Nominshare Ltd v. The Incorporated Owners of Kwong Fung Terrace

HCMP 967/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 967 OF 2014

(ON AN INTENDED APPEAL FROM LDBM NO. 191 OF 2011)

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BETWEEN

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

1.The Incorporated Owners of Kwong Fung Terrace (‘respondent’) resolved in an Extraordinary General Meeting to carry out renovation work for the building at the costs of $37,711,475. The Management Committee then resolved on the amount of contribution and instalments payable by the individual owners of the building for the costs.

2.The applicant, being one of the owners of the building, having paid four instalments, decided not to pay the final instalment and sought to recover the previous payments from the respondent.  Deputy Judge Tracy Chan, sitting as the Presiding Officer of the Lands Tribunal, dismissed the applicant’s claim with costs.

3.The applicant now seeks leave to appeal against the decision from this Court, leave having been refused by the Judge below.

4.We will refuse leave as the applicant has failed to show that there is any reasonable prospect of success of its appeal.  Appeal from the Lands Tribunal must be based on an error of law.  The applicant’s case below and in this application is that the call for contribution must be based on the ‘special fund’ provision under paragraph 4(2) of schedule 7 of the Building Management Ordinance (‘BMO’) (Cap. 344) and not otherwise.  In this case paragraph 4(2) was not observed and hence the respondent had no right to seek contribution from the applicant.

5.The Judge had analysed with reasons and authorities why paragraph 4(2) was not applicable.  We do not detect any error in her judgment.  The applicant’s submission that paragraph 32 of this Court’s judgment in The Incorporated Owners of Shatin New Town v Yeung Kui (CACV 45/2009) agreed with its view that the present case falls within paragraph 4(2) is a misreading of the judgment.

6.Accordingly the application is dismissed with costs to the respondent which we summarily assessed at $10,000.

7.We are of the view that the application is totally without merits.  We will, pursuant to Order 59 Rule 2A(8), further order that the applicant is not entitled to apply for an oral hearing to reconsider this application.