Wong Pei Chi v. Leung Yun Kan

[English Translation – 英譯本]
LDBM 112/2008

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 112 OF 2008

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Before: His Honour Judge Wong, Presiding Officer

Dates of hearing: 16 February and 30 March 2009

Date of handing down Judgment: 30 April 2009

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JUDGMENT

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Background

1. The Applicant is the owner of Flat A, 20^th Floor, Block 1, Hong Shing Garden, Tseung Kwan O, New Territories, Hong Kong (hereinafter “the Estate”). The Respondent is the Secretary of the owners’ incorporation of the Estate (hereinafter “the Corporation”). According to the Applicant’s Notice of Application, which has been repeatedly amended, the Applicant is seeking the following orders from this Tribunal:

a. That Mr. Leung Yun Kan was suspended from the office of Secretary at the General Meeting of the Corporation on 4 November 2007;

c. That pursuant to section 12(3) of the Building Management Ordinance, Cap. 344, Mr. Leung Yun Kan do rectify the register of corporations kept at the Land Registry to the effect that Mr. Poon Po Kwok (潘保國) was not the first Chairman of the Corporation;

d. That pursuant to section 12(3) of the Building Management Ordinance, Cap. 344, Mr. Leung Yun Kan do rectify the register of corporations kept at the Land Registry to the effect that the first Chairman of the Corporation should be Mr. Pang Kwok Yau (彭國友);

e. That Mr. Leung Yun Kan do amend the register of corporations kept at the Land Registry by deleting an untrue record, namely that he was appointed Secretary of the Corporation on 14October 2007 and 29 October 2007.

2.I made it clear to the Applicant at the commencement of the trial that I would only rule on the issues pertaining to the above orders sought by the Applicant and, therefore, I would not determine the other issues mentioned by the Applicant in her evidence and submission.

3.In fact, the matters on which the above orders are sought revolve around two issues: firstly, the Respondent’s capacity as Secretary of the Corporation; and secondly, whether the first Chairman of the Corporation was Mr. Poon Po Kwok or Mr. Pang Kwok Yau. On these two issues I now adjudicate.

The Respondent’s capacity as Secretary

4.According to the information on the register of corporations at the Land Registry, the Respondent was appointed Secretary of the Corporation on 4 September 2007, 14 October 2007 and 29 October 2007. The Applicant, however, only disputes the Respondent’s appointments on 14 October 2007 and 29 October 2007.

5.First, in respect of the appointment on 14 October 2007, the Applicant submits that according to the minutes of meeting of the Corporation’s Management Committee, the Respondent was never appointed Secretary on 14 October 2007. The Respondent admits that at the owners’ annual general meeting on 14 October 2007, no by-election was held for the office of Secretary. The Respondent was appointed Secretary at the meeting of the Management Committee on 29 October 2007. On the cases presented by both parties, the Land Registry’s record of the Respondent’s appointment as Secretary on 14 October 2007 is plainly incorrect.

6.As for the appointment on 29 October 2007, the Applicant submits that as the agenda (issued on 20 October 2007) for the meeting of the Management Committee on 29 October 2007 did not specifically propose to have the appointment of Secretary resolved at the meeting, the resolution to appoint the Respondent as Secretary was invalid. The Respondent admits that the appointment of Secretary was an ad hoc item added to the agenda in the course of the meeting. However, he submits that since all the 11 members of the Management Committee attended the meeting and voted on the resolution regarding the appointment of Secretary, and there were six votes for the resolution, one vote against it and four abstentions, the resolution was validly passed.

7.Although paragraph 8(2AA) of Schedule 2 to the Building Management Ordinance (“the Ordinance”) requires a management committee’s notice of meeting to specify the resolutions (if any) that are to be proposed at the meeting, the Ordinance does not provide that a resolution which is not specified in the notice will be invalid. This is to be contrasted with a resolution passed at a general meeting of the corporation, in respect of which paragraph 3(7) of Schedule 3 to the Ordinance provides that “No resolution passed at any meeting of the corporation shall have effect unless the same was set forth in the notice given in accordance with paragraph 2 or is ancillary or incidental to a resolution or other matter so set forth.” There is no similar provision governing a resolution of the management committee.

8.In my view, if the validity of a resolution passed at a meeting of the management committee is intended to be subject to the same regulation, Schedule 2 to the Ordinance will have to contain a provision similar to paragraph 3(7) of Schedule 3 in order to give effect to that intention. Accordingly, I rule that the resolution dated 29 October 2007 on the appointment of Secretary was not rendered invalid by the absence of a proposed resolution to that effect in the agenda. There is no irregularity in the Land Registry’s records concerning the Respondent’s appointment as Secretary on 29 October 2007.

9.The Applicant submits that the Respondent was suspended from the office of Secretary at the owners’ general meeting on 4 November 2007 because, pursuant to paragraph 6(5)(b) of Schedule 2, the Respondent’s appointment by the Management Committee by a by-election was to fill the vacancy until the next general meeting of the Corporation. On the other hand, the Respondent argues that the general meeting on 4 November 2007 was aborted because it had never been formally convened by reason of insufficient quorum, and therefore the Respondent was still validly holding the office of Secretary.

10.First, I agree with the decision of Deputy Judge Yiu in Wong Pei Chi v. Pang Kwok Yau, LDBM 111/2008. An aborted meeting is nonetheless a formally convened meeting; it is just that no valid resolution can be passed at the meeting. However, in my view, the term of office referred to in paragraph 6(5)(b) of Schedule 2 should not be made to last until an aborted meeting. Although paragraph 6(5)(b) simply reads “till the next general meeting of the corporation”, this must in my view be intended to mean “till the new secretary or treasurer is elected by the corporation at its next general meeting”. The object of this provision must be to enable the management committee to fill the vacancy until the corporation has an opportunity to elect a new secretary or treasurer, otherwise the management committee may not be able to continue to operate due to the absence of a secretary or treasurer. If the next general meeting is aborted, the corporation cannot elect a new secretary or treasurer at that meeting, and if the term of office of a secretary or treasurer appointed by a by-election comes to an end at that point of time, a vacancy will occur in the management committee again. This cannot in my view be the legislative intent. I am of the view that the term “general meeting of the corporation” in paragraph 6(5)(b) of Schedule 2 to the Ordinance must by necessary implication “exclude an aborted meeting”. Accordingly, I rule that the Respondent was not suspended from the office of Secretary at the general meeting on 4 November 2007.

Who was the first Chairman of the Corporation?

11.According to the Land Registry’s records, Mr. Pang Kwok Yau was appointed as Chairman of the Corporation on 22 May 2005, but a vacancy occurred in the office of Chairman on 15 April 2008. Mr. Poon Po Kwok was then appointed as Chairman on 8 May 2008. The Applicant submits that Mr. Pang Kwok Yau was Chairman of the Corporation at all times and there had been no vacancy in the office of Chairman which had to be filled by appointing Mr. Poon Po Kwok as Chairman.

12.As a matter of fact, the Applicant took an opposite stance in the aforesaid case LDBM 111/2008. In that case, the Applicant submitted that Mr. Pang Kwok Yau had absented himself from three consecutive meetings of the Management Committee and hence, pursuant to paragraph 4(2)(c) of Schedule 2 to the Ordinance, he automatically ceased to be Chairman. However, Deputy Judge Yiu held that Mr. Pang had not absented himself from three consecutive meetings because he had attended one aborted meeting, that being also a meeting of the Management Committee although no resolution could be passed due to insufficient attendance.

13.On the basis of the above decision, the Applicant now submits that Mr. Pang Kwok Yau was still the first Chairman of the Corporation and the appointment of Mr. Poon Po Kwok was therefore invalid. On the contrary, the Respondent contends that the above decision was incorrect in treating an aborted meeting as a formal meeting of the Management Committee, that Mr. Pang Kwok Yau had been absent on three consecutive occasions and ceased to be member and Chairman, and that there was therefore no irregularity with the appointment of Mr. Poon Po Kwok.

14.As mentioned above, I agree with the decision of Deputy Judge Yiu. I also rule that Mr. Pang Kwok Yau had not lost the office of Chairman due to his absence from three consecutive meetings. It follows that there had been no vacancy in the office of Chairman of the Corporation and Mr. Poon Po Kwok should not have been appointed as Chairman.

15.For the above reasons, the Land Registry’s records that the office of Chairman was vacant on 15 April 2008 and that Mr. Poon Po Kwok was appointed Chairman on 8 May 2008 should be rectified.

Are the orders sought by the Applicant appropriate?

16.The Applicant is seeking to rectify certain information on the Corporation in the Land Registry’s register of corporations, and I have ruled that three items need rectification. Nevertheless, I do not think the Applicant should be granted any of the orders being sought. The above information being that of the Corporation, any amendment thereto will affect the Corporation even though the Respondent as Secretary has the duty to make the amendments. Furthermore, any amendment to the record that Mr. Poon Po Kwok has been appointed as Chairman will affect Mr. Poon. Since neither the Corporation nor Mr. Poon Po Kwok is a party to the present case, my decision will not be binding on either of them. I should also refrain from making any order that will affect anyone other than the parties to the case (see Wong Wai Chun v. Shing Sau Wan, CACV 173/2004).

17.Accordingly, I will not grant the Applicant any of the orders being sought.

18.The Respondent has also submitted that the Applicant’s application no longer serves any purpose as a result of the election of a new Management Committee on 11 January 2009. I do not agree. Any mistake in the Land Registry’s records should be rectified, be it past or present.

Conclusion

19.As I have ruled that the Applicant should not be granted any of the orders being sought, the Applicant’s application falls to be dismissed. However, as far as costs are concerned, as both parties have obtained rulings in their favour, they should in my view bear their own costs.

20.Accordingly, I make the following orders:

(1) That all applications by the Applicant in the present case be dismissed; and

(2) Costs order nisi: that each party hereto shall bear his/her own costs. If the parties do not make any application on costs within 14 days, this order nisi will become absolute.

The Applicant in person, present.

Mr. Chan Chi Wah of Chung & Kwan for the Respondent.

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