HO CHUNG YIN AND ANOTHER v. CHUNG WAI CHUN SUSANNA

DCCJ7866/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7866 OF 2002

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J U D G M E N T

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1.  This is an action instituted by the plaintiffs to rescind the provision agreement made on 28 October 2002 by the plaintiffs as purchasers and the defendant as vendor in respect of 1st floor, Lot No. 2054 in DD449, Tsuen Wan, NT at a price of $800,000 (hereinafter referred to as “the Property”).

2.  The completion date of this transaction is 2 December 2002.  Pursuant to this provision agreement, the plaintiffs paid a total of $80,000 to the defendant as deposits.  Thereafter, the plaintiffs’ solicitor made a number of requisitions in relation to the defendant’s title to the Property.

3.  The defendant’s solicitor did provide answers to those requisitions but, in my judgment, those answers did not adequately or satisfactorily answer the requisitions raised by the plaintiffs’ solicitor.  But the defendant maintained that those answers adequately answered the requisitions and, by a letter dated 3 December 2002, the defendant’s solicitor forfeited the deposit.  In my judgment, that forfeiture is unlawful and unjustified.  So the plaintiffs are entitled to judgment in this action, and I make an order in terms of the draft order under items (1), (2), (3), (4) and (5).

4.  Now, under (1), I make a declaration that the defendant has failed to answer the plaintiffs’ requisitions sufficiently and adequately and has failed to show and to prove title to the Property; (2) the plaintiffs are entitled to rescind the provisional agreement which has accordingly been rescinded; (3) the plaintiffs are entitled to an equitable lien on the Property in the sum of (i) HK$80,000 being deposits paid together with interest thereon, and (ii) HK$3500 being costs of investigating title, and (iii) HK$100 being stamp duty paid.

5.  Apart from those declarations, I further order that (iv) the defendant shall refund the deposits of HK$80,000 to the plaintiffs together with interest thereon at the rate of 8% per annum from 14 April 2003 to 2 March 2009 and, from 3 March 2009, at judgment rate until satisfaction; (v) the defendant shall pay a liquidated sum of HK$80,000 to the plaintiffs together with interest thereon at the rate of 8% per annum from 14 April 2003 to 2 March 2009 and, from 3 March 2009, at judgment rate until payment.

(Discussion re costs)

6.  So there be no order as to costs regarding the hearing on 3 September 2008.  Subject to that, costs of this action be to the plaintiffs, to be taxed, if not agreed, with certificate for counsel.