LAI YAU FOON v. WONG TIN CHEUNG AND OTHERS

DCMP46/2021

[2025] HKDC 1944

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 46 OF 2021

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JUDGMENT

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A.  Introduction

1.  This action arises out of the sale and purchase of a property known as “1 Kan Tau Wai, North, New Territories” at Section A of Lot No  1433 in DD 82 (“Property”), upon which a house was built (“House”).

2.  The Plaintiff was the purchaser. The 3^rd and 4^th Defendants were the vendors. As will be further explained in the following paragraph, only the Plaintiff and the 3^rd Defendant were the participating parties in the trial that commenced on 15 October 2025.

3.  With respect to the remaining Defendants:

(1)  On or about 20 June 2022, the Plaintiff discontinued the action against the 2^nd Defendant (“All occupier(s) of Section A of Lot No 1433 in Demarcation District No 82, No 1 Kan Tau Wai, North, New Territories”).

(2)  On or about 24 August 2022, the 4^th Defendant’s defence was struck out and interlocutory judgment on liability was entered against him. Further, the following subsequent development occurred:

(a)  The 4^th Defendant passed away before the commencement of the trial.

(b)  On 29 September 2025, the Plaintiff applied for a carry-on order, whereby Madam Wong Yuk Lan (“Madam Wong”), the personal representative of the 4^th Defendant’s estate, was made a party to this action.

(c)  On the first day of the trial (15 October 2025), Madam Wong appeared in person. The court adjourned the case to 20 October 2025 to allow her time to seek legal advice and to indicate to the court and the other parties: (i) whether she intended to challenge the interlocutory judgment against the 4^th Defendant; and (ii) if she did not intend to challenge the said interlocutory judgment, whether she wished to participant in the trial regarding the assessment of damages.

(d)  On 20 October 2025, Madam Wong appeared before the court and, after being made aware of her rights, she indicated that she did not wish to take part in these proceedings, either to dispute liability or quantum. She also understood that the court may proceed in her absence and make orders against the 4^th Defendant/her.

(3)  So far as the 1^st Defendant was concerned, the Plaintiff and the 1^st Defendant reached a settlement shortly before the trial commenced. The proceedings between the Plaintiff and the 1^st Defendant were stayed upon the following terms:

“In full and final settlement of the claim and counterclaim between the Plaintiff and the 1^st Defendant in these proceedings:

(1) The Plaintiff warrants and undertakes to the Court and to the 1^st Defendant that, the property registered in the Land Registry as Section A of Lot No 1433 in DD 82 (“the Property") has no other incumbrances not shown in the land search annexed hereto, and prior to the transfer per paragraph 2 below the Plaintiff shall not cause any further incumbrances to the Property;

(2) Within 3 months from the date of the Order to be made:

(a) The 1^st Defendant shall pay the sum of HK$1,550,000.00 to the Plaintiff;

(b) The Plaintiff shall execute an assignment to transfer and assign all his shares and interest of and in the Property, including but not limited to its legal title, to the 1^st Defendant and/or a person appointed by the 1^st Defendant, at no further consideration other thau such sum as stated in sub-paragraph (a) above;

(c) Upon completion of the assignment in sub-paragraph (b) above, the Plaintiff shall deliver all title deeds of the Property to the 1^st Defendant;

(d) Each party shall bear its own costs and disbursements including legal costs of and incidental to the conveyance and assignment of the Property;

(e) Any stamp duty, if so adjudged or incurred, shall be borne solely by the 1^st Defendant and/or the person appointed by him as the assignee.

(3) Within 28 days from the assignment of the Property prescribed in paragraph 2 above, the Plaintiff and the 1^st Defendant shall make a joint application to the Court by way of Consent Summons for the following orders:

(a) The Plaintiff’s claim against the 1^st Defendant be dismissed;

(b) The 1^st Defendant's counterclaim against the Plaintiff be dismissed;

(c) There be no order as to costs of the action and this application as between the Plaintiff and the 1^st Defendant, including all costs reserved;

(4) ;The 1^st Defendant shall provide a waiver signed by the 1^st Defendant’s solicitors on behalf of the 1^st Defendant within 7 days of the Order to be made herein, to allow, permit, and enable the Plaintiff to refer to and exhibit this Consent Summons, including this Schedule, and any Order to be made by the Court in pursuance thereof, in her witness statement(s) and testimony in these proceedings against parties other than the 1^st Defendant, and for any purposes directly in connection thereof.”

4.  At the trial, the Plaintiff was represented by Mr Samuelson Choi and the 3^rd Defendant was represented by Mr Anson Tso and Mr Victor Lau.

B.  Factual Background

5.  The Plaintiff’s husband, Mr Yuen, was a long-time friend of one Mr Wong Tze Lin (“Lin”), the brother of the 3^rd Defendant. In or about June 2017, the Plaintiff and Mr Yuen learned of the Property through Lin.

6.  In or about late June or July 2017, the Plaintiff and Mr Yuen visited the Property with, inter alia, the 3^rd Defendant and Lin.

7.  On or about 3 July 2017, the Plaintiff and the 3^rd and 4^th Defendants signed the preliminary sale and purchase agreement.

8.  On or about 10 May 2018, the Plaintiff and the 3^rd and 4^th Defendants entered into a formal sale and purchase agreement (“Agreement”), which contained, inter alia, the following terms:

(1)  Clause 2 and Schedule 6 provided that the purchase price shall be HK$2,000,000 (“Purchase Price”).

(2)  Clause 4 provided for the delivery of vacant possession.

(3)  Clause 22 was related to third party rights.

(4)  Clause 38 provided that the Agreement set out the full agreement between the parties.

(5)  The original completion date was stated to on or about 31 May 2018, but there was no dispute that it was postponed to 16 July 2018.

9.  On or about 16 July 2018, the Plaintiff and the 3^rd and 4^th Defendants executed the assignment of the Property. There is no dispute that the balance of the purchase price was duly paid. The Plaintiff, however, was not given vacant possession of the Property or the key to the House, whether on 16 July 2018 or afterwards.

10.  Subsequently, the Plaintiff tried to recover the possession of the Property. The 1^st Defendant, however, claimed adverse possession of the Property/House. At all material times, the Property/House was occupied by the 1^st Defendant.

C.  The Parties’ Cases

11.  The Plaintiff’s case was that:

(1)  The 3^rd Defendant breached Clause 4 of the Agreement by failing to deliver vacant possession of the Property to the Plaintiff;

(2)  The 3^rd Defendant breached Clause 22 of the Agreement by reason of the 1^st Defendant’s adverse possession claim over the Property/House;

(3)  As a result, the Plaintiff suffered loss and damage, which was to be assessed by reference to the difference between (a) HK$2,000,000 (ie the Purchase Price), and (b) HK$1,550,000 (ie the price that she was going to receive from the 1^st Defendant under the settlement).

12.  The 3^rd Defendant’s case, by the time of closing submissions, was as follows:

(1)  There was a total waiver by the Plaintiff regarding the delivery of vacant possession of the Property;

(2)  On the proper interpretation of Clause 22 of the Agreement, the provision was not engaged by reason of the 1^st Defendant’s adverse possession claim over the Property/House; and

(3)  In any event, the dispute between the Plaintiff and the 3^rd Defendant was settled.

13.  For the reasons above, the issues between the Plaintiff and the 3^rd Defendant can be summarised as follows:

(1)  Whether the 3^rd Defendant breached Clause 4 of the Agreement, and whether there was a total waiver by the Plaintiff regarding the delivery of vacant possession of the Property (“Vacant Possession Issue”);

(2)  Whether the 3^rd Defendant breached Clause 22 of the Agreement by reason of the 1^st Defendant’s adverse possession claim over the Property/House (“Third Party Claim Issue”);

(3)  Whether the dispute between the Plaintiff and the 3^rd Defendant was settled in any event (“Settlement Issue”); and

(4)  If the 3^rd Defendant is found to have breached the Agreement, what is the appropriate amount of damages for which he is liable (“Damages Issue”).

D.  The Evidence

14.  At the trial:

(1)  The Plaintiff and Mr Yuen gave oral evidence and was cross-examined;

(2)  The 3^rd Defendant also gave oral evidence and was cross-examined; and

(3)  The 3^rd Defendant had prepared the witness statement of Madam Yeung Koon Tai, the mother of the 3^rd Defendant. However, she subsequently decided not to give oral evidence. The 3^rd Defendant did not seek to rely on her witness statement.

15.  The relevant principles in assessing the creditability of witnesses are summarised by DHCJ Eugene Fung SC (as he then was) in Hui Cheung Fai v Daiwa Development Ltd (unreported) HCA 1734/2009, 8 April 2014) as follows:

“76. In making my findings of fact in this case, I am guided by a number of general principles which judges apply as to fact finding and the assessment of credibility.

77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce). …

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’s credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36–37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

‘ Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination. They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud) have been made by the Son against the defendants.

83. In approaching the evidence in this case, I have also borne in mind that the allegations made by the Son are very serious, and that the more serious the allegation sought to be proved is, the more cogent the evidence relied upon to support it must be: see Re H (Minors) [1996] AC 563at 586D-587F (Lord Nicholls) and ADS v Brothers (2000) 3 HKCFAR 70 at 77J-78G (Lord Hoffmann NPJ).”

16.  With the above principles in mind, I turn to the present case.

E.  Vacant Possession Issue

17.  Clause 4 of the Agreement provided that:

“…vacant possession of the Property together with the Furniture and Fixtures shall be delivered to the Purchaser by the Vendor on completion.”

18.  The Plaintiff’s case was straightforward. There was no dispute that the 3^rd Defendant never delivered vacant possession of the Property to the Plaintiff, whether on completion or afterwards. As a result, the 3^rd Defendant breached Clause 4 of the Agreement.

19.  The 3^rd Defendant’s defence was that the Plaintiff had totally waived the 3^rd Defendant’s obligation to deliver the vacant possession of the Property (in the sense of waiving both the Plaintiff’s right to terminate the Agreement and to claim damages in case of breach). To be more specific, the 3^rd Defendant appeared to contend that the Plaintiff had totally waived not just the timing of delivering the vacant possession of the Property (ie on completion), but the obligation of delivering vacant possession itself. According to the 3^rd Defendant, the Plaintiff was content to negotiate with the 1^st Defendant by herself to obtain the vacant possession of the Property.

20.  In this regard, the 3^rd Defendant relied on the following matters:

(1)  When the Plaintiff and Mr Yuen first visited the Property in late June or July 2017, they already knew that the 1^st Defendant’s personal belongings were stored in the House and the 3^rd Defendant did not have the key to the House. At all material times, the Plaintiff and Mr Yuen understood that vacant possession would only be delivered by the 3^rd Defendant/Lin after completion.

(2)  The Plaintiff (or her agent) further made two representations to the 3^rd Defendant:

(a)  Before signing the Agreement, the 3^rd Defendant had a telephone conversion with Mr Wong Yuet Ming (“Mr Wong”), a clerk of T K Tsui & Co, solicitors for the Plaintiff in the conveyancing transaction. The 3^rd Defendant asked during the said telephone conversation whether the Plaintiff intended to sign the Assignment at the Property, Mr Wong replied that the Plaintiff did not intend to do so. The 3^rd Defendant was of the view that signing the Agreement at the Property would offer another opportunity for the Plaintiff to inspect the House again. By not insisting to sign at the Property, the 3^rd Defendant believed that the Plaintiff did not insist on having vacant possession at the time of completion.

(b)  A representation by conduct via Mr Yuen’s giving instruction to the Plaintiff’s solicitors to transfer the balance of the purchase price (HK$1,800,000) to vendors.

21.  I am not satisfied that the 3^rd Defendant had made out his defence. 

22.  First, the matters relied upon by the 3^rd Defendant (see §20 above, particularly the italicised parts) do not support the 3^rd Defendant’s case that the Plaintiff had totally waived the obligation of delivering vacant possession itself. At its highest, they amount to a contention that the Plaintiff waived the timing of delivering the vacant possession of the Property (ie on completion), but the 3^rd Defendant remained obligated to deliver vacant possession of the Property within a reasonable time after completion. Mr Tso (who appeared on behalf of the 3^rd Defendant) fairly accepted that.

23.  As it was undisputed that the vacant possession of the Property was never delivered to the Plaintiff, the 3^rd Defendant’s defence of total waiver does not assist him.

24.  In any event, it is trite law that the operation of total waiver depends on a “clear and unequivocal representation”. See Treitel, The Law of Contract (16^th Ed), at [18-090].

25.  In the present case, regarding the first representation relied upon by the 3^rd Defendant:

(1)  The 3^rd Defendant originally stated in his witness statement that:

“Before signing the Assignment, Mr. Wong Yuet Ming, clerk to T. K. Tsui & Co. Solicitors informed me that he asked Plaintiff whether she would insist on having vacant possession at completion, knowing that the 1^st Defendant's personal belongings were still in the House. Plaintiff answered she did not need vacant possession.”

(2)  Under cross examination, the 3^rd Defendant said something quite different: the discussion between Mr Wong and himself was only about whether the signing of the Assignment should take place at the Property, and Mr Wong did not tell him that the Plaintiff did not need vacant possession on completion. The 3^rd Defendant himself, however, subjectively believed or understood that by not insisting to sign at the Property, the Plaintiff did not insist on having vacant possession at the time of completion.

(3)  Apart from a bare assertion, no supporting document was produced to support the original or revised form of the 3^rd Defendant’s evidence.

(4)  The 3^rd Defendant also claimed that Mr Wong sent him a WhatsApp message before signing the Assignment. He, however, did not produce the said message.

26.  In these circumstances, I do not consider that I can place any reliance on the 3^rd Defendant’s evidence as to whether the alleged conversation between the 3^rd Defendant and Mr Wong ever took place, or as to whether its contents were in their original or revised form. I am therefore not satisfied that the 3^rd Defendant can rely on the 1^st representation.

27.  With respect to the second representation relied upon by the 3^rd Defendant:

(1)  Mr Yuen’s instruction to the Plaintiff’s solicitors to transfer the balance of the purchase price (HK$1,800,000) to vendors was merely performing the Plaintiff’s obligation under the Agreement. I am not satisfied that the act, by itself, constituted a waiver of the Plaintiff’s right to vacant possession.

(2)  Even if taking into account the factual context relied on by the 3^rd Defendant, namely the Plaintiff and Mr Yuen at all material times understood that vacant possession would only be delivered after completion, as explained at §22 above, the aforesaid act, at its highest, amounted to a representation that the Plaintiff waived the timing of delivering the vacant possession of the Property (ie on completion), but the 3^rd Defendant remained obligated to deliver vacant possession of the Property within a reasonable time after completion. As explained at §23 above, this does not assist the 3^rd Defendant.

28.  Taking a step back and looking at the factual circumstances as a whole:

(1)  There was no dispute that the Plaintiff and Mr Yuen purchased the Property for their own accommodation (and the 3^rd Defendant was aware of this). Objectively viewed, it could not have been the Plaintiff’s intention to purchase the Property without vacant possession and to assume the responsibility to negotiate with the 1^st Defendant for vacant possession afterwards. No reasonable purchaser would do that.

(2)  Mr Tso faintly suggested that the Property was a good deal to the Plaintiff, which explained her unusual move. In my view, even assuming the Property was a good deal to the Plaintiff, the evidence as a whole does not support the 3^rd Defendant’s contention that the Plaintiff was willing to bear such an exceptional risk.

(3)  Mr Tso’s suggestion is also contrary to the 3^rd Defendant’s own evidence. Under cross-examination, he accepted that after the first visit of the Property in late June or July 2017, the understanding of all parties was that he, rather than the Plaintiff/Mr Yuen, would be responsible for asking the 1^st Defendant to leave and remove his personal belongings. In my view, this was indeed the parties’ understanding at all material times.

29.  For these reasons, I reject the 3^rd Defendant’s defence of total waiver and find that the 3^rd Defendant breached the Agreement by failing to deliver vacant possession to the Plaintiff.

F. Third Party Claim Issue

30.  Clause 22 provided that:

“The Vendor hereby declares and warrants that no third party (whether related or otherwise) has any right or interest whatsoever, whether legal or equitable, in the Property. The Vendor further declares and confirms that the Vendor is the sole and beneficial owner of the Property and has the absolute right and interest in the Property and that it is purchased with the Vendor’s own money. In the event of any third party claims to the Property, whether legal or equitable, the Vendor shall forthwith return the said deposit and all other monies paid herein (if any) to the Purchaser and without prejudice to the Purchaser's right to claim against the Vendor for all losses and damages sustained by the Purchaser by reason of the Vendor's failure and/or inability to complete the sale in accordance with the terms hereof and it shall not be necessary for the Purchaser to tender an Assignment to the Vendor for execution and this clause shall survive completion of the sale and purchase herein. The Purchaser has been advised by its solicitors that it should make its own enquiry with the occupiers of the Property to verify the above declaration and warranty of the Vendor prior to completion and the Vendor shall assist the Purchaser in such manner as shall be reasonably requested by the Purchaser in making such enquiry.”

31.  The 3^rd Defendant contended that Clause 22 provides no assistance to the Plaintiff for the following reasons:

(1)  There was no breach of either the first or second sentence of Clause 22. While the 1^st Defendant made a claim of adverse possession of the Property/House, such claim was not established in court. Without such proof, the first and second sentences of Clause 22 were not engaged.

(2)  While the third sentence of Clause 22 referred to the “claims” of a third party, it was concerned with the situation where the parties did not complete the sale. As the parties completed the sale in the present case, the third sentence was again not engaged.

32.  However, it seems to me that arguably, Clause 22 should be interpreted as a whole and taking into account its purpose of providing a warranty to the purchaser that the Property is free from any third party right or interest whatsoever. In this connection, the phrase “no third party (whether related or otherwise) has any right or interest whatsoever, whether legal or equitable, in the Property” should arguably refer not only to those rights or interests that have been proved in court, but also any genuine (as opposed to fanciful) third party claim.

33.  The 3^rd Defendant cited City Chain Properties Ltd v Speedy Port Ltd(HCA 2221/1998, unreported, 7 November 2001). In my view, the case is distinguishable.

(1)  In City Chain, Clause 27 of the formal agreement provided as follows:

“The Vendor hereby declares and confirms that no third party (whether related or otherwise) has any right or interest whatsoever, whether legal or equitable, in the Property. …

In the event of any valid third party claim to the Property, whether legal or equitable which shall remain unresolved, on or before completion the Vendor shall then forthwith return all the deposit and all monies paid hereunder or under any other agreement made between the parties and without prejudice to the Purchaser’s right to claim against the Vendor for all losses and damages sustained by the Purchaser by reason of the Vendor’s failure and or inability to complete the sale in accordance with the terms hereof and it shall not be necessary for the Purchaser to tender an Assignment to the Vendor for execution. This clause shall survive completion.”

(2)  As held by Sakhrani J:

(a)  According to the defendant’s pleaded case, the operators of the wall stalls were trespassers/occupiers without licences (see §§50-51).

(b)  Being mere trespassers, the operators of the wall stalls did not acquire any right or interest (whether legal or equitable) to the wall stalls (see §51).

(c)  In the circumstances, it could not be disputed that there was no valid third party claim to the Property. As a result, there was no breach of Clause 27 by the plaintiff. The defendant failed to establish the breach on its pleaded case (see §51).

(3)  In the present case, while the 1^st Defendant’s adverse possession claim was not proved in court because of the settlement between the Plaintiff and the 1^st Defendant, it cannot be seriously disputed that the 1^st Defendant’s adverse possession claim appeared to be genuine (as opposed to fanciful).

34.  As I have already concluded, with respect of the Vacant Possession Issue, that the 3^rd Defendant breached the Agreement by failing to deliver vacant possession to the Plaintiff, it is, strictly speaking, not necessary for me to come to a final determination on this issue. While I consider that the phrase “no third party (whether related or otherwise) has any right or interest whatsoever, whether legal or equitable, in the Property”, as explained at §32 above, arguably encompasses not only to those rights or interests that have been proved in court, but also any genuine (as opposed to fanciful) third-party claim, I prefer to rest my decision on the Vacant Possession Issue.

G. Settlement Issue

35.  There was no dispute between the parties that the 3^rd Defendant paid HK$200,000 to the Plaintiff on or about 4 July 2019. The issue between the parties was whether their dispute had thereby been settled.

36.  According to Mr Yuen, the 1^st Defendant originally demanded HK$600,000 for settlement in 2019. The Plaintiff/Mr Yuen was only willing to provide HK$300,000, with HK$200,000 coming from the 3^rd Defendant/Nin and the remaining HK$100,000 coming from the Plaintiff/Mr Yuen. That was why the 3^rd Defendant paid HK$200,000 to the Plaintiff, which was to facilitate the negotiation with the 1^st Defendant.

37.  Subsequently, however, the 1^st Defendant wanted more. As a result, there was no settlement between the Plaintiff and the 1^st Defendant or the Plaintiff and the 3^rd Defendant. I accept Yuen’s evidence.

38.  In any event, the 3^rd Defendant under cross-examination accepted that there was no settlement between the Plaintiff and the 3^rd Defendant. The 3^rd Defendant’s defence therefore fails.

H.  Damages Issue

39.  The Plaintiff’s case is that as a result of the 3^rd Defendant’s breach, the Plaintiff was forced to enter into the settlement with the 1^st Defendant and has, therefore, suffered loss and damage in the sum of HK$450,000 (ie HK$2,000,000 (the Purchase Price) – HK$1,550,000 (the price to be received from the 1^st Defendant) = HK$450,000).

40.  The 3^rd Defendant argued that there was no expert evidence adduced on the market value of the Property at the time of the Agreement. I disagree that this should impact the amount of damages that the Plaintiff is entitled to recover.

(1)  The Purchase Price stated in the Agreement is prima facie the market price of the Property at the time.

(2)  In any event, on the 3^rd Defendant’s own case, the Property was a good deal to the Plaintiff and therefore the market price of the Property should be higher, and not lower, than the Purchase Price. Consequently, the amount of damages that the Plaintiff is entitled to recover should be higher, and not lower, than HK$450,000.

41.  There is no dispute that the 3^rd Defendant is entitled to set off the sum against the HK$200,000 that he previously paid to the Plaintiff. The balance for which the 3^rd Defendant is liable is, therefore, HK$250,000.

I.  Liability of the 4^th Defendant

42.  As I have mentioned at paragraph 3(2) above, the 4^th Defendant’s defence was struck out and interlocutory judgment on liability was entered against him on or about 24 August 2022.

43.  There is no evidence or submission by the 4^th Defendant/Madam Wong that the amount of damages for which they are liable should be different from that of the 3^rd Defendant.

44.  The remaining issue is whether the liability of the 4^th Defendant should be joint with the 3^rd Defendant or otherwise.

45.  A promise by two persons together is deemed to be joint, unless it is qualified in some way. See: Trietel, The Law of Contract (16^th ed), at [13-003]; Chitty on Contracts (35^th ed), at [20-005]; The Argo Hellas[1984] 1 Lloyd’s Rep 296, at 300, per Leggat J. As the Agreement was entered into by the 3^rd and 4^th Defendants together without qualification, I am of the view that their liability should be joint. 

J.  Disposition

46.  For the reasons above, I made the following orders and/or directions:

(1)  The 3^rd and 4^th Defendants are jointly liable for paying and do pay HK$450,000 to the Plaintiff for her loss and damage;

(2)  There be a costs order nisi that:

(a)  The costs incurred in these proceedings between the Plaintiff and the 3^rd Defendant shall be borne by the 3^rd Defendant, with counsel’s certificate, to be taxed if not agreed; and

(b)  The costs incurred in these proceedings between the Plaintiff and the 4^th Defendant/Madam Wong shall be borne by the 4^th Defendant/Madam Wong, with counsel’s certificate, to be taxed if not agreed.

(3)  The costs order nisi shall become absolute in the absence of any application to vary within 14 days from the date of this judgment.

47.  It remains for me to thank Mr Choi (for the Plaintiff) and Mr Tso and Mr Lau (for the 3^rd Defendant) for their assistance.