Over & Above Ltd v. The Incorporated Owners of Nin Fung Building, Homantin

HCA932/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 932 OF 2005

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BETWEEN

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Before : Deputy High Court Judge Muttrie in Court

Date of Hearing : 6 September 2005

Date of Judgment : 6 September 2005

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J U D G M E N T

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1.This is an application for summary judgment.  The application having come before a master, the Master considered whether he had jurisdiction to hear it, decided that he had but then sent the matter to be heard by a judge in open court.

2.The defendant has not filed any notice of intention to defend. I am satisfied that proper service of the Writ, the application and notice of this hearing has been effected.

3.The plaintiff seeks a declaration that the employment of certain persons by the defendant is invalid and has no effect on the plaintiff, and further that certain increases in salary, and retrospective increases in salary of the staff of the defendant are invalid and have no effect on the plaintiff.

4.The plaintiff also seeks a monetary judgment for repayment of its contributions to the defendant between 1994 and 2004, made in respect of the invalid employment and invalid increases in salary, amounting to $529,425.00 plus interest thereon at the judgment rate from the date of the Writ until payment.

5.The ground of the plaintiff’s claims is that the resolutions made by the defendant for the employment of the persons concerned, and the increases and retrospective increases in salary, were invalid as being in contravention of the DMC and/or the Third Schedule of the Building Management Ordinance.

6.The only problem, it appears, arises from the rule of practice that the court will not make a declaration without a trial; see Wallersteiner v. Moir [1974] 1 WLR 991.  But this is only a rule of practice and will only be followed when the plaintiff can obtain the fullest justice to which he is entitled without the declaration which he seeks.  See Lam Shing Shou v. Lam Hon Man & Ors, HCA361/2001. 

7.I am satisfied that the plaintiff cannot obtain the fullest justice without the declarations; what it wants is its money back, and it cannot have that except on the basis of the declarations.

8.Of course it appears that, since 1994, the plaintiff has simply let the invalid resolutions, and the action taken to implement them, go on. It has no doubt enjoyed the services of the defendant, including the services of the persons it employed; and it has no doubt simply paid its contributions as required.  There may be defences of waiver and acquiescence, and indeed there may be a defence of limitation, which the defendant could raise, but the defendant has not raised any defence and must be taken to have admitted all the allegations in the Statement of Claim.

9.I will accordingly make an OIT of paras. 1-9 of the Summons; an OIT of para. 10 amended so that interest is granted on the sum awarded from the date of the Writ to the date of payment at the judgment rate; and an OIT of para. 12, amended to include any costs reserved.

Mr C.Y. Li, instructed by Messrs Burke, Fung & Li, for the Plaintiff

Defendant, in person, absent