2001年11月26日，答辯人的第三屆管理委員會發出召開 2001年業主周年大會的通告，通告指明業主周年大會將於2001年 12月12日舉行；該大會的議程包括“議決通過選舉第四屆管理委員會委員”以及“議決通過選出第四屆管理委員會主席、副主席、秘書及司庫”。
".....the first annual general meeting should, according to this provision, have been convened by 7 January 1998. ............ However, what is the effect of the Management Committee failing to convene such a meeting by 7 January 1998? .........
34. There is no express provision in the Ordinance that in the event of such a failure, the management committee will automatically dissolve or cease to have the power to represent the corporation. Also absent is any express provision that the members of the management committee will cease to hold office after the deadline. The provisions of the Ordinance which, I thick, are most relevant are set out below.
The long title: To facilitate the incorporation of owners of flats in buildings or groups of buildings, to provide for the management of buildings or groups of buildings and for matters incidental thereto or connected therewith.
s.6: The Second Schedule shall have effect with respect to the composition and procedure of a management committee.
s. 8(2)(a): With effect from the date of issue of the certificate of registration under subsection (1) -
(a) the owners for the time being shall be a body corporate with perpetual succession and shall in the name of the corporation specified in the certificate of registration be capable of suing and being sued and, subject to this Ordinance, of doing and suffering all such other acts and things as bodies corporate may lawfully do and suffer;
s.8(5): The Third Schedule shall have effect with respect to the meetings and procedure of a corporation.
s. 18 provides for the duties and powers of a corporation.
s. 16: When the owners of a building have been incorporated under section 8, the rights, powers, privileges and duties of the owners in relation to the common parts of the building shall be exercised and performed by, and the liabilities of the owners in relation to the common parts of the building shall, subject to the provisions of this Ordinance, be enforceable against, the corporation to the exclusion of the owners, ...
s.29: Subject to this Ordinance, the powers and duties conferred or imposed by this Ordinance on a corporation shall be exercised and performed on behalf of the corporation by the management committee.
Second Schedule, para 3: ... the members of the management committee appointed at a meeting convened ... shall hold office until a new management committee is appointed and assumes office at the second general meeting of the corporation.
Second Schedule, para 5(1): At the second annual general meeting of a corporation convened in accordance with paragraph 1(1)(b) of the Third Scheduel and thereafter at every alternative general meeting, all members of the management committee, ..., shall retire from office.
Third Schedule, para 1(1): The management committee shall convene-
(a) the first annual general meeting of a corporation not later than 15 months after the date of the registration of the corporation;
(b) an annual general meeting not earlier than 12 months, and not later than 15 months, after the date of the first or previous general meeting;
(c) a general meeting of the corporation at any time for such purposes as the management committee thinks fit.
Third Schedule, para 1(2): The chairman of the management committee shall convene a general meeting of the corporation at the request of not less than 5% of the owners for the purposes specified by such owners within 14 days of receiving such request.
(emphasis added)
35. It is important to not that the Ordinance expressly gives power to the owners to request the chairman of the management committee to convene a general meeting (para 1(2) of the Third Schedule). It would be impossible to give effect to that provision in the event that the owners request the chairman to convene a meeting after the management committee has failed to comply with para 1(1)(a) or (b) of the Third Schedule by the respective deadlines provided therein if the failure had the effect of having already made the office of all the members of the management committee, which necessarily include the chairman (para 2(1)(b) of the Second Schedule), to lapse. Para 3 of the Second Schedule expressly allows members of the management committee to hold office until a new management committee is appointed. An interpretation of paras 3 and 5(1) of the Second Schedule, combined with para 1(1) of the Third Schedule, that the management committee has ceased to exist or function 15 months after the date of the registration of the corporation or after the date of the previous annual general meeting would also give rise to a vacuum in the management of the building, as there would be no one or no body to exercise the powers and perform the duties set out in s 18 on behalf of the corporation under s 29 in the various aspects of management, such as collecting monthly management and maintenance charges, contracting with or instructing any contractors or workers to carry out necessary repair and maintenance works to the common parts after the deadline. I am therefore compelled to come to the view that that cannot be the proper interpretation of these provisions of the Ordinance.
36. The interpretation that the Management Committee would dissolve or cease to exist or be rendered powerless appears to violate the clearly expressed intent of the Ordinance as described in its long title and the provisions of para 3 of the Second Schedule. .......................
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40. In the result, albeit without hesitation, I would prefer the interpretation of the provisions of the Ordinance in this respect that when a management committee fails to convene the first annual general meeting, and for that matter, any subsequent annual general meeting, the management committee will continue to operate and its members will continue to hold office until the next annual general meeting is held. When the second general meeting is held, then the members of the management committee shall retire from office in accordance with para 5(1) of the Second Schedule."