" referred to in the summons, the most crucial fact which the Tribunal has to ascertain is whether the 2nd Respondent did pass resolutions on 9.3.1996, 15.4.1996, 16.12.1996 and 20.12.1997.

6. The parties in the present proceedings have not presented to the Tribunal any set of agreed facts in respect of the resolutions referred to in the summons.

7. The Applicants have not made any admission of facts by way of affidavit. The only affidavit produced by the Applicants in support of their application is the affidavit of Mr. Sin Kwok Fu which states : -

" 1. ................................

2. Now produced and shown to me marked "SKF-1" is a true copy of the Deed of Mutual Covenant and Management Agreement registered in the Land Registry by Memorial Number 2763436.

3. Now produced and shown to me marked "SKF-2" in a bundle are copies of the resolutions passed by the 2nd Respondent or about 9th March 1996, 15th April 1996, 16th December 1996 and 20th December 1997 produced by the 2nd Respondent."

(Underlines provided)

8. In his affidavit, Mr. Sin Kwok Fu did not make any admission of facts. In the 3rd paragraph of the affidavit, he only produced copies of resolutions produced by the 2nd Respondent. Although he referred to these resolutions as "resolutions passed by the 2nd Respondent", there is no admission that such resolutions had actually been passed by the 2nd Respondent. The gist of this paragraph appears that he was merely producing the copies of resolutions produced by the 2nd Respondent. In this respect, the stance of the Applicants is very clear. In the summons they referred to these resolutions as "the purported resolutions". They are not prepared to make any factual admissions relating to these "purported resolutions", save that, as shown in the affidavit of Mr. Sin Kwok Fu, copies of these resolutions were produced by the 2nd Respondent.

9. In the absence of a set of agreed or admitted facts relating to the purported resolutions, the Tribunal is unable to order any point of law to be tried.

The Summons

10. Regarding the "point of law" set out in the summons, it would be inappropriate for the Tribunal to apply clause 4 of the Seventh Schedule of the Building Management Ordinance and Clause 27(l) of the DMC to the said purported resolutions, the existence of which have not been agreed or admitted. The Tribunal cannot apply the said clauses in vacuum, because there does not exist any set of fact to which they can be applied. In other words, there is no basis upon which the application of the clauses can be invoked. Accordingly, for the purpose of this summons, the point of law as set out in the summons does not exist.

11. By reason of the matters said, I adjudge that Rule 18 is inapplicable to the summons before me. I dismiss it accordingly, with costs to the Respondents (Certificate for Counsel).

Representation:

The Applicants : represented by M/S M. K. Lam & Co., Solicitors.

The Respondents : represented by M/S Deacons, Solicitors.