Harvest Top Development Ltd v. The Incorporated Owners of Harbour View Garden and Another

LDBM 145/2008

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Building Management Application No. 145 of 2008

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BETWEEN

Coram: Mr. C. Lee, Deputy Presiding Officer of the Lands Tribunal

Date of Hearing: 12^th November 2010

Date of Handing Down of Decision: 12^th November 2010

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DECISION

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Background

1.In issue is whether Counsel for the Applicant, Ms. Chan, having agreed to the statement of issues, retracted from it, if so, what consequential directions I need to make.  This requires a brief note on these subsidiary questions: to what extent the Civil Justice Reform shall apply to the Lands Tribunal, the role of an advocate in case management and the consequence if the advocate fails to discharge his duty in assisting the court to further the underlying objectives.

Issues and analysis

2.It is more desirable to describe what had happened on first 3 days of the trial.  On the 1^st day i.e. 30^th August 2010, the Applicant sought to re-amend the Amended Notice of Application dated 23^rd March 2010.  The summons for the said amendment was taken out on 19^th August 2010 returnable on the 1^st day of the trial.  The proposed amendment in essence introduces 2 more prayers:

“(b)(i) a declaration that the Applicant is not obliged to pay management fee unless and until management fee demanded of the Applicant is calculated in accordance with a management budget prepared in accordance with the DMC;

(b)(ii) a declaration that the 2008 Management Budget is invalid as the basis for the calculation and apportionment of the management fee payable by the Applicant for the same contravenes against the DMC.”

3.No explanation was prepared by those instructing Ms. Chan as to why they took out belated applications.  I must note that the lack of explanation on belated application was considered by the Court of Appeal in refusing the application for amendment, joinders and adjournment of trial: Profit Step v Sun Rising HCMP 2152/2010 dated 28 October 2010.  Solicitors for the 1^st and 2^nd Respondents objected to the proposed amendment on the ground that the declarations were unclear as to what is legal basis the Applicant asked for b(i).  They have not prepared for the argument on the validity of the 2008 Management Budget under b(ii).  The preparation requires factual evidence and legal research.  In effect, they were taken by surprise. 

4.Nonetheless, this Court prepared a draft statement of issues for the parties to consider expeditious disposal of this case.  This also assisted the parties to re-consider whether the proposed amendment is necessary, if so, the Applicant could think carefully on how to amend the wordings with the benefit of the draft statement of issues.

5.Surprisingly, this attracted more unexpected amendment made verbally from Ms. Chan.  This includes the addition of “2007” to b(i).  The effect is the new allegations on the validity of the Management Budget of 2007 and 2008 were raised.  Ms. Chan then verbally asked for leave to amend the summons to amend the pleadings.  

6.The more that Ms. Chan submitted, her stance became more obscure.   This Court directed her to focus on the following questions: (i) to what extent her draft amendment was to be revised and why?; (ii) why did the Applicant take out a belated application; (iii) had this Court permitted the amendment, shall this Court allow the Respondents’ application for adjournment of trial and may result in 2^nd round directions on discovery and witness statements, hence against the underlying objectives of the CJR.

7.Despite specific directions and short adjournment, Ms. Chan only explained why amendment was required, she failed to explain why the application could not have been taken out earlier.  It must be noted that Ms. Chan was involved at the early stage of this proceedings since 29^th June 2009.  She appeared before Judge M. Wong in the Lands Tribunal in 5 pre-trial hearings. Be there as it may, the Parties proceeded to make preliminary submissions on the proposed amendment.   Ms. Chan submitted in gist that I must amend the pleading after listening to all evidence.   I decided to adjourn the case to next day and give directions to the Applicant so that they could prepare the better argument.  However, Ms. Chan decided to withdraw the said summons to amend. Leave was so granted and cost of the application was assessed summarily against the Applicant. 

8.On 2^nd day, this Court canvassed with the parties on the statement of issues and resulted in the 3^rd draft issue.  However, a new question arose when the solicitors for the 1^st and 2^nd Respondents asked this Court to make a cost order against the Applicant for withdrawing prayer (a).  I indicated to the Parties that I shall reserve the matter until the end and the trial shall start as soon as possible.  The Respondents agreed but Ms. Chan objected and submitted that I must deal with the said question before the trial started.  I made a ruling that the cost of the withdrawn prayer be reserved.  The Applicant’s witness, Chan Tai Kan started to give evidence. 

9.On 3^rd day, the Court invited the parties to assist and confirm the issues of the case before calling further evidence. The reasons are obvious, first, Ms. Chan seemed not to be co-operative in case management.  Her sudden verbal applications were made without careful thought and her stance was often unclear and refused to clarify questions raised to her.  Second, when her stance became clear, Ms. Chan seemed to change her stance from time to time as indicated from her application for amendment.  More importantly, it seems that Ms. Chan wished to retract from her previous confirmation on the 3^rd draft statement of issue.  She once made handwritten comments on the 3^rd draft statement of issue (see Chan-1).  Although the Respondents did not agree to her comments, Ms. Chan’s handwritten comments had the effect of confirming most of the issues with a minor matter in dispute, i.e. the applicability of para. 1(3)(b), Schedule 7 of the Building Management Ordinance, Cap.344.  The case is adjourned part heard to 26^th November 2010 with 3 more days reserved.  The parties are directed to finalise the statement of issues.  A mention hearing was fixed on 28^th September 2010 to monitor the progress.  

10.However, during the adjournment period, Ms. Chan prepared her own 3^rd statement of issue (Chan-2).  It is attached to the letter dated 15^th September 2010 from the solicitors for the Applicant, which is substantially different from Chan-1.  For example, she introduced a new issue on “whether the budget was modified by the Manager”.  She changed the wordings and the logical sequence of the original and confirmed questions.  For example, by comparing Chan-1, (1)(a) and Chan-2, (1)(a)(iii), she clouded the original question “even if there is manifest error in respect of the 2008 management budget, the next question should be whether this may lead to or result in the Applicant unfairly or inequitably paying higher contributions.”  However, she took out “whether this may lead to or result in the Applicant unfairly or inequitably paying higher contributions” and put it into another paragraph and suggested in (1)(a)(iii): “Whether … there had been manifest errors so that the 2008 Management Budget was not binding even if it was proved that such modifications had been reviewed by the Owners’ Committee.” 

11.This resulted in a further mention hearing today for the Parties to obtain transcripts of the previous hearings and addressed on this question: whether there was change of front on the part of the Applicant and if so, the explanations for the change of front.  Those instructing Ms. Chan, Mr. Jacky So made an affirmation and denied the change of front.  Ms. Chan’s submissions did not focus on the above question.  She stressed that why Chan-2 is better and it reflects the real issues.  The Respondents’ written submissions contain a summary and table with reference to transcript as to how the Applicant changed front. 

12.My view is that by comparing Chan-1 and Chan-2, it is obvious that the Applicant changed the front by introducing new issues and confused the logical sequence of confirmed questions. 

13.Next question is to what extent CJR applies to the Lands Tribunal.   It is beyond debate that the underlying objectives apply to the Lands Tribunal, so as the case management power under Order 1A and Order 1B of the Rules of the High Court: Directions issued by the President of the Lands Tribunal LTPD: CJR No.1/2009.    

14.Under Order 1A, r.3, the legal representatives shall assist the Court to further the underlying objectives of these rules.  Framing issues is a very important process to achieve the underlying objectives because (i) it put the parties into focus; (ii) it will transpire one or both parties’ intended issues are not pleaded issues; (iii) to avoid the boundary of issues being too vague; (iv) clear boundary issues would avoid unnecessary arguments as to whether a question or an answer or a particular document is relevant or not.  After all, legal practitioners find it easier to address the Court or prepare closing submissions with clear boundary of issues.  Lastly, the Court will be able to hand down judgment quicker without being involved too much on cloudy issues.

Conclusion

15.Other questions like whether Ms. Chan was in breach of her duty to assist or obstructive in framing issues and the consequence thereof should be left until the end of the trial.  Suffice for me to say that it is my ruling that the Applicant changed the front by introducing new issues and confused the logical sequence of confirmed questions.   Next question is whether I shall grant leave to the Applicant to retract from what has been agreed on the statement of issues.   In the absence of any compelling reasons, I shall not allow the Applicant to retract from what had been agreed as reflected from Chan-1.  Chan-1 shall stand as the Applicant’s list of issues.

16.Cost of and occasioned by the Applicant’s retraction shall be paid by the Applicant to the 1^st and 2^nd Respondents.  I shall hear the Parties on summary assessment on costs.   After hearing the parties’ submissions on summary assessment and upon reading their statements of costs, the Applicant do pay to the 1^st and 2^nd Respondents forthwith the said costs assessed summarily in the respective sums of HK$37,040.20 and HK$22,100.00.

Ms. Winnie Chan, instructed by M/S Deca Lin & Partners for the Applicant

Mr. CW Chan of M/S Chung & Kwan for the 1^st Respondent

Mr. D Pang of M/S YC Lee Pang Kwok & Ip for the 2^nd Respondent