IN THE LANDS TRIBUNAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
BUILDING MANAGEMENT APPLICATION NO. 256 OF 2013
Coram: Deputy Judge Tracy Chan, Presiding Officer of the Lands Tribunal
Date of Hearing: 24 April 2015
Date of Decision: 8 May 2015
D E C I S I O N
APPLICATION FOR LEAVE TO APPEAL
1. This is an application made by the Respondent of the present Applicant for leave to appeal. For easy reference, in this judgment, the parties remain to be referred to as the Respondent and the Applicant as they had been so referred to in previous judgments.
2. By a Form 1 dated 30 January 2015, the Respondent seeks from the Lands Tribunal (“the Tribunal”):
Leave to appeal against the Tribunal’s decision dated 7 January 2015 (the “Review Judgment”), refusing the Respondent’s application to review the Tribunal’s decision dated 9 December 2014 (the “Quantum Judgment”); or
Alternatively, leave for extension of time for the Respondent’s application for leave to appeal against the Quantum Judgment.
3. Mr Mok, S.C. for and on behalf of the Respondent submitted that the point of law concerned in the case is: whether the Tribunal erred in law by refusing to rule on the merit of a legal argument raised by the Respondent in reliance of s.4 of the Limitation Ordinance, Cap. 347 (“the LO”) (“the Limitation Argument”), on the basis that it was not specifically pleaded in accordance with O.18 r.8(1) of the Rules of High Court, Cap. 4A (“the RHC”).
4. It was submitted that the intended appeal has a reasonable prospect of success, and there are other reasons in the interests of justice that the appeal should be heard, as the Tribunal has erred on the point of law on the following grounds namely:-
Ground 1 and 2: The Tribunal did not consider or appropriately apply the informal pleading approach set out in relevant statutory provision and practice, namely: LTO s.10(5)(a) and Direction No.4 (1 July 1986) issued by the then President of Lands Tribunal.
Ground 3: Further and alternatively, the Tribunal failed to apply the fundamental point approach in determining whether it should consider the merit of the Limitation Argument.
Ground 4: The Tribunal wrongly exercised its discretion in applying O.18 r.8 of the RHC to the present proceedings, causing serious prejudice to the Respondent.
5. Mr Mok has summarized the background of these proceedings succinctly especially on the history of pleadings.
6. On 12 September 2013, the Applicant, acting in person, commenced these proceedings by filing a standard Form 29 (“the Notice of Application”) in which the Applicant did not expressly seek relief in term of damages against the Respondent. The Notice of Application did not contain any plea for interest either.
7. On 5 November 2013, the Respondent filed a Notice of Opposition. The Respondent’s primary position was that, on a proper construction of the clauses in the DMC, it was not liable to the Respondent to pay any management fees at all prior to the time the Completion Certificate was issued. The Respondent reserved its position as to the quantum of damages with specific provisions mentioned.
8. On the first day of the hearing, i.e. 26 March 2014, the parties did not oppose that the assessment of damages should be dealt with after determination of disputes on liability. The Application was heard on two days, namely, the “Liability Hearing” on 26 March 2014 and the “Quantum Hearing” subsequently fixed to be heard on 18 November 2014. No argument on quantum was addressed at the Liability Hearing.
9. The Liability Judgment was handed down on 8 July 2014 in which the Tribunal held that the Respondent was liable to pay management fees as from date of DMC and that was December 1999. According to the Tribunal’s directions, the Respondent filed its affirmation on 25 September 2014, raising inter alia the Limitation Argument in contesting the quantum of damages. The Applicant filed his affirmation on 10 November 2014, giving evidence concerning the Limitation Argument. On 17 November 2014, the Respondent filed its reply affirmation on the same issue.
10. On 18 November 2014, the Tribunal heard evidence on quantum including arguments and submissions by both parties on the Limitation Argument. The Tribunal handed down the Quantum Judgment on 9 December 2014 in which the Tribunal rejected the Limitation Argument on the ground that it was not specifically pleaded, no ruling had been made on merit on the argument.
11. On 24 December 2014, the Respondent applied for review of the Quantum Judgment. The application was subsequently dismissed.
Submissions on Grounds 1, 2 and 4:
Informal Pleadings Approach and Prejudice
(i) Relevant Legal Principles on Informal Pleadings Approach
12. Mr Mok submitted that Section 10(5)(a) of the LTO provides:-
“The proceedings of the Tribunal shall be conducted with as much informality as is consistent with attaining justice and, for this purpose, the President may give directions as to the manner and form in which proceedings shall be conducted”.
13. Further Direction No. 4 issued on 1 July 1986 provides:-
“Presiding officers should not regard Notices as in the nature of pleadings by which parties are bound, but as an indication of the issues which are likely to be raised. The remedy, if the documents filed by the party are so incomplete or misleading as to prejudice the other party, is to adjourn, not to dismiss the claim”.
14. The Respondent relied on Goodwell Property Management Ltd v Garg Lalit Kumar & Another, LDBM 242/2011 (12.7.12) and Great Source Enterprise Limited v Sino Estates Management Limited, CACV 253/2003 (7.5.04) in which the Court of Appeal (Cheung and Yeung JJA) overturned the decision of the tribunal striking out the Notice of Application because dishonesty was not specifically pleaded under O.18 r.8(1) of the RHC.
15. The present case is different from Great Source. In Great Source Cheung JA noticed that as a matter of fact the Notice of Application had been amended twice and one of the amendments was done after the application to strike out was issued. Cheung JA was of the view that the second amendment “contained details of the applicant’s case including what it said to be the basis of dishonesty of the respondent. The case is sufficiently framed and particularised to be tried.” In the present case, nowhere in the Notice of Opposition and at no stage prior to the determination of liability, had the Respondent indicated that Limitation Argument was likely to be raised.
16. Further, I think another passage in Great Source should be read together to give a complete picture to understand the holding. Yuen JA has in paragraph 51 upheld the trial judge’s refusal to entertain a point which was not in the pleading:-
“51. Two aspects of the Re-Amended Notice of Application require mention. First, as noted above, in alleging that the Respondent owed “a duty under the DMC” in paragraphs 10, 11 and 32, the nature of the duty has not been pleaded. Before this court, Miss Eu SC, leading counsel for the Applicant, submitted that besides a contractual duty, the Respondent also owed a fiduciary duty to the Applicant by reason of being its agent. That may or may not be so, but if a fiduciary duty is to be alleged, it should be clearly pleaded, and in my view, it has not been so pleaded at all. The presiding officer was therefore entitled to construe the reference to a “duty under the DMC” as a contractual duty only.”
(ii) LO Operates to Bar the Remedy but not Extinguish the Right
17. Mr Mok submitted that the Tribunal misunderstood the effect of s.4 of the LO. As a matter of law, it was entirely appropriate for the Respondent to raise the Limitation Argument after the Liability Hearing. On the contrary, it was premature for the Respondent to embark on a course of argument with the Applicant, seeking the Tribunal’s determination on the application of the LO at the Liability Hearing. Mr Mok relied on a passage in McGee, Limitation Period (6th edn), p.38 at §2-019:
“The barring of the remedy has been regarded as the usual response of the law to the expiry of the limitation period. Therefore, in an action founded on contract (simple or special) or on tort the effect of the expiry of the limitation period is generally said to be that the remedy is barred, but the plaintiff’s right is not extinguished” [emphasis added].
18. He also relied on Royal Norwegian Government v Constant & Constant  2 Lloyd’s Rep 431 at 442 (Diplock J); Li Shiu To v Cheung Pik Ng  2 HKLRD 508 §19 (Au Yeung J). Mr Mok said that the operation of LO would bar the Applicant from recovering the remedy from December 1999 to September 2001 (12 years before the date of the Notice of Application), but not extinguishing his right to claim those relevant management fees.
19. Mr Mok submitted that the Tribunal had in the Review Judgment erroneously held the view that:-
“Limitation Ordinance provides a defence to the Respondent but not merely an issue for assessment of damages, because according to the Limitation Ordinance the Applicant has no right to claim for a cause of action accrued during a certain period of time” [emphasis added].
Originally in Chinese: “《時效條例》為被告方提供的是一項抗辯理由，而不單單是評核款額的問題，因為根據《時效條例》提訴人是無權就某時段產生的訴因提出訴訟” (emphasis added).
20. On this point, it is obvious that the “right” mentioned in the Review Judgment referred to the right to claim remedy outside limitation period under s.4 of the Limitation Ordinance and not the “underlying right” as mentioned by Au-Yeung J in Li Shiu To v Cheung Pik Ng. The “Plaintiff’s right” mentioned in the passage in the work of McGee Limitation Period in my view refers also to the “underlying right” and not the right to claim as it could be seen in the following paragraph of the same work, right was referred to the property right of the original owner in cases of theft and conversion of property (see para. 2.020). The holding of Lord Diplock in Norwegian Government carried the same effect as he said that “the legal liability of the plaintiffs to the defendants in respect of the repairs still continues to exits notwithstanding that.. the remedy by action would be barred by the Limitation Act…”
21. Further, I could not agree with Mr Mok that it would be premature to seek the Tribunal’s determination on the extent of damages as it was a matter adjourned for further argument at the Quantum Hearing. Parties should have at least indicated the issues likely to be raised on liability or quantum prior to determination on Liability. This is more the case when there is requirement that such issue has to be pleaded.
(iii) Applicant’s Pleading Insufficient
22. Another complaint of Mr Mok is that the Applicant did not seek relief in term of damages against the Respondent in the Notice of Application and the Respondent would therefore be prejudiced. Again I could not agree with Mr Mok on this. At the outset, I do not think the Respondent would have taken that the Application was to obtain an academic declaration from the Tribunal. It did not so appear on the Notice of Application to me. Although relief had not been specifically pleaded therein it was stated that the order sought was about default of payment by the Respondent:-
23. Further, the claim for an order for the Respondent to pay such management fees together with interest has been set out in his first witness statement dated 14 February 2014. In the first witness statement the Applicant produced an account prepared by the management company stating that the sum due was $45,073,812 as from December 1999 to November 2008 (see paragraph 7 of the first witness statement). It was also mentioned that a demand letter dated 21 May 2008 had been issued to the Respondent asking the Respondent to settle the arrears as from date of DMC with interest (see paragraph 8). The Applicant reiterated the demand for payment of such sum due with interest in the first witness statement as conclusion (see paragraph 9). In his second witness statement dated 7 March 2014, he repeated his plea for immediate payment of such sum due with interest (see paragraph 4 and paragraph 8). The trial took place on 26 March 2014. In the circumstances, it is difficult for the Respondent to argue that it was not aware of the Applicant’s claim for payment and interest before trial even though relief had not been specifically pleaded in a formal manner. As I have mentioned in the Quantum Judgment, the Respondent had also dealt with quantum in its Notice of Opposition even though it was brief.
24. Finally, parties had been in discourse on the issue since 2008 and there had been complaint made to the Ombudsman in March 2011. No doubt it is obvious to the Respondent that what the Applicant had asked for was payment of arrears with interest.
(iv) No Prejudice caused to the Applicant
25. Mr Mok said that the Limitation Argument raised after the Liability Hearing did not cause any prejudice to the Applicant because evidence had been received from the parties. I have already explained in the Review Judgment why no directions was made to first deal with the issue of whether the Respondent should be allowed to run the defence under LO at the stage of determination of quantum when the defence was not pleaded (paragraphs 6 and 9 in the Quantum Judgment). When the Tribunal came to the conclusion that the Respondent should not be allowed to rely on the LO, it was not necessary to deal with the evidence to decide on merit as suggested by Mr Mok.
26. Mr Mok referred to a passage in paragraph 12 of the Review Judgment and said that the Tribunal apparently assumed that the Respondent would not have raised the limitation argument during the hearing had it not been split into two parts and such an assumption is not necessary or apposite:-
27. On the day of trial, parties should be ready to argue on both liability and quantum. Directions to deal only with liability on the trial day were given only at the commencement of the trial after consultation with parties. Limitation Argument was not included or mentioned in the opening of Mr Mok. Limitation was never a point raised at the trial to be considered when liability was to be determined.
(v) Prejudice and Unfairness Caused to the Respondent
28. Mr Mok said that the Tribunal’s approach in relation to the application of O.18 r.8 of the RHC caused prejudice and unfairness to the Respondent. I have considered his submissions in this regard.
29. First, I could not agree with the Respondent’s saying that the Applicant now enjoyed a windfall of the remedy of management fees from December 1999 to September 2001 in the sum of HK$28,924,919.68 because of an entirely technical point. In fact the Applicant commenced these proceedings in his personal name because there is no incorporated owners. He has no personal interest in the whole of the said sum. He had specifically confirmed his stance to the Tribunal that he was not asking for a refund, but that the sum due should be reimbursed to the management fund of the Estate.
30. Secondly, the complaint that the “pleading point” was only held against the Respondent but not the Applicant could not stand because as I have mentioned earlier, the order sought was stated in the Notice of Application although not in a formal manner, but it was at least an indication of issue to be raised. Further details of the claim had been set out in the witness statements but Limitation Argument had never been raised until liability was determined.
Submissions on Ground 3: Fundamental Point Approach
31. Mr Mok said that as the Limitation Argument is such a point fundamental to the Applicant’s entitlement to remedies (and its extent), the Court of Appeal may remit the issue for retrial owing to the Tribunal’s omission on the determination of its merit, because the Tribunal is obliged to consider a fundamental point even if it has not been raised by the parties. The Respondent relied on cases set out below:-
陳偉連、梁麗貞v 香港房屋委員會, CACV925/2001 (22.3.02);
The Incorporated Owners of Goa Building v Wui Tat Company Limited, CACV349/2002 (17.7.03);
Pun Kwok Kei v The Incorporated Owners of Merit Industrial Centre, LDBM 25/2003 (5.8.04) §8;
The Incorporated Owners of Koon Wah Building v Yeung Fung & Others  1 HKLRD 648 §§6-8;
Chung Kwok Hung v Cayley Property Management Limited, LDBM 72/2004 (8.9.04) §4;
East Point Property Management Ltd v Kong Shui Wing & Another, LDBM 110/2004 (20.10.04); and
宜高物業管理有限公司 v Ma Man Ho & Others, LDBM 393 & 394/2004, 48 & 53/2005 (30.8.06).
32. Mr Mok admitted that the aforesaid cases do not concern issues that are required to be specifically pleaded pursuant to O.18 r.8(1) of the RHC. He submitted that there is however no case ruling out the application of fundamental point approach to such specific issues. It was submitted that therefore, it is in the interests of justice that this case is to be heard before the Court of Appeal, so that the Court may clarify the question whether the fundamental point approach in 陳偉連 is applicable to issues mentioned in O.18 r.8(1).
33. The fundamental point approach in my view must be seen in the light of s10(5)(a) of the LTO:-
“The proceedings of the Tribunal shall be conducted with as much informality as is consistent with attaining justice and, for this purpose, the President may give directions as to the manner and form in which proceedings shall be conducted.”
34. It could be immediately seen that “attaining justice” is the cardinal concern of the provision. There were cases such as those set out in the above where the Court of Appeal took the fundamental point approach, obviously the decisions were made upon careful consideration as to whether the objective of attaining justice would be defeated otherwise. I do not see that in the present case the objective of attaining justice would be defeated by not allowing the Respondent to run a not pleaded defence on limitation. As I have mentioned in my Review Judgment, the Respondent is well aware of what the Applicant had been asking for, not only a relief in the form of payment, but also the amount he alleged that the Respondent was liable to pay. The figure of claimed amount was no secret to the Respondent. It was computed by the management company where the Respondent is the DMC Manager; it had been mentioned in the Applicant’s complaint to the Ombudsman in March 2011 and the disputes had been discussed with LegCo Members. Further the same figure had been used by the Respondent for purpose of disclosing to potential purchasers that there was a suit over the Respondent’s liability to pay management fees and interest and the sum in dispute.
35. As to Direction No. 4 issued on 1 July 1986, it provides that:-
“Presiding officers should not regard Notices as in the nature of pleadings by which parties are bound, but as an indication of the issues which are likely to be raised. The remedy, if the documents filed by the party are so incomplete or misleading as to prejudice the other party, is to adjourn, not to dismiss the claim.” (emphasis added)
36. In the present application there was not the slightest indication made by the Respondent that Limitation Argument would be likely to be raised as a defence to liability before determination of liability of the Respondent.
Interests of Justice
37. Finally, Mr Mok said that it is in the interests of justice that this pleading point should be authoritatively determined by the Court of Appeal, so that the applicability of O.18 r.8(1) of the RHC to cases in Lands Tribunal concerning the operation of the LO can be clarified. I am of the view that first the issue is fact-sensitive and each case should be decided on its own facts. It is also for reasons set out in paragraphs 28-36 in the above that I reject the Respondent’s submission on this point.
Application of the Respondent to Amend the Intended Ground of Appeal
38. As submitted by Mr Mok, the main issue had always been the date on which the Respondent should be liable to pay management fees in the circumstances of the present case. The dates under dispute was the date of the DMC as alleged by the Applicant and the date of the Completion Certificate as contended by the Respondent. It was my finding that the Respondent is liable to pay management fees as at the date of DMC, i.e. as from December 1999, upon proper construction of the DMC.
39. In the light of my decision on liability as summarized above, another difficulty faced by the Respondent is that the Liability Judgment is not included in the present leave application. That means my finding on the date on which the Respondent was liable would remain good and effective. That would make the situation odd as such finding is inconsistent with the contention of the Respondent that they should not be liable to pay until September 2011 due to operation of the LO. Mr Mok then made an oral application to include the Liability Judgment in the present application. This application was opposed by the Applicant saying that the Respondent should have ample time to read the Liability Judgment and the application for leave for it to be included as another intended ground of appeal at the present hearing should be dismissed. I agree with the Applicant on this.
40. For reasons set out in the above, the application of the Respondent, including the oral application to include the Liability Judgment in the present application, is refused. The summons dated 30 January 2015 is therefore dismissed.
41. Costs should follow the event. The Respondent shall pay the Applicant costs of this application, summarily assessed at District Court Scale to be $500. This is an order nisi to become absolute if no application is taken out to vary the same within 14 days.
Deputy Judge Tracy Chan
The Applicant, acting in person, present
Mr Johnny Mok S.C. and Ms Eva Leung, instructed by Messrs. Li, Kwok & Law, for the Respondent