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

___________________

BETWEEN

	THE INCORPORATED OWNERS OF TAK WING INDUSTRIAL BUILDING (德榮工業大厦業主立案法團)	Applicant
	And
	POON CHI HUNG, WILLIAM	Respondent
	(潘志雄)
	___________________

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

___________________

RULING

___________________

 

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).

 

	Deputy Judge J. Wong Presiding Officer
	Lands Tribunal

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

The Respondent appeared in person.

LDBM 63/2011

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION No. LDBM 63OF 2011

___________________

BETWEEN

	THE INCORPORATED OWNERS OF TAK WING INDUSTRIAL BUILDING (德榮工業大厦業主立案法團)	Applicant
	And
	POON CHI HUNG, WILLIAM (潘志雄) ___________________	Respondent

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

Dates of Hearing: 8 September 2011

Date of Judgment: 8 September 2011

Date of Handing Down of reasons for Judgment: 30 September 2011

___________________

REASONS FOR JUDGMENT

___________________

 

Introduction

1.  The Owners’ Incorporation took out the present proceedings against an Owner for, inter alia, an injunction so that the former could enter and go through the premises of the latter to carry out certain repair works which had been under a fire hazard abatement notice.

Background

2.  The Applicant was and is the Incorporated Owners (‘the IO”) of the Tak Wing Industrial Building (“the Building”) No. 3 Tsun Wen Road, Tuen Mun, New Territories, whereas, the Respondent was and is the owner of Unit C, 4^th Floor (“the Premises”) & Flat Roof (“the Flat Roof”), of the Building.

3.  On 7 March 2011, the Applicant commenced the present proceedings against the Respondent. Briefly, the Applicant said the followings.

(a)  On 4 September 2009, the Fire Services Department (“the FSD”) issued a fire hazard abatement notice to the Applicant requiring it to repair the fire services system, fire hydrant/fire hose reel and water tanks in the Building.

(b) On or about 27 October 2009, the Water Supplies Department also issued a letter to the Applicant asking it to repair certain water facilities in the Building, including water pump, water pipe, fire services water tank and drinking water tank.

(c)  To comply with the notice and the letter, the Applicant had to replace the fire services water pump at the Flat Roof.

(d)However, despite repeated requests and demands, the Respondent did not allow the workers to enter into the Premises and the Flat Roof.

4.  The Applicant therefore sought various reliefs to put right the matter, including (a) a declaration that it had the power under the Deed of Mutual Covenant (“the DMC”) of the Building to enter the Premises for the purpose of maintaining the common parts situated at the Flat Roof, (b) an injunction allowing the Applicant to enter the Premises during business hours from 9 a.m. to 6 p.m. within 21 days for the purpose of carrying out the repairs at the common parts of the Building, and (c) an order that the Respondent do indemnify the Applicant for all costs and penalties caused by failure to comply with the fire hazard abatement notice.

5.  The Respondent defended for the proceedings and further counterclaimed against the Applicant. He said, among others, the followings.

(a)  The fire water services system at the Building was damaged by the Applicant’s wrongful conduct.

(b) He did not deny any right of the Applicant under the DMC to enter the Premises and the Flat Roof.

(c)  However, the Applicant did not follow and observe the requirements in the DMC as well as other safety requirements.

(d) In fact, the Respondent was supportive and co-operative to the Applicant by advising it to comply with regulations relating to health, safety and third party liability.

(e)  The Respondent was willing to follow the order made by the Tribunal.

(f)   The matter could have been resolved without going through the litigation process at the Lands Tribunal.

(g)  He counterclaimed for punitive damages against the Applicant.  

6.  On 27 April 2011, I dealt with the matter at the call-over hearing. Upon discussing the proceedings generally with the parties, I ordered, inter alia, that the same was to be stayed pending mediation attempt by the parties. Regrettably, it was not fruitful. To facilitate the trial to be conducted more smoothly, I gave a number of directions at a further call-over hearing in August 2011, including the preparation of Issues of Dispute, filing and serving of Opening Submission and so forth. 

Judgment and Reasons

7.  Parties appeared before me again on 8 September 2011 for the trial. Mr. W. F. Ching of Counsel represented the Applicant when the Respondent acted in person himself. The Applicant did comply with my aforesaid directions, but not the Respondent. To save time and costs, the trial nonetheless went ahead. Having considered all the evidence authorities and submissions from the parties, I decided in favor of the Applicant and agreed to give my reasons later. Here are them.

(a)  The Respondent did not oppose that the Applicant could enter and pass through the Premises and the Flat Roof to carry out the works. I therefore would confirm such position including that the access had to be reasonable.

(b) Despite the fact that parties did not dispute on “reasonable access”, they had not been able to agree on the arrangement themselves. Whose suggestion was to be preferred to?

(c) In my view, it was the one suggested by the Applicant.

(d) There were some factual disputes between the parties, including the time required to carry out the works and the precautions to be taken. The Applicant requested for 3 consecutive working days from 9:00 a.m. to 6:00 p.m. when the Respondent only agreed to some lesser hours at intermittent days. The latter also asked for insurance policies and scope of the jobs. After the concession made by the Applicant, including the provision of a quotation, a risk assessment report as well as two insurance policies (both employee and third party) and, the Respondent was still not satisfied. Upon being requested to identify the precise insufficiencies, the Respondent did not give any helpful reply. It was not necessary to recap what the Respondent had replied. It sufficed for the present purpose to see what was stated in his letter of 23 November 2010.

		“I would not like to comment it from point to point on the grounds that
		1. It is your duty to forward a workable risk assessment;
		2. I am not paid to do so;
		However, I will be so kind to point simple points that will prove that it is meaningless for me comment the said report point by point. These simple points are including but not limited to:
			1.  Scope of Work
			A. Not detail enough, e.g. size of pipe, connection method, pump being used etc.
			B. If the scope of work is not clear, how meaningful risk assessment can be made?
			2. Transportation of material
			A. Are there any data on the size, weight, packing …Of Materials
			B. Available route(s), their conditions?
			3. Hot work system
			A. Why hot work system is recommended at cutting and threading of pipes but not at welding?
		Please take notice that if risk assessment report will be prepared in such a quality with a lot of junior level mistakes, I will consider to charge professional charge on reading the coming reports. My normal professional charging rate are:
			1.Reading of one A4 size paper  HKD 150.00 2.Comment (point form) on each mistake HKD 300.00 3.Comment(detail) on each mistake HKD 2,000.00 4.Time charge if no reference can be made   William Poon HKD 4,000.00/hr  Travel time rate   William Poon  HKD 1,000.00/hr
		On the other hand, if your client is intending to mark my diary, I would like to forward for your information that my rate is KHD4,000.00 per hour and the marking fee or advance cancellation charge(3 days in advance) is HKD500 per hour…”

(e) As I pointed out at the hearing, all that the Respondent was asked to do is to give way for the works to be done. He was not asked to supervise the job. He was not asked to be an expert to monitor the works. He was simply demanding for too much in the circumstances.

(f) Further, when the Respondent was asked to comment on the urgency of the works as compared with the inconvenience he might suffer, he clearly was not as objective as he could have been. He told this Court that the works were not urgent and hazardous. It was clearly contrary to the fire abatement notice of the FSD. It also neglected the summons having been issued against the Applicant as early as on 2 November 2010. The hearing was only adjourned pending the Applicant to pursue the matter with the Respondent to complete the works at the Flat Roof.

(g) Hence, on balance, I found that the works had to be carried out for 3 consecutive working days from 9:00 a.m. to 6:00 p.m., save that one hour of lunch time should be inserted. The scope of works was identified clearly for the information of the Respondent. Moreover, the insurance policies and the risk assessment report were reasonable in the circumstances to protect the safety of the Respondent, his property servants and so forth.

(h) To answer the 3 issues as identified by the Applicant, namely:

“1. Whether the Respondent is acting reasonably by failing to allow the Applicant, its agents or servants to enter the Respondent’s premises at a reasonable time with reasonable notice to conduct the Maintenance Works at the Flat Roof?

2. What should be the ‘reasonable time” to conduct the Maintenance works at the Respondent’s premises?

3. Whether the Respondent’s insistence on the criterions regarding safety and risk is appropriate and reasonable in this application? ”

 (List of Issues prepared by the Applicant filed on 8 August 2011)

I would say:

1. No.

2. Three consecutive working days, from 9:00 a.m. to 6:00 p.m., save that one hour of lunch time should be inserted.

3. No.

(i) In the circumstances, a mandatory injunction was to be issued against the Respondent.

(j) As to the indemnity sought by the Applicant, Mr. Ching kindly confirmed that his client did not press seriously for the same as not only the figures had not made known, but also it might drag on the litigation further between the parties. I therefore did not propose to make any order thereof.

Orders

8.  In the end, I therefore made the following orders.

(a) A declaration that the Applicant do have the power under the DMC to have reasonable access regarding the Respondent’s premises for the purpose of maintaining the common parts situated at the Flat Roof of the Respondent’s premises.

(b) A mandatory injunction ordering the Respondent to allow the Applicant or its agents or servants to enter the Respondent’s premises during business hours from 9 a.m. to 6 p.m.  (1 p.m. to 2 p.m. being lunch hour) for the purpose of carrying out Maintenance Works, as identified in the Form 29 herein, to the common parts of Tak Wing Industrial Building.

(c) Without prejudice to any of the right of the Applicant, no order is made to the claim for indemnity of costs and penalties.

Counterclaim

9.  Due to the lack of time, parties did not expressly mention about the counterclaim of the Respondent. Nonetheless, having accepted the case of the Applicant as more credible, I certainly did not find that the Respondent had come up with the necessary proof of his case, including that the fire services system was damaged by the Applicant and it should be liable to pay any punitive damages.

Costs

10.  At the end of the hearing, I also discussed the question of costs with Mr. Ching and the Respondent. Upon hearing from them, I saw no reason to depart from the general rule that costs should follow the event, especially in light of the fact that the Respondent had invited the Applicant “…盡早尋求其它決定方法，例如:法庭的介入…” as per the former’s letter of 8 April 2011. I also decided to have the costs summarily assessed in order to wrap up the whole matter at one go.

11.  Having heard further from the parties, I awarded the sum of $92,710 to the Applicant against the Respondent.

	(a)  Two fee earners were allowed to charge at $2,600/hr and $2,200/hr. They were admitted in 1994 and 2005 respectively.
		$
	(b)  Services of documents	600
	(c)  Copying charges, including 6 sets of trial bundle	1,710
	(d)  Attendances with clients ($2,600x4.5)	11,700
	(e)  Attendance with the Respondent ($2,200x0.5)	1,100
	(f)  Attendance with Counsel ($2,600x1)	2,600
	(g)  Drafting and considering documents
	($2,600x5+$2,200x2)	17,400
	(h) Hearings [$2,200x(1.16+0.5+6)]	16,800
	(i) Counsel fees	40,000
	(j) Miscellaneous expenses	800
		---------
		92,710
		=====

12.  On 9 September 2011, the solicitors for the Applicant wrote to the Tribunal, informing that they could not cross their minds to the retainer with their client at the time of the above assessment. They sought to clarify their claim of costs in the sum of $76,770 only. The Respondent replied by suggesting that PD 14.3 was to be applied and he also prayed for supplemental order regulating the works to be carried out.  I do not agree to the suggestions made by the Respondent when the costs must be corrected due to the indemnity principle. Accordingly, the assessed costs are to be adjusted according to the corrected information available to the Court, i.e. the sum of $76,770.

		$	$
	(1) Costs		35,000
	(2) Disbursement
	(i) Filing fees	600
	(ii)  Copying charges	1,170
	(iii) Counsel fees	40,000
		--------	41,770
			---------
			76,770
			=====

Deputy Judge J. Wong Presiding Officer  Lands Tribunal

The Applicant was represented by Mr. Ching Wan Fung of Counsel, instructed by Messrs. Cheung & Yip.

The Respondent appeared in person.

Please refer to HCMP2505/2011 for the relevant appeal(s) to the Court of Appeal.