2009

WONG WING ON WILLIAM RONALD v. YAU PAK MAN AND OTHERS

Related cases with same parties

CACV35/2010WONG WING ON WILLIAM RONALD v. YAU PAK MAN AND OTHERS

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80962-EN-2012-03-21

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CACV 33/2009 & CACV 35/2010

CACV 33/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 33 OF 2009

(ON APPEAL FROM LDBM NO 83 OF 2007)

______________

CACV 35/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 35 OF 2010

(ON APPEAL FROM LDBM NO 83 OF 2007)

______________

BETWEEN

	WONG WING ON WILLIAM RONALD（黃永安）	Applicant
	and
	YAU PAK MAN（邱柏民）	1^st Respondent
	LEUNG KWOK WAI（梁國威）	2^nd Respondent
	LI KAI LING（李啟玲）	3^rd Respondent
	CHAN KAM HUNG（陳錦雄）	4^th Respondent
	CHAN SHIU WING（陳樹榮）	5^th Respondent
	LEUNG PO HING（梁保興）	6^th Respondent
	LEUNG CHUN KWONG（梁振光）	7^th Respondent
	LAM CHING LUN（林精倫）	8^th Respondent
	LEUNG YING（梁嫈）	9^th Respondent
	LU YUN CHI（陸潤琪）	10^th Respondent
	THE INCORPORATED OWNERS OF UPTOWN PLAZA（新達廣場業主立案法團）	11^th Respondent

______________

Before: Hon Tang VP, Cheung and Kwan JJA in Court

Date of Hearing: 13 March 2012

Date of Judgment: 21 March 2012

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JUDGMENT

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Hon Tang VP:

1. I have had the advantage of reading Kwan JA's judgment in draft. I am in respectful agreement and have nothing to add.

Hon Cheung JA:

2. I agree with the judgment of Kwan JA.

Hon Kwan JA:

3. On 29 January 2010, we ordered the appeal of Wong Wing On William Ronald (the applicant in LDBM 83/2007) in CACV 33/2009 from the substantive part of the judgment of HH Judge Yung in the Lands Tribunal on 2 February 2009 to be struck out. We gave leave to the applicant to appeal on the order of the judge on costs alone, and also granted leave to the 1^st and 2^nd respondents to appeal the said order of the judge on costs alone out of time (CACV 35 of 2010). This is the hearing of both appeals on costs.

4. In his judgment, the judge dismissed the applicant’s claim against the 11 respondents for an injunction, declarations and damages. The 1^st to 10^th respondents were members of the management committee of the incorporated owners of Uptown Plaza in Tai Po, New Territories at the material time, and the 1^st and 2^nd respondents were the chairman and secretary of the committee. The 11^th respondent was the incorporated owners.

5. In the proceedings below, the 1^st respondent, the 2^nd respondent, the 3^rd to 10^th respondents and the 11^th respondent were separately represented by four legal teams. The judge ordered the applicant, the 1^st and 2^nd respondents, jointly and severally, to pay the costs of the 3^rd to 11^th respondents of the proceedings on an indemnity basis and on the High Court scale with certificate for counsel.

6. For the background of this litigation, I gratefully adopt the Reasons for Judgment of the Vice-President on 4 February 2010, paras 8 to 17.

7. We struck out the applicant’s appeal on 29 January 2010 on the ground it is frivolous, vexatious and an abuse of the process of the court. Our reasons for so doing appeared in paras 18 to 22 of the Reasons. In short, none of the arguments advanced on behalf of the applicant in the proceedings below had any merit.

The judge’s reasons for the costs order

8. The trial before the judge was set down for two days but took 17 days. The findings and observations in the judgment below relevant to the costs order may be stated as follows:

(1)     The 1^st and 2^nd respondents took the same stance as the applicant on the matters in dispute from the very beginning. They were opposed to the measures proposed by the other members of the management committee, namely, the 3^rd to 10^th respondents.
(2)     Because of the opposite stance taken by the 1^st and 2^nd respondents, they engaged their own solicitors to represent them in the dispute and in the subsequent litigation brought by the applicant against all 11 respondents.
(3)     In the application for an interlocutory injunction brought by the applicant to restrain the 11^th respondent from holding a meeting of the owners to consider and pass a resolution to provide a permanent disability access ramp until trial of the action or further order, the 1^st and 2^nd respondents had provided affidavits which supported this application.
(4)     The trial was prolonged as it was largely taken up with the dispute whether the 3^rd to 11^th respondents were “wilfully negligent” in handling various matters as alleged by the applicant and supported by the 1^st and 2^nd respondents in their contribution notices against the 3^rd to 11^th respondents.
(5)     The declarations and injunctive relief sought by the applicant were unfounded and inappropriate. The allegations of wilful negligence against the 3^rd to 11^th respondents were not substantiated.
(6)     The applicant and the 1^st and 2^nd respondents spared no effort to protect the interest of Messrs Kong & Chang (whose legal advice they agreed with and supported) and to thwart the 11^th respondent from exploring the feasibility of a settlement in the claim brought by a Mr Siu against the 11^th respondent regarding discrimination in the access of premises under the Disability Discrimination Ordinance, Cap 487.
(7)     Notwithstanding that they all took the same stance, the applicant did not give up his claim against the 1^st and 2^nd respondents. This was in order that the 1^st and 2^nd respondents could issue contribution notices against the 3^rd to 11^th respondents.
(8)     The judge did not believe that the applicant and the 1^st and 2^nd respondents did not know their allegations of wilful negligence could not be substantiated. The judge was of the view that the applicant brought these proceedings to malign the 3^rd to 11^th respondents so as to achieve the purpose of hindering the 11^th respondent from a settlement of the claim brought by Mr Siu. If the applicant and the 1^st and 2^nd respondents had no prior understanding of this purpose, they had acted in concert as the events unfolded to achieve the same goal. The judge found such behaviour of the applicant and the 1^st and 2^nd respondents unpardonable.

The arguments in the costs appeal

9. The applicant and the 1^st and 2^nd respondents raised these arguments in the costs appeal:

(1) indemnity costs should not be awarded against them;
(2) costs should not be assessed on the High Court scale; and
(3) the costs awarded to the 3^rd to 10^th respondents should be reduced for the inordinately long cross-examination by their counsel on irrelevant or peripheral matters in the trial.

10. The 1^st and 2^nd respondents contended in addition that they were successful parties in that the applicant’s claim against all 11 respondents was dismissed by the judge. Instead of ordering them to pay the costs of the 3^rd to 10^th respondents, the judge should have considered one or more of these orders which would be more appropriate: depriving them of part of the costs they could recover from the applicant as the winning party; making no order as to costs between the 1^st and 2^nd respondents vis-à-vis the applicant; making no order as to costs between the 1^st and 2^nd respondents vis-à-vis the 3^rd to 11^th respondents.

11. I reject the above additional contention of the 1^st and 2^nd respondents. These respondents had actively supported the applicant in this litigation by providing affidavits in the interlocutory injunction application, by making submissions in support of that application and by adducing evidence at the trial to support the applicant’s allegations of wilful negligence against the other respondents. As submitted by Mr Paul Wu for the 11^th respondent, they were effectively and practically additional applicants in the proceedings although they were sued by the applicant as respondents. There is no basis to interfere with the exercise of the judge’s discretion that the 1^st and 2^nd respondents should be treated in the same way as the applicant regarding the costs incurred by the other respondents in resisting this claim.

12. That leaves the three main arguments as identified above.

General principles

13. The Court of Appeal does not lightly interfere in the exercise of a judge’s discretion in making a costs order, unless it can be shown that the judge did not exercise his discretion judicially, or had based his discretion on a wrong principle or was under a misapprehension of material facts, or had wrongly taken some matter into account, or had failed to take into account some matter which he should have done, or if his decision was so plainly wrong. Where the appeal court is asked to interfere with the exercise of the judge’s discretion in making an order on the basis of the taxation of costs, particularly one in which the trial had lasted many days, extra caution should be exercised because the court does not have the “feel” of the case as the trial judge had (Wang Din Shin v Nina Kung [2005] HKEC 568 at paras 5 and 6).

Indemnity costs

14. The grounds for making an order for indemnity costs are not confined to particular situations. The courts have emphasised that it is undesirable to circumscribe or fetter the court’s discretion beyond the requirement that indemnity costs must be “appropriate”. The grounds for awarding indemnity costs must be connected with the case. This may extend to any matter relating to the litigation and the parties’ conduct in it, and the circumstances leading to the litigation, but no further (Town Planning Board v Society for Protection of the Harbour Ltd (No 2) (2004) 7 HKCFAR 114 at paras 16 to 18).

15. In the present case, the judge’s reasons for awarding indemnity costs to mark his disapproval of the conduct of the applicant, the 1^st and 2^nd respondents were as stated in para 8(8) above. He had failed to take into account pertinent matters in disbelieving that the applicant, the 1^st and 2^nd respondents did not know their allegations of wilful negligence against the other respondents could not be substantiated.

16. The divided opinion between the applicant, the 1^st and 2^nd respondents on the one hand and the 3^rd to 10^th respondents on the other hand must be viewed against the background as summarised in Mr Wu’s submission. The 11^th respondent had obtained legal opinion from four solicitors firms from September 2002 to March 2007 on the provision of a permanent access ramp for each of the six buildings in the estate as demanded by Mr Siu and on the litigation brought by Mr Siu in September 2006. The legal advice given by the four solicitors firms was divided. The legal advice provided by solicitors in 2002 and 2006 was to the effect that there was no contravention of the Disability Discrimination Ordinance in not providing permanent access ramps in the estate. The advice given by two other firms in 2007 was to the opposite effect.

17. The applicant, the 1^st and 2^nd respondents accepted the earlier legal advice. They had accused the other respondents in the committee of failing to act on such legal advice and were thus wilfully negligent in the discharge of their duties. Their stance that the construction of the permanent ramps was in breach of the Deed of Mutual Covenant and the New Grant was obviously influenced by the earlier legal advice obtained by the 11^th respondent, see, for example, the letter of the applicant’s solicitors to all members of the management committee dated 15 December 2006 and the open letter of the 1^st and 2^nd respondents to all the owners dated 24 February 2007.

18. The judge found that the applicant, the 1^st and 2^nd respondents had firmly believed in the correctness of the earlier legal advice, so much so that they declined to consider the subsequent legal advice including an opinion given by a barrister, see para 27 of the judgment. There was no mention in the judgment that they had any private material gain in opposing the construction of the permanent ramps and the settlement of Mr Siu’s claim.

19. The position taken by the applicant, the 1^st and 2^nd respondents regarding the construction of the permanent ramps is wrong in law. But in light of the fact that they were influenced by the earlier legal advice, the judge had acted on a misapprehension of material facts when he disbelieved the applicant, the 1^st and 2^nd respondents did not know their allegations of wilful negligence against the other respondents could not be substantiated. This also cast doubt on the soundness of the inference drawn by the judge that these proceedings were brought by the applicant to malign the 3^rd to 10^th respondents for the purpose of hindering the 11^th respondent from settling the claim with Mr Siu.

20. The judge’s exercise of his discretion in awarding indemnity costs is flawed. This is not an appropriate case for indemnity costs. Viewed against the relevant background and the firm belief of the applicant, the 1^st and 2^nd respondents in the correctness of the earlier legal advice, they should be penalised in costs in pursuing an unmeritorious claim against the 3^rd to 11^th respondents, but not on an indemnity basis.

Costs on High Court scale

21. The judge did not give any reason for awarding costs on the High Court scale. The only point about the provisions in the Deed of Mutual Covenant and the New Grant was that the construction of the permanent ramp would require the approval of the Director of Lands. This does not raise any difficult question of law. As for the factual dispute whether the allegations of wilful negligence were made out, that too is hardly a case of complexity. Notwithstanding the many documents adduced in evidence by the parties, there are just three matters involved in these allegations, according to the submission of Ms Koo Yeuk Lan, counsel for the 3^rd to 10^th respondents. Mr Wu submitted that the High Court scale is appropriate having regard to the history and background of the dispute and the fact that the applicant sought injunctive relief against the respondents. I am unable to see the relevance of any of these matters. In my judgment, taxation should be on the District Court scale.

If the 3^rd to 10^th respondents should be deprived of part of their costs

22. Mr Kenneth Chan (for the applicant) and Mr Roland Lau (for the 1^st and 2^nd respondents) urged this court to reduce the costs awarded to the 3^rd to 10^th respondents by half to two-thirds on the ground that the trial of the action was much prolonged by the cross-examination of Ms Koo of the witnesses on matters that were irrelevant to the dispute or of peripheral importance. They made no complaint about the cross-examination conducted by Mr Wu and do not seek reduction of the costs awarded to the 11^th respondent. But insofar as additional costs were incurred by the 11^th respondent in the prolonged trial (for which the applicant and the 1^st and 2^nd respondents were ordered to pay) due to the lengthy cross-examination of Ms Koo, they submitted this should be reflected in the reduction of costs of the 3^rd to 10^th respondents.

23. This trial was initially set down by HH Judge M Wong for two days. It lasted 17 days. We have been given a breakdown of the time taken in the questioning of the five witnesses. The cross-examination by Ms Koo of the applicant, the 1^st and 2^nd respondents took nine days.

24. Only two broad issues were raised in these proceedings. The first is a simple question of law and that is whether the proposed construction of the permanent ramps would be in breach of the Deed of Mutual Covenant and the New Grant. The second, which took up the bulk of the time, was the factual dispute whether there was wilful negligence of the 3^rd to 10^th respondents. According to Ms Koo’s submission, the allegations of wilful negligence covered these three matters: (1) the failure of the management committee to distribute to the owners the legal opinion of Messrs Kong & Chang before the owners’ meeting held on 5 November 2006; (2) retaining Messrs Chung & Kwan to act for the 11^th respondent in defending Mr Siu’s claim notwithstanding there was conflict of interest of these solicitors; and (3) convening a meeting of owners on 15 September 2007 to consider and pass a resolution to settle Mr Siu’s claim and to build permanent ramps.

25. Having regard to the nature and scope of these allegations, and that oral evidence was given without the need of translation, the trial should not have lasted for more than two to three days. We were taken by the parties to excerpts of the transcript of proceedings, to give us a flavour of the tangential issues canvassed in the cross-examination of Ms Koo. It is unnecessary to set out these matters here. Suffice it to say I fail to see the relevance of the line of questioning taken by Ms Koo aimed at showing that the applicant, the 1^st and 2^nd respondents had all behaved unreasonably, or that there was ulterior motive on the part of the applicant in bringing these proceedings against all 11 respondents. Had the judge exercised proper control over the proceedings, and confined the cross-examination to questions that were germane to the issues in dispute, such prolix cross-examination (which on a number of occasions became a debate between counsel and the witness, with the judge joining in) would not have been allowed and the trial would not have been unnecessarily prolonged to the disadvantage of all.

26. The words of Ribeiro PJ in Wang Din Shin v Nina Kung (No 2) (2006) 9 HKCFAR 800 at para 57 are of particular resonance to the present situation:

“In my view, there was undoubtedly a great deal of time wasted at the trial by an inordinately long, and often oppressive, cross-examination … on matters which were peripheral or irrelevant. There was a single central question … But the cross-examination did not discriminate between evidence which was fundamental to that issue and evidence which could, at best, be only of the remotest circumstantial significance. The trial was taken up with examining the minutiae without any sense of proportionality.”

27. In the circumstances, it is right that the costs awarded to the 3^rd to 10^th respondents should be substantially reduced. On a broad brush approach, I think it appropriate to reduce their costs by half.

Conclusion

28. In summary, I would allow the costs appeal of the applicant and the 1^st and 2^nd respondents and set aside the order of the judge that costs awarded to the 3^rd to 11^th respondents be taxed on an indemnity basis and on the High Court scale. In lieu thereof, I would order as follows:

(1) the applicant and the 1^st and 2^nd respondents, do, jointly and severally, pay half of the costs of the 3^rd to 10^th respondents in the proceedings and all of the costs of the 11^th respondent in the proceedings, to be taxed if not agreed, on a party and party basis and on the District Court scale, with certificate for counsel; and
(2) there be no order as to costs as between the applicant and the 1^st and 2^nd respondents in the proceedings.

29. As for the costs of the costs appeals, I would make an order nisi that there be no order as to costs.

(Robert Tang)
Vice-President

(Peter Cheung)
Justice of Appeal

(Susan Kwan)
Justice of Appeal

Mr Kenneth C L Chan and Mr Kenneth K H Shum, instructed by Messrs Chiu, Szeto & Cheng, for the applicant (appellant in CACV 33/2009)

Mr Roland Lau, instructed by Messrs Lam Fung & Co, for the 1^st and 2^nd respondents (appellants in CACV 35/2010)

Ms Koo Yeuk Lan, instructed by Messrs Chan & Chan, for the 3^rd to 10^th respondents (respondents in both appeals)

Mr Paul K N Wu, instructed by Messrs Chan & Chan, for the 11^th respondent (respondent in both appeals)

69662-EN-2010-02-04

WONG WING ON WILLIAM RONALD v. YAU PAK MAN AND 10 OTHERS

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CACV 33/2009 & HCMP 2674/2009

CACV 33/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 33 OF 2009

(ON APPEAL FROM LDBM NO. 83 OF 2007)

______________

HCMP 2674/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2674 OF 2009

(ON AN INTENDED APPEAL FROM LDBM NO. 83 OF 2007)

----------------------

BETWEEN
	WONG WING ON WILLIAM RONALD（黃永安）	Applicant
	and
	YAU PAK MAN（邱柏民）	1^st Respondent
	LEUNG KWOK WAI（梁國威）	2^nd Respondent
	LI KAI LING（李啟玲）	3^rd Respondent
	CHAN KAM HUNG（陳錦雄）	4^th Respondent
	CHAN SHIU WING（陳樹榮）	5^th Respondent
	LEUNG PO HING（梁保興）	6^th Respondent
	LEUNG CHUN KWONG（梁振光）	7^th Respondent
	LAM CHING LUN（林精倫）	8^th Respondent
	LEUNG YING（梁嫈）	9^th Respondent
	LU YUN CHI（陸潤琪）	10^th Respondent
	THE INCORPORATED OWNERS OF UPTOWN PLAZA （新達廣場業主立案法團）	11^th Respondent

----------------------

Before: Hon Tang VP, Cheung JA and Kwan JA in Court

Date of Hearing: 29 January 2010

Date of Judgment: 29 January 2010

Date of Reasons for Judgment: 4 February 2010

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REASONS FOR JUDGMENT

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Hon Tang VP (giving the reasons for judgment of the Court):

Introduction

1. These proceedings in the Lands Tribunal were brought by the applicant, an owner of a unit in Uptown Plaza, a development in Tai Po which has a commercial complex and 6 residential blocks. The 11^th respondent is the incorporated owners of Uptown Plaza (“the estate”). The 1^st and 2^nd respondents were respectively the former chairman and secretary of the 11^th respondent, and the 3^rd to 10^th respondents were other members of the executive committee of the 11^th respondent, at the time when the application was made at the Lands Tribunal. It appeared that at one time the applicant was also a committee member of the 11^th respondent.

2. After a 19-day hearing, the applicant’s claim was dismissed by District Judge Yung on 2 February 2009 with costs against the applicant at the High Court scale and on an indemnity basis with certificate for counsel.

3. The applicant’s appeal is CACV 33/2009. He appealed on the merits as well as against the costs order.

4. The learned judge also ordered that the 1^st and 2^nd respondents to pay the costs of the other respondents jointly and severally with the applicant and on the same basis. HCMP 2674/2009 is the application by the 1^st and 2^nd respondents for leave to appeal out of time against such costs order.

5. By summons dated 29 June 2009, the 11^th respondent applied to strike out the applicant’s Notice of Appeal on the ground that it is frivolous, vexatious and an abuse of the process of the court, or alternatively, for security for costs in the sum of HK$379,300.

6. The 11^th respondent’s costs have been taxed in the total sum of HK$2,365,800.01. The costs of the 3^rd to 10^th respondents have not been taxed but are said to exceed HK$1,600,000. The applicant’s unit at the estate has a market value of HK$2.8 million. So the cost orders are potentially ruinous.

Background

7. In order to understand the proceedings, it is necessary to go briefly into the background, which I have gratefully taken from the skeleton submissions of Mr. Paul Wu, counsel for the 11^th respondent.

8. In 2002, a Mr Siu, made a complaint with the Equal Opportunities Commission (“the EOC”) about the lack of access for persons with disability or wheelchair users in Block 3 of the estate. After an Extraordinary General Meeting, a resolution was passed by a majority of the owners’ present to provide a movable ramp for Siu’s access. In May 2006, the EOC informed the 11^th respondent that Siu had made a further complaint about discrimination in access, disposal or management of premises as defined by the Disability Discrimination Ordinance, Cap. 487 (“the DDO”). The EOC granted legal assistance to Siu to commence legal proceedings. Mr Siu became the plaintiff in District Court Equal Opportunities Action No. 6 of 2006 (“the EOC proceedings”).

9. The applicant, the 1^st and 2^nd respondents were of the view that the 11^th respondent should defend Siu’s action. The 3^rd to 10^th respondents were of the view that the action could not be successfully defended. Initially, the 11^th respondent was represented by Messrs Kong & Chang (“KC”) in defending Siu’s action. However, some committee members were dissatisfied with KC’s conduct and on 16 December 2006, the committee members resolved to terminate the appointment of KC and decided to instruct Messrs Chung & Kwan Solicitors (“CK”) to give legal advice on Siu’s action. The applicant was opposed to the appointment of CK. He took the view that CK who were also the solicitors for Hong Yip (the Manager of the Estate) had a conflict of interest.

10. By a Notice of Application dated 16 March 2007, the applicant applied to the Lands Tribunal for:

“(1) a declaration that the 1^st to 11^th Respondents have been in breach of the DMC and/or New Grant and/or have committed anticipatory breaches of the DMC and/or the New Grant;

(2) a declaration that the co-owners of the Estate are not liable to pay or contribute to the building cost of providing the disability access ramp which are in breach of the DMC and/or the New Grant notwithstanding a majority resolution from the owners;

(3) an order restraining the 1^st to 11^th Respondents from continuing to engage CK on the grounds of conflict of interest;

(4) an order restraining the 1^st to 11^th Respondents from convening an owners meeting for the purpose of passing any resolution to provide for the disabled access ramp;

(5) an order restraining the 1^st to 11^th Respondents from applying to the Sinking Fund and/or Management Fund for making such provisions inconsistent with the terms of the DMC and/or the New Grant; …”

11. In the meantime, on 24 March 2007, CK wrote to the EOC to explore the possibility of settlement by proposing a tentative plan for the construction of permanent disabled access ramps for the estate. In the same letter, CK inquired whether Siu would be willing to accept other options such as powered lifting platforms in lieu of a permanent ramp. By letter dated 29 March 2007, the EOC wrote to CK welcoming the possibility of settlement but Siu was unwilling to consider any alternative to a permanent ramp.

12. On 18 June 2007, Futton Ella Architects Ltd (‘Futton’), on the instructions of the 11^th respondent, submitted an application to the Buildings Department for the approval of the construction of permanent ramps for all of the 6 residential blocks of the estate.

13. In early August 2007, 132 owners of the estate (more than 5% of the total owners) requested the 1^st respondent (presumably, as chairman of the Management Committee of the 11^th respondent), to convene an owners' meeting on 15 September 2007 to, inter alia, discuss and resolve on:

(1) whether to contest Siu's claim or to negotiate for a settlement; and

(2) upon obtaining the approval from the Building Authority on the submitted plan, to invite tender for building the permanent access ramps.

14. By a letter dated 15 August 2007, Futton was notified that its proposal was accepted by the Buildings Department.

15. On 30 August 2007, the Management Committee resolved to:

“(1) remove the 1^st and 2^nd Respondent from the Management Committee on the ground that they had failed to attend three Committee meetings in a row; and

(2) to adopt the agenda put forward by the 132 owners for the owner's meeting on 15 September 2007.”

16. By a Summons dated 7 September 2007, the Applicant applied, inter alia, for:

“(1) a declaration that the co-owners of the Estate should not be liable to pay or contribute to any building costs in relation to the disabled access ramps which are in breach or inconsistent with the DMC and the Grant;

(2) an order restraining the 1^st to 11^th Respondents from holding the owners meeting on 15 September 2007 or at any time for the purpose of passing any resolution to provide for the disabled access ramps;

(3) an order restraining the 1^st to 11^th Respondents from applying from the Sinking Fund and/or Management Fund for providing the disabled access ramp in breach or inconsistent with the DMC and the Grant; and

(4) an order that the 3^rd to 11^th Respondents indemnify the Applicant against any claim or demand which the Applicant may be liable for in connection with and in respect of the disabled access ramps.”

17. On 14 September 2007, District Judge Wong ordered that the 11^th respondent be restrained from either on 15 September or at any time before the final determination of the trial of the applicant's application from “passing any resolution to provide any improvement or additional building facilities or alteration building works, for providing any disability access ramp or lifts or otherwise.” Judge Wong also ordered an early hearing of the proceedings. The matter was eventually heard by Judge Yung on 16 October 2007. Judgment was handed down on 2 February 2009 as stated in para. 2 above.

Appeal on merits

18. Mr. K.M. Chong, who appeared for the applicant, put the case of the applicant succinctly. It appears that under the New Grant, on which the estate was held, the construction of the ramp required the approval of the Director of Land (“the Director”), special condition 5(b), and that under the Deed of Mutual Covenant governing the estate no work which contravenes the New Grant was permitted. Mr Chong submitted that had the intended meeting taken place on 15 September and the resolution passed, the building of the ramp would have contravened the New Grant because the proposed resolution did not say in term that the prior approval by the Director would be sought. We have not seen a copy of the proposed resolution, but presumed that the proposed resolution did not in term mention the obtaining of approval from the Director. But the evidence showed that the 11^th respondent had had the services of authorized persons who would have been aware of the need for approval under the New Grant. Indeed, in the Buildings Department’s letter of 15 August 2007 referred to in para. 15 above, there was a standard paragraph (para. 5) stating that:

“This approval should not be deemed to confer any title to land or to act as a waiver of any term in any lease or license …”

19. Further, para. 6 of the same letter stated that the Buildings Authority had received a letter dated 9 July 2007 from the legal representative of the secretary of the incorporated owners of the estate, presumably the 2^nd respondent:

“… informing that the proposed works are inconsistent with or contrary to the provisions of the original deed of mutual covenant. In this connection, you are required to inform your client accordingly. …”

20. In the circumstances, it is inconceivable that the construction would have gone ahead without the approval of the Director. Nor is it conceivable that given the clear objective of the Equal Opportunities Ordinance, permission would not have been obtained. Indeed, subsequently, approval was indeed granted by the Director.

21. Mr Chong submitted that had the resolution been passed, his client would have been required to contribute to the cost of construction. That is so. We also agree that an owner has an interest to see that only proper resolutions are passed. But, that was not the situation here. If the applicant was concerned that the proposed resolution did not mention the requirement of approval by the Director all he had to do was to remind his fellow owners at the meeting that approval was required. It was inconceivable that the 11^th respondent would have ignored the need for such approval.

22. We were satisfied that the appeal was so unarguable as to amount to an abuse of process, accordingly, we have struck out the substantive appeal of the applicant. We should add that Mr Chong had not adopted any of the other arguments advanced on behalf of the applicant at first instance. With respect, that is the correct decision since none of those arguments had any merit.

The costs appeal

23. Mr. Paul Wu, who appeared on behalf of the 11^th respondent, pointed out that, with the substantive appeal struck out, leave to appeal from the costs order is required. But, rightly, he did not seek to take the procedural point that no leave had been applied for. We have given the applicant leave to appeal from the costs order. So far as the 1^st and 2^nd respondents’ application for leave to appeal against the costs order is concerned, Mr Wu has drawn our attention to the fact that they were very much out of time and that there was no satisfactory explanation for the delay. Even so, in the very unusual circumstances of this case, we felt that leave should be granted to the 1^st and 2^nd respondents to appeal against the costs order out of time. We will not refer to the reasons given by the learned judge, save to say, with the greatest respect, that they have caused us concern. Of course, the granting of leave does not mean that the appeal will succeed. But, in fairness, the parties should have a proper adjudication.

24. Lastly, there was an application for a stay of execution in respect of the costs order against the applicant. Since we have granted leave to the applicant to appeal against the costs order, it is only right that there should be a stay of execution. In the meantime, the 11^th respondent is protected by a charging order against the applicant’s unit.

(Robert Tang)
Vice-President

(Peter Cheung)
Justice of Appeal

(Susan Kwan)
Justice of Appeal

Mr. K.M. Chong & Mr. Lester Lee, instructed by Messrs Chiu, Szeto & Cheng, for the Applicant.

Mr. Kevin C.W. Wong & Mr. Roland Lau, instructed by Messrs Cheung & Yip, for the 1^st and 2^nd Respondents.

Ms. Koo Yeuk Lan, instructed by Messrs Chan & Chan, for the 3^rd to 10^th Respondents.

Mr. Paul K.N. Wu, instructed by Messrs Alvan Liu & Partners, for the 11^th Respondent.