羅小玲及另二人 對 鄭慧玲及另一人

羅小玲及另二人 對 鄭慧玲及另一人

Because the chairman had not obtained management committee authorization, did not convene a meeting strictly in accordance with the 5% owners' requisition (the 702 notice and 716 agenda omitted and substituted matters), and could not lawfully rely on Schedule 2(6A)(1) to manufacture vacancies or otherwise justify the meeting, the 2 July 2020 notice and the 16 July 2020 meeting and all resolutions passed thereat were invalid; the Tribunal will exercise its discretion to grant declaratory relief and make a costs order in favour of the applicants.

Citation
[2022] HKLdT 34
Parties
First Applicant: 羅小玲; Second Applicant: 黃國強; Third Applicant: 朱董國芳; First Respondent: 鄭慧玲; Second Respondent: 嘉榮大廈（加連威老道）業主立案法團
Court
Lands Tribunal
Jurisdiction
Hong Kong
Judgment Date
10 August 2022
Case Number
LDBM25/2020
Procedural Posture
Building Management Application Under the Building Management Ordinance (ldbm) / Hearing and Judgment After Trial (consolidated Cases LDBM 24/25/26 of 2020)
Outcome
Declaration granted that the 2 July 2020 notice was invalid, the 16 July 2020 owners' meeting was invalid, and all resolutions passed at that meeting were invalid; provisional costs order made in favour of applicants
Legal Topics
5% Owners Requisition Under Schedule 3, Validity of Meeting Notices and Meetings, Authority of Management Committee and Chairman, Remedies: Declaration and Costs
Source Language
CH
Building Management Statutory Interpretation Corporate/governance of Owners' Corporation 5% Owners Requisition Under Schedule 3 Validity of Meeting Notices and Meetings Authority of Management Committee and Chairman Remedies: Declaration and Costs

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Parties

羅小玲

First Applicant

黃國強

Second Applicant

朱董國芳

Third Applicant

鄭慧玲

First Respondent

嘉榮大廈（加連威老道）業主立案法團

Second Respondent

Procedural Posture

Building Management Application Under the Building Management Ordinance (ldbm) / Hearing and Judgment After Trial (consolidated Cases LDBM 24/25/26 of 2020)

Legal Issues

  1. 1 Whether the chairman had authority to convene the 16 July 2020 owners' meeting under Schedule 3(1)(2) of the BMO after receipt of a 5% owners' requisition on 1 May 2020
  2. 2 Whether the 2 July 2020 notice (702 notice) and the 16 July 2020 meeting (716 meeting) were valid and whether resolutions passed thereat are effective
  3. 3 Whether the chairman could rely on other statutory provisions (Schedule 2(6A)(1) or Schedule 3(1)(1)) to convene the meeting or manufacture vacancies to do so

Ratio Decidendi

Because the chairman had not obtained management committee authorization, did not convene a meeting strictly in accordance with the 5% owners' requisition (the 702 notice and 716 agenda omitted and substituted matters), and could not lawfully rely on Schedule 2(6A)(1) to manufacture vacancies or otherwise justify the meeting, the 2 July 2020 notice and the 16 July 2020 meeting and all resolutions passed thereat were invalid; the Tribunal will exercise its discretion to grant declaratory relief and make a costs order in favour of the applicants.

Court Disposition

Declaration granted that the 2 July 2020 notice was invalid, the 16 July 2020 owners' meeting was invalid, and all resolutions passed at that meeting were invalid; provisional costs order made in favour of applicants

Orders

  • The 2 July 2020 notice to convene an owners' meeting signed by the First Respondent is declared not to be a notice to convene an owners' meeting under the Building Management Ordinance and is invalid.
  • The owners' meeting held on 16 July 2020 is declared invalid.