A A
B
HCMP 1132/2023 B
[2024] HKCFI 418
C C
D
IN THE HIGH COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
COURT OF FIRST INSTANCE
F MISCELLANEOUS PROCEEDINGS NO 1132 OF 2023 F
_______________________
G G
IN THE MATTER of HONG
H KONG REAL ESTATE AGENCIES H
GENERAL ASSOCIATION
I LIMITED (香港地產代理商總會 I
有限公司) (the “Association”);
J J
IN THE MATTER OF Order 102 of
the Rules of High Court (Cap 4A);
K and K
IN THE MATTER OF SECTIONS
L L
728-730 OF THE COMPANIES
ORDINANCE (CAP 622)
M M
_______________________
N N
BETWEEN
O O
P UNIQUE REALTY LIMITED 1st Plaintiff P
(譽林地產有限公司)
Q Q
UNITED PROSPER REAL ESTATE CO. LTD. 2nd Plaintiff
(協榮物業有限公司)
R R
And
S S
T T
U U
V V
- 2 -
A A
B B
HONG KONG REAL ESTATE AGENCIES GENERAL 1st Defendant
ASSOCIATION LIMITED
C C
(香港地產代理商總會有限公司)
D YU CHUNG LIT ( 余 忠 烈 ) trading as PO SHING 2nd Defendant D
PROPERTY CO. (寶盛地產公司)
E E
YING LOK PROPERTY LIMITED 3rd Defendant
F
(盈樂地產有限公司) F
SILVER POWER PROPERTY AGENCY LIMITED 4th Defendant
G G
(銀力地產代理有限公司)
H LEUNG MO LIN (梁慕蓮) trading as HANG FUNG 5th Defendant H
PROPERTY AGENCY CO. (恒豐地產公司)
I I
WONG MAN LING ( 王 曼 玲 ) trading as DAIRY 6th Defendant
J
ESTATE DECORATION ENG CO. J
(大利地產裝飾工程公司)
K K
TUNG SHU MEI ( 董 澍 媚 ) trading as KIN YIP 7th Defendant
PROPERTY DECORATION WORKS
L L
(建業地產裝修工程公司)
M HUNG CHIU YEUNG (洪朝 陽) trading as TIME’S 8th Defendant M
PROPERTY CO. (時代地產)
N N
KWOK YING ELAINE ( 郭 盈 ) trading as GRAND 9th Defendant
O PROPERTY (尊尚物業) O
KAMSON PROPERTY AGENCY LIMITED 10th Defendant
P P
(金誠物業代理有限公司)
Q WISE CONSULTANCY LIMITED 11th Defendant Q
(蔚城顧問有限公司)
R R
CHUP WANG AGENCY LIMITED 12th Defendant
(捷宏代理有限公司)
S S
T T
U U
V V
- 3 -
A A
B B
YAU WO YAU ( 邱 和 友 ) trading as KAM HUNG 13th Defendant
C
PROPERTY CO. (錦鴻地產公司) C
LAND MOBILE PROPERTY CONSULTANT LTD. 14th Defendant
D D
(中大策略物業顧問行有限公司)
E 15th Defendant E
WONG CHING KUM (黃靜琴) trading as WINFAIR
ESTATE AGENCY (永暉地產代理)
F F
th
CHAN PIK YUK ( 陳 碧 玉 ) trading as GOLDEN 16 Defendant
G PALACE PROPERTY (金鑾物業) G
H
ONE PROPERTY CONSULTANT LIMITED 17th Defendant H
(匯一物業代理有限公司)
I I
CITY PROPERTY LIMITED 18th Defendant
(城巿地產代理有限公司)
J J
th
CHEE SHING PROPERTIES LIMITED 19 Defendant
K (置城物業有限公司) K
CHONG STRONG LIMITED 20th Defendant
L L
(莊細莊有限公司)
M BEST HOME AGENCY LIMITED 21st Defendant M
(安家代理有限公司)
N N
____________________
O O
P P
Before: Hon Anthony Chan J in Chambers
Q Q
Date of Hearing: 1 February 2024
R Date of Judgment: 1 February 2024 R
Date of Reasons for Judgment: 2 February 2024
S S
T T
U U
V V
- 4 -
A A
B ____________________________________ B
C REASONS FOR JUDGMENT C
____________________________________
D D
1. The Originating Summons before the Court, filed on 19 July
E E
2023 by the Plaintiffs, mainly concerned the validity of the election of the
F 16th Executive Committee (“EC”) of the 1st Defendant’s Central-Western F
District Branch (“CW Branch”) held at an Extraordinary General Meeting
G G
(“EGM”) which took place on 11 April 2023. The Plaintiffs were
H amongst the members of, purportedly, the same EC which was elected at H
an Annual General Meeting (“AGM”) held 2 days later on 13 April 2023.
I I
J 2. Primarily, the Plaintiffs’ case was that the election of the J
16th EC at the EGM was invalid for breach of the Articles of Association
K K
st
of the 1 Defendant (“AA”), in particular, the EC could only be elected at
L an AGM of the CW Branch. On the other hand, the 2 nd to 21st Defendants L
who were elected to the 16th EC at the EGM contended that they were duly
M M
elected and the election at the EGM was invalid.
N N
3. The 1st Defendant took a neutral stance in these proceedings.
O O
st
However, Mr Wong, who appeared for the 1 Defendant, helpfully
P identified 3 fundamental issues with these proceedings two of which (the P
Q
jurisdiction of this Court and the propriety of using the Originating Q
Summons procedure on these matters), if accepted by the Court, might be
R R
fatal to the same.
S S
T T
U U
V V
- 5 -
A A
B 4. Having heard the parties on the 3 issues raised by the B
1st Defendant, the Court dismissed the Originating Summons at the hearing
C C
and awarded the costs of and occasioned by the Originating Summons
D against the Plaintiffs. These were my reasons. D
E E
Background
F F
5. In order to understand the issues, it is necessary to sketch out
G an outline of the background facts. G
H H
6. The 1st Defendant was an incorporated body. It was a
I general association of various real estate agencies in Hong Kong. Its I
members were the real estate agencies. To cater for the special interests
J J
of agencies in different areas, there were altogether 27 branches under the
K 1st Defendant which were demarcated by districts. CW Branch was one K
such branch. As of April 2023, the 1st Defendant had 3,731 members,
L L
with 228 of them belonging to the CW Branch.
M M
7. The present dispute arose out of disagreements between the
N N
founding and honorary chairman of the CW Branch (“Li”) and the
O chairwoman of the 15th EC of the CW Branch (“Cheng”). O
P P
8. The 2nd to 21st Defendants were the elected members of the
Q 16th EC pursuant to an EGM of the CW Branch held on 11 April 2023 (“the Q
EGM”), whereas the Plaintiffs were two of the 16 elected members of the
R R
th
16 EC pursuant to an AGM of the CW Branch held on 13 April 2023 (“the
S S
T T
U U
V V
- 6 -
A A
B AGM”). The EGM was apparently initiated by Li, whereas the AGM was B
called by Cheng.
C C
D 9. On 27 April 2023, the EC of the 1st Defendant (“EC (D1)”) D
held a meeting and resolved to decide on which team of elected 16th EC of
E E
the CW Branch to endorse by voting. The result was in favour of
F endorsing the team elected at the EGM (the 2nd to 21st Defendants). F
G G
10. Since the commencement of these proceedings, 3 of the
H 16 elected members under the AGM had resigned from the 16th EC of CW H
Branch, whilst one had indicated its neutrality to the dispute between the
I I
Plaintiffs and the Defendants.
J J
1st Defendant and its branches
K K
11. I agreed with Mr Wong that the characterisation of the true
L L
nature of the CW Branch was relevant and crucial to the issues of whether
M elections of the CW Branch were governed by the Companies Ordinance, M
Cap 622 (“Ordinance”) and/or the AA. They went to the jurisdiction of
N N
the Court in these matters.
O O
12. There was no dispute that the CW Branch was never
P P
incorporated under the Ordinance (whether in its existing or previous form).
Q Q
13. It was trite that an unincorporated entity is not recognised by
R R
th
law as having an independent legal existence: Chitty on Contracts, 35 edn,
S vol 1, [13-065] : S
T T
U U
V V
- 7 -
A A
B “An unincorporated association is not a legal person and therefore B
cannot sue or be sued unless such a course is authorised by express
or implied statutory provisions as in the case of a trade union and
C C
a trustee savings bank. Nor can a contract be made so as to bind
all persons who from time to time become members of such an
D association. But a contract purportedly made by or with an D
unincorporated association is not necessarily a nullity. If the
person or persons who actually made the contract had no authority
E E
to contract on behalf of the members they may be held to have
contracted personally. On the other hand, if they had the
F authority, express or implied, of all or some of the members of the F
association to contract on their behalf, the contract can be enforced
by or against those members as co-principals to the contract by the
G ordinary rules of agency.” G
H H
14. Article 9 of the AA provided for the relationship between the
I 1st Defendant and the branches. Article 9.3 stipulated that each branch I
was a separate entity and exercised independent administrative powers
J J
(“分會或屬會為一個獨立個體，有行政自主權，並可因應個別地區的
K K
需要制定有關政策、會員守則或其他規章制度供其會員遵守，唯該等
L 政策、守則或規章制度須以本會所簽訂的協議為依歸，並符合本會組 L
織大綱及組織章程所訂定的原則”).
M M
N N
15. There was an agreement made on 10 April 1995
O
(“Agreement”) between the 1st Defendant and the Western District Real O
Estate Agents Association (represented by Li). There was no controversy
P P
that it represented an agreement between the 1st Defendant and the CW
Q Branch. The Agreement governed the relationship between the Q
1st Defendant and the CW Branch. Clause (6) of the Agreement provided
R R
that elections at the branch level should be left to the autonomy of the
S branch (“總會同意有關分會區內之選舉權必需交由分會自行選定”). S
T T
U U
V V
- 8 -
A A
B 16. Clause (6) was not consistent with the Plaintiffs’ reliance on B
the AA as governing the CW Branch elections. However, Mr Yeon, who
C C
appeared for the Plaintiffs argued that Clause (14) of the Agreement, which
D provided that the CW Branch agreed to abide by the AA, regulations, D
E
directions and decisions passed by the 1st Defendant (“分會同意遵守總會 E
之會章及日後發出之會內規則，守則，指令及決議”) gave rise to the
F F
obligation by the CW Branch to abide by the AA, including those
G provisions on elections. G
H H
17. Ironically, the 1st Defendant also relied on Clause (14) of the
I Agreement for its argument that the CW Branch was bound by the I
resolution of the EC (D1) passed on 27 April 2023 to resolve the dispute
J J
between the two 16th EC of the CW Branch. However, Mr Wong
K submitted that this was not an issue requiring the determination of the K
Court unless this application could overcome the fundamental objections
L L
st
raised by the 1 Defendant.
M M
18. The Plaintiffs’ evidence, which was disputed, suggested that
N N
elections of the branches were conducted in accordance with the AA. I
O agreed with Mr Wong that the voluntarily adoption of the AA for the O
conduct of CW Branch meetings did not affect the legal analysis as to
P P
whether meetings of an unincorporated branch were governed by the AA
Q and/or whether the Plaintiffs might rely upon the Ordinance to make out Q
their claims.
R R
S S
T T
U U
V V
- 9 -
A A
B Reliance upon the AA and the Ordinance B
C 19. In this action, the Plaintiffs relied, centrally, upon alleged C
breaches of Article 16 of the AA, which governed the meetings of the
D D
st
1 Defendant’s members, to ground their case of irregularities and
E invalidity of the election of the 16th EC under the EGM. In particular, E
Article 16.4 was relied upon for the alleged lack of sufficient notice for the
F F
EGM, and Articles 16.1(c) and 16.2 were relied upon on the requirement
G to appoint EC at AGM rather than EGM. G
H H
20. However, s.728(4)(c) of the Ordinance on which the Plaintiffs
I relied to give rise to the Court’s jurisdiction in these matters could only be I
applied to the breaches of a company’s articles.
J J
K 21. Aside from the fact that CW Branch was not a company, it K
was quite clear that the Article 16 could not be invoked to apply to the
L L
elections of the CW Branch. Article 1 which set out various definitions
M for the provisions under the AA, stated that : M
N N
st
(1) “members” only referred to members of the 1 Defendant
O O
(“「會員」指目前經已進行會員註冊登記的本會會員”); and
P (2) “members’ meetings” only referred to AGMs or EGMs of the P
st
1 Defendant (“「會員大會」指本會會員的週年大會或特
Q Q
別大會”).
R R
22. Read in conjunction with the provisions under Article 9 of the
S S
AA, it was not reasonably arguable that the elections of the CW Branch
T T
U U
V V
- 10 -
A A
B were governed by the AA. In my view, it was reasonably clear that all B
members of the 1st Defendant were required to comply with the AA when
C C
st
it came to the elections of the 1 Defendant. However, the CW Branch
D was free to adopt such procedure as it desired for its own elections. It D
E
could have adopted the relevant provisions of the AA, but the breach of E
such provisions would not give rise to the jurisdiction of the Court on
F F
disputes over elections because CW Branch was not a company. This
G
answered also Mr Yeon’s reliance on Clause (14) of the Agreement (see G
para 16 above).
H H
I
23. I was unable to find any real answer provided by Mr Yeon on I
this fundamental objection of the 1st Defendant. The other Defendants,
J J
represented by Ms Tang, also relied on this objection but nothing further
K had been added to Mr Wong’s submissions. K
L L
24. For this reason alone, this Originating Summons must be
M
dismissed. M
N N
25. It was unnecessary to determine the other two issues raised by
O
the 1st Defendant. However, it should be mentioned, firstly, that the O
Plaintiffs had half-heartedly complained about the endorsement of the
P P
2nd to 21st Defendants as members of the 16th EC by the EC (D1) on
Q 27 April 2023 (see para 9 above and para 4 of the relief sought in the Q
Originating Summons). It was a half-hearted complaint because the
R R
Plaintiffs did not advance any ground for the challenge in their supporting
S evidence. They only made some vague allegations about lack of advance S
notice for the discussion on the topic at the 27 April 2023 EC (D1) meeting
T T
U U
V V
- 11 -
A A
B in their reply evidence after the Defendants pointed out the absence of B
ground for the challenge.
C C
D 26. Unless the ground for challenge was made clear, eg, which D
specific provision of the AA was allegedly breached, there was no
E E
substance in the complaint and it should be ignored by the Court.
F F
27. Secondly, the Plaintiffs sought against the 1st Defendant an
G G
injunction to restrain their expulsion as its members (para 5 of the relief).
H Mr Yeon accepted that the 1st Defendant had the power to expel them H
pursuant to Article 7.2 of the AA. However, such power had to be
I I
st
exercised in good faith for the benefit of the 1 Defendant (citing Baillieu
J v Foreign Correspondents’ Club, Hong Kong [2007] HKLRD 229, [11]). J
K
The premise of the Plaintiffs’ case was that they were properly elected as K
th
members of the 16 EC.
L L
28. The evidence showed that the EC (D1) was trying to put an
M M
th
end to the quarrel between the two 16 EC of the CW Branch. After the
N N
1st Defendant received a letter before action from the Plaintiffs’ solicitors
O
dated 9 June 2023, which it considered had caused damage to its reputation O
and/or interest and was a breach of Article 7.2, it called for an EC (D1)
P P
meeting on 31 July 2023 to resolve a proposed resolution to expel the
Q Plaintiffs and the Plaintiffs were asked to provide their written explanation Q
and to attend the meeting to offer their explanation. The meeting never
R R
took place due to an interlocutory injunction obtained by the Plaintiffs on
S 28 July 2023 pending the determination of the Originating Summons. S
T T
U U
V V
- 12 -
A A
B 29. The injunction expired upon the determination of the B
Originating Summons on 1 February 2024. In light of the dismissal of
C C
the same, there was no reason to grant any injunctive relief in favour of the
D Plaintiffs. In any case, they should take advantage of the opportunity D
E
offered by the EC (D1) to explain their actions. E
F 30. Finally, the 1st affirmation of Yeung Wai Kwok filed by the F
2nd to 21st Defendants on 6 September 2023 contained a counterclaim about
G G
th
the validity of the 16 EC elected pursuant to the EGM and invalidity for
H H
the one elected at the AGM. Apart from the fact that it was not pressed
I
by Ms Tang in her skeleton submissions, for the reasons stated above, the I
elections of the CW Branch did not fall within the jurisdiction of the Court.
J J
K K
L L
M M
( Anthony Chan )
N Judge of the Court of First Instance N
High Court
O O
Mr Thomas Yeon, instructed by Christine M. Koo & Up, Solicitors &
P P
Notaries LLP, for the 1st and 2nd Plaintiffs
Q Mr Joseph Wong, instructed by Li, Kwok & Law, for the 1st Defendant Q
R Ms Kitty Tsang, instructed by Paul Kwong & Co. for the 2 nd to R
21st Defendants
S S
T T
U U
V V
UNIQUE REALTY LTD AND ANOTHER v. HONG KONG REAL ESTATE AGENCIES GENERAL ASSOCIATION LTD AND OTHERS
A A
B
HCMP 1132/2023 B
[2024] HKCFI 418
C C
D
IN THE HIGH COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
COURT OF FIRST INSTANCE
F MISCELLANEOUS PROCEEDINGS NO 1132 OF 2023 F
_______________________
G G
IN THE MATTER of HONG
H KONG REAL ESTATE AGENCIES H
GENERAL ASSOCIATION
I LIMITED (香港地產代理商總會 I
有限公司) (the “Association”);
J J
IN THE MATTER OF Order 102 of
the Rules of High Court (Cap 4A);
K and K
IN THE MATTER OF SECTIONS
L L
728-730 OF THE COMPANIES
ORDINANCE (CAP 622)
M M
_______________________
N N
BETWEEN
O O
P UNIQUE REALTY LIMITED 1st Plaintiff P
(譽林地產有限公司)
Q Q
UNITED PROSPER REAL ESTATE CO. LTD. 2nd Plaintiff
(協榮物業有限公司)
R R
And
S S
T T
U U
V V
- 2 -
A A
B B
HONG KONG REAL ESTATE AGENCIES GENERAL 1st Defendant
ASSOCIATION LIMITED
C C
(香港地產代理商總會有限公司)
D YU CHUNG LIT ( 余 忠 烈 ) trading as PO SHING 2nd Defendant D
PROPERTY CO. (寶盛地產公司)
E E
YING LOK PROPERTY LIMITED 3rd Defendant
F
(盈樂地產有限公司) F
SILVER POWER PROPERTY AGENCY LIMITED 4th Defendant
G G
(銀力地產代理有限公司)
H LEUNG MO LIN (梁慕蓮) trading as HANG FUNG 5th Defendant H
PROPERTY AGENCY CO. (恒豐地產公司)
I I
WONG MAN LING ( 王 曼 玲 ) trading as DAIRY 6th Defendant
J
ESTATE DECORATION ENG CO. J
(大利地產裝飾工程公司)
K K
TUNG SHU MEI ( 董 澍 媚 ) trading as KIN YIP 7th Defendant
PROPERTY DECORATION WORKS
L L
(建業地產裝修工程公司)
M HUNG CHIU YEUNG (洪朝 陽) trading as TIME’S 8th Defendant M
PROPERTY CO. (時代地產)
N N
KWOK YING ELAINE ( 郭 盈 ) trading as GRAND 9th Defendant
O PROPERTY (尊尚物業) O
KAMSON PROPERTY AGENCY LIMITED 10th Defendant
P P
(金誠物業代理有限公司)
Q WISE CONSULTANCY LIMITED 11th Defendant Q
(蔚城顧問有限公司)
R R
CHUP WANG AGENCY LIMITED 12th Defendant
(捷宏代理有限公司)
S S
T T
U U
V V
- 3 -
A A
B B
YAU WO YAU ( 邱 和 友 ) trading as KAM HUNG 13th Defendant
C
PROPERTY CO. (錦鴻地產公司) C
LAND MOBILE PROPERTY CONSULTANT LTD. 14th Defendant
D D
(中大策略物業顧問行有限公司)
E 15th Defendant E
WONG CHING KUM (黃靜琴) trading as WINFAIR
ESTATE AGENCY (永暉地產代理)
F F
th
CHAN PIK YUK ( 陳 碧 玉 ) trading as GOLDEN 16 Defendant
G PALACE PROPERTY (金鑾物業) G
H
ONE PROPERTY CONSULTANT LIMITED 17th Defendant H
(匯一物業代理有限公司)
I I
CITY PROPERTY LIMITED 18th Defendant
(城巿地產代理有限公司)
J J
th
CHEE SHING PROPERTIES LIMITED 19 Defendant
K (置城物業有限公司) K
CHONG STRONG LIMITED 20th Defendant
L L
(莊細莊有限公司)
M BEST HOME AGENCY LIMITED 21st Defendant M
(安家代理有限公司)
N N
____________________
O O
P P
Before: Hon Anthony Chan J in Chambers
Q Q
Date of Hearing: 1 February 2024
R Date of Judgment: 1 February 2024 R
Date of Reasons for Judgment: 2 February 2024
S S
T T
U U
V V
- 4 -
A A
B ____________________________________ B
C REASONS FOR JUDGMENT C
____________________________________
D D
1. The Originating Summons before the Court, filed on 19 July
E E
2023 by the Plaintiffs, mainly concerned the validity of the election of the
F 16th Executive Committee (“EC”) of the 1st Defendant’s Central-Western F
District Branch (“CW Branch”) held at an Extraordinary General Meeting
G G
(“EGM”) which took place on 11 April 2023. The Plaintiffs were
H amongst the members of, purportedly, the same EC which was elected at H
an Annual General Meeting (“AGM”) held 2 days later on 13 April 2023.
I I
J 2. Primarily, the Plaintiffs’ case was that the election of the J
16th EC at the EGM was invalid for breach of the Articles of Association
K K
st
of the 1 Defendant (“AA”), in particular, the EC could only be elected at
L an AGM of the CW Branch. On the other hand, the 2 nd to 21st Defendants L
who were elected to the 16th EC at the EGM contended that they were duly
M M
elected and the election at the EGM was invalid.
N N
3. The 1st Defendant took a neutral stance in these proceedings.
O O
st
However, Mr Wong, who appeared for the 1 Defendant, helpfully
P identified 3 fundamental issues with these proceedings two of which (the P
Q
jurisdiction of this Court and the propriety of using the Originating Q
Summons procedure on these matters), if accepted by the Court, might be
R R
fatal to the same.
S S
T T
U U
V V
- 5 -
A A
B 4. Having heard the parties on the 3 issues raised by the B
1st Defendant, the Court dismissed the Originating Summons at the hearing
C C
and awarded the costs of and occasioned by the Originating Summons
D against the Plaintiffs. These were my reasons. D
E E
Background
F F
5. In order to understand the issues, it is necessary to sketch out
G an outline of the background facts. G
H H
6. The 1st Defendant was an incorporated body. It was a
I general association of various real estate agencies in Hong Kong. Its I
members were the real estate agencies. To cater for the special interests
J J
of agencies in different areas, there were altogether 27 branches under the
K 1st Defendant which were demarcated by districts. CW Branch was one K
such branch. As of April 2023, the 1st Defendant had 3,731 members,
L L
with 228 of them belonging to the CW Branch.
M M
7. The present dispute arose out of disagreements between the
N N
founding and honorary chairman of the CW Branch (“Li”) and the
O chairwoman of the 15th EC of the CW Branch (“Cheng”). O
P P
8. The 2nd to 21st Defendants were the elected members of the
Q 16th EC pursuant to an EGM of the CW Branch held on 11 April 2023 (“the Q
EGM”), whereas the Plaintiffs were two of the 16 elected members of the
R R
th
16 EC pursuant to an AGM of the CW Branch held on 13 April 2023 (“the
S S
T T
U U
V V
- 6 -
A A
B AGM”). The EGM was apparently initiated by Li, whereas the AGM was B
called by Cheng.
C C
D 9. On 27 April 2023, the EC of the 1st Defendant (“EC (D1)”) D
held a meeting and resolved to decide on which team of elected 16th EC of
E E
the CW Branch to endorse by voting. The result was in favour of
F endorsing the team elected at the EGM (the 2nd to 21st Defendants). F
G G
10. Since the commencement of these proceedings, 3 of the
H 16 elected members under the AGM had resigned from the 16th EC of CW H
Branch, whilst one had indicated its neutrality to the dispute between the
I I
Plaintiffs and the Defendants.
J J
1st Defendant and its branches
K K
11. I agreed with Mr Wong that the characterisation of the true
L L
nature of the CW Branch was relevant and crucial to the issues of whether
M elections of the CW Branch were governed by the Companies Ordinance, M
Cap 622 (“Ordinance”) and/or the AA. They went to the jurisdiction of
N N
the Court in these matters.
O O
12. There was no dispute that the CW Branch was never
P P
incorporated under the Ordinance (whether in its existing or previous form).
Q Q
13. It was trite that an unincorporated entity is not recognised by
R R
th
law as having an independent legal existence: Chitty on Contracts, 35 edn,
S vol 1, [13-065] : S
T T
U U
V V
- 7 -
A A
B “An unincorporated association is not a legal person and therefore B
cannot sue or be sued unless such a course is authorised by express
or implied statutory provisions as in the case of a trade union and
C C
a trustee savings bank. Nor can a contract be made so as to bind
all persons who from time to time become members of such an
D association. But a contract purportedly made by or with an D
unincorporated association is not necessarily a nullity. If the
person or persons who actually made the contract had no authority
E E
to contract on behalf of the members they may be held to have
contracted personally. On the other hand, if they had the
F authority, express or implied, of all or some of the members of the F
association to contract on their behalf, the contract can be enforced
by or against those members as co-principals to the contract by the
G ordinary rules of agency.” G
H H
14. Article 9 of the AA provided for the relationship between the
I 1st Defendant and the branches. Article 9.3 stipulated that each branch I
was a separate entity and exercised independent administrative powers
J J
(“分會或屬會為一個獨立個體，有行政自主權，並可因應個別地區的
K K
需要制定有關政策、會員守則或其他規章制度供其會員遵守，唯該等
L 政策、守則或規章制度須以本會所簽訂的協議為依歸，並符合本會組 L
織大綱及組織章程所訂定的原則”).
M M
N N
15. There was an agreement made on 10 April 1995
O
(“Agreement”) between the 1st Defendant and the Western District Real O
Estate Agents Association (represented by Li). There was no controversy
P P
that it represented an agreement between the 1st Defendant and the CW
Q Branch. The Agreement governed the relationship between the Q
1st Defendant and the CW Branch. Clause (6) of the Agreement provided
R R
that elections at the branch level should be left to the autonomy of the
S branch (“總會同意有關分會區內之選舉權必需交由分會自行選定”). S
T T
U U
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A A
B 16. Clause (6) was not consistent with the Plaintiffs’ reliance on B
the AA as governing the CW Branch elections. However, Mr Yeon, who
C C
appeared for the Plaintiffs argued that Clause (14) of the Agreement, which
D provided that the CW Branch agreed to abide by the AA, regulations, D
E
directions and decisions passed by the 1st Defendant (“分會同意遵守總會 E
之會章及日後發出之會內規則，守則，指令及決議”) gave rise to the
F F
obligation by the CW Branch to abide by the AA, including those
G provisions on elections. G
H H
17. Ironically, the 1st Defendant also relied on Clause (14) of the
I Agreement for its argument that the CW Branch was bound by the I
resolution of the EC (D1) passed on 27 April 2023 to resolve the dispute
J J
between the two 16th EC of the CW Branch. However, Mr Wong
K submitted that this was not an issue requiring the determination of the K
Court unless this application could overcome the fundamental objections
L L
st
raised by the 1 Defendant.
M M
18. The Plaintiffs’ evidence, which was disputed, suggested that
N N
elections of the branches were conducted in accordance with the AA. I
O agreed with Mr Wong that the voluntarily adoption of the AA for the O
conduct of CW Branch meetings did not affect the legal analysis as to
P P
whether meetings of an unincorporated branch were governed by the AA
Q and/or whether the Plaintiffs might rely upon the Ordinance to make out Q
their claims.
R R
S S
T T
U U
V V
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A A
B Reliance upon the AA and the Ordinance B
C 19. In this action, the Plaintiffs relied, centrally, upon alleged C
breaches of Article 16 of the AA, which governed the meetings of the
D D
st
1 Defendant’s members, to ground their case of irregularities and
E invalidity of the election of the 16th EC under the EGM. In particular, E
Article 16.4 was relied upon for the alleged lack of sufficient notice for the
F F
EGM, and Articles 16.1(c) and 16.2 were relied upon on the requirement
G to appoint EC at AGM rather than EGM. G
H H
20. However, s.728(4)(c) of the Ordinance on which the Plaintiffs
I relied to give rise to the Court’s jurisdiction in these matters could only be I
applied to the breaches of a company’s articles.
J J
K 21. Aside from the fact that CW Branch was not a company, it K
was quite clear that the Article 16 could not be invoked to apply to the
L L
elections of the CW Branch. Article 1 which set out various definitions
M for the provisions under the AA, stated that : M
N N
st
(1) “members” only referred to members of the 1 Defendant
O O
(“「會員」指目前經已進行會員註冊登記的本會會員”); and
P (2) “members’ meetings” only referred to AGMs or EGMs of the P
st
1 Defendant (“「會員大會」指本會會員的週年大會或特
Q Q
別大會”).
R R
22. Read in conjunction with the provisions under Article 9 of the
S S
AA, it was not reasonably arguable that the elections of the CW Branch
T T
U U
V V
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A A
B were governed by the AA. In my view, it was reasonably clear that all B
members of the 1st Defendant were required to comply with the AA when
C C
st
it came to the elections of the 1 Defendant. However, the CW Branch
D was free to adopt such procedure as it desired for its own elections. It D
E
could have adopted the relevant provisions of the AA, but the breach of E
such provisions would not give rise to the jurisdiction of the Court on
F F
disputes over elections because CW Branch was not a company. This
G
answered also Mr Yeon’s reliance on Clause (14) of the Agreement (see G
para 16 above).
H H
I
23. I was unable to find any real answer provided by Mr Yeon on I
this fundamental objection of the 1st Defendant. The other Defendants,
J J
represented by Ms Tang, also relied on this objection but nothing further
K had been added to Mr Wong’s submissions. K
L L
24. For this reason alone, this Originating Summons must be
M
dismissed. M
N N
25. It was unnecessary to determine the other two issues raised by
O
the 1st Defendant. However, it should be mentioned, firstly, that the O
Plaintiffs had half-heartedly complained about the endorsement of the
P P
2nd to 21st Defendants as members of the 16th EC by the EC (D1) on
Q 27 April 2023 (see para 9 above and para 4 of the relief sought in the Q
Originating Summons). It was a half-hearted complaint because the
R R
Plaintiffs did not advance any ground for the challenge in their supporting
S evidence. They only made some vague allegations about lack of advance S
notice for the discussion on the topic at the 27 April 2023 EC (D1) meeting
T T
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A A
B in their reply evidence after the Defendants pointed out the absence of B
ground for the challenge.
C C
D 26. Unless the ground for challenge was made clear, eg, which D
specific provision of the AA was allegedly breached, there was no
E E
substance in the complaint and it should be ignored by the Court.
F F
27. Secondly, the Plaintiffs sought against the 1st Defendant an
G G
injunction to restrain their expulsion as its members (para 5 of the relief).
H Mr Yeon accepted that the 1st Defendant had the power to expel them H
pursuant to Article 7.2 of the AA. However, such power had to be
I I
st
exercised in good faith for the benefit of the 1 Defendant (citing Baillieu
J v Foreign Correspondents’ Club, Hong Kong [2007] HKLRD 229, [11]). J
K
The premise of the Plaintiffs’ case was that they were properly elected as K
th
members of the 16 EC.
L L
28. The evidence showed that the EC (D1) was trying to put an
M M
th
end to the quarrel between the two 16 EC of the CW Branch. After the
N N
1st Defendant received a letter before action from the Plaintiffs’ solicitors
O
dated 9 June 2023, which it considered had caused damage to its reputation O
and/or interest and was a breach of Article 7.2, it called for an EC (D1)
P P
meeting on 31 July 2023 to resolve a proposed resolution to expel the
Q Plaintiffs and the Plaintiffs were asked to provide their written explanation Q
and to attend the meeting to offer their explanation. The meeting never
R R
took place due to an interlocutory injunction obtained by the Plaintiffs on
S 28 July 2023 pending the determination of the Originating Summons. S
T T
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A A
B 29. The injunction expired upon the determination of the B
Originating Summons on 1 February 2024. In light of the dismissal of
C C
the same, there was no reason to grant any injunctive relief in favour of the
D Plaintiffs. In any case, they should take advantage of the opportunity D
E
offered by the EC (D1) to explain their actions. E
F 30. Finally, the 1st affirmation of Yeung Wai Kwok filed by the F
2nd to 21st Defendants on 6 September 2023 contained a counterclaim about
G G
th
the validity of the 16 EC elected pursuant to the EGM and invalidity for
H H
the one elected at the AGM. Apart from the fact that it was not pressed
I
by Ms Tang in her skeleton submissions, for the reasons stated above, the I
elections of the CW Branch did not fall within the jurisdiction of the Court.
J J
K K
L L
M M
( Anthony Chan )
N Judge of the Court of First Instance N
High Court
O O
Mr Thomas Yeon, instructed by Christine M. Koo & Up, Solicitors &
P P
Notaries LLP, for the 1st and 2nd Plaintiffs
Q Mr Joseph Wong, instructed by Li, Kwok & Law, for the 1st Defendant Q
R Ms Kitty Tsang, instructed by Paul Kwong & Co. for the 2 nd to R
21st Defendants
S S
T T
U U
V V
HCMP1132/2023 UNIQUE REALTY LTD AND ANOTHER v. HONG KONG REAL ESTATE AGENCIES GENERAL ASSOCIATION LTD AND OTHERS - LawHero