Golden Brick Investment Co Ltd v. Yip Chi Kin
Read the full judgment text of LDBM 57/2004 on BabelCite. This Lands Tribunal judgment was delivered on 15 June 2004.
1. These claims were first brought by the Applicant against the Respondents in the Small Claims Tribunal on 22nd August, 2003. The first hearing before that Tribunal took place on 10th October, 2003. By consent of the parties, they were transferred to this Tribunal on 3rd March, 2004 pursuant to Section 7 of the Small Claims Tribunal Ordinance.
Cites 5 cases
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LDBM000057/2004 LDBM 55 to 69/2004 IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 55 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 56 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 57 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 58 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 59 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 60 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 61 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 62 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 63 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 64 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 65 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 66 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 67 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 68 OF 2004 _______________
_______________ IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION BUILDING MANAGEMENT APPLICATION NO. 69 OF 2004 _______________
_______________ Coram: H. H. Judge Chan, Presiding Officer of the Lands Tribunal Date of Hearing: 15 June 2004 Date of Judgment: 15 June 2004 _______________ J U D G M E N T _______________ 1.These claims were first brought by the Applicant against the Respondents in the Small Claims Tribunal on 22nd August, 2003. The first hearing before that Tribunal took place on 10th October, 2003. By consent of the parties, they were transferred to this Tribunal on 3rd March, 2004 pursuant to Section 7 of the Small Claims Tribunal Ordinance. 2.The first hearing before this Tribunal took place on 13th April, 2004 and directions were given for the Applicant to file and serve its Notices of Application within 21 days and the Respondents to file their Notices of Opposition within 21 days thereafter. The hearing was then adjourned to 25th May, 2004 for further directions. 3.The Applicant filed and served its Notices of Application on 4th May, 2004. The Applicant pleaded in the Notices that it was the manager of the Respondents' building Nan Shing Court and its term lasted from November, 1995 to 16th September, 2000. It was also the manager named in the DMC of the building and was a party thereto in such capacity. The Applicant further pleaded that by reason of the default of a certain owner in paying the management fees, it had to advance its own funds to defray the management and maintenance costs and expenses. When its appointment was terminated on 16th September, 2004, it had advanced H$156,010.58 to cover the deficit. Since the Incorporated Owners of Nan Shing Court ("the IO") was only incorporated on 11th January, 2001 after the Applicant's appointment had been determined, the Applicant therefore apportioned the said sum in accordance with the management shares of the individual units and claimed the individual owners the apportioned sums. 4.On 25th May, 2004, the Solicitors for the Respondents filed a summons seeking to strike out the Notices of Application. The grounds of the applications are that the claims disclose no reasonable cause of action; the Applicant has in its Notices of Application admitted that its appointment as the manager had been terminated before the claims were made in the Small Claims Tribunal and the Applicant has no right of action against the Respondents. 5.Since the IO was only incorporated on 11th January, 2001 whilst the Applicant's appointment had been terminated on 16th September, 2000, the advancement was thus made to all the owners and not to the IO and the liability to repay came into existence before the IO had come into being. It was thus right that the Applicant should claim repayment against the individual owners and not the IO (see Hang Yick Properties Management Ltd v Incorporated Owners of Winner Building [1999] 3 HKC 574 and Jikan Development Ltd & Another v Incorporated Owners Of Million Fortune Industrial Centre [2004] 1 HKLRD 181.) 6.Despite that, the Respondents submit that the Applicant is not one of the entities named in section 45(4) of the Building Management Ordinance, Cap. 344 and thus is not competent to make the applications before this Tribunal. Section 45 reads:
7.For the definition of manager in section 45(4)(e), the Respondents also refer to section 34D(1) of the said Ordinance the relevant part of which reads:
8.The Respondents thus say that the manager, being an ex-manager, falls outside section 45(4)(e). The Respondents further refer to Universal Property Management Services Ltd v Incorporated Owners of Ying Ga Garden [1997] 4 HKC 349 where H. H. the late Judge LI said in paragraph 4:
9.The Applicant responded with several points. The Applicant firstly relies on sections 45(4)(b) and 3(1)(a) of the said Ordinance. Section 45(4)(b) allows "a person referred to in Section 3(1)(a) or (b)" to make a claim in this Tribunal. Section 3(1) reads:
10.However, I agree with the Respondents that the person managing the building must mean the person currently managing the building and not a person who has sometime in the past managed the building. 11.The Applicant then relies on The Incorporated Owners of Blocks F1 to F7 of Pearl Island Holiday Flats v. Fullwin Property Management Ltd. LDBM 273 of 2000. H. H. Judge Lam (as he then was) said in paragraphs 20 to 22 of the Judgment as follows:
12.The learned Judge was of the correct view that paragraph 8 of the Seventh Schedule applies to an ex-manager and thus the definition of manager in section 34D(1), though applies for Part VIA of the Ordinance, would not apply to paragraph 8. However, the Applicant cannot point to any reason which would exclude this definition of manager from Section 45(4)(e) and thus allow the Applicant as the ex-manager to make the claim in this Tribunal. 13.The Applicant then asks me to exercise my discretion under section 45(4)(j) in its favour as the Applicant is a party to the DMC of the building. However, no reason has been advanced on why the discretion should be so exercised or why this Tribunal in the present claims is the more appropriate tribunal than the District Court. 14.The Applicant then argued that it was the Respondents who had first suggested the transfer of these claims from the Small Claims Tribunal to this Tribunal and thus it should not be allowed to make this application to strike out. The simple answer to this point is that if this Tribunal did not have the jurisdiction, it would still not have the jurisdiction regardless of who had instigated the transfer. 15.The Applicant's best point is the last one which relies on section 8(8A) of the Lands Tribunal Ordinance. Section 8(8A) reads as follows:
16.Since these claims were transferred by the Small Claims Tribunal to this Tribunal under Section 7 of the Small Claims Tribunal Ordinance, this Tribunal would have jurisdiction to determine these claims. The Respondents argue that section 8(8A) of the Lands Tribunal Ordinance should be subject to section 45 and the Tenth Schedule of the Building Management Ordinance so that the Applicant would still have to fit into one of the entities in section 45(4) before the claim can be entertained by this Tribunal. Miss Hui for the Respondents submits that if it were otherwise, all sorts of claims would be transferred to this Tribunal. I do not think I can subscribe to Miss Hui's view. Section 7 of the Small Claims Tribunal Ordinance provides:
17.It is thus clear that if the Small Claims Tribunal should come across a claim that merits an order of transfer, it would scrutinize the nature of the claim and then transfer it to the most appropriate venue. With that screening process, there is little risk, if any, that inappropriate claims would be transferred to this Tribunal. 18.Furthermore, if I should accept Miss Hui's submission, I would have to transfer these claims to the District Court under section 8A of the Lands Tribunal Ordinance. Given the nature of these claims, which is commonly dealt with by this Tribunal, if I should transfer them to the District Court after they have been transferred here from the Small Claims Tribunal, I would only create delay for their resolution. I think section 8(8A) of the Lands Tribunal Ordinance is just to avoid this kind of absurdity. 19.Miss Hui for the Respondents also refers me to a number of previous decisions of this Tribunal. In Barnes and Noble Property Management Ltd. and Anor v. Hodson Ltd. LDBM 355 of 1999, it was a claim by an ex-manager for accumulated deficit of management fees. It had been transferred from the Small Claims Tribunal. H. H. Judge Chow dismissed it on the ground that the manager was an ex-manager and thus not within section 45(4). However, section 8(8A) was not referred to the learned Judge in that case. In LDBM 458 of 2000, the IO of a development sued the ex-manager in this Tribunal for payment of surplus of management fees collected. H. H. Judge Chow dismissed the claim on the basis that the respondent was only an ex-manager and thus the claim was not within paragraph 5(c) of the Tenth Schedule of the Building Management Ordinance. That was a direct claim lodged with this Tribunal and thus did not enjoy the extra jurisdiction conferred by Section 8(8A). In Valiant Management Services Ltd. v Ho Kwai Yee LDBM 123 of 2000, it was a claim lodged directly with this Tribunal by an ex-manager for payment of management. It therefore also could not enjoy the extra jurisdiction conferred by section 8(8A). In Incorporated Owners of Kingsford Industrial Centre v Austria Property Management BM 28 of 1997, an ex-manager registered charges against flats of owners who had defaulted in payment of management fees. The Incorporated Owners sued the ex-manager for order to remove the charges. H. H. the late Judge Li ordered the removal on the ground that the ex-manager could no longer collect management fees on behalf of the Incorporated Owners as there was no more agency between them. I cannot see how this case is relevant to this application. Finally, Miss Hui also relies on Universal Property Management Services Ltd. That case again was brought directly in the Tribunal and it was before the enactment of section 8(8A). 20.After I have heard submissions from both parties, Miss Hui furnished me with a further set of written submissions. However, they did not change my conclusion. In the further submissions, Miss Hui tries to make a distinction between section 8(8A) of the Lands Tribunal Ordinance on the one hand and section 45(1) of the Building Management Ordinance and paragraph 1 of the Schedule of the Small Claims Tribunal Ordinance on the other. She argues that Section 8(8A) of the Lands Tribunal Ordinance only empowered this Tribunal to "determine" a claim while section 45(1) of the Building Management Ordinance and paragraph 1 of the Schedule of the Small Claims Tribunal Ordinance empower the Tribunals to "hear and determine" a claim. She goes on to argue that the Tribunal under section 8(8A) can only determine whether it has jurisdiction to hear the claim and not to hear it. Thus, section 8(8A) is subject to section 45 and the Tenth Schedule. This is a novel submission but I remain unswayed. I cannot read such difference into these sections. I see no difference between them by reason of the omission of the word "hear". 21.The next point in the further submissions is that the Applicant remains an Applicant before this Tribunal. Hence, it must qualify as an Applicant as per section 45(4). This is another way of relegating section 8(8A) to insignificance. If Section 8(8A) is not to confer extra jurisdiction, I wonder why it was enacted at all. On Miss Hui's case, we do not need section 8(8A), section 7 of the Small Claims Tribunal Ordinance would be sufficient. If a claim transferred from the Small Claims Tribunal under section 7 should fail to meet the requirements of section 45 and the Tenth Schedule, it should then be transferred to another tribunal. We do not need section 8(8A) for this Tribunal to determine if it has jurisdiction to hear the claim. 22.For the above reasons, I dismiss the Respondents' application to strike out with costs of the application to the Applicant to be taxed.
Representation: Applicant : Represented by M/S Hui & Lam, Solicitors Respondents : Represented by M/S Wilbur Ho & Co., Solicitors |
Cases cited in this judgment