CHINAWELL MANAGEMENT LTD v. STRONG HUGE CORPORATION LTD

HCMP2246/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2246 OF 2010

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BETWEEN

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JUDGMENT

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1.  This is a vendor purchaser summons taken out by the plaintiff (purchaser) by way of Originating Summons dated 3 November 2010 claiming declaratory reliefs to the effect that the defendant, being the vendor, has:

(a)   failed to satisfactorily answer the requisitions raised by the plaintiff;

(b)   failed to show and/or give good title;

(c)   repudiated the Agreement and that the plaintiff was entitled to rescind same by its letter dated 12 October 2010;

(d)   seeking return of the deposits of $525,000 and $593,000; and

(e)   other consequential reliefs therein stated.

2.  At the commencement of the hearing, the plaintiff sought and was given leave to amend the Originating Summons to include in its alternative case, that even if the plaintiff was found to be in breach of the Agreement, the defendant is still to return the deposits and further deposits paid by the plaintiff in the sums of $525,000 and $593,000.

Background

3.  By a Provisional Agreement for sale and purchase dated 11 June 2010 (“the Agreement”) the plaintiff agreed to buy and the defendant to sell a property known as Sections B and C of Lot No. 555 in Demarcation District No. 130 Tuen Mun, New Territories (“the Properties”) for $11,180,000. 

4.  Two small village houses were erected on the Properties.

5.  The material terms of the Agreement were as follows:

(a)   initial deposit of $525,000 to be paid upon signing of the Agreement;

(b)   further deposit of $593,000 to be paid upon signing of a formal agreement for sale and purchase on or before 28 June 2010;

(c)   balance of purchase price to be paid upon completion on or before 8 October 2010 at the vendor’s solicitor’s office;

(d)   the Properties to be sold to the purchaser or its nominees free from encumbrances;

(e)   upon completion, the vendor shall deliver vacant possession of the Properties to the purchaser;

(f)   the Properties to be sold on an “as is” basis;

(g)   the vendor warrants that the Properties had the letter of compliance issued by the Government otherwise the purchaser shall be entitled to cancel the transaction and the vendor to return all the deposits within 7 days.

6.  The plaintiff paid the initial deposit of $525,000 upon the signing of the Agreement.

7.  Despite the fact that no formal sale and purchase agreement had been entered into and signed by the parties at all, nevertheless, the plaintiff did pay to the vendor’s solicitors a further deposit of $593,000 on 28 June 2010.

8.  No completion took place on 8 October 2010.

9.  By letter dated 11 October 2010, the defendant alleged that it was entitled to forfeit the initial and further deposits due to the fact that the plaintiff had failed to complete the purchase.

10.  By letter dated 12 October 2010, the plaintiff purported to rescind the Agreement due to the breach of it by the defendant and demanded for the return of the deposit and the further deposit paid by it.

The plaintiff’s case

11.  The plaintiff’s case in a nutshell was that the defendant has failed to show and to give good title and was thereby in breach of the Agreement which was rescinded by the plaintiff by its letter of 12 October 2010.

12.  In this respect, the plaintiff relied at this hearing on two requisitions which the plaintiff says the defendant had failed to answer or to sufficiently answer.  Initially, there was pleaded a third requisition relating to the mortgage memorial no. 105648, but this third requisition was no longer pursued by the plaintiff at the hearing of the Amended Originating Summons.

13.  For the sake of convenience, the two requisitions relied on by the plaintiff in this dispute will, in this Judgment, be referred to as the Illegal Structure Requisition and the Notice at Entrance Requisition.  This would serve to identify those two requisitions now relied on by the plaintiff and distinguish them from other requisitions which had been raised and dealt with in this matter between the solicitors for the parties after the title documents relating to the Properties had been delivered by the defendant to the plaintiff’s solicitors on 30 July 2010.

14.  The Illegal Structure Requisition was raised by the plaintiff by letter dated 5 October 2010, and related to an alleged illegal structure on the Properties.

15.  The Notice at Entrance Requisition was raised by the plaintiff by letter dated 8 October 2010 and related to a notice posted on the entrance of the Properties and the locking up of the gates of the Properties.  The notice posted up at the entrance was to the effect that the Properties belonged to one Wong Fong Man Wai and that nobody would be allowed to enter or to damage the lock else it shall be reported to the police as criminal damage.

16.  It is the plaintiff’s case that both the Illegal Structure Requisition and the Notice at Entrance Requisition have not been satisfactorily dealt with by the defendant such that the defendant has failed to show a good title, and furthermore, that in the circumstances both these matters constitute encumbrances to the Properties such that the defendant could not give a good title to the Properties.

17.  In response to the allegation by the defendant that the requisitions were raised late and therefore out of time by the plaintiff, the plaintiff further relied on waiver by the defendant to the requisitions being out of time.

18.  On this basis the plaintiff says it is entitled to rescind the Agreement and to be paid back the initial and further deposits.

19.  As to its alternative case, that the deposits should be repaid to the plaintiff even if the plaintiff was found to be in breach of the Agreement, this argument is put on the basis that since Clause 7 of the Agreement which is in printed form and provides for forfeiture of deposits upon the purchaser being in breach has been deleted by the parties when the Agreement was signed, there is no contractual basis upon which the defendant can claim for forfeiture of the deposits.

The defendant’s case

20.  The defendant’s case in a nutshell is that firstly, both the requisitions now relied on by the plaintiff were raised out of time by the plaintiff and the plaintiff was not entitled to rely on same.

21.  Secondly, the defendant says that the allegations by the plaintiff in both the requisitions now relied on by the plaintiff were made without substance or objective evidence and even the expert report of the plaintiff lacked a proper basis as to its primary facts that an illegal structure exists at the Properties.

22.  Thirdly, it is said that the plaintiff cannot prove beyond reasonable doubt that the title of the defendant is defeasible.

23.  In the circumstances, the plaintiff cannot substantiate its allegations that the defendant was in breach of the Agreement.

24.  It follows that the plaintiff’s repudiation of the Agreement was wrongful and the defendant is entitled to forfeit all the deposits paid.

The Illegal Structure Requisition

25.  The title deeds relating to the Properties were delivered by the defendant’s solicitors to the plaintiff’s solicitors on 30 July 2010 under cover of a letter of the same date.

26.  Some ten requisitions had been raised by the plaintiff’s solicitors by its letter dated 17 August 2010.

27.  Between that date and 7 October 2010, correspondence flowed between the solicitors for both parties dealing with those requisitions raised. 

28.  By its letter dated 5 October, the plaintiff’s solicitors raised for the first time the Illegal Structure Requisition as follows:

“Further, we are instructed to raise further requisitions as follows:

1a. Illegal structure

We are instructed that our client discovered that there is a structure appended to the house erected on lot 555C.  The structure is used as a kitchen.  Our client suspects that it is an illegal structure.  Kindly produce documentary evidence showing that the said structure is authorized.”

29.  By its letter dated 6 October 2010, the defendant’s solicitors answered as follows:

“1a. Since there is no indication that the said structure is regarded as illegal structure, your concern is unsound and without basis and so your request will not be entertained.”

30.  The plaintiff’s solicitors followed up by letter dated 7 October 2010 as follows:

“1a. We join issue with you. We are instructed that it is very obvious that the structure was an add-on squatter. Our request is maintained.”

31.  By letter dated 8 October 2010, the defendant’s solicitors replied as follows:

“1a. We do not agree that the alleged structure is an add-on squatter. Unless it is proved that the said structure is illegal structure and our client is obliged to remove the same, you allegation is a bare assertion and the Vendor is not obliged to answer. In the meantime, your client agrees that the Property be sold on an ‘as-is’ basis, and your client is well aware of the said structure at the time of inspection and no objection has ever been raised upon the signing of the Provisional Agreement, you client has agreed to accept the said structure and no requisition shall be raised.”

32.  Thereafter, no further correspondence was exchanged between solicitors in relation to the Illegal Structure Requisition. The next letter was that from the defendant’s solicitors dated 11 October 2010 to the effect that since the plaintiff had failed to complete, the defendant was entitled to forfeit the initial and further deposits.

Notice at Entrance Requisition

33.  By letter dated 8 October 2010 the plaintiff’s solicitors wrote to the defendant’s solicitors as follows:

“We refer to the above matter and are instructed as that your client is unable to deliver vacant possession of the above property to our client or that there is a third party asserting her interest to the above property.

We are instructed that our client paid a visit to the above property today and found out that the gate/entrance to the property was locked up by chains and there was a notice posted on the gate/entrance claiming that the property belonged to Wong Fong Man Wai and that nobody would be allowed entry or damage the lock otherwise a report would be made to the police for criminal damage. Enclosed please find pictures of the gate and the notice for your reference.

In the circumstances we demand immediately return of all deposits paid.”

34.  Enclosed with that letter was a photograph taken of the entrance gate with the notice posted thereat. 

35.  That notice was in Chinese the agreed translation of which is:

“This lot is the private property of Wong Fong Man Wai. No unauthorized person shall be entitled to enter or damage the lock otherwise it shall be regarded as criminal damage and will be prosecuted.”

36.  By letter of the same date (i.e. 8 October 2010) the defendant’s solicitors replied as follows:

“We now refer to your letter today and would like to inform you that since the completion has not yet taken place, your allegation that our client is unable to deliver vacant possession is without basis. Please note that our client is only obliged to deliver vacant possession to your client upon completion.

As to your allegation that the entrance to the Property was locked up, we are instructed to inform you that apart from such entrance, there are still many entrances which can get access to the Property. Without any specification on what property/area that the said Notice is referred to, your allegation that there is a third party’s interest is totally unfound.

We stress that all your requisitions have been satisfactorily answered and your client is obliged to complete the purchase of the Property today.  Failure to complete will no doubt constitute a breach of the Provisional Agreement and all our client’s rights would be reserved.”

37.  Thereafter, there were no further exchanges between the solicitors for the parties on the Notice at Entrance Requisition apart from the allegations and cross allegations relating to the breach of the Agreement and their respective claims and/or demands for either the return or forfeiture of the deposits.

The evidence

38.  In addition to the matters raised by the parties above in their dispute, the plaintiff adduced expert evidence in the form of a report prepared by one W.K. Poon, an Authorized Person and Structural and Geothechnical Engineer dated 12 January 2011.  The report has by way of attachment to it two attached plans and photographs.

39.  The report is to the effect that Mr Poon had paid a site inspection to the Properties on 8 January 2011 and found two separate illegal structures attached to the Properties.

40.  The first illegal structure is described in the report as:

“A one storey structure erected between a fence wall and the western side of the village house. The structure is an attachment to the village house, with metal cover sheetings supported on the fence wall and on the external walls of the village house. The structure was built to cover the open space between the fence wall and the external walls of the village house.

41.  The second illegal structure was stated in the report to be:

“A metal cover sheeting erected on the roof floor covering the second floor balcony.”

42.  It was also stated in the report by W.K. Poon that :

“I am unable to trace and inspect any record detail plans of the village house and the said structures. Based on my knowledge and experience of an Authorized Person and a Registered Structural Engineer, I believe that the above structures were built without Government’s approval or acceptance, and therefore they are illegal structures.”

43.  The photographs and two plans attached to the report shows the exact positions of the two illegal structure referred to in the report.

44.  No expert report was adduced into evidence by the defendant to counter or challenge the allegations made by W.K. Poon in his report and no evidence was adduced by the defendant to show that the two structures referred to in the report of W.K. Poon were authorized.

Decision

45.  Dealing first with the Illegal Structure Requisition, this was first raised by the plaintiff, by way of requisition, in its solicitor’s letter dated 5 October 2010.

46.  Given that the time for completion was fixed for 8 October 2010, the raising of this requisition was only 3 days before completion date.

47.  The general rule is that where the agreement is silent as to the time for making requisitions, requisitions ought to be made within a reasonable time.  What was reasonable was a question of fact to be determined having regard to all the circumstances of the case including when the title deeds were delivered and the time for completion.  The well-established conveyancing practice was that reasonable time for raising requisitions was anytime which was 14 days prior to the date of completion (see Goldmax Ltd v Edward Wong Finance Co. Ltd [2006] 2 HKLRD 795).

48.  In the present case, there can be no question but that the Illegal Structure Requisition was on the face of it a late requisition.

49.  However, that is not the end of the matter, for when faced with a late requisition, a vendor has certain options opened to it. Firstly, he may insist on his rights not to answer the late requisition, but in so doing runs the risk that if he was wrong about the requisition being out of time, he would be in breach of his duty to answer even if he had a good answer to offer.  Secondly, he may choose to answer the requisition, in which case he is deemed to have waived his rights as regards the requisition being out of time.  Thirdly, and this is usually the preferred option, the vendor may answer the late requisition on a without prejudice basis (see the judgment of Deputy Judge A. To (as he then was) in Goldmax Ltd v Edward Wong Finance Co. Ltd (ibid) at page 804 para. 19).

50.  Indeed, the late Jerome Chan J had this to say in the case of Ultra Eternal Ltd v Liu Tai Cheong [1997] 1 HKC 258 at 267:

“It is advisable that solicitors should avoid answering out-of-time requisition ‘as a matter of courtesy’. Any reply to such invalid requisitions, if not accepted as a properly raised requisition, should only be ‘answered’ subject to very clear statement that such answer was to be wholly without prejudice to the rejection of such requisition on ground of lateness. Such a warning can also be found in Emmet on Title (19^th ed.) para. 5080.”

51.  Coming back to the present case, while admittedly, the Illegal Structure Requisition was raised late in the day by the plaintiff, the defendant’s solicitors answered that requisition without in the least raising any objection to its lateness.  Neither did the defendant’s solicitors subject that answer to a clear statement that the answer was given on a without prejudice basis due to its lateness.

52.  On that last point of answering on a “without prejudice” basis, it was argued at the hearing by counsel for the defendant that the defendant’s solicitors did answer the Illegal Structure Requisition on a “without prejudice” basis.  In that respect, reliance was placed on the words “Without Prejudice to the Provisional Agreement” which appear on the top right hand side of both letter from the defendant’s solicitors dated 6 and 8 October 2010.

53.  I am unable to accept that argument of the defendant for the following reason.

54.  Those words “Without Prejudice to the Provisional Agreement” appear consistently in all of the letters of the defendant’s solicitors when answering the requisitions raised by the plaintiff’s solicitors, including those letters dated 17 August, 2 September and 21 September 2010 when the earlier requisitions being answered were not raised out of time.

55.  Therefore the fact that those same words appear in the letters of 6 and 8 October 2010 is not and cannot be construed specifically to be a clear statement that the answer given to the Illegal Structure Requisition was to be wholly without prejudice to the rejection of that requisition on the ground of lateness.

56.  On the facts of this case, the only conclusion that can be arrived at looking at the wording of the answers given by the defendant’s solicitors to the Illegal Structure Requisition raised by the plaintiff’s solicitors, albeit late, was that the defendant had waived its rights as to the lateness of that requisition by choosing to answer same without reserving its rights as to the requisition being out of time.  As such the defendant cannot now be heard to complain that the Illegal Structure Requisition was raised out of time.

57.  Turning now to deal with whether the Illegal Structure Requisition had been sufficiently answered by the defendant and/or whether the plaintiff’s allegation of illegal structure can be substantiated.

58.  In this respect, the plaintiff seek to rely on the expert report of W.K. Poon.

59.  In that expert report, W.K. Poon comes to the conclusion that the two structures referred to therein were illegal structures by drawing the inference that because those two structures were attachments constructed by way of metal cover sheetings, and therefore not part of the original village house, Mr Poon, from his knowledge and experience believed that those two structures were built without Government approval and therefore illegal structures.

60.  The fact that those two structures were built using metal cover sheetings is clearly shown by the photographs attached to the expert report.

61.  That fact alone gives rise to the clear inference that those two attachments were added on after the village house had been built.

62.  As such, it is incumbent upon the defendant to show that the structures complained of was legally added on with proper authorization or permission from the relevant authorities.

63.  In so far as the Illegal Structure Requisition is concerned, it only related to the first of the two illegal structures referred to in the expert report of W.K. Poon.

64.  In this respect it is to be noted that clause 18 of the Agreement (which was added on in hand written form) provides as follows:

“The Vendor warrants that the Property had obtained letter compliances issued by the Government otherwise the Purchaser shall be entitled to cancel the transaction and the Vendor has to return all the deposits within 7 days.”

65.  In the absence of any such evidence or any expert evidence from the defendant, the inference that the structures were illegal has not been rebutted nor has the Illegal Structure Requisition been satisfactorily answer.

66.  It was also submitted by counsel for the defendant that the plaintiff cannot prove beyond reasonable doubt that the title of the defendant is defeasible (para. 61(4) of Defendant’s Skeleton Submission refers).

67.  In so submitting, counsel for the defendant relied on the following passages stated in para. 13.08 of the Annotated Ordinances of Hong Kong/Conveyancing and Property Ordinance, Cap 219 as follows:

“The court should uphold a vendor’s assertion of good title if it is satisfied beyond reasonable doubt that a purchaser would not be at risk of a successful challenge to that title…. Where the court is satisfied beyond reasonable doubt that a blot on the title of the vendor would not give rise to litigation by interested persons, the court will hold that good title is shown and can be forced on a purchaser.”

68.  However, that submission by counsel for the defendant that the plaintiff cannot prove beyond reasonable doubt that the title of the defendant is defeasible can only be due to a thorough misunderstanding and misapprehension of the passage relied upon.

69.  The law is quite clear that the burden is on the vendor (and not on the purchaser as has been suggested by counsel for the defendant) to prove a good title to the very high standard of proof beyond reasonable doubt that the purchaser will not be at risk of a successful assertion against him of an incumbrance (see MEPC Ltd v Christian-Edwards [1981] AC 205 at 220).

70.  To assess whether a risk is real or unreal, the test to be applied was laid down by Godfrey JA in Spark Rich (China) Ltd v Valrose Ltd [2006] 2 HKC 589 at para. 22:

“… if the purchaser asks his solicitors: ‘Can I be sure that I can safely disregard the risk?’ then, unless his solicitor (being a prudent and experienced solicitor) can properly advise him that he can, the purchaser cannot be obliged to accept the vendor’s title, even if supplied by the vendor with opinion evidence to the effect that action by the Building Authority was unlikely.”

71.  Moreover, where the risk of action being taken in relation to the presence of an unauthorized structure may be safely disregarded by the purchaser, it was observed by Godfrey JA in conclusion that such cases were likely to be rare. 

72.  Applying the above to the present case, not only has nothing been put forward by the defendant as being a valid basis for saying that the plaintiff would not be at risk of any action being taken by the Building Authority given the presence of the illegal structures, but also bearing in mind that the burden upon the defendant in this respect is a heavy one, to the extent of proving beyond reasonable doubt.

73.  In any event, as observed by Godfrey JA, such cases where unauthorized or illegal structure may be safely disregarded by the purchaser must be rare.

74.  Given all the circumstances of the present case, the defendant has not proven beyond reasonable doubt that the illegal structures on the Properties would not run the risk of removal action by the Building Authorities.

75.  I should also deal with one further point, which, although not argued by counsel for the defendant at the hearing, was nevertheless raised in the answer by the defendant’s solicitors to the Illegal Structure Requisition.

76.  In their letter dated 8 October 2010, the defendant’s solicitors stated that the Properties were sold on an “as-is” basis, and no objection has been raised upon the signing of the Argument, thus the plaintiff has agreed to accept the said structure.

77.  It is trite law that a provision for the sale of a property on an “as-is” basis refers to its physical state and does not, in the absence of clear language, extend to illegal structures (see judgment of Le Pichon JA in All Posts Holdings Ltd v Grandfix Ltd [2001] 2 HKLRD 630 at 642, 643).

78.  In the present case, clause 11 of the Agreement merely states as follows :

“The said premises is sold to the Purchaser on as ‘as is’ basis.”

It is therefore quite clear that the language used in clause 11 cannot and does not extend sufficiently to cover illegal structures.  Accordingly, clause 11 does not avail the defendant.

79.  I turn now to deal with the Notice at Entrance Requisition.

80.  The first point to note is that this requisition was first raised by the plaintiff by letter dated 8 October 2010, the very day set for completion.  However, in that letter it was stated quite clearly that it was only as a result of a visit by the plaintiff to the Properties on that very day that the plaintiff came to know of such notice posted at the entrance to the Properties.

81.  It was therefore a matter which could not have been raised by way on requisition at an earlier time by the plaintiff.  In that sense, the plaintiff cannot be said to have been out of time with this requisition.

82.  Moreover, even if the Notice at Entrance Requisition was late, the defendant has chosen to answer the requisition without any clear statement that the answer was given without prejudice to its rights to object to the requisition being out of time, as in the case of the Illegal Structure Requisition, and therefore has waived it’s right to object to the Notice at Entrance Requisition being out of time.

83.  It was argued by the defendant that this was not raised properly as a requisition by the plaintiff but was merely an assertion by the plaintiff.

84.  I do not accept that submission.  While it may be true that the claim by the plaintiff in its solicitor’s letter of 8 October 2010 may be slightly off the mark in so far as the plaintiff alleges that the defendant cannot deliver vacant possession of the Properties, however, it is clear from a full reading of that complaint raised by the plaintiff that the plaintiff was in fact complaining as to the fact that there was a third party claiming to have an interest in the Properties, and that such claim by the third party tantamount to an encumbrance on the title of the Properties. 

85.  The duty therefore is upon the defendant to remove such encumbrance and to show that the defendant has a good title to the Properties.

86.  In the purported answer to this requisition raised, the defendant’s solicitors have merely dealt with the first part of the complaint as to being able to give vacant possession upon completion, and also that there are other entrances apart from the locked gate.  That answer has totally failed to deal with the claimed interest by the third party.

87.  It was also submitted by the plaintiff at the hearing that there was no risk of any claim by any third party, since there was no registration of any third party’s interest in the coveyancing documents registered at the Land Registry.

88.  That may be so but once the plaintiff was made aware of the notice posted at the entrance to the Properties together with the chain and lock on the gates, the plaintiff would have been put on notice of such a claim by a third party, whether that claim by the third party could or could not be substantiated in future.

89.  In those circumstances, the plaintiff would be entitled to a proper and satisfactory answer from the defendant by which the anticipated encumbrance can be removed and that the plaintiff can be reasonably satisfied that the defendant is able to show and give a good title to the Properties.

90.  This is all the more so since the name of “Wong Fong Man Wai” appears from the Land Search record to be the name of the Administratrix of the estate of Wong Hansan Henry, deceased, and from that record was shown to be formerly an owner of the Properties in her capacity as an administratrix on the strength of an instrument dated 5 December 1977 and registered in the Land Registry on 17 January 1978.  Furthermore, it is also apparent from the search record that the Properties became embroiled in litigation in High Court Action No. 9770 of 1978 and an Amended Defence and Counterclaim in that action was registered against the Properties on 2 July 1980.  However, no specific details can be seen from the search record as to what the litigation or dispute was.

91.  In the absence of any steps being taken by the defendant to answer the requisition raised apart from saying only that it was in a position to give vacant possession of the Properties, which really goes no further than the physical state of the Properties, the plaintiff has not been given any assurance as to title or the absence of encumbrance thereon in respect of this requisition raised by the plaintiff.

92.  In the circumstances, I hold that the defendant has failed to satisfactorily deal with and answer the Notice at Entrance Requisition raised by the plaintiff and has therefore failed to show a good title to the Properties.

93.  A further point maintained by the defendant was that the notice posted at the entrance to the Properties and now relied on by the plaintiff in the Notice at Entrance Requisition was something which the defendant is entitled to believe to have been done by the plaintiff to wriggle out of the Agreement.

94.  That is an allegation which is wholly unsubstantiated by any evidence whatsoever, and I have no hesitation in rejecting same.

95.  Based on the conclusion which I have come to above, the Illegal Structure Requisition and the Notice to Entrance Requisition have not been satisfactorily answered by the defendant and that the defendant has accordingly failed to show or give a good title to the Properties.

96.  Accordingly, the failure to complete can be attributed to the above failure of the defendant and who is therefore in breach of the Agreement which breach entitled the plaintiff to rescind the Agreement.

97.  Moreover, it becomes unnecessary for me to adjudicate on the alternative case of the plaintiff which is put forward only if the plaintiff was in breach of the Agreement.

98.  Accordingly, there will be the following declarations sought by the plaintiff:

(a)   that the defendants have not satisfactorily answered the Illegal Structure Requisition and the Notice at Entrance Requisition;

(b)   that the defendant has failed to show and/or give good title to the Properties;

(c)   that the defendant has repudiated the Agreement;

(d)   that the plaintiff was entitled to and did rescind the Agreement by its solicitor’s letter dated 12 October 2010;

and the following further orders:

(e)   that the defendant forthwith return to the plaintiff the initial deposit of $525,000 and the further deposit of $593,000 paid by the plaintiff to the defendant pursuant to the Agreement; and

(f)   all loss and damage suffered by the plaintiff as a result of the said breach of the Agreement by the defendant including the plaintiff’s legal costs of investigating title to the Properties and stamp duties paid to be assessed.

Costs

99.  There will be a costs order nisi that the defendant pays to the plaintiff the plaintiff’s costs of and incidental to this application to be taxed if not agreed.