胡漢倫 v. 馮芷芳

LDBM 105 OF 2004

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. 105 of 2004

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Between

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

Date of Hearing: 26^th October, 2004 and 27^th October, 2004

Date of Judgment: 27^th October, 2004

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J U D G M E N T

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1.On 6^th March 2004, the Applicant served on the management company of the estate a requisition for an owners’ meeting with a view that the requisition would be forwarded to the Respondent Madam Fung, the chairman of the management committee of the incorporated owners of the estate.  It is a requisition made under paragraph 1(2) of the Third Schedule of the Building Management Ordinance, Cap. 344, for the chairman to convene an owners’ meeting. 

2.The requisitioners want an owners’ meeting to discuss 4 matters, namely: - 

(1)    Whether the resolutions passed in an owners’ meeting held on 22^nd February 2004 in relation to the maintenance works for the estate should all be revoked;

(2)    To immediately disclose and make public all relevant materials relating to the maintenance work for the estate;

(3)    To replace the chairman, secretary and treasurer of the current management committee; and

(4)    To re-elect a new chairman, a new secretary and a new treasurer and fill up any other vacancy in the committee immediately. 

3.The requisition contained 84 signatures by persons claiming to be owners, but did not contain any particulars to show who was the owner of which unit.  The Respondent admitted that she had received this requisition on 8^th March 2004.  She then returned it to the staff of the management company for advice on the validity of the requisition.  The requisition was given to her again on 15^th March 2004 with the advice that it was invalid.  She then passed it on to solicitors for legal advice.  The legal advice said that there was no indication of ownership and thus no means to find out whether the signatories were indeed owners, hence, the requisition was not valid.  I think this argument is sound. 

4.The requisition only contained 84 names.  There were and are 1,421 flats in the estate.  It is impossible for the chairman to know whether the 84 signatories were indeed owners or whether some of them were merely residents or even strangers.  To require the chairman to go through the list of owners so as to verify the status of each and every of the 84 signatories is absolutely unreasonable, if not impossible. 

5.I take the view that a requisition for an owners’ meeting, in order to be valid and effective, should at least contain the printed names of the owners and the units they own in addition to their signatures.  With such information, it would be easy for the chairman to confirm that the signatories were indeed owners, if the chairman should find the confirmation necessary. 

6.I therefore hold that this requisition, on its own, is not a valid requisition for the purpose of paragraph 1(2) of the Third Schedule of the Ordinance. 

7.The legal advice was forwarded by the Respondent to the Applicant under cover of a letter dated 29^th March 2004.  It contained other criticisms against this requisition which I do not regard as valid and I say no more about them. 

8.However, the matter did not stop there.  The Applicant on 30^th March 2004 delivered to the management company certain supplemental information of the requisition for delivery to the Respondent.  The supplemental information provided the printed names and particulars of the units owned by the signatories.  The requisition was thus made good by the provision of the supplemental information.  However, the Respondent did not convene any owners’ meeting as demanded by the requisition.  The Applicant therefore lodged an application with the tribunal on 14^th April 2004 seeking an order to compel the Respondent to convene an owners’ meeting. 

9.The Respondent pleaded in her Notice of Opposition seven grounds of defence.  They are: -

(1)    The Respondent only received from the management company the supplementary information on 6^th April 2004. 

(2)    The solicitors of the incorporated owners only received the supplementary information on 16^th April 2004. 

(3)    The management company had to verify the identities of the owners.

(4)    The responsibility to convene an owners’ meeting did not lie with the Respondent, but it should be shouldered by the management committee.

(5)    The Applicant was not entitled to represent all the other owners in litigating against the Respondent.

(6)    The first and second items in the requisition need not be voted upon, or to be dealt with at an owners’ meeting; and

(7)    The Applicant had obstructed the execution of the maintenance works, spread defamatory and misleading opinion. 

10.At the trial, Mr. Cheung, counsel for the Respondent, very properly abandoned grounds 2 to 5 and 7, and only relied on grounds 1 and 6.  In fact, ground 6 also does not assist the Respondent, as there were items 3 and 4 in the requisition which could certainly be discussed and voted upon in an owners’ meeting.  Thus, the only ground of defence is ground 1; i.e. the supplemental information was only served on the Respondent on 6^th April 2004 and the application made on 14^th April 2004 was therefore premature.

11.The Respondent said that one Mr. Chan Wai-tak of the management company only gave her the supplementary information on 6^th April 2004, which was the first day of a three-day conference to discuss the maintenance works for the estate.  The Applicant did not challenge her evidence on this.  Mr. Chan of the management company was also not called to dispute this.

12.The Applicant, however, argued that the management company, as the Respondent’s agent, had received the supplemental information on 30^th March 2004 and the 14 days started to count from 30^th March 2004.  The Application was thus not pre-mature.  The Respondent however denied such agency.    

13.The management company was engaged by the incorporated owners to carry out all the management functions.  The relationship between the incorporated owners and the management company is one of contract for services, and not an employment relationship.  There is no contractual relationship as between the management company and the Respondent.

14.There is no evidence which would suggest an actual agency authority given by the Respondent to the management company for the latter to receive letters for her.  There is also no evidence of any ostensible agency authority as there is no suggestion that the Respondent had held out the management company as her agent in receiving letters for her.  I also cannot find any evidence to support an implied authority. 

15.The Respondent argues that the management company and the incorporated owners share the same office.  However, even that was only the office of the incorporated owners and not the Respondent’s address for service.  I also cite the example of barristers sharing chambers.  Such sharing arrangement does not make them agents of one another in receiving letters. 

16.The Applicant then referred to the fact that he had previously served his letters on the Respondent through the management company.  The chairman of the management committee is of course known to the management company.  It is not surprising that when letters addressed to the chairman were delivered to the management company, the management company would forward them to the chairman.  However, that does not make the management company the agent of the chairman in receiving such letters.  Most people send their letters through the post, but that does not make the post office the agent of the addressees of the letters.  The time of receipt by the addressee of a letter sent through the post is not the time of posting.  Similarly, the time when the supplemental information was received by the Respondent was not when it was handed over to the management company, but the time when the Respondent actually received it. 

17.Finally, the Applicant relied on a letter by him to the management company dated 16^th August 2004 and a reply by the management company dated 20^th August 2004.  Only the first 2 questions and answers in these letters are relevant.  The questions read: -

“(1)    Since the incorporation of the incorporated owners of the estate, at what time did the management company change its capacity from that of a representative of the Housing Authority to that of a representative of the incorporated owners and the management committee?

(2)    Since when did the management company start receiving letters and documents as a representative of the incorporated owners and its management committee?” 

18.The management company gave the same answer to both questions; namely, from 9^th September 2000.  I understand that that was the date of incorporation of the incorporated owners.  However, I still do not think that such is sufficient to prove an agency between the Respondent and the management company. 

19.Question 2 in the letter is a leading question.  The answer from the management company does not tell how the agency was created.  If the management company, by the answer, only intended to confirm that since the incorporation of the incorporated owners, it had assumed the duty to receive letters for the incorporated owners and the management committee and to forward the same to them, that does not mean that there was an agency between them.

20.Since nobody from the management company was called to give evidence on the existence of the authority, I do not think these two letters, or the two questions and the two answers, as exchanged between the Applicant and the management company, are enough to prove an agency between the Respondent and the management company.  In fact, the questions and answers do not specifically refer to the Respondent.  They only refer to the incorporated owners and the management committee.  That further weakens the Applicant’s case. 

21.The requirement in paragraph 1(2) of the Third Schedule is strict.  The chairman had to convene an owners’ meeting within 14 days of receiving the requisition.  Thus, the time of service of the requisition should be proved properly. 

22.It was open to the Applicant to effect personal service on the Respondent by delivering the supplemental information at her home.  If he did not know her home address, he could have enquired the same from the management company.  Alternatively, if he would like to effect service through the management company, he could have enquired with the management company on the date when the supplemental information was actually served on the chairman, and start counting the 14 days from then.  He had not done so in this case.

23.The Respondent’s evidence that she only received the supplemental information on 6^th April 2004 was not really challenged and I find such evidence credible, as she has been taking this position when she made her first response in this application on 16^th April 2004.  I accept her evidence.  I thus hold that the application by the Applicant for an order requiring a meeting to be held was a premature one and I dismiss it. 

24.I also wish to mention that the Respondent has resigned from the office of chairman on 12^th June 2004.  Furthermore, an owners’ meeting as demanded by the requisition was convened on 29^th August 2004. 

25.On the question of costs, there are a number of matters that I should consider.  The Respondent should have known that the meeting had to be convened within 14 days from the receipt of the supplemental information.  When she received such information on 6^th April 2004, she knew that the document was dated 30^th March 2004.  She should have told the Applicant or sent him a letter telling him that she had only received the information on 6^th April 2004, and the 14 days should only count from that day.  She had not done so.  If she should have done so, I see no reason why the Applicant would not have waited for a few more days before applying to the tribunal for an order to convene the meeting. 

26.Furthermore, the Respondent had not convened any owners’ meeting on or before 20^th April 2004, which was the last day of the 14-day period after she had received the supplemental information.  

27.Though the incorporated owners had on 27^th May 2004 applied to the District Office for a venue to convene an owners’ meeting, notice of the meeting was only posted up on 23^rd July 2003.  The booking of venue was made in the event that an owners’ meeting would be held.  When the booking was made, the Respondent still had not decided whether to hold the meeting.

28.The Respondent had also participated in a decision to distribute questionnaires to the requisitioners with a view to render the requisition for meeting useless. 

29.I am of the view that the Respondent’s conduct, as outlined above, is neither reasonable nor satisfactory.  Though she has succeeded in the opposition, I do not think it right to award costs in her favour.  I therefore make an order nisi that there be no order as to costs. 

Applicant : represented by Mr. K. S. Yip, Counsel instructed by and Mr. NG Chi-hin, Solicitors of Messrs King & Co., Solicitors

Respondent: represented by Mr. Kam Cheung, Counsel instructed by and Mdm. CHENG Yuk-yan, Paralegal of Messrs Chiu, Szeto & Cheng, Solicitors