The Incorporated Owners of Tak Wing Industrial Building v. Poon Chi Hung, William

LDBM 63/2011

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION No. LDBM 63OF 2011

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BETWEEN

Coram: Deputy Judge J. Wong, Presiding Officer of the Lands Tribunal

Dates of Hearing: 15 November 2011

Date of Handing Down of Ruling: 22 November 2011

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RULING

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1.This is an application for leave to appeal against my Judgment made herein on 8 September 2011. The Respondent took out the application on 10 October 2011. As it was taken out 4 days late only and the Respondent did not raise any serious objection on this procedural point, I will simply treat the present application as if it were made within the statutory deadline.

2.Briefly, by the present proceedings, the Applicant told this Tribunal that it had difficulty in requesting the Respondent to allow its workers to enter and pass through his Premises and Flat Roof for the purpose of carrying out certain repair works. The Respondent contested the proceedings and counterclaimed for damages.

3.I heard the trial on 8 September 2011. At the end of the day, I granted Judgment to the Applicant with costs summarily assessed. The counterclaim was dismissed. On 30 September 2011, I handed down the Reasons.

4.In the meantime, on 12 September 2011, the Applicant took out an application for Review and it was also dismissed by me when I handed down the said Reasons.

5.Then, on 10 October 2011, the Respondent issued the summons for leave to appeal against my Judgment on 8 September 2011.

6.My Reasons for ruling in favour of the Applicant may be summarized in the followings.

(a)  The Respondent agreed that the Applicant had a right to enter and pass through the Premises and the Flat Roof to carry out the repairs.

(b)  Parties only argued before me as to the reasonableness of the arrangement having suggested by the Applicant.

(c)  After considering the evidence of the parties, on balance, I found the arrangement reasonable in the circumstances and sufficient protection had been offered to the Respondent.

(d)I went on to fix the dates and time for the Works to be done and completed.

(e)  In the end, I also assessed the costs of the Applicant summarily and made it payable by the Respondent.   

7.Parties appeared before me on 15 November 2011 for the leave application. Upon hearing from them, I reserved my decision to be delivered. I now do so.

8.After consideration, I have decided to refuse the application. 

(a)    The relevant provision of legislation regulating whether leave to appeal should or should not be granted can be found in section 11AA (6) of the Lands Tribunal Ordinance (Cap. 17).

“Leave to appeal shall not be granted unless the Tribunal…is satisfied that -

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be   heard.”

(b) The Respondent has not been able to satisfy me on either of the   above two grounds.

(c) By the draft Notice of appeal, the Respondent raised a couple of points. They might be classified into four areas. First, the arrangement offered by the Applicant was not sufficient. Second, it also gave false evidence misleading the Court. Third, there were procedural unfairness to the Respondent during the trial and I was biased. Fourth and finally, I should not have awarded costs to the Applicant and had the same summarily assessed.

(d) The crux of the dispute between the parties at the trial lied on the assessment of the reasonableness of the arrangement suggested by the Applicant. It told me the urgency of the Works and the minimum time required for the same to be completed. It also said that it had tried its best to comply with the requirements named by the Respondent, including informing him of the scope of the Works, engaging of risk assessment report and getting two insurance policies. I heard the case of the Respondent and understood his concern and demand. It was my finding that the Respondent was asking for too much in the circumstances. I see no reason to disturb such assessment.

(e)  When the Respondent spoke of “false” evidence on the part of the Applicant, I take it as an assessment on the evidence presented by the parties at the trial. Again, I see no justification to rule otherwise.

(f)   The Respondent mentioned a number of matters, like the Applicant did not file any hearsay notice, the Applicant was allowed to rely on a lot of evidence when the makers of the documents did not step into the witness box, the Trial Bundle was prepared without having consulted him, and so forth. I do not intend to deal with them individually. It suffices for me to say that I heard no or no substantive procedural complaint during the trial. In any event, I did not forget section 10(5) and (6) of the Lands Tribunal Ordinance (Cap. 17) at all times.

“(5) (a) The proceedings of the Tribunal shall be conducted with much informality as is consistent with attaining justice…

(6) The Tribunal may admit in evidence any statement, document, information or matter, whether or not it would otherwise be admissible in evidence and attach such weight to it as may be appropriate in the circumstances.”

Quite to the contrary, it appears to me that it is the Respondent himself who failed to comply with the procedural matters as directed by the Court. On 1 August 2011, I met the parties and discussed with them as to the conduct of the trial. At the end of that hearing, I drew up a time table trying to regulate the procedural matters. Both parties agreed, but the Respondent simply ignored it later. He did not try to agree with the Applicant on the Issues in Dispute. He did not file his own Issues of Dispute. He also did not prepare and lodge his Skeleton Submission together with related documents. He did not give me any or any satisfactory explanation on the part of his failure to comply with the directions. Nonetheless, the trial still moved on and I did not lay any blame on him at all.

(g)    Costs are matters within the discretion of the Court to be exercised judicially. Having ruled in favour of the Applicant, I saw no reason to depart from the general rule that the losing party should pay the costs, in particular when my attention had been drawn to a letter that the Respondent did ask the Applicant to take up the matter for a resolution at the Court. As to the summary assessment, it is indeed the common practice of the lands Tribunal, especially after the Civil Justice Reform in Hong Kong. It not only causes no prejudice to the parties but also saves further time and costs.   

8.To conclude, I will make the following orders.

(a)The application for leave to appeal filed by the Respondent is dismissed.

(b)The Respondent shall pay the Applicant costs of the application in the assessed sum of $4,800 ($2,600+$2,200).

The Applicant was represented by Mr. S.L. Yau of Messrs. Cheung & Yip.

The Respondent appeared in person.