Fong Ming and Others v. Ma Shu Tau

[English Translation]

LDBM 285/2000

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT Application

No. 285 of 2000

________________________

Between

Before:  H. H. Judge Chow

Date of Judgment: 24 October 2000

________________________

JUDGMENT

________________________

1. On 28 August 2000, the applicants made the following application in the present case:

2. The Applicant(s) appl(ies) for an order that a meeting of owners to appoint a Management Committee be convened by the Applicant(s) or by such owner as the Tribunal may direct and for an order for the costs of this application.

3. On 19 September 2000, in the Respondent took out the present summons, applying to the Lands Tribunal (“the Tribunal”) for an order striking out the Respondent’s name as a party in the present case.

4. Rule 11 of the Lands Tribunal Rules empowers the Tribunal to add, strike out, or substitute the name of any person as a party at any stage of proceedings and on or without the application of a party.

5. The applicants instituted the present proceedings by way of a Form 28 Notice of Application.  The following is printed on top of the Form:

6. Notice of Application to dissolve management committee and appoint an administrator or notice of application to remove and replace an administrator under Building Management Ordinance Pursuant to section 31

7. Section 31(1) of the Building Management Ordinance (“the Ordinance”) provides that:                

(1) The tribunal may, upon application made to it by―

(a) an owner;

(b) a registered mortgagee (if any);

(c) an administrator; or

(d) the Authority or an authorized officer,

dissolve the management committee and appoint an administrator, or remove and replace an administrator, as the case may be.

8. Section 31(1) is silent on the convening of an owners’ meeting.  At the hearing of this summons, I sought clarification on this point from Mr Ho, the applicants’ solicitor, and he confirmed that the application was made pursuant to section 31.

9. Under the section “Name and address of Respondent(s)” in the Notice of Application, the name “The Chairman of the Incorporated Owners of Grand Court” was printed.  However, there is no such title in the Ordinance.  The Ordinance only refers to the title of the chairman of the management committee.

10. Section 8(2) of the Ordinance provides that, with effect from the date of issue of a certificate of registration by the authority, the owners’ incorporation shall be a body corporate with perpetual succession, and shall in the name of the incorporation specified in the certificate of registration be capable of suing and being sued.  Section 29 of the Ordinance provides that the powers and duties conferred or imposed by the Ordinance on an owners’ incorporation shall be exercised and performed on behalf of the incorporation by the management committee.

11. The applicants’ application is made pursuant to section 31 of the Ordinance, with the obvious aim to dissolve the management committee of Grand Court.  However, only Ma Shu Tau has been named the respondent, and the management committee has not.  Even if the Tribunal does make an order dissolving the management committee at the conclusion of the hearing, the order will not be binding upon the management committee because it is not a party to the action.  It does not have to comply with the order, because the order is made against Ma Shu Tau and not the management committee.  This will be the case whether or not Ma Shu Tau is the chairman of the management committee.  Ma Shu Tau or the chairman of the management committee is not a representative of the management committee, and so the above order will not be binding upon the management committee.  The proper approach for the applicants is to name the management committee of Grand Court or the registered owners’ incorporation of Grand Court, as the case may be, as the respondent.  However valid the applicants’ cause of action may be, their application as it stands is bound to fail because it has been made against a wrong party.

12. For the above reasons, I strike out the respondent’s name in the present case.

13. I make a costs order nisi that all applicants do pay the respondent Ma Shu Tau’s costs in the present case and in the present summons, save and except Ma Shu Tau’s costs in respect of his affirmations.  Such costs are, if not agreed, to be taxed in accordance with the District Court Civil Procedure (Costs) Rules.

14. If neither party makes any application to this Tribunal regarding the costs order nisi within 14 days, the costs order nisi shall become absolute.

Katherine Or & Co. for the 1^st to 5^th Applicants

Johnny K.K. Leung & Co. for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor