RICH CIRCLE CO. LTD. V. LUCKY TIME FINANCE CO. LTD.

H E A D N O T E

[After an order of the court in favour of the vendor made in vendor and purchaser proceedings has been perfected the court has no jurisdiction to allow the originating process to be amended so as to enable the purchaser to raise another objection to the title in the same proceedings]

1992, MP. No. 4202

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

HIGH COURT

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IN THE MATTER of an Agreement for Sale and Purchase dated 13th August 1992 between Lucky Time Finance Company Limited of the one part and Rich Circle Company Limited of the other part

and

IN THE MATTER of Section 12 of the Conveyancing and Property Ordinance, Cap.219

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J U D G M E N T

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1. These are proceedings between vendor and purchaser. The purchaser took an objection to the vendor's title which the court, on 29th March 1993, held to have been sufficiently answered by the vendor: see my judgment of that date setting out all the facts. The court made an order accordingly, which was perfected on 14th April 1993. The order was perfected after the vendor knew that the purchaser was trying to prevent that happening, in order to raise another objection to the title, and I am reluctant to allow the vendor to steal a march on the purchaser in this way. But I cannot ignore the fact that the order has been perfected.

2. The purchaser invites me to treat the perfection of the order as irrelevant and to follow the precedent set, so the purchaser claims, in Neale v. Gordon Lennox [1902] AC 465: see especially the speech of Lord Lindley at p.473. But that was a case of a consent order "which the court would never have dreamed of making if it had known the facts", and is, as it seems to me, a million miles away from the present case. I do not think I can treat this case as a precedent for taking the course which I am invited to take, that is to say, to set aside a final order which has already been perfected, so as to allow the new point to be taken. I do appreciate that the court has jurisdiction to give leave to amend the originating process in an action even after making a final order in the action, but obviously it will exercise this jurisdiction only in exceptional cases: see Singh v. Atombrook Ltd [1989] 1 WLR 810.

3. Of course, the court will not give leave to amend in order to raise a point which has no merit. But in the present case it does seem to me arguable that since Lucky Time knew of the contract between Whole Regent and Cheerich for the subsale to Cheerich before the date of the order on which Whole Regent consented to the dismissal of its action for specific performance, Lucky Time had notice of Cheerich's equitable interest and should not have been prepared to accept that its contract with Whole Regent could be terminated without Cheerich's consent. To put the matter another way, Cheerich might well have a claim for specific performance which it can enforce against Lucky Time as a person which has had retransferred to it the equitable interest of Whole Regent, Cheerich's vendor.

4. But since I am not satisfied that I have jurisdiction to grant this application, the merits of the point now sought to be taken are immaterial. And even if I had jurisdiction to grant this application, I would not be minded to grant it, made as it is at so very late a stage. I think the purchaser must take its chance on a fresh action to raise the point if so advised. It may be, and I express no opinion on the matter, that in such a fresh action it might be met with a plea of estoppel since it did not bring forward its case on this point as it had an opportunity to do when the case was earlier before the court. But if it is in difficulties for that reason, I cannot think it would be right to enable it to circumvent those difficulties by allowing it to bring the new point before the court by way of amendment rather than by way of a fresh action when the application for leave to amend is sought to be made only after the order had been perfected.

5. For these reasons, though with no great enthusiasm, I feel myself constrained to dismiss this application. Although I will hear argument, if any, to the contrary, I fear I shall have to dismiss it with costs.