NGAN TSE LEUNG v. FUNG, WONG, NG & LAM

HCA132/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.132 OF 2006

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JUDGMENT

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1. The plaintiff was a purchaser of the vendor — one Smartland Industries Limited (“Smartland”) — in respect of the suit property. 

2. The sale and purchase agreement, dated 13 October 2005, stipulated clearly in Clause 3(a), that :

“The purchase shall be completed at the offices of Messrs. Fung, Wong, Ng & Lam, Solicitors & Notaries at Room 8, 4th Floor, New Henry House, 10 Ice House Street, Central, Hong Kong on the date of completion specified in Part II of Schedule 3 hereto (‘the Completion Date’) between the hours of 9:30 a.m. and 5:00 p.m. if completion shall take place on a weekday and between the hours of 9:30 a.m. and 1:00 p.m. if completion shall take place on a Saturday when the balance of the purchase price shall be fully paid by way of cashier order and/or solicitors’ cheques.” (emphasis added)

3. The completion date is 6 January 2006.  Before completion the plaintiff insisted to pay the balance of the purchase price by his own personal cheque to the defendant, who was acting on behalf of Smartland.  Obviously, the defendant refused on instructions of their client to accept the personal cheque of the plaintiff.  The plaintiff then took out this lawsuit against the solicitor firm directly, on the grounds that they have “mishandled the transaction”, and on the grounds of “lack of jurisprudence” and “failing to exercise any due diligence” and “improper inference”.

4. The defendant was only the vendor’s solicitors.  There is absolutely no cause of action against this firm of solicitors at all.  There was no contract between the plaintiff and the defendant.  The defendant had a direct contract with their own client, Smartland.  I cannot see any cause of action against the defendant at all. 

5. In any event, the defendant and their client were acting clearly on Clause 3 of the agreement as aforesaid.  They have every right to refuse the personal cheque of the plaintiff. 

6. The plaintiff submitted today that the reason why he did not use a cashier order or his own solicitors’ cheque was because both of them were irrevocable and he would then have no option to suspend payment if anything went wrong.  I am afraid that is exactly why the contract provided payment must be made either by way of cashier order and/or solicitors’ cheque. 

7. Further, the plaintiff submitted that the tender of cashier order and/or solicitors’ cheque would only be applicable when the completion day took place on Saturday.  But on weekday he would be free to use his own personal cheque.  I am afraid that is not the proper interpretation of Clause 3. 

8. Consequently, the Master is absolutely right in striking out the action of the plaintiff on 4 April 2006.  The plaintiff is late in launching this appeal and is applying for extension of time to appeal against the master’s decision.  I do not see any ground of appeal at all in this case. 

9. Accordingly, this application is dismissed since I cannot allow the plaintiff any extension of time to appeal when there is no ground of appeal at all. 

10. The application is dismissed with costs to the defendant.

[Hearing submissions on costs]

11. Costs to the defendant assessed summarily at $8,000.