CHAN SHUN v. NG YIU LEUNG DANNY

HCMP 202/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 202 OF 2008

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J U D G M E N T

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1.  This case concerns with a title in one of the title documents.  Shortly speaking, the legal title of the Property was assigned to the defendant then the purchaser (now the vendor of the plaintiff) on 31 October 1995.  At that time there was a mortgage with First Pacific Bank which was later on taken over by the Bank of East Asia by memorial no. ST837824. 

2.  On 17 June 1997, there was a transfer of this mortgage (Memorial No. ST965777) by First Pacific Bank from the defendant to Deutsche Morgan.

3.  On 28 April 1997, there was a deed of release and, at the same time on the same day, there was a legal charge for all monies created in favour of Po Sang Bank.  However, in the deed of release, the memorial number was wrongly typed as 800466 which was a totally different deed and this was submitted as a defective title.  Eventually, on 25 April 2003, there was a receipt on discharge of the aforesaid charge with Po Sang Bank. 

4.  In the case before me, the plaintiff purchaser and defendant vendor executed a formal sale and purchase agreement on 3 August 2007 (“the Agreement”).  On 7 August 2007, the plaintiff’s solicitors made various requisitions, one of them was why the Memorial No. ST965777 registered in the Shatin Land Registry was wrongly typed as Memorial No. 800466 as aforesaid.  Thereupon, solicitors for the defendant vendor prepared a deed stating that the same was only a typo, and that was on 23 August 2007.  That was the stand of the vendor’s solicitors.  But the purchaser’s solicitors insisted that this was a defect in title and refused to complete the assignment on the completion day on 13 September 2007.

5.  One day later, the defendant, upon no completion, rescinded the Agreement. 

6.  Thereafter on 27 September 2007, Bank of East Asia, which took over First Pacific Bank, wrote to the plaintiff’s solicitors confirming that all monies secured under the mortgage ST837824 and the transfer under ST9655777 had been repaid and discharged on 24 April 2000.

7.  The question before me is therefore whether I am satisfied beyond reasonable doubt about the due execution of the instrument concerned, that is, the transferred documents and the deed of release created thereafter which cited a different memorial number : whether the transferred Memorial No. ST965777 was just wrongly typed as 800466.

8.  By reason of the aforesaid fact placed before me, I am satisfied beyond reasonable doubt that the purchaser would not be at a risk of a successful assertion against him of an encumbrance in the future.  In the first place, as submitted by Ms Lorinda Lau for the defendant, in the aforesaid deed of mortgage and the memorial number, the instrument clearly shows that the mortgagee had already released the plaintiff’s liability under the mortgage for the Property.  There was no doubt that there can be any ambiguity as to which mortgage the instrument is referring to.  The number was just a typo.  The transfer was created in June 1997, and ever since then more than 10 years has elapsed and it is most unlikely that there is any defect in the title. 

9.  In any event, Bank of East Asia has confirmed that the mortgage and the transfer for mortgage has been discharged and repaid in full.  It is further apparent from the deed prepared by the vendor’s solicitors that the title was rectified.   Accordingly, I do not accept that there is any defect in title as shown by the vendor. 

10.  For these reasons, the plaintiff’s application herein is dismissed with costs to the defendant, to be taxed if not agreed.