In Wong Tak Man Stephen v Chang Ching Wai ([2017] HKEC 2266) Ps were the liquidators of the Incorporated Owners (‘the IO’) of a building (‘the Building’). The IO was wound up following a petition by a construction company that carried out refurbishment works at the Building. The IO had net liabilities of just over HK$3.64 million.
The first and second defendants (‘the defendants’) were two of the owners of the Building. The defendants were among a substantial number of owners who had failed to make the contributions due from them towards the cost of the refurbishment work.
The liquidators successfully sought a declaration that the defendants were jointly and severally liable for the IO’s debts and obligations. The defendants were ordered to pay the plaintiffs the sum necessary to meet the IO’s liabilities.
The basis of the plaintiffs’ claim was section 34 of the Building Management Ordinance:
‘In the winding up of a corporation under section 33, the owners shall be liable, both jointly and severally, to contribute, according to their respective shares, to the assets of the corporation to an amount sufficient to discharge its debts and liabilities.’
The court was presented with two rival interpretations of section 34:
- The owners were individually liable but only for a proportionate share of the IO’s liabilities calculated by reference to their shares in the Building; or
- Each owner was jointly and severally liable for all of the IO’s debts and liabilities but with a right of recovery from co-owners.
The court (Deputy Judge Anson Wong SC giving the judgment) accepted the second interpretation:
- The phrase ‘jointly and severally’ was introduced in 1993 when the Building Management Ordinance replaced earlier legislation. The phrase evinces an intention that each owner is liable for all of the IO’s debts and obligations.
- The phrase ‘according to their respective shares’ in section 34 refers to the right of recovery from co-owners.
- This interpretation of section 34 is consistent with section 17(1) of the Building Management Ordinance which allows the entire indebtedness of an IO to be enforced against an individual owner with a right of recovery from co-owners. There are dicta in the Court of Final Appeal decision in Chi Kit Co Ltd v Lucky Health International Enterprise Ltd ([2000] 2 HKLRD 503) to this effect. It would be strange if this position were not to be mirrored on a winding up.
- The first, rival, interpretation would make liquidation expensive and time-consuming. It would pass the risk of non-payment to creditors.
Michael Lower