SUNLUCK INTERNATIONAL DEVELOPMENT LTD. v. HING KING DEVELOPMENT LTD.

1997, No.MP3160

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H E A D N O T E

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Vendor company ("the Company") the assignee under an assignment of the Property dated 28 May 1993 made pursuant to a contract dated 7 May 1993 - Company identified by its English and Chinese names as well as its registered office - Company unaware that its Chinese name appearing in its company chop and common seal contained two erroneous characters : instead of "投資", the characters read "發展" - only correct reference to Company was in the body of the Assignment - execution clause in Assignment as well as references to the Company in the Agreement were to the incorrect Chinese name - whether the legal estate passed to the Company under the Assignment

Held,

(1) The question is one of identification only and when a difficulty of identification arises under an instrument, evidence is admissible to identify the person mentioned in the instrument. The indicia to be derived from the Agreement and the Assignment includes the Company's registered address and its business registration number. Further, records kept at the Companies Registry show that as at the date of the Agreement and Assignment, there was only one company registered with the English name of the Company that had a Chinese name of "成利國際投資有限公司" (its correct name) and none with a Chinese name "成利國際發展有限公司".

(2) There was no defect in the Company's title as would require a confirmatory conveyance.

1997, No.MP3160

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

(MISCELLANEOUS PROCEEDINGS)

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J U D G M E N T

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1. This Vendor and Purchaser Summons was taken out by the Plaintiff Purchaser Sunluck International Development Limited (成利國際投資有限公司) for various declarations. It entered into a Sale and Purchase Agreement on 5 June 1997 to sell property known as Flat 15, 25th Floor of the Apartment Tower of Convention Plaza ("the Property") to the Defendant. The original completion date has, by agreement, been postponed until after the determination of the present application.

2. The Plaintiff is a limited company incorporated under the Companies Ordinance and registered in Hong Kong. The very narrow issue which arises is whether the legal estate in the Property was conveyed to the Plaintiff by the Assignment dated 28 May 1993 ("the Assignment"). The purchaser under the Assignment was expressed to be "Sunluck International Development Limited （成利國際投資有限公司） with a registered office situate at 2710 China Resources Building, 26 Harbour Road, Hong Kong. The issue has arisen because in the execution clause of the Assignment, the Chinese name appearing on the common seal of the purchaser which was affixed and signed by Madam Lim Kah Im, one of its directors, is (成利國際發展有限公司) and not (成利國際投資有限公司).

3. The nub of the Defendant's submission is that the legal estate remained in the original vendor Hui Chee Lun Paul ("Mr Hui") under the Assignment as a result and that what is required to cure the defect in title is a confirmatory conveyance or assignment by Mr Hui in favour of the Plaintiff. Counsel for the Defendant sought to draw a distinction between non-execution and defective execution by an assignee. He submitted that cases such as Lee Kim-ha v. Yip Moo-chui [1990] HKDLR 29 and Choi Hung Investment Co. v. Chinco Investment Ltd. [1995] 1 HKC 203 are examples of the former and constitute authority for the proposition that non-execution by an assignee does not affect title to property. Defective execution is an entirely different matter and he submitted that in such a case the conveyance must be void.

4. When one looks at the Agreement dated 7 May 1993 ("the 1993 Agreement") pursuant to which the 1993 Assignment was executed, Part II of the First Schedule reads as follows :

" PART II

PURCHASER :

SUNLUCK INTERNATIONAL DEVELOPMENT LIMITED (成利國際發展有限公司) whose registered office is situate at 2710 China Resources Building, 26 Harbour Road, Hong Kong (B.R.No.16874940)"

The 1993 Agreement was signed by Madam Lim Kah Im for and on behalf of "Sunluck International Development Limited (成利國際發展有限公司)".

5. It was contended that the 1993 Agreement compounded the confusion resulting from the discrepancy appearing in the Assignment. In the 1993 transaction , the correct name was only mentioned once but the incorrect name was mentioned three times : the Plaintiff's correct Chinese name was nowhere mentioned in the 1993 Agreement and the only reference to the correct name was in the body of the Assignment but then that Assignment was executed by the same "entity" which was the purported party to the 1993 Agreement. The Defendant submitted that in those circumstances, one could easily get the impression that the correct Chinese name of the Plaintiff was the misnomer and the other "entity" was the true party to the transaction. What had in fact happened was that for reasons unknown to the Plaintiff, its company chop and common seal contained two incorrect characters. Instead of "投資", the characters read "發展". This did not emerge until the requisition was raised in the present case.

6. The question which arises is - who was the purchaser in 1993? It is plainly one of identification. Where a difficulty of identification arises under a deed, evidence is admissible to identify the person mentioned in the instrument. See 12 Halsbury's Laws of England, 4th Edn., para.1497. In Emmet on Title, 19th Edn., it is stated (at ”11.006) as follows :

"... it is not uncommon for parties to be incorrectly described, by accident or otherwise. Where a mistake has occurred, on evidence thereof being given, the court will correct any misdescription: (see Alexander Mountain & Co v. Rumere [1948] 2 KB 436 and Etablissement Baudelot v. RS Graham & Co [1953] 2 QB 271)... 'There can be no doubt that parol evidence as to the identity of a party to a deed is always admissible, but in considering such evidence it is of paramount importance to bear in mind the indicia of identity afforded by the deed itself' (Fung Ping Shan v Tong Shun [1918] AC 403 at p 406) ...

Where a person or a corporation is once properly described, a subsequent error in referring to the name is immaterial, unless it causes uncertainty, by producing a doubt, as to the identity of the party. For example, where a firm is made a party, evidence is admissible to show who constituted the firm at that date (Carruthers v. Sheddon (1815) 6 Taunt 14), where a firm carried on business as 'W W', evidence was allowed to show who were the partners constituting the firm (Wray v. Wray [1905] 2 Ch 349).

In the case of a corporation it is sufficient if it is described by a name which sufficiently identifies it, although the full corporate name be not given (Croydon Hospital v. Farley (1816), 6 Taunt.467), as in the case of an error in the name of a contracting company (F. Goldsmith (Sicklesmere), Ltd. v. Baxter [1970] Ch.85; see also per Lord Hodson in Saunders v. Anglia Building Society [1971] A.C.1004)."

It is further stated (at ”20.010) that :

"An alteration or addition for the purpose of correcting an obvious error made after execution will not avoid a deed; ... In Re Howgate and Osborn's Contract [1902] 1 Ch 451, the name 'William Gray' had been erased after execution, and the words 'Edward Thomas Gray' inserted, and parol evidence was allowed to show that the name 'William Gray' had been inserted in error and afterwards corrected, and the deed was upheld."

7. The indicia to be derived from both the 1993 Agreement and the Assignment include the Plaintiff's registered address and, more importantly, its business registration number, namely 16874940, which was used to identify "the purchaser" under the 1993 Agreement. The business registration certificate which bears the number 16874940 is that of "成利國際投資有限公司 Sunluck International Development Limited". That alone should allay any doubt as to whether the Plaintiff was the purchaser in 1993. But if that were insufficient to settle the uncertainty, the records kept at the Companies Registry show that since 28 January 1993 and therefore at the date of the 1993 transaction, there is registered at the Companies Registry a company by the name of "Sunluck International Development Limited" in English and "成利國際投資有限公司" in Chinese but no company with a Chinese name "成利國際發展有限公司". In fact, a company with that Chinese name was not registered until 1994, a year after the 1993 transaction. Further that company was registered with the English name of "Great Success International Development Limited".

8. In my judgment, these facts do not leave any room for doubt as to the identity of the purchaser in the 1993 transaction. In other words, this is not a case where the uncertainty created by the discrepancy is such that the correct party cannot be identified. If there is no uncertainty as to the identity of the purchaser in the 1993 transaction, the Defendant's objection becomes unsustainable.

9. Whilst the Defendant has maintained that the Assignment was not effective in passing the legal estate, no authority has been cited in support of that assertion or, indeed, to support the dichotomy sought to be made between non-execution and defective execution by an assignee. A confirmatory conveyance or assignment is only necessary if I am satisfied that the legal estate is outstanding in the original vendor Mr Hui and that would be so if I were of the view that uncertainty surrounds the identity of the purchaser. Where that is not the case, whilst the Defendant may prefer to have a confirmatory assignment, the Plaintiff is not obliged to provide one : here, there is no defect in its title as would require a confirmatory assignment. It is a case of an obvious error capable of alteration. In these circumstances, I will make the declarations sought in paragraphs 1 to 5 (inclusive) of the Amended Originating Summons.