王吟珍 v. 冠華園業主立案法團

LDBM 285/2005

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. LDBM 285 of 2005

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BETWEEN

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Coram: Deputy Judge WONG, Presiding Officer, Lands Tribunal

Date of Hearing:  8 May 2006

Date of Handing Down of Decision:   30 May 2006

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DECISION

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1.This is an application made by the Applicant to vary the costs order nisi made on 3 March 2006.  On 3 March 2006, I handed down the written judgment in this case whereby the Applicant’s application was dismissed.  I also granted an order nisi that the Applicant do pay costs to the Respondent with certificate for counsel and to be taxed on District Court scale if not agreed.  The Applicant now applies by way of summons dated 15 March 2006 to vary the costs order nisi to “no order as to costs”.

2.Section 12(1) of the Lands Tribunal Ordinance stipulates that “the Tribunal may award costs to and against any party to any proceedings and may order that those costs be taxed on the basis of any one of the Scales of Costs set out in the Schedules to Order 62 of (a) the Rules of the High Court (Cap. 4 sub. Leg. A); or (b) the Rules of the District Court (Cap. 336 sub. Leg. H).”

3.Section 12(2) of the Lands tribunal Ordinance further stipulates that “Order 62 of the Rules of the High Court (Cap. 4 sub. Leg. A) shall apply to the award, taxation and recovery of costs in the Tribunal.”  Thus, it is clear that Order 62 of the Rules of High Court applies in the Lands Tribunal: see Hong Kong Civil Procedure 2006, paragraph 62/2/3.

4.There is no dispute that the Lands Tribunal, like the High Court, has wide discretion in awarding costs, but it is a judicial discretion, and must be exercised on fixed principles, that is according to rules of reason and justice, not according to private opinion: see Sharpe v. Wakefield [1891] A.C. 173.

5.The general principle is that costs should follow the event, i.e. the winning party should get costs from the losing party.  Order 62, rule 3(2) of the Rules of the High Court provides that “If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings, the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.”  Thus, the Applicant, as the losing party, should pay costs to the Respondent unless there are other circumstances in the case warranting a different costs order.

6.The Applicant relies on two grounds to submit that the Respondent should not be entitled to costs.  The first ground is that the Respondent cannot be regarded as a “successful party” for costs purpose, and the second ground is that there were misconducts on the part of the Respondent.

7.On the first ground, the Applicant submits that each and every committee member of the Respondent failed to conduct correctly in respect of the missing $900, and I have found in my judgment that it was wrong to use the Respondent’s money to pay for the repair cost of a private unit’s iron gate.  The Applicant further submits that each and every committee member of the Respondent (and for and on behalf of the Respondent) wrongly held that Mr. Hui Siu Fung was qualified to be a committee member of the Respondent, and I have held that it was wrong for the Respondent to think that the Building Management Ordinance (“the BMO”) does not require a member of the management committee to be an owner.

8.As far as the $900 is concerned, the Respondent never alleged that it was right to use the $900 on the repair of private property.  The Respondent’s case was that they were not aware of such use and when it was discovered, they immediately asked the former chairman Mr. Sze to go with their lawyer to report the matter to the police.  The police did not charge anyone after investigation.  The present chairman Mr. Watt also donated $900 to the Respondent to avoid the present litigation.

9.Thus, when I wrote in my judgment that it was wrong to use the Respondent’s money, I did not mean that the Respondent lost on their case.  On the contrary, in my judgment, I expressly found that the Applicant’s evidence could not establish who authorized the use of the $900.  I also found that the Applicant was wrong to claim against the Respondent even if she could prove that Mr. Sze or Mdm. Lee had authorized the use of the $900, because her claim should be directed to Mr. Sze or Mdm. Lee instead of the Respondent.  Moreover, the Applicant’s claim against the Respondent was that the Respondent did not handle the matter properly, but I found that the Respondent had taken proper steps to deal with the matter.  So it is clear that the Applicant had failed in her case against the Respondent.  The Respondent must be a successful party in this regard.

10.As to the qualification of Mr. Hui, it was wrong for the Respondent to contend that there was no requirement under the BMO that a committee member had to be an owner.  However, it does not mean that the Applicant has established her case against the Respondent.  The Applicant’s case was that the Respondent’s management committee could not operate when Mr. Hui was not a proper member, but I found that the management committee could still operate and it could appoint another person to replace Mr. Hui.  Thus, the Applicant has clearly lost her case against the Respondent in this regard as well.

11.The Applicant argues that she is just a layman and could not phrase her claim properly.  I do not accept this argument.  The Applicant, even as a layman, should make sure that her claim was properly stated in the Notice of Application, because the Respondent had to defend such claim as stated in the Notice of Application.  The Applicant’s contention was that the Respondent’s management committee could not operate but my finding is that it could.  So the Respondent was successful in defending such claim.  Even if the Applicant was successful in one of the issues, it does not meant that the Respondent should be deprived of the costs in defending the claim.

12.The Applicant also argues that in bringing the present action, she was acting in good faith for good reasons and justice and for the interests of all the members of the Respondent.  I do not agree that good faith is a factor that I should take into account in considering costs.  Very often, parties bringing actions against others were acting in good faith, but if the claims were wrong they should bear the costs.  The Applicant is no exception.  If such a party could avoid the legal consequence of bearing costs, it means that the other party being sued would suffer loss as a result of a wrongful claim and it would be unfair to the other party.

13.On the second ground of misconduct, the Applicant submits that she had exhausted her ways to request and demand the Respondent to rectify its wrong doing, but the Respondent rejected all her requests and demands.  The Respondent failed to conduct further actions to investigate the missing $900 and to recover the same.  Despite the legal advice given and the advice of the representative from Kowloon City District Office and District Board Members, the Respondent continued its misconduct in allowing Mr. Hui to be a member.  The Respondent also induced the Applicant to bring the case to the Tribunal.

14.The Applicant relies on the decision of Atkin L.J. in Ritter v. Godfrey [1920] 2 K.B. 47 to submit that “In the case of a wholly successful defendant the judge must award him costs unless there is evidence: (1) That the defendant brought about the litigation; or (2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense; or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains.” (see also Hong Kong Civil Procedure, paragraph 62/3/3.)

15.The Applicant refers to the minutes of various owners’ meetings and correspondence to try to show that the Respondent had asked the Applicant to bring about the present litigation.  I do not accept the Applicant’s contention in this regard.  The evidence shows that the Respondent had reported the matter about the $900 to the police, but the police did not take any action.  So it is not a case that the Respondent did not do anything.  As to the qualification of Mr. Hui, the Respondent held the view that Mr. Hui could be a member.  This is a legal issue.  Even when the Respondent was wrong on this legal issue, it does not mean that the Respondent had misconducted itself.  There is nothing wrong for the Respondent to suggest to the Applicant to take this legal issue to court as only the court can resolve this legal issue.  So I do not find any misconduct on the part of the Respondent.  

16.By reasons aforesaid, the Applicant fails to establish any ground that could deprive the Respondent of its costs.  The normal costs order should therefore apply.

17.In the circumstances, I order as follows:-

(1)  The application by way of summons dated 15 March 2006 be dismissed.

(2)  The costs order nisi of 3 March 2006 be made absolute.

(3)  Costs order nisi for the summons dated 15 March 2006: The Applicant do pay costs of the summons dated 15 March 2006 to the Respondent with certificate for counsel, to be taxed on District Court Scale if not agreed.  If there is no application for costs in relation to the said summons within 14 days, this costs order nisi shall become absolute.

Mr. WONG Tak Hing, of M/S T.H. Wong & Co., for the Applicant.

Mr. Stephen FONG, instructed by M/S Damien Shea & Co., for the Respondent.