LDBM200/2020 THE INCORPORATED OWNERS OF GRENVILLE HOUSE v. KEEN JOY ENTERPRISES LTD - LawHero
LDBM200/2020
勞資審裁處Deputy District Judge S. H. Lee, Presiding Officer of the Lands Tribunal (Paper Disposal)15/8/2024
LDBM200/2020
A A
LDBM 200/2020
B B
[2024] HKLdT 57
C C
IN THE LANDS TRIBUNAL OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E BUILDING MANAGEMENT APPLICATION NO.200 OF 2020 E
__________________
F F
G BETWEEN G
THE INCORPORATED OWNERS Applicant
H OF GRENVILLE HOUSE H
I and I
KEEN JOY ENTERPRISES Respondent
J LIMITED J
K
_________________ K
Before: Deputy District Judge S. H. Lee,
L L
Presiding Officer of the
M
Lands Tribunal (Paper Disposal) M
Date of Respondent’s Submissions 25 June 2024
N N
Date of Applicant’s Submissions 26 June 2024
O Date of Hearing: 28 June 2024 O
Date of Respondent’s Reply Submissions 15 July 2024
P P
Date of Decision: 16 August 2024
Q _____________________ Q
R
D E C I S I O N R
_____________________
S S
1. On 14 May 2024, I handed down Judgment of this
T application and counterclaim (the Judgment) 1 after trial. For this T
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1 [2024] HKLdT 39, with 2 corrigenda
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A -2- A
Decision, I adopt the same expressions and abbreviations in the Judgment.
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In the Judgment, I dismissed the entirety of the counterclaim raised by
C Keen Joy against IO2. Keen Joy has raised two counterclaims 3. By its C
second one, Keen Joy sought specific performance of IO’s obligations
D D
under the DMC and BMO regarding Fire Alarm Problem with a view to
E ensure an effective fire alarm system for Apartment F12 owned by it, E
and/or damages in lieu of, or in addition to, specific performance4.
F F
2. By Form 1 filed on 11 June 2024, Keen Joy sought leave to
G G
appeal against the Judgment only on my dismissal of its second
H counterclaim relating to Fire Alarm Problem (the Leave Application). H
Two proposed grounds of appeal are annexed to the said Form 1. A fourth
I I
affirmation of Nora together with exhibit “FLLN-1” was filed on 11 June
J 2024 in support of the said application. J
K 3. On the two dates stated above, Keen Joy has lodged and K
served its skeleton submissions (R’s Skeleton) and skeleton submissions
L L
in reply (R’s Reply Skeleton), annexed with Keen Joy’s opening
M submissions5, in support of the Leave Application. M
N 4. On the date stated above, counsel for IO, Mr Iverson Wong N
(Mr Wong), who had not appeared for IO at trial, has also lodged and
O O
served IO’s skeleton submissions (A’s Skeleton) in opposition to the
P Leave Application. P
Q
5. At the hearing of the Leave Application on 28 June 2024, Q
both Nora and Mr Wong appearing respectively for Keen Joy and IO
R R
made no substantive submission on the Leave Application and agreed for
S S
T T
2 Paragraph 103 of the Judgment
3 Paragraph 29 of the Judgment
4 Paragraphs 21 to 23, 31, 38, 39 (note corrigendum) and 41 of the Judgment
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5 dated 12 July 2023
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it to be disposed on papers after Keen Joy files and serves R’s Reply
B B
Skeleton.
C C
6. In arriving at this Decision, this Tribunal has carefully
D considered the Judgment and all proposed grounds of appeal in light of, D
among others, all submissions advanced by parties in the above 3
E E
skeletons, all pertinent contents of 4th affirmation of Nora and exhibit
F thereof, and all pertinent evidence adduced by parties at trial regarding F
the second counterclaim of the Fire Alarm Problem.
G G
H H
Legal principles for leave to appeal
I 7. Under s.11(2) of Lands Tribunal Ordinance (LTO) 6 , any I
party to proceedings before the Tribunal may appeal to the Court of
J J
Appeal against a judgment of the Tribunal on the ground that such
K judgment is erroneous in point of law. K
L 8. S.11AA(1) of the LTO requires leave to be granted by the L
Tribunal or the Court of Appeal before an appeal under s.11(2) can be
M M
made. S.11AA(5)(a) of LTO provides that leave to appeal may be granted
N in respect of a particular issue arising out of the judgment. S.11AA(6) of N
LTO further provides that leave to appeal shall not be granted unless the
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Tribunal is satisfied that:
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(a) the appeal has a reasonable prospect of success; or
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(b) there is some other reason in the interests of justice why the
R appeal should be heard. R
S 9. For the principles on s.11AA(6) on LTO above, I adopts the S
authorities cited at paragraphs 6 to 8 of R’s Skeleton. The threshold for
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meeting limb (a) above requires the prospect of succeeding in the appeal
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6 Cap.17
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“reasonable” and therefore more than “fanciful”, without having to be
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“probable”. One is required to show more than just an arguable case, but
C an appeal that has merits and ought to be heard, although one does not C
have to demonstrate that the appeal will probably succeed.
D D
10. As to the circumstances limb (b) above could be met, leave
E E
to appeal may be granted if the question is one of general principle,
F decided for the first time or a question of importance upon which further F
argument and a decision of the Court of Appeal would be to the public
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advantage.
H H
I I
Grounds of proposed appeal
J J
Ground One
K K
11. It is first complained by Keen Joy that this Tribunal had
L erred in law in finding that Existing Fire Alarm was in “good working L
order” such that it did not require any replacement: Judgment at §§73 to
M M
74.
N N
(1) In light of the pertinent findings at §§64 to 67 of the
O
Judgment, this Tribunal, it was said, erred in law in holding that the O
Existing Fire Alarm was in good order purely because (i) the warning
P P
sound level likely conformed with the minimum legal requirements set by
Q
FSD by way of code of practice and that (ii) IO had complied with the Q
law and arranged for registered fire service installation contractor to
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inspect, inter alia, the Existing Fire Alarm every 12 months resulting in
S
the certification of conformity with the legal minimum requirements set S
down by the 2012 version of Code of Practice for Minimum Fire Service
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Installations and Equipment and Inspection, Testing and Maintenance of
U
Installations and Equipment (COP MFSI), when the Fire Alarm Problem U
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A -5- A
was found to have existed: Judgment at §64. This, it was said, is
B B
inconsistent with this Tribunal’s own ruling (which is correct) at §§68 to
C 70 of the Judgment. C
D (2) Whilst it is correct that in discharging its duty under D
s.18(1)(a) of BMO7, IO shall have regard to and be guided by code of
E E
practice issued by the Authority under s.44, it is complained that it is
F legally wrong for this Tribunal to rule, in the absence of any legal F
authority or guidance, that compliance with such bare legal minimum
G G
requirements in blatant disregard to the actual context of Apartment F12
H and GH as well as inaudibility entailed by the Fire Alarm Problem would H
discharge IO’s mandatory duty under s.18(1)(a) of BMO: Judgment at
I I
§§75 to 76.
J J
(3) This Tribunal, it was suggested, thereby also erred in
K adopting a literal and narrow meaning of “good working order” and/or K
“good working conditions” under Clause 9(b)(8) and (10) of DMC and
L L
s.18(1)(a) of BMO: Judgment at §74. This Tribunal failed, it was said, to
M apply or otherwise give effect to the well-established approach in M
construing the relevant provisions of DMC and BMO which is “a unitary
N N
exercise involving an iterative process”: Lai Wai Hung v. Sino Estates
O Management Ltd [2020] HKCA 448 at §26. O
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Q
Ground Two Q
12. It follows, Keen Joy argued, that this Tribunal had erred in
R R
law in holding that IO was not in breach of the relevant provisions of
S DMC and s.18 of BMO: Judgment at §71:- S
T (1) Given the Fire Alarm Problem existed and the Existing Fire T
Alarm forms part of the “common parts” of GH (see Judgment at §68), it
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7 Cap.344
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is complained that it is legally wrong for this Tribunal to hold that
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resolving the Fire Alarm Problem would be an “upgrade” or
C “improvement” to the common parts of GH which is something that IO C
“may (not must), at its discretion, decide to do, or decide not to do under
D D
s.18(2)(fa) of BMO”: Judgment at §§77-79.
E E
(2) Even if resolving the Fire Alarm Problem could be described
F as an “upgrade” or “improvement” as opposed to “replacement” of the F
common parts of GH, this Tribunal, it was said, had completely
G G
overlooked IO had a mandatory duty under s.18(1)(c) of BMO “to do all
H things reasonably necessary for the enforcement of the obligations H
contained in the deed of mutual covenant (if any) for the control,
I I
management and administration of the building”. This Tribunal ought, it
J was said, to have but did not consider and rule that such mandatory duty J
on the part of IO under s.18(1)(c) of BMO included carrying out such an
K K
“upgrade” or “improvement”.
L L
(3) At the very least, this Tribunal ought, Keen Joy argued, to
M have but did not consider and rule that IO is and was under a mandatory M
duty as per s.18(1)(c) of BMO to seriously look into the Fire Alarm
N N
Problem and investigate or consult the owners on whether (i) such
O problem existed and affected GH estate-wide and (ii) a “replacement” or O
even “upgrade” and “improvement” ought to be carried out in GH in view
P P
of the following pertinent factual findings: -
Q Q
(a) IO was well aware of Fire Alarm Problem but had taken no
R concrete action on and sought to downplay the problem or keep it at a low R
profile: Judgment at §§65-67; and
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(b) There is every reason to believe that the same problem could
T T
happen to other equally large apartments of GH as opposed to it being a
U matter of “individual concern”: Judgment at §§4 & 73(1). U
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(4) In all circumstances and in reaching the conclusion that there
B B
was no breach of DMC and BMO on the part of IO pertaining to the Fire
C Alarm Problem, this Tribunal, Keen Joy argued, had misconstrued the C
intentions and objectives of DMC and BMO, contrary to the well-
D D
established principles for a purposive construction and common sense
E application of the relevant provisions of DMC and BMO: The Grande E
Properties Management Ltd v Sun Wah Ornament Manufactory Limited
F F
(2006) 9 HKCFAR 462 at §2.
G G
H H
Discussion
I I
New grounds in proposed grounds of appeal
J 13. Contrary to Keen Joy’s denials at paragraphs 20 to 23 of R’s J
Reply Skeleton, it had, I think, never relied for the purpose of its second
K K
counterclaim at trial s.18(1)(c) of BMO and, if I may add, clause 9(b)(8)
L L
of DMC.
M 14. I agree with Mr Wong that Keen Joy has raised s.18(1)(c) of M
BMO and clause 9(b)(8) of DMC for the first time in its proposed
N N
grounds of appeal. It is plain from the followings: -
O O
(1) Unlike s.18(1)(a) &(b) of BMO and clause 9(b)(10) of DMC
P which were specifically recited in its Notice of Opposition, s.18(1)(c) of P
BMO and clause 9(b)(8) of DMC were not: see paragraphs 4, 5, 7(a)-(c),
Q Q
10(a)(ii) & 10(d), 10(e), 19, 20, 21 and prayers (2) & (3) thereof.
R R
(2) At paragraphs 18 and 19 of its opening submissions, Keen
S Joy also saw fit to recite only s.18(1)(a)&(b) of BMO and clause 9(b)(10) S
of DMC. Nowhere in entire opening was s.18(1)(c) of BMO or clause
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9(b)(8) of DMC referred to.
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(3) Nora never in her witness statement refer to s.18(1)(c) of
B B
BMO or clause 9(b)(8) of DMC.
C C
(4) Neither did Keen Joy refer to s.18(1)(c) of BMO or clause
D 9(b)(8) of DMC in its oral closing submissions. D
E 15. I wholly agree with IO’s submissions at paragraphs 21 and E
22 of A’s Skeleton that Keen Joy had elected at trial not to rely on
F F
s.18(1)(c) of BMO (and, I would add, clause 9(b)(8) of DMC).
G G
16. Secondly, Keen Joy had, I think, never made submissions for
H
its second counterclaim at trial that clause 9(b)(10) of DMC and s.18(1)(a) H
& (b) of BMO it solely relied upon ought to be construed in any alleged
I I
“purposive”, “liberal” or “wide” manner as it now complains this
J
Tribunal had failed to do so in its proposed grounds. J
17. Keen Joy never cited the two authorities at [11(3)] and
K K
[12(4)] above at trial.
L L
18. Thirdly, Keen Joy had never relied on 2018 COBMS at trial
M as it now does for the first time at paragraphs 16(2) & 16(3) of R’s M
Skeleton.
N N
O O
Keen Joy’s limited evidence at trial
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19. At trial, Keen Joy solely called Nora (and mainly produced
Q Q
many complaint letters written by it to the Manager of GH, IO and FSD)
R to prove that Fire Alarm Problem had existed but that, save for the R
Proposal, IO (and others) took no concrete action on the same despite her
S S
repeated complaints.
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20. As IO noticed in section E1 of its written opening8, Keen Joy
B B
had not adduced any expert evidence at trial9. Neither did Keen Joy call i)
C FSD officer Chin Ka Ho (whom it had invited to attend to Apartment F12 C
to observe the Fire Alarm Problem)10 or ii) staffs of registered fire service
D D
installation contractor (who signed 3 FS Certificates after annual fire
E alarm testing in 2019, 2020 and 2021)11 to give evidence at trial. E
F F
G Keen Joy’s construction of IO’s pleaded duties G
H
21. Keen Joy had, we observe, submitted at paragraph 29 of its H
written opening: “[IO] has not otherwise sought to explain … whether it
I I
is [IO]’s case that a fire alarm system which could not properly carry
J
out its function is nonetheless in “good repair and condition” or in “a J
state of good and serviceable repair”. Notably, the test for whether [IO]
K K
has complied with its duties under DMC and BMO is not whether it has
L complied with the statutory minimums (italics and underline original, L
bold supplied)”.
M M
22. Two points should be noted from the above submissions
N N
from Keen Joy.
O (1) First, the original italic words within quotation marks are O
sourced from, one thinks, clause 9(b)(10) of the DMC and s.18(1)(a) of
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BMO and nowhere else.
Q Q
(2) Secondly, judging the words in bold, Keen Joy apparently
R submitted that, to answer whether or not IO’s pleaded duties at clause R
9(b)(10) of the DMC or s.18(1)(a) of BMO was complied with, one asks
S S
T T
8 dated 3 July 2023
9 Paragraph 46 of the Judgment
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10 Paragraph 73(4) of the Judgment
11 Paragraph 73(2) of the Judgment
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whether or not the Existing Fire Alarms could properly carry out its
B B
function.
C C
23. As shall be demonstrated below, this Tribunal had applied
D exactly Keen Joy’s own construction (and not any alleged wrong test or D
assumption) in arriving at its factual findings in the Judgment on the
E E
evidence adduced at trial.
F F
G G
Limited inaudibility entailed by the Fire Alarm Problem
H 24. The Fire Alarm Problem proven by Keen Joy after trial is not, H
one must point out, that “warning sound” emitted by Existing Fire Alarms
I I
could not be heard inside Apartment F12 at all. I also refer to paragraph 7
J of R’s Reply Skeleton. J
K 25. While such “warning sound” could not be heard in the K
bedrooms, kitchen and staff quarter (i.e. inner parts) of Apartment F12,
L L
on the findings of this Tribunal, it could be heard in the living and
M dining room of Apartment F1212 to serve as fire warning to occupants M
of Apartment F12 in its living and dining room.
N N
O O
All relevant matters considered to construe IO’s duties
P P
26. Contrary to paragraph 16(1) of R’s Skeleton and as Mr Wong
Q Q
rightly recognized at paragraph 13.2 of A’s Skeleton, the aforesaid limited
R inaudibility entailed by the Fire Alarm Problem was in the forefront of R
this Tribunal’s consideration in the Judgment.
S S
T T
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12 Paragraph 64 of the Judgment
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A - 11 - A
27. Neither did this Tribunal lose sight in the Judgment that the
B B
cause of such limited inaudibility is the large size of Apartment F1213 and
C not, say, mechanical failure or defects of the Existing Fire Alarms 14. C
D 28. When this Tribunal used the words “warning sound” in the D
Judgment, it was fully aware that the purpose of Existing Fire Alarms
E E
was to give fire alert in the event of fire.
F F
29. At the same time, any alleged “purposive” construction of
G clause 9(b)(10) of the DMC executed in 1971 now raised by Keen Joy G
cannot, one thinks, overlook the undeniable background fact that all
H H
apartments of GH, including Apartment F12, were built as large
I apartment exceeding 3,300 square feet in saleable area from day one15. I
J
30. However, reading the said clause 9(b)(10) of the DMC, one J
does not find word of “improvement” or “upgrade”. Only words of
K K
“repair”, “keep in good repair and condition” and “replace” are found in
L the said clause16. L
M
31. In addition, any alleged “purposive” construction of s.18 of M
DMC now raised by Keen Joy cannot ignore also, one thinks, the
N N
separation of (mandatory) duties of IO in s.18(1) thereof from its
O
different (discretionary) powers in s.18(2) thereof. O
32. The word “improvement” is only found in s.18(2)(fa) of
P P
BMO but not in its s.18(1)(a) (which uses the words “maintain” and
17
Q “good and serviceable repair and clean condition”)18. Q
R 33. With respects, any complaint in the proposed grounds of this R
Tribunal having wrongly adopted any alleged “literal” and “narrow”
S S
13 Heading of paragraph 64 of the Judgment
T 14 It goes without saying that there must be a limit in terms of distance the “warning sound” emitted by T
the Existing Fire Alarms may go and be heard.
15 Paragraph 4 of the Judgment
16 See 1st corrigendum
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17 Added by s.5 of Ordinance No.12 of 1998
18 Paragraph 41 of the Judgment
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meaning of the pleaded DMC clause and pleaded BMO section at [11(3)]
B B
above, and to have allegedly failed to have adopted any alleged
C “purposive” construction and “common sense” application of, DMC and C
BMO to the second counterclaim at [12(4)] above is, I agree with Mr
D D
Wong, completely without merit.
E E
F F
Mere Fire Alarm Problem not enough
G G
34. Contrary to paragraph 16(1) of R’s Skeleton, it simply does
H
not follow, I must point out, from mere presence of Fire Alarm Problem H
(i.e. the limited inaudibility of the Existing Fire Alarms) as proven by
I I
Keen Joy that the Existing Fire Alarms were not “in good working order”
J
and/or required “repair/replacement”. Keen Joy was, I am afraid, totally J
mistaken to equate the two.
K K
35. Absent expert or like evidence, putting aside for the moment
L L
contrary evidence to be discussed below, the Fire Alarm Problem per se is,
M
I think, no proof that Existing Fire Alarms were not functioning M
properly as Keen Joy posed, and answered, at paragraph 29 of its written
N N
opening at [21] above.
O 36. To borrow paragraph 14.3 of A’s Skeleton, it is, I agree with O
Mr Wong, a “quantum leap” for Keen Joy to argue that the Existing Fire
P P
Alarms were (or are) not functioning properly and demand repair or
Q replacement by the mere proof of Fire Alarm Problem. Q
R R
S Contrary evidence that Existing Fire Alarm functioning properly S
T 37. There are also adduced at trial other evidence (adduced by T
IO and Keen Joy) that was accepted by this Tribunal pointing to the
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contrary direction asserted by Keen Joy.
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38. With respect, the Judgment, including the many findings
B B
made by this Tribunal pertinent to the Fire Alarm issue at its different
C paragraphs, must be read as a whole. C
D 39. The fact that “extra” fire alarms at owner’s own costs were D
proposed to be “installed” by the Manager of GH 19 suggests that the
E E
Existing Fire Alarms were “in good working order” or did not require
F “repair/replacement” (or else the Manager could have repaired or F
replaced them using funds out of, say, annual maintenance budget).
G G
40. Nora’s own admission in the box of “upgrading” (i.e. not
H H
repairing) Existing Fire Alarms20 point also to the contrary direction.
I I
41. The compliance of Existing Fire Alarms with minimum legal
J
requirements set by FSD in 2012 version of COP MFSI 21 as certified in J
the 3 FS Certificates issued by registered fire service installation
K K
contractor for the material years of 2019, 2020 and 2021 after annual fire
L alarm testing22 is also one of these contrary evidence/findings. L
M
42. If one reads the 3 FS Certificates, one can find Part 3 box for M
“Defects” discovered in the annual testing, and “Comment” thereon, to be
N N
filled in by the contractor.
O 43. Reading certificate for the year 2020, while “FH/HR system” O
was certified in Part 1 of the said certificate to “conform with FSD
P P
requirements”, it was also marked in the same part to have “defects”
Q listed in Part 3 of the same certificate i.e. “missing” instruction plate that Q
requires “replacement”.
R R
44. Had the Existing Fire Alarms not functioned properly or at
S S
all during the said three annual tests above, they plainly would not have
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19 Paragraph 64(5) of the Judgment
20 Paragraph 77 of the Judgment
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21 With sound level of alarm measured at 3m from inside of main entrance door
22 Paragraph 73(2) & (3) of the Judgment
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been certified by the registered fire service installation contractor in the 3
B B
FS Certificates “in efficient working order” in accordance with COP
C MFSI as they now appear on the face of them. C
D 45. Mr Wong was right at paragraph 13 of A’s Skeleton. Contrary D
to paragraph 12 of R’s Skeleton and paragraphs 5 and 7 of R’s Reply
E E
Skeleton, this Tribunal did not simply assume from mere compliance of
F legal minimum requirements per se that the Existing Fire Alarms were “in F
good working order”, or had applied any alleged wrong test or
G G
assumption to that effect.
H H
46. To the contrary, Keen Joy had, I am afraid, misread the
I Judgment in this material respect. I
J
47. The fact that FSD officer Chin Ka Ho took no follow-up J
action on Exiting Fire Alarms after Nora’s repeated complaints of Fire
K K
Alarm Problem to FSD23 is another piece of contrary evidence (or else
L FSD would have followed up on Nora’s repeated complaints with IO, the L
Manager and/or the registered fire service installation contractors that
M M
signed 3 FS Certificates).
N N
O Consistent factual findings open on evidence O
P 48. On the totality of trial evidence and findings in the Judgment, P
notwithstanding the Fire Alarm Problem, it is certainly, I think, open to
Q Q
this Tribunal to arrive at the factual finding that the Existing Fire Alarms
R were in good working order, and did not require repair or replacement, at R
all material times24 (and that Keen Joy had, as I find, failed to prove to the
S S
contrary i.e. the Existing Fire Alarms were not functioning properly
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23 Paragraph 73(4) of the Judgment
24 Paragraphs 73 and 74 of the Judgment
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or at all during the material times due to IO’s breach of clause 9(b)(10)
B B
of DMC or s.18(1)(a) of BMO).
C C
49. On the same totality of trial evidence and findings, it would,
D I agree with Mr Wong, be absurd for this Tribunal to find the Existing D
Fire Alarms not functioning properly or at all when occupants of
E E
Apartment F12 in its living and dining room could hear warning sounds
F emitted by them, which had been tested by registered fire service F
installation contractor in 3 past annual tests and certified to be “in
G G
efficient working order” in line with COP MFSI.
H H
50. There is, one should point out, simply no factual or expert
I evidence of malfunctioning or non-functioning of the Existing Fire I
Alarms at trial.
J J
51. Reading the Judgment as a whole properly, there is
K K
absolutely, I think, no alleged inconsistency complained by Keen Joy at
L [11(1)] above between this Tribunal’s finding of Fire Alarm Problem and L
this Tribunal’s finding at paragraph 74 of the Judgment that the Existing
M M
Fire Alarms were in good working order that did not require repair or
N replacement. I reject the contrary submission at paragraph 6 of R’s Reply N
Skeleton.
O O
P P
First ground to challenge facts unarguable
Q Q
52. Hence, the first ground of appeal at [11] above that this
R Tribunal had erred in law in making the above factual finding at R
paragraph 74 of the Judgment is, I think, unarguable. This is not to
S S
mention that Keen Joy can only appeal on points of law as was stressed at
T paragraphs 10 and 11 of A’s Skeleton. T
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Additional proof of discharge of s.18(1)(a) of BMO
B B
53. At paragraph 74 of the Judgment, this Tribunal had already
C C
found that there was no breach of both clause 9(b)(10) of DMC and
D s.18(1)(a) of BMO. D
E 54. Reference to paragraphs 7.2.7 and 7.2.8 of 2018 COBMS E
and s.44(2) of BMO in paragraph 75 and 76 of the Judgment complained
F F
of by Keen Joy in R's Skeleton is, I would point out, only an additional
G reason to “support” the factual finding and “conclusion” of no breach of G
s.18(1)(a) of BMO already reached by this Tribunal on other evidence
H H
and findings in the preceding paragraph 74.
I I
55. So, unless Keen Joy makes good its challenge to my factual
J
finding and conclusion at paragraph 74 of the Judgment (which, I think, it J
fails completely), any alleged error of law at paragraphs 75 and 76 of the
K K
Judgment that it makes good, if at all, would not suffice to persuade the
L Court of Appeal to allow the proposed appeal. L
M
56. To put the record straight, this Tribunal has not, as Keen Joy M
complained, simply assumed from mere compliance with 2018 COBMS
N N
per se that the Existing Fire Alarms were in good working conditions that
O
did not require repair or replacement. O
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s.44(2) of BMO applies also to compliance of 2018 COBMS
Q Q
57. Notwithstanding Keen Joy’s submissions at paragraphs 14
R R
and 15 of R’s Skeleton, this Tribunal remains of the view in the Judgment
S (and agree with paragraph 14.2.3 of A’s Skeleton) that, while “failure” to S
comply with Code of Practice may, on s.44(2) of BMO, be relied upon to
T T
“establish” liability in civil proceedings, it makes, I think, no sense that
U “compliance” with Code of Practice like 2018 COBMS in this case U
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A - 17 - A
cannot be used to “negative” such liability when the said section
B B
expressly includes the word “negative” and when s.18(2A) of BMO
C requires IO “have regard to and be guided by” Code of Practice. S.44(2) C
of BMO should, I think, be construed to apply as well to the
D D
“compliance” scenario.
E E
58. This is, I would stress, all the more so when the factual
F evidence of “compliance” of paragraphs 7.2.7 and 7.2.8 of 2018 COBMS F
by IO is otherwise admissible evidence adduced at trial that this Tribunal
G G
has already considered together with other evidences or findings to reach
H its factual finding at paragraph 74 of the Judgment: see [41] to [44] above H
and paragraph 14.2.4 of A’s Skeleton.
I I
59. Moreover, as this Tribunal held in the Judgment 25 , while
J J
Code of Practice issued by the Authority does not have force of law on
K the case law, it is still directory in the sense that the Authority had issued K
2018 COBMS as “standard and practice” to be “observed and
L L
followed” by owners’ corporations in terms of, inter alia, “fire safety”:
M see s.44(1)(b) of BMO. M
N 60. Furthermore, as Keen Joy admitted at [11(2)] above and at N
paragraph 8 of R’s Reply Skeleton, under s.18(2A) of BMO , IO “shall
26
O O
have regard and be guided by”, also, 2018 COBMS issued by the
P Authority “in the performance of its duties”. P
Q
61. Hence, the complaint by Keen Joy at [11(2)] above that it is Q
legally wrong for this Tribunal to have ruled, in absence of legal authority
R R
or guidance, that compliance with bare legal minimum requirements in
S
blatant disregard to the actual context of Apartment F12 and GH as well S
as the inaudibility entailed by the Fire Alarm Problem would discharge
T T
U U
25 Paragraph 101 of the Judgment
26 Paragraph 42 of the Judgment
V V
A - 18 - A
IO’s mandatory duty under s.18(1)(a) of BMO under paragraph 75 and
B B
paragraph 76 of the Judgment cannot, I think, be arguable.
C C
(1) This Tribunal had plainly paid full regard in the Judgment to
D the size problem posed by large apartments built at GH from day one and D
what the Fire Alarm Problem entailed.
E E
(2) S.44(1)(b) and s.18(2A) of BMO (if not also s.44(2) of BMO)
F F
afford proper legal foundation and authority for this Tribunal to find from
G “compliance” of paragraphs 7.2.7 and 7.2.8 of 2018 COBMS additional G
support for factual finding and conclusion already reached at paragraph
H H
74 of the Judgment.
I I
J Factual finding of improvement open on evidence J
K 62. For the same totality of evidence and findings in the K
Judgment, including Nora’s own admissions 27 , contrary to Keen Joy’s
L L
complaint at [12(1)] above, it is also, I think, perfectly open and correct
M for this Tribunal to have found that resolving the Fire Alarm Problem M
requires “upgrade” to the Existing Fire Alarms28.
N N
O O
No omission to consider s.18(1)(c) of BMO
P P
63. As Keen Joy has not relied for its second counterclaim at
Q Q
trial s.18(1)(c) of BMO, it is, I think, incorrect for it to complain at [12(2)]
R above that this Tribunal had “overlooked” IO’s mandatory duty under the R
said section and/or “failed to rule” on such mandatory duty in the
S S
Judgment.
T T
U U
27 Paragraph 77 of the Judgment
28 Paragraph 78 of the Judgment
V V
A - 19 - A
No fair notice of s.18(1)(c) of BMO at trial
B B
64. Due to contents of Keen Joy’s Notice of Opposition, Nora’s
C C
evidence, its written opening and closing submissions, this Tribunal had
D been led by Keen Joy to believe at trial that it only relied on s.18(1)(a) & D
(b) of BMO and clause 9(b)(10) of DMC for its second counterclaim: see
E E
paragraphs 22, 38, 39 (including heading & corrigendum), 41 (including
F heading), 69, 70 and 71 of the Judgment. F
G 65. In similar vein, I think it likely that Mr Suen appearing for G
IO at trial was also led by Keen Joy to believe likewise such that he only
H H
cited authorities on s.18(1)(a) of BMO (and not that on s.18(1)(c) of
I BMO) in his closing submissions 29. I
J
66. While Keen Joy saw fit to cite paragraph 42 of Whole Grand J
Limited v The Incorporated Owners of Bo Fung Building [2024] HKCA
K K
626 and s.10(5)(a) of LTO at paragraph 18 of R’s Reply Skeleton to stress
L that its Notice of Opposition is not pleadings but serves as “indication of L
the issues” “likely to be raised”, G. Lam JA in same paragraph 42 also
M M
said:
N “Nevertheless, basic fairness requires that there should be advance N
notice of the points taken and issues raised and that no party should
O be prejudiced by being taken by surprise and having to deal with O
issues raised without a proper opportunity of preparing for them:
see Grand Power v Chan Sing Hoi [2020] 2 HKLRD 142, §§27-42;
P Great Source Enterprise Ltd v Sino Estates Management Ltd P
(CACV 253/2003, 7 May 2004), §§14-17. The application of this
principle – and the rigour with which ordinary rules of pleading may
Q Q
be applied by analogy – will of course depend on the facts and the
procedures adopted in the particular case (bold supplied).”
R R
S 67. Fair notice of s.18(1)(c) of BMO issue has, I am afraid, not S
been given to this Tribunal, if it has been given to IO at all (which I think
T T
29 E.g. Lau Chun Wing Rod v The Incorporated Owners of Po On Buildings, unreported, CACV
U U
20/2007, 25 October 2007, cited at paragraph 53 of IO’s closing submissions dated 31 August 2023
V V
A - 20 - A
likely not) at trial. Had it been given, this Tribunal would have invited
B B
submissions on it and expressly ruled on it in the Judgment as I did with
C s.18(1)(a) & (b) of BMO. C
D D
E s.18(1)(c) of BMO not arguable either E
F
68. Moreover, s.18(1)(c) of BMO provides that IO shall “do all F
things reasonably necessary for the enforcement of the obligations
G G
contained in the deed of mutual covenant (if any) for the control,
H
management and administration of the building (bold and italics H
supplied)”.
I I
69. Having read R’s Skeleton and R’s Reply Skeleton, this
J Tribunal is still in the dark against whom and for which alleged J
obligation(s) in the DMC (or BMO) that Keen Joy complained IO to have,
K K
in breach of s.18(1)(c) of BMO, failed to do all things reasonably
L L
necessary to enforce.
M 70. In See Wah Fan v The Incorporated Owners of Kit Tak M
Garden (Phase I) [2003] 3 HKLRD 1 cited by Keen Joy at paragraph 24
N N
of R’s Reply Skeleton, it is at least clear from paragraphs 13 and 14 of the
O said judgment that the corporation therein had “resolved not to take O
action” against Mr Tam for breach of s.34I of BMO and clause 2 of the
P P
deed of mutual covenant therein.
Q Q
71. Had Keen Joy had in its mind of IO failing to do all things
R reasonably necessary to enforce against IO itself s.18(1)(a) of BMO and R
clause 9(b)(10) of the DMC, it adds, I think, nothing on top of its existing
S S
grounds against IO.
T T
72. Properly construed above, IO is, as held in the Judgment,
U under no duty under s.18(1)(a) of BMO or clause 9(b)(10) of the DMC to U
V V
A - 21 - A
“upgrade” the Existing Fire Alarms. IO has, as held in the Judgment, a
B B
discretion to decide whether or not to make “improvement” to common
C parts under s.18(2)(fa) of BMO. Or owners may so resolve at general C
meetings pursuant to s.14(1) of BMO30.
D D
E E
Evidence pertinent to s.18(1)(c) of BMO not fully explored
F F
73. Regarding the “state of evidence” bar Bokhary PJ stated in
G G
Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 referred
H
at paragraph 18 of See Wah Fan, supra, this Tribunal disagrees with H
paragraph 24 of R’s Reply Skeleton that the application of s.18(1)(c) of
I I
BMO to this case is not fact sensitive.
J 74. The contrary is, I think, true and that the evidence had not J
been fully explored at trial due to lack of proper notice from Keen Joy to
K K
IO and this Tribunal. In other words, Keen Joy could not get over the
L above “state of evidence” bar. L
M 75. IO’s obligation under s.18(1)(c) of BMO is not absolute – it M
is only required to do all things reasonably necessary for the enforcement
N N
of DMC (or BMO) obligations concerned.
O O
76. On my findings in the Judgment, IO had arranged for the
P Manager to attend to Apartment F12 to investigate the Fire Alarm P
Problem and that subsequently the Manager had put forward the Proposal
Q Q
that was, however, rejected by Nora: see paragraph 64(3), (4), (5) and 67
R of the Judgment. R
S 77. On the factual issues whether further investigation and/or S
consultation with GH owners was warranted or not, Derek had
T T
maintained in the box that IO had received no similar complaint of Fire
U U
30 Paragraphs 78 and 79 of the Judgment
V V
A - 22 - A
Alarm Problem from other owners than Keen Joy, that IO was satisfied
B B
with the investigation done by, and the Proposal suggested by, the
C Manager and with the annual testing results of the Existing Fire Alarms in C
line with FSD requirements as was evidenced by the 3 FS Certificates.
D D
78. Keen Joy (and parties) had not explored, I think, the above
E E
answers further or fully at trial.
F F
79. The followings said by Lam V-P (as he then was) at
G paragraph 10 of the Court of Appeal judgment in Lehmanbrown Ltd v G
Union Trade Holdings Inc & Others, unreported, HCMP 977/2015, 17
H H
June 2015, cited by Mr Wong are, I think, also pertinent to our case: -
I “Whilst the Court of Appeal obviously has power to entertain new I
points in an appeal, it is also clearly and firmly established that new
J points which are fact sensitive or otherwise affect the course of J
evidence or conduct of the case at the hearing below should not be
allowed. Though this principle is usually applied in situations where
K the new points necessitate further evidence to be adduced, it is not K
confined to such scenarios. Very often, the raising of new point by
one party may lead to the other party raising counter arguments
L L
and the consideration of such counter arguments may involve
factual assessment in a different light from that undertaken by the
M court below. Sometimes, it may involve a different weighing of M
factors in the exercise of discretion. Alternatively, the other party
may embark on a different course of forensic conduct if the new
N point were taken earlier. The appellate court, in considering whether N
the new point would be entertained, is entitled to take these matters
O into account in order to avoid unfairness to the other party (bold O
supplied).”
P P
The possibilities of different factual evidence and/or different trial
Q Q
development regarding Fire Alarm issue cannot, I think, be excluded
R had proper notice of s.18(1)(c) BMO issue been given by Keen Joy at R
trial to IO.
S S
T T
New point of s.18(1)(c) of BMO not open to Keen Joy
U U
V V
A - 23 - A
80. Hence, the said new point of s.18(1)(c) of BMO is, I think,
B B
not open to Keen Joy on appeal on the state of evidence bar. To allow
C Keen Joy to raise it on appeal is also unfair to IO. It is, I think, not C
arguable either.
D D
81. In any event, it is up to the Court of Appeal vested with
E E
power to allow new point on appeal to decide for itself whether to
F entertain such new point. F
G G
H
Second ground not arguable H
82. Therefore, the proposed second ground of appeal is, in my
I I
view, not arguable either.
J J
K K
No public interest involved
L L
83. It is, I think, wholly speculative for Keen Joy to assert at
M paragraph 26 of R’s Skeleton that similar problem like the Fire Alarm M
Problem “may well exist in other equally large apartments in Hong
N N
Kong”. There is no such evidence before me. Nora at best deposed in her
O fourth affirmation that GH as a whole suffers, she thought, from the Fire O
Alarm Problem.
P P
84. For same lack of evidence, I disagree with paragraphs 3 and
Q Q
4 of R’s Reply Skeleton that the alleged legal question posed at paragraph
R 3 thereof requires clarification from higher court for the first time in the R
public interest. In any event, the said legal question was posed on a
S S
wrong reading of the Judgment.
T T
U U
V V
A - 24 - A
85. As such, it is not, I think, a matter of “public interest” for
B B
leave to appeal to be given on the Fire Alarm Problem as per the proposed
C grounds of appeal. C
D D
E Conclusion E
F
86. All grounds proposed by Keen Joy to appeal against F
dismissal of its second counterclaim in the Judgment carry, I think, no
G G
reasonable prospect of success on appeal.
H 87. Neither is it, I think, in the interest of justice for leave to H
appeal to be given on the issue of Fire Alarm Problem as per the proposed
I I
grounds of appeal.
J J
K K
Disposition
L L
88. I therefore dismiss the Leave Application filed by Keen
M Joy on 11 June 2024. I refuse leave to Keen Joy to appeal against M
dismissal in the Judgment of its second counterclaim relating to the Fire
N N
Alarm Problem.
O O
89. Under r.30B(4) of Lands Tribunal Rules 31 , where this
P Tribunal refuses an application for leave to appeal, a further application P
for leave to appeal may be made to the Court of Appeal within 14 days
Q Q
from the date of refusal.
R R
S S
Costs order nisi
T T
U U
31 Cap.17A
V V
A - 25 - A
90. As IO has prevailed on the Leave Application, I make a costs
B B
order nisi to follow the result of this application that Keen Joy do pay
C IO costs of this application, including all reserved costs and the costs C
of hearing on 28 June 2024, to be taxed on District Court scale if not
D D
agreed. The said order nisi shall automatically become effective and
E binding on both parties without further order if no party applies to vary it E
within 14 days of this Decision.
F F
G G
H H
(Lee Siu-ho)
I I
Deputy District Judge
J Presiding Officer J
Lands Tribunal
K K
L L
M M
Mr Iverson Wong, instructed by King & Co., for the Applicant
N N
Ms Fok Lai Lor Nora, the representative of the Respondent
O O
P P
Q Q
R R
S S
T T
U U
V V
THE INCORPORATED OWNERS OF GRENVILLE HOUSE v. KEEN JOY ENTERPRISES LTD
A A
LDBM 200/2020
B B
[2024] HKLdT 57
C C
IN THE LANDS TRIBUNAL OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E BUILDING MANAGEMENT APPLICATION NO.200 OF 2020 E
__________________
F F
G BETWEEN G
THE INCORPORATED OWNERS Applicant
H OF GRENVILLE HOUSE H
I and I
KEEN JOY ENTERPRISES Respondent
J LIMITED J
K
_________________ K
Before: Deputy District Judge S. H. Lee,
L L
Presiding Officer of the
M
Lands Tribunal (Paper Disposal) M
Date of Respondent’s Submissions 25 June 2024
N N
Date of Applicant’s Submissions 26 June 2024
O Date of Hearing: 28 June 2024 O
Date of Respondent’s Reply Submissions 15 July 2024
P P
Date of Decision: 16 August 2024
Q _____________________ Q
R
D E C I S I O N R
_____________________
S S
1. On 14 May 2024, I handed down Judgment of this
T application and counterclaim (the Judgment) 1 after trial. For this T
U U
1 [2024] HKLdT 39, with 2 corrigenda
V V
A -2- A
Decision, I adopt the same expressions and abbreviations in the Judgment.
B B
In the Judgment, I dismissed the entirety of the counterclaim raised by
C Keen Joy against IO2. Keen Joy has raised two counterclaims 3. By its C
second one, Keen Joy sought specific performance of IO’s obligations
D D
under the DMC and BMO regarding Fire Alarm Problem with a view to
E ensure an effective fire alarm system for Apartment F12 owned by it, E
and/or damages in lieu of, or in addition to, specific performance4.
F F
2. By Form 1 filed on 11 June 2024, Keen Joy sought leave to
G G
appeal against the Judgment only on my dismissal of its second
H counterclaim relating to Fire Alarm Problem (the Leave Application). H
Two proposed grounds of appeal are annexed to the said Form 1. A fourth
I I
affirmation of Nora together with exhibit “FLLN-1” was filed on 11 June
J 2024 in support of the said application. J
K 3. On the two dates stated above, Keen Joy has lodged and K
served its skeleton submissions (R’s Skeleton) and skeleton submissions
L L
in reply (R’s Reply Skeleton), annexed with Keen Joy’s opening
M submissions5, in support of the Leave Application. M
N 4. On the date stated above, counsel for IO, Mr Iverson Wong N
(Mr Wong), who had not appeared for IO at trial, has also lodged and
O O
served IO’s skeleton submissions (A’s Skeleton) in opposition to the
P Leave Application. P
Q
5. At the hearing of the Leave Application on 28 June 2024, Q
both Nora and Mr Wong appearing respectively for Keen Joy and IO
R R
made no substantive submission on the Leave Application and agreed for
S S
T T
2 Paragraph 103 of the Judgment
3 Paragraph 29 of the Judgment
4 Paragraphs 21 to 23, 31, 38, 39 (note corrigendum) and 41 of the Judgment
U U
5 dated 12 July 2023
V V
A -3- A
it to be disposed on papers after Keen Joy files and serves R’s Reply
B B
Skeleton.
C C
6. In arriving at this Decision, this Tribunal has carefully
D considered the Judgment and all proposed grounds of appeal in light of, D
among others, all submissions advanced by parties in the above 3
E E
skeletons, all pertinent contents of 4th affirmation of Nora and exhibit
F thereof, and all pertinent evidence adduced by parties at trial regarding F
the second counterclaim of the Fire Alarm Problem.
G G
H H
Legal principles for leave to appeal
I 7. Under s.11(2) of Lands Tribunal Ordinance (LTO) 6 , any I
party to proceedings before the Tribunal may appeal to the Court of
J J
Appeal against a judgment of the Tribunal on the ground that such
K judgment is erroneous in point of law. K
L 8. S.11AA(1) of the LTO requires leave to be granted by the L
Tribunal or the Court of Appeal before an appeal under s.11(2) can be
M M
made. S.11AA(5)(a) of LTO provides that leave to appeal may be granted
N in respect of a particular issue arising out of the judgment. S.11AA(6) of N
LTO further provides that leave to appeal shall not be granted unless the
O O
Tribunal is satisfied that:
P P
(a) the appeal has a reasonable prospect of success; or
Q Q
(b) there is some other reason in the interests of justice why the
R appeal should be heard. R
S 9. For the principles on s.11AA(6) on LTO above, I adopts the S
authorities cited at paragraphs 6 to 8 of R’s Skeleton. The threshold for
T T
meeting limb (a) above requires the prospect of succeeding in the appeal
U U
6 Cap.17
V V
A -4- A
“reasonable” and therefore more than “fanciful”, without having to be
B B
“probable”. One is required to show more than just an arguable case, but
C an appeal that has merits and ought to be heard, although one does not C
have to demonstrate that the appeal will probably succeed.
D D
10. As to the circumstances limb (b) above could be met, leave
E E
to appeal may be granted if the question is one of general principle,
F decided for the first time or a question of importance upon which further F
argument and a decision of the Court of Appeal would be to the public
G G
advantage.
H H
I I
Grounds of proposed appeal
J J
Ground One
K K
11. It is first complained by Keen Joy that this Tribunal had
L erred in law in finding that Existing Fire Alarm was in “good working L
order” such that it did not require any replacement: Judgment at §§73 to
M M
74.
N N
(1) In light of the pertinent findings at §§64 to 67 of the
O
Judgment, this Tribunal, it was said, erred in law in holding that the O
Existing Fire Alarm was in good order purely because (i) the warning
P P
sound level likely conformed with the minimum legal requirements set by
Q
FSD by way of code of practice and that (ii) IO had complied with the Q
law and arranged for registered fire service installation contractor to
R R
inspect, inter alia, the Existing Fire Alarm every 12 months resulting in
S
the certification of conformity with the legal minimum requirements set S
down by the 2012 version of Code of Practice for Minimum Fire Service
T T
Installations and Equipment and Inspection, Testing and Maintenance of
U
Installations and Equipment (COP MFSI), when the Fire Alarm Problem U
V V
A -5- A
was found to have existed: Judgment at §64. This, it was said, is
B B
inconsistent with this Tribunal’s own ruling (which is correct) at §§68 to
C 70 of the Judgment. C
D (2) Whilst it is correct that in discharging its duty under D
s.18(1)(a) of BMO7, IO shall have regard to and be guided by code of
E E
practice issued by the Authority under s.44, it is complained that it is
F legally wrong for this Tribunal to rule, in the absence of any legal F
authority or guidance, that compliance with such bare legal minimum
G G
requirements in blatant disregard to the actual context of Apartment F12
H and GH as well as inaudibility entailed by the Fire Alarm Problem would H
discharge IO’s mandatory duty under s.18(1)(a) of BMO: Judgment at
I I
§§75 to 76.
J J
(3) This Tribunal, it was suggested, thereby also erred in
K adopting a literal and narrow meaning of “good working order” and/or K
“good working conditions” under Clause 9(b)(8) and (10) of DMC and
L L
s.18(1)(a) of BMO: Judgment at §74. This Tribunal failed, it was said, to
M apply or otherwise give effect to the well-established approach in M
construing the relevant provisions of DMC and BMO which is “a unitary
N N
exercise involving an iterative process”: Lai Wai Hung v. Sino Estates
O Management Ltd [2020] HKCA 448 at §26. O
P P
Q
Ground Two Q
12. It follows, Keen Joy argued, that this Tribunal had erred in
R R
law in holding that IO was not in breach of the relevant provisions of
S DMC and s.18 of BMO: Judgment at §71:- S
T (1) Given the Fire Alarm Problem existed and the Existing Fire T
Alarm forms part of the “common parts” of GH (see Judgment at §68), it
U U
7 Cap.344
V V
A -6- A
is complained that it is legally wrong for this Tribunal to hold that
B B
resolving the Fire Alarm Problem would be an “upgrade” or
C “improvement” to the common parts of GH which is something that IO C
“may (not must), at its discretion, decide to do, or decide not to do under
D D
s.18(2)(fa) of BMO”: Judgment at §§77-79.
E E
(2) Even if resolving the Fire Alarm Problem could be described
F as an “upgrade” or “improvement” as opposed to “replacement” of the F
common parts of GH, this Tribunal, it was said, had completely
G G
overlooked IO had a mandatory duty under s.18(1)(c) of BMO “to do all
H things reasonably necessary for the enforcement of the obligations H
contained in the deed of mutual covenant (if any) for the control,
I I
management and administration of the building”. This Tribunal ought, it
J was said, to have but did not consider and rule that such mandatory duty J
on the part of IO under s.18(1)(c) of BMO included carrying out such an
K K
“upgrade” or “improvement”.
L L
(3) At the very least, this Tribunal ought, Keen Joy argued, to
M have but did not consider and rule that IO is and was under a mandatory M
duty as per s.18(1)(c) of BMO to seriously look into the Fire Alarm
N N
Problem and investigate or consult the owners on whether (i) such
O problem existed and affected GH estate-wide and (ii) a “replacement” or O
even “upgrade” and “improvement” ought to be carried out in GH in view
P P
of the following pertinent factual findings: -
Q Q
(a) IO was well aware of Fire Alarm Problem but had taken no
R concrete action on and sought to downplay the problem or keep it at a low R
profile: Judgment at §§65-67; and
S S
(b) There is every reason to believe that the same problem could
T T
happen to other equally large apartments of GH as opposed to it being a
U matter of “individual concern”: Judgment at §§4 & 73(1). U
V V
A -7- A
(4) In all circumstances and in reaching the conclusion that there
B B
was no breach of DMC and BMO on the part of IO pertaining to the Fire
C Alarm Problem, this Tribunal, Keen Joy argued, had misconstrued the C
intentions and objectives of DMC and BMO, contrary to the well-
D D
established principles for a purposive construction and common sense
E application of the relevant provisions of DMC and BMO: The Grande E
Properties Management Ltd v Sun Wah Ornament Manufactory Limited
F F
(2006) 9 HKCFAR 462 at §2.
G G
H H
Discussion
I I
New grounds in proposed grounds of appeal
J 13. Contrary to Keen Joy’s denials at paragraphs 20 to 23 of R’s J
Reply Skeleton, it had, I think, never relied for the purpose of its second
K K
counterclaim at trial s.18(1)(c) of BMO and, if I may add, clause 9(b)(8)
L L
of DMC.
M 14. I agree with Mr Wong that Keen Joy has raised s.18(1)(c) of M
BMO and clause 9(b)(8) of DMC for the first time in its proposed
N N
grounds of appeal. It is plain from the followings: -
O O
(1) Unlike s.18(1)(a) &(b) of BMO and clause 9(b)(10) of DMC
P which were specifically recited in its Notice of Opposition, s.18(1)(c) of P
BMO and clause 9(b)(8) of DMC were not: see paragraphs 4, 5, 7(a)-(c),
Q Q
10(a)(ii) & 10(d), 10(e), 19, 20, 21 and prayers (2) & (3) thereof.
R R
(2) At paragraphs 18 and 19 of its opening submissions, Keen
S Joy also saw fit to recite only s.18(1)(a)&(b) of BMO and clause 9(b)(10) S
of DMC. Nowhere in entire opening was s.18(1)(c) of BMO or clause
T T
9(b)(8) of DMC referred to.
U U
V V
A -8- A
(3) Nora never in her witness statement refer to s.18(1)(c) of
B B
BMO or clause 9(b)(8) of DMC.
C C
(4) Neither did Keen Joy refer to s.18(1)(c) of BMO or clause
D 9(b)(8) of DMC in its oral closing submissions. D
E 15. I wholly agree with IO’s submissions at paragraphs 21 and E
22 of A’s Skeleton that Keen Joy had elected at trial not to rely on
F F
s.18(1)(c) of BMO (and, I would add, clause 9(b)(8) of DMC).
G G
16. Secondly, Keen Joy had, I think, never made submissions for
H
its second counterclaim at trial that clause 9(b)(10) of DMC and s.18(1)(a) H
& (b) of BMO it solely relied upon ought to be construed in any alleged
I I
“purposive”, “liberal” or “wide” manner as it now complains this
J
Tribunal had failed to do so in its proposed grounds. J
17. Keen Joy never cited the two authorities at [11(3)] and
K K
[12(4)] above at trial.
L L
18. Thirdly, Keen Joy had never relied on 2018 COBMS at trial
M as it now does for the first time at paragraphs 16(2) & 16(3) of R’s M
Skeleton.
N N
O O
Keen Joy’s limited evidence at trial
P P
19. At trial, Keen Joy solely called Nora (and mainly produced
Q Q
many complaint letters written by it to the Manager of GH, IO and FSD)
R to prove that Fire Alarm Problem had existed but that, save for the R
Proposal, IO (and others) took no concrete action on the same despite her
S S
repeated complaints.
T T
U U
V V
A -9- A
20. As IO noticed in section E1 of its written opening8, Keen Joy
B B
had not adduced any expert evidence at trial9. Neither did Keen Joy call i)
C FSD officer Chin Ka Ho (whom it had invited to attend to Apartment F12 C
to observe the Fire Alarm Problem)10 or ii) staffs of registered fire service
D D
installation contractor (who signed 3 FS Certificates after annual fire
E alarm testing in 2019, 2020 and 2021)11 to give evidence at trial. E
F F
G Keen Joy’s construction of IO’s pleaded duties G
H
21. Keen Joy had, we observe, submitted at paragraph 29 of its H
written opening: “[IO] has not otherwise sought to explain … whether it
I I
is [IO]’s case that a fire alarm system which could not properly carry
J
out its function is nonetheless in “good repair and condition” or in “a J
state of good and serviceable repair”. Notably, the test for whether [IO]
K K
has complied with its duties under DMC and BMO is not whether it has
L complied with the statutory minimums (italics and underline original, L
bold supplied)”.
M M
22. Two points should be noted from the above submissions
N N
from Keen Joy.
O (1) First, the original italic words within quotation marks are O
sourced from, one thinks, clause 9(b)(10) of the DMC and s.18(1)(a) of
P P
BMO and nowhere else.
Q Q
(2) Secondly, judging the words in bold, Keen Joy apparently
R submitted that, to answer whether or not IO’s pleaded duties at clause R
9(b)(10) of the DMC or s.18(1)(a) of BMO was complied with, one asks
S S
T T
8 dated 3 July 2023
9 Paragraph 46 of the Judgment
U U
10 Paragraph 73(4) of the Judgment
11 Paragraph 73(2) of the Judgment
V V
A - 10 - A
whether or not the Existing Fire Alarms could properly carry out its
B B
function.
C C
23. As shall be demonstrated below, this Tribunal had applied
D exactly Keen Joy’s own construction (and not any alleged wrong test or D
assumption) in arriving at its factual findings in the Judgment on the
E E
evidence adduced at trial.
F F
G G
Limited inaudibility entailed by the Fire Alarm Problem
H 24. The Fire Alarm Problem proven by Keen Joy after trial is not, H
one must point out, that “warning sound” emitted by Existing Fire Alarms
I I
could not be heard inside Apartment F12 at all. I also refer to paragraph 7
J of R’s Reply Skeleton. J
K 25. While such “warning sound” could not be heard in the K
bedrooms, kitchen and staff quarter (i.e. inner parts) of Apartment F12,
L L
on the findings of this Tribunal, it could be heard in the living and
M dining room of Apartment F1212 to serve as fire warning to occupants M
of Apartment F12 in its living and dining room.
N N
O O
All relevant matters considered to construe IO’s duties
P P
26. Contrary to paragraph 16(1) of R’s Skeleton and as Mr Wong
Q Q
rightly recognized at paragraph 13.2 of A’s Skeleton, the aforesaid limited
R inaudibility entailed by the Fire Alarm Problem was in the forefront of R
this Tribunal’s consideration in the Judgment.
S S
T T
U U
12 Paragraph 64 of the Judgment
V V
A - 11 - A
27. Neither did this Tribunal lose sight in the Judgment that the
B B
cause of such limited inaudibility is the large size of Apartment F1213 and
C not, say, mechanical failure or defects of the Existing Fire Alarms 14. C
D 28. When this Tribunal used the words “warning sound” in the D
Judgment, it was fully aware that the purpose of Existing Fire Alarms
E E
was to give fire alert in the event of fire.
F F
29. At the same time, any alleged “purposive” construction of
G clause 9(b)(10) of the DMC executed in 1971 now raised by Keen Joy G
cannot, one thinks, overlook the undeniable background fact that all
H H
apartments of GH, including Apartment F12, were built as large
I apartment exceeding 3,300 square feet in saleable area from day one15. I
J
30. However, reading the said clause 9(b)(10) of the DMC, one J
does not find word of “improvement” or “upgrade”. Only words of
K K
“repair”, “keep in good repair and condition” and “replace” are found in
L the said clause16. L
M
31. In addition, any alleged “purposive” construction of s.18 of M
DMC now raised by Keen Joy cannot ignore also, one thinks, the
N N
separation of (mandatory) duties of IO in s.18(1) thereof from its
O
different (discretionary) powers in s.18(2) thereof. O
32. The word “improvement” is only found in s.18(2)(fa) of
P P
BMO but not in its s.18(1)(a) (which uses the words “maintain” and
17
Q “good and serviceable repair and clean condition”)18. Q
R 33. With respects, any complaint in the proposed grounds of this R
Tribunal having wrongly adopted any alleged “literal” and “narrow”
S S
13 Heading of paragraph 64 of the Judgment
T 14 It goes without saying that there must be a limit in terms of distance the “warning sound” emitted by T
the Existing Fire Alarms may go and be heard.
15 Paragraph 4 of the Judgment
16 See 1st corrigendum
U U
17 Added by s.5 of Ordinance No.12 of 1998
18 Paragraph 41 of the Judgment
V V
A - 12 - A
meaning of the pleaded DMC clause and pleaded BMO section at [11(3)]
B B
above, and to have allegedly failed to have adopted any alleged
C “purposive” construction and “common sense” application of, DMC and C
BMO to the second counterclaim at [12(4)] above is, I agree with Mr
D D
Wong, completely without merit.
E E
F F
Mere Fire Alarm Problem not enough
G G
34. Contrary to paragraph 16(1) of R’s Skeleton, it simply does
H
not follow, I must point out, from mere presence of Fire Alarm Problem H
(i.e. the limited inaudibility of the Existing Fire Alarms) as proven by
I I
Keen Joy that the Existing Fire Alarms were not “in good working order”
J
and/or required “repair/replacement”. Keen Joy was, I am afraid, totally J
mistaken to equate the two.
K K
35. Absent expert or like evidence, putting aside for the moment
L L
contrary evidence to be discussed below, the Fire Alarm Problem per se is,
M
I think, no proof that Existing Fire Alarms were not functioning M
properly as Keen Joy posed, and answered, at paragraph 29 of its written
N N
opening at [21] above.
O 36. To borrow paragraph 14.3 of A’s Skeleton, it is, I agree with O
Mr Wong, a “quantum leap” for Keen Joy to argue that the Existing Fire
P P
Alarms were (or are) not functioning properly and demand repair or
Q replacement by the mere proof of Fire Alarm Problem. Q
R R
S Contrary evidence that Existing Fire Alarm functioning properly S
T 37. There are also adduced at trial other evidence (adduced by T
IO and Keen Joy) that was accepted by this Tribunal pointing to the
U U
contrary direction asserted by Keen Joy.
V V
A - 13 - A
38. With respect, the Judgment, including the many findings
B B
made by this Tribunal pertinent to the Fire Alarm issue at its different
C paragraphs, must be read as a whole. C
D 39. The fact that “extra” fire alarms at owner’s own costs were D
proposed to be “installed” by the Manager of GH 19 suggests that the
E E
Existing Fire Alarms were “in good working order” or did not require
F “repair/replacement” (or else the Manager could have repaired or F
replaced them using funds out of, say, annual maintenance budget).
G G
40. Nora’s own admission in the box of “upgrading” (i.e. not
H H
repairing) Existing Fire Alarms20 point also to the contrary direction.
I I
41. The compliance of Existing Fire Alarms with minimum legal
J
requirements set by FSD in 2012 version of COP MFSI 21 as certified in J
the 3 FS Certificates issued by registered fire service installation
K K
contractor for the material years of 2019, 2020 and 2021 after annual fire
L alarm testing22 is also one of these contrary evidence/findings. L
M
42. If one reads the 3 FS Certificates, one can find Part 3 box for M
“Defects” discovered in the annual testing, and “Comment” thereon, to be
N N
filled in by the contractor.
O 43. Reading certificate for the year 2020, while “FH/HR system” O
was certified in Part 1 of the said certificate to “conform with FSD
P P
requirements”, it was also marked in the same part to have “defects”
Q listed in Part 3 of the same certificate i.e. “missing” instruction plate that Q
requires “replacement”.
R R
44. Had the Existing Fire Alarms not functioned properly or at
S S
all during the said three annual tests above, they plainly would not have
T T
19 Paragraph 64(5) of the Judgment
20 Paragraph 77 of the Judgment
U U
21 With sound level of alarm measured at 3m from inside of main entrance door
22 Paragraph 73(2) & (3) of the Judgment
V V
A - 14 - A
been certified by the registered fire service installation contractor in the 3
B B
FS Certificates “in efficient working order” in accordance with COP
C MFSI as they now appear on the face of them. C
D 45. Mr Wong was right at paragraph 13 of A’s Skeleton. Contrary D
to paragraph 12 of R’s Skeleton and paragraphs 5 and 7 of R’s Reply
E E
Skeleton, this Tribunal did not simply assume from mere compliance of
F legal minimum requirements per se that the Existing Fire Alarms were “in F
good working order”, or had applied any alleged wrong test or
G G
assumption to that effect.
H H
46. To the contrary, Keen Joy had, I am afraid, misread the
I Judgment in this material respect. I
J
47. The fact that FSD officer Chin Ka Ho took no follow-up J
action on Exiting Fire Alarms after Nora’s repeated complaints of Fire
K K
Alarm Problem to FSD23 is another piece of contrary evidence (or else
L FSD would have followed up on Nora’s repeated complaints with IO, the L
Manager and/or the registered fire service installation contractors that
M M
signed 3 FS Certificates).
N N
O Consistent factual findings open on evidence O
P 48. On the totality of trial evidence and findings in the Judgment, P
notwithstanding the Fire Alarm Problem, it is certainly, I think, open to
Q Q
this Tribunal to arrive at the factual finding that the Existing Fire Alarms
R were in good working order, and did not require repair or replacement, at R
all material times24 (and that Keen Joy had, as I find, failed to prove to the
S S
contrary i.e. the Existing Fire Alarms were not functioning properly
T T
U U
23 Paragraph 73(4) of the Judgment
24 Paragraphs 73 and 74 of the Judgment
V V
A - 15 - A
or at all during the material times due to IO’s breach of clause 9(b)(10)
B B
of DMC or s.18(1)(a) of BMO).
C C
49. On the same totality of trial evidence and findings, it would,
D I agree with Mr Wong, be absurd for this Tribunal to find the Existing D
Fire Alarms not functioning properly or at all when occupants of
E E
Apartment F12 in its living and dining room could hear warning sounds
F emitted by them, which had been tested by registered fire service F
installation contractor in 3 past annual tests and certified to be “in
G G
efficient working order” in line with COP MFSI.
H H
50. There is, one should point out, simply no factual or expert
I evidence of malfunctioning or non-functioning of the Existing Fire I
Alarms at trial.
J J
51. Reading the Judgment as a whole properly, there is
K K
absolutely, I think, no alleged inconsistency complained by Keen Joy at
L [11(1)] above between this Tribunal’s finding of Fire Alarm Problem and L
this Tribunal’s finding at paragraph 74 of the Judgment that the Existing
M M
Fire Alarms were in good working order that did not require repair or
N replacement. I reject the contrary submission at paragraph 6 of R’s Reply N
Skeleton.
O O
P P
First ground to challenge facts unarguable
Q Q
52. Hence, the first ground of appeal at [11] above that this
R Tribunal had erred in law in making the above factual finding at R
paragraph 74 of the Judgment is, I think, unarguable. This is not to
S S
mention that Keen Joy can only appeal on points of law as was stressed at
T paragraphs 10 and 11 of A’s Skeleton. T
U U
V V
A - 16 - A
Additional proof of discharge of s.18(1)(a) of BMO
B B
53. At paragraph 74 of the Judgment, this Tribunal had already
C C
found that there was no breach of both clause 9(b)(10) of DMC and
D s.18(1)(a) of BMO. D
E 54. Reference to paragraphs 7.2.7 and 7.2.8 of 2018 COBMS E
and s.44(2) of BMO in paragraph 75 and 76 of the Judgment complained
F F
of by Keen Joy in R's Skeleton is, I would point out, only an additional
G reason to “support” the factual finding and “conclusion” of no breach of G
s.18(1)(a) of BMO already reached by this Tribunal on other evidence
H H
and findings in the preceding paragraph 74.
I I
55. So, unless Keen Joy makes good its challenge to my factual
J
finding and conclusion at paragraph 74 of the Judgment (which, I think, it J
fails completely), any alleged error of law at paragraphs 75 and 76 of the
K K
Judgment that it makes good, if at all, would not suffice to persuade the
L Court of Appeal to allow the proposed appeal. L
M
56. To put the record straight, this Tribunal has not, as Keen Joy M
complained, simply assumed from mere compliance with 2018 COBMS
N N
per se that the Existing Fire Alarms were in good working conditions that
O
did not require repair or replacement. O
P P
s.44(2) of BMO applies also to compliance of 2018 COBMS
Q Q
57. Notwithstanding Keen Joy’s submissions at paragraphs 14
R R
and 15 of R’s Skeleton, this Tribunal remains of the view in the Judgment
S (and agree with paragraph 14.2.3 of A’s Skeleton) that, while “failure” to S
comply with Code of Practice may, on s.44(2) of BMO, be relied upon to
T T
“establish” liability in civil proceedings, it makes, I think, no sense that
U “compliance” with Code of Practice like 2018 COBMS in this case U
V V
A - 17 - A
cannot be used to “negative” such liability when the said section
B B
expressly includes the word “negative” and when s.18(2A) of BMO
C requires IO “have regard to and be guided by” Code of Practice. S.44(2) C
of BMO should, I think, be construed to apply as well to the
D D
“compliance” scenario.
E E
58. This is, I would stress, all the more so when the factual
F evidence of “compliance” of paragraphs 7.2.7 and 7.2.8 of 2018 COBMS F
by IO is otherwise admissible evidence adduced at trial that this Tribunal
G G
has already considered together with other evidences or findings to reach
H its factual finding at paragraph 74 of the Judgment: see [41] to [44] above H
and paragraph 14.2.4 of A’s Skeleton.
I I
59. Moreover, as this Tribunal held in the Judgment 25 , while
J J
Code of Practice issued by the Authority does not have force of law on
K the case law, it is still directory in the sense that the Authority had issued K
2018 COBMS as “standard and practice” to be “observed and
L L
followed” by owners’ corporations in terms of, inter alia, “fire safety”:
M see s.44(1)(b) of BMO. M
N 60. Furthermore, as Keen Joy admitted at [11(2)] above and at N
paragraph 8 of R’s Reply Skeleton, under s.18(2A) of BMO , IO “shall
26
O O
have regard and be guided by”, also, 2018 COBMS issued by the
P Authority “in the performance of its duties”. P
Q
61. Hence, the complaint by Keen Joy at [11(2)] above that it is Q
legally wrong for this Tribunal to have ruled, in absence of legal authority
R R
or guidance, that compliance with bare legal minimum requirements in
S
blatant disregard to the actual context of Apartment F12 and GH as well S
as the inaudibility entailed by the Fire Alarm Problem would discharge
T T
U U
25 Paragraph 101 of the Judgment
26 Paragraph 42 of the Judgment
V V
A - 18 - A
IO’s mandatory duty under s.18(1)(a) of BMO under paragraph 75 and
B B
paragraph 76 of the Judgment cannot, I think, be arguable.
C C
(1) This Tribunal had plainly paid full regard in the Judgment to
D the size problem posed by large apartments built at GH from day one and D
what the Fire Alarm Problem entailed.
E E
(2) S.44(1)(b) and s.18(2A) of BMO (if not also s.44(2) of BMO)
F F
afford proper legal foundation and authority for this Tribunal to find from
G “compliance” of paragraphs 7.2.7 and 7.2.8 of 2018 COBMS additional G
support for factual finding and conclusion already reached at paragraph
H H
74 of the Judgment.
I I
J Factual finding of improvement open on evidence J
K 62. For the same totality of evidence and findings in the K
Judgment, including Nora’s own admissions 27 , contrary to Keen Joy’s
L L
complaint at [12(1)] above, it is also, I think, perfectly open and correct
M for this Tribunal to have found that resolving the Fire Alarm Problem M
requires “upgrade” to the Existing Fire Alarms28.
N N
O O
No omission to consider s.18(1)(c) of BMO
P P
63. As Keen Joy has not relied for its second counterclaim at
Q Q
trial s.18(1)(c) of BMO, it is, I think, incorrect for it to complain at [12(2)]
R above that this Tribunal had “overlooked” IO’s mandatory duty under the R
said section and/or “failed to rule” on such mandatory duty in the
S S
Judgment.
T T
U U
27 Paragraph 77 of the Judgment
28 Paragraph 78 of the Judgment
V V
A - 19 - A
No fair notice of s.18(1)(c) of BMO at trial
B B
64. Due to contents of Keen Joy’s Notice of Opposition, Nora’s
C C
evidence, its written opening and closing submissions, this Tribunal had
D been led by Keen Joy to believe at trial that it only relied on s.18(1)(a) & D
(b) of BMO and clause 9(b)(10) of DMC for its second counterclaim: see
E E
paragraphs 22, 38, 39 (including heading & corrigendum), 41 (including
F heading), 69, 70 and 71 of the Judgment. F
G 65. In similar vein, I think it likely that Mr Suen appearing for G
IO at trial was also led by Keen Joy to believe likewise such that he only
H H
cited authorities on s.18(1)(a) of BMO (and not that on s.18(1)(c) of
I BMO) in his closing submissions 29. I
J
66. While Keen Joy saw fit to cite paragraph 42 of Whole Grand J
Limited v The Incorporated Owners of Bo Fung Building [2024] HKCA
K K
626 and s.10(5)(a) of LTO at paragraph 18 of R’s Reply Skeleton to stress
L that its Notice of Opposition is not pleadings but serves as “indication of L
the issues” “likely to be raised”, G. Lam JA in same paragraph 42 also
M M
said:
N “Nevertheless, basic fairness requires that there should be advance N
notice of the points taken and issues raised and that no party should
O be prejudiced by being taken by surprise and having to deal with O
issues raised without a proper opportunity of preparing for them:
see Grand Power v Chan Sing Hoi [2020] 2 HKLRD 142, §§27-42;
P Great Source Enterprise Ltd v Sino Estates Management Ltd P
(CACV 253/2003, 7 May 2004), §§14-17. The application of this
principle – and the rigour with which ordinary rules of pleading may
Q Q
be applied by analogy – will of course depend on the facts and the
procedures adopted in the particular case (bold supplied).”
R R
S 67. Fair notice of s.18(1)(c) of BMO issue has, I am afraid, not S
been given to this Tribunal, if it has been given to IO at all (which I think
T T
29 E.g. Lau Chun Wing Rod v The Incorporated Owners of Po On Buildings, unreported, CACV
U U
20/2007, 25 October 2007, cited at paragraph 53 of IO’s closing submissions dated 31 August 2023
V V
A - 20 - A
likely not) at trial. Had it been given, this Tribunal would have invited
B B
submissions on it and expressly ruled on it in the Judgment as I did with
C s.18(1)(a) & (b) of BMO. C
D D
E s.18(1)(c) of BMO not arguable either E
F
68. Moreover, s.18(1)(c) of BMO provides that IO shall “do all F
things reasonably necessary for the enforcement of the obligations
G G
contained in the deed of mutual covenant (if any) for the control,
H
management and administration of the building (bold and italics H
supplied)”.
I I
69. Having read R’s Skeleton and R’s Reply Skeleton, this
J Tribunal is still in the dark against whom and for which alleged J
obligation(s) in the DMC (or BMO) that Keen Joy complained IO to have,
K K
in breach of s.18(1)(c) of BMO, failed to do all things reasonably
L L
necessary to enforce.
M 70. In See Wah Fan v The Incorporated Owners of Kit Tak M
Garden (Phase I) [2003] 3 HKLRD 1 cited by Keen Joy at paragraph 24
N N
of R’s Reply Skeleton, it is at least clear from paragraphs 13 and 14 of the
O said judgment that the corporation therein had “resolved not to take O
action” against Mr Tam for breach of s.34I of BMO and clause 2 of the
P P
deed of mutual covenant therein.
Q Q
71. Had Keen Joy had in its mind of IO failing to do all things
R reasonably necessary to enforce against IO itself s.18(1)(a) of BMO and R
clause 9(b)(10) of the DMC, it adds, I think, nothing on top of its existing
S S
grounds against IO.
T T
72. Properly construed above, IO is, as held in the Judgment,
U under no duty under s.18(1)(a) of BMO or clause 9(b)(10) of the DMC to U
V V
A - 21 - A
“upgrade” the Existing Fire Alarms. IO has, as held in the Judgment, a
B B
discretion to decide whether or not to make “improvement” to common
C parts under s.18(2)(fa) of BMO. Or owners may so resolve at general C
meetings pursuant to s.14(1) of BMO30.
D D
E E
Evidence pertinent to s.18(1)(c) of BMO not fully explored
F F
73. Regarding the “state of evidence” bar Bokhary PJ stated in
G G
Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 referred
H
at paragraph 18 of See Wah Fan, supra, this Tribunal disagrees with H
paragraph 24 of R’s Reply Skeleton that the application of s.18(1)(c) of
I I
BMO to this case is not fact sensitive.
J 74. The contrary is, I think, true and that the evidence had not J
been fully explored at trial due to lack of proper notice from Keen Joy to
K K
IO and this Tribunal. In other words, Keen Joy could not get over the
L above “state of evidence” bar. L
M 75. IO’s obligation under s.18(1)(c) of BMO is not absolute – it M
is only required to do all things reasonably necessary for the enforcement
N N
of DMC (or BMO) obligations concerned.
O O
76. On my findings in the Judgment, IO had arranged for the
P Manager to attend to Apartment F12 to investigate the Fire Alarm P
Problem and that subsequently the Manager had put forward the Proposal
Q Q
that was, however, rejected by Nora: see paragraph 64(3), (4), (5) and 67
R of the Judgment. R
S 77. On the factual issues whether further investigation and/or S
consultation with GH owners was warranted or not, Derek had
T T
maintained in the box that IO had received no similar complaint of Fire
U U
30 Paragraphs 78 and 79 of the Judgment
V V
A - 22 - A
Alarm Problem from other owners than Keen Joy, that IO was satisfied
B B
with the investigation done by, and the Proposal suggested by, the
C Manager and with the annual testing results of the Existing Fire Alarms in C
line with FSD requirements as was evidenced by the 3 FS Certificates.
D D
78. Keen Joy (and parties) had not explored, I think, the above
E E
answers further or fully at trial.
F F
79. The followings said by Lam V-P (as he then was) at
G paragraph 10 of the Court of Appeal judgment in Lehmanbrown Ltd v G
Union Trade Holdings Inc & Others, unreported, HCMP 977/2015, 17
H H
June 2015, cited by Mr Wong are, I think, also pertinent to our case: -
I “Whilst the Court of Appeal obviously has power to entertain new I
points in an appeal, it is also clearly and firmly established that new
J points which are fact sensitive or otherwise affect the course of J
evidence or conduct of the case at the hearing below should not be
allowed. Though this principle is usually applied in situations where
K the new points necessitate further evidence to be adduced, it is not K
confined to such scenarios. Very often, the raising of new point by
one party may lead to the other party raising counter arguments
L L
and the consideration of such counter arguments may involve
factual assessment in a different light from that undertaken by the
M court below. Sometimes, it may involve a different weighing of M
factors in the exercise of discretion. Alternatively, the other party
may embark on a different course of forensic conduct if the new
N point were taken earlier. The appellate court, in considering whether N
the new point would be entertained, is entitled to take these matters
O into account in order to avoid unfairness to the other party (bold O
supplied).”
P P
The possibilities of different factual evidence and/or different trial
Q Q
development regarding Fire Alarm issue cannot, I think, be excluded
R had proper notice of s.18(1)(c) BMO issue been given by Keen Joy at R
trial to IO.
S S
T T
New point of s.18(1)(c) of BMO not open to Keen Joy
U U
V V
A - 23 - A
80. Hence, the said new point of s.18(1)(c) of BMO is, I think,
B B
not open to Keen Joy on appeal on the state of evidence bar. To allow
C Keen Joy to raise it on appeal is also unfair to IO. It is, I think, not C
arguable either.
D D
81. In any event, it is up to the Court of Appeal vested with
E E
power to allow new point on appeal to decide for itself whether to
F entertain such new point. F
G G
H
Second ground not arguable H
82. Therefore, the proposed second ground of appeal is, in my
I I
view, not arguable either.
J J
K K
No public interest involved
L L
83. It is, I think, wholly speculative for Keen Joy to assert at
M paragraph 26 of R’s Skeleton that similar problem like the Fire Alarm M
Problem “may well exist in other equally large apartments in Hong
N N
Kong”. There is no such evidence before me. Nora at best deposed in her
O fourth affirmation that GH as a whole suffers, she thought, from the Fire O
Alarm Problem.
P P
84. For same lack of evidence, I disagree with paragraphs 3 and
Q Q
4 of R’s Reply Skeleton that the alleged legal question posed at paragraph
R 3 thereof requires clarification from higher court for the first time in the R
public interest. In any event, the said legal question was posed on a
S S
wrong reading of the Judgment.
T T
U U
V V
A - 24 - A
85. As such, it is not, I think, a matter of “public interest” for
B B
leave to appeal to be given on the Fire Alarm Problem as per the proposed
C grounds of appeal. C
D D
E Conclusion E
F
86. All grounds proposed by Keen Joy to appeal against F
dismissal of its second counterclaim in the Judgment carry, I think, no
G G
reasonable prospect of success on appeal.
H 87. Neither is it, I think, in the interest of justice for leave to H
appeal to be given on the issue of Fire Alarm Problem as per the proposed
I I
grounds of appeal.
J J
K K
Disposition
L L
88. I therefore dismiss the Leave Application filed by Keen
M Joy on 11 June 2024. I refuse leave to Keen Joy to appeal against M
dismissal in the Judgment of its second counterclaim relating to the Fire
N N
Alarm Problem.
O O
89. Under r.30B(4) of Lands Tribunal Rules 31 , where this
P Tribunal refuses an application for leave to appeal, a further application P
for leave to appeal may be made to the Court of Appeal within 14 days
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from the date of refusal.
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Costs order nisi
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31 Cap.17A
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A - 25 - A
90. As IO has prevailed on the Leave Application, I make a costs
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order nisi to follow the result of this application that Keen Joy do pay
C IO costs of this application, including all reserved costs and the costs C
of hearing on 28 June 2024, to be taxed on District Court scale if not
D D
agreed. The said order nisi shall automatically become effective and
E binding on both parties without further order if no party applies to vary it E
within 14 days of this Decision.
F F
G G
H H
(Lee Siu-ho)
I I
Deputy District Judge
J Presiding Officer J
Lands Tribunal
K K
L L
M M
Mr Iverson Wong, instructed by King & Co., for the Applicant
N N
Ms Fok Lai Lor Nora, the representative of the Respondent
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P P
Q Q
R R
S S
T T
U U
V V