LAU YUN LIN v. REGISTRAR OF COMPANIES

HCMP 1111/2017

[2018] HKCFI 1073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1111 OF 2017

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JUDGMENT

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1.  The plaintiff seeks to rectify what is said to be an error in the assignment of certain landed property to him in 2012. The vendor has been dissolved and ceased to exist, and on that basis the plaintiff named the Registrar of Companies (on behalf of the Government) as the defendant.

The alleged error

2.  The property in question is the shop premises on the south side on the Ground Floor of Man Cheong Building, No 5 Tsing to Path, Tuen Mun, New Territories (“the South Shop”).  The development and the building erected used to be owned by Kwan Tseung Company Limited, then in liquidation (“the Vendor”).

3.  The Vendor sold and assigned the South Shop to the plaintiff by way of a sale and purchase agreement and an assignment dated 13 July 2012 and 28 August 2012 respectively.  Described in the documents and coloured in the plans attached to the documents was the South Shop not including certain storeroom area (“the Area”).  The Area, according to the plans, is not accessible from the South Shop but only from the adjacent shop premises (“the North Shop”).

4.  It was recently discovered that the actual layout of the two shops differ from the plans mentioned above.  Essentially, according to thefollowing evidence, the actual partitioning was that the Area was partitioned into two parts, the larger part of it was accessible only via a door within the South Shop while the smaller part of it was accessible only via a door from the North Shop:

(1) the deed of mutual covenant entered into amongst the Vendor and other owners dated 10 June 1983;

(2) the assignment of the North Shop by the Vendor dated 30 April 1992;

(3) the sub-deed of mutual covenant dated 13 January 1993; and

(4) the photographs taken of the South Shop at the commencement of these proceedings.

5.  The above documents show that the Area was never designated as a common part of the building.

6.  The only other document that suggests a layout of the Ground Floor similar to that depicted in the conveyancing documents between the parties herein is the plan attached to the assignment of the Ground Floor watchmen space by the Vendor dated 3 August 2012.  That assignment was executed around the time when the assignment of the South Shop was executed. More importantly, the plan attached to that assignment was by the hands of the very architect who prepared the plans for the sale of the South Shop.

7.  Now the architect mentioned above has filed an affirmation deposing to the effect those plans by him were prepared with reference to the plans approved by the Building Department.  However, he confirmed after site visit that the actual layout is indeed different and should be as what those other plans and the photographs mentioned above depict.

8.  It does not seem probable that the Vendor might somehow have intended to reserve the Area from the sale to the plaintiff.  It should be noted that the difference does not simply lie in how the area covered by the sale and purchase and the assignment was coloured for the purpose of identification. The layout as per the plans used in the conveyancing of what the South Shop covered was simply not in line with the reality.  The fact has always been that there is no access to and from the Area (on the side of the South Shop) unless from within the South Shop through the door there.

9.  I am satisfied that the alleged error in the plan annexed to the assignment by the Vendor to the plaintiff is proved.

The application

10.  Besides a declaration in respect of the error in the plan, the plaintiff seeks an order directing the Vendor or, as it ceased to exist, such person as the court may nominate to execute a confirmatory assignment to rectify the error pursuant to section 25A of the High Court Ordinance, Cap 4. 

11.  Section 25A(1) provides that where the Court of First Instance has given or made a judgment or order directing a person to execute any conveyance, contract or other document, then, if that person cannot after reasonable inquiry be found, the Court may order that the document shall be executed by such person as the Court may nominate for that purpose.

12.  The plaintiff failed in his first attempt of this application when the Vendor, albeit dissolved, was nevertheless named as the defendant.  In line with the principle explained in Re Yang Zhenghong HCMP 3115/2013 (8 January 2014) and Yang Zhenghong v Registrar of Companies [2016] 3 HKC 247, the learned Deputy Judge then dismissed such first attempt of the plaintiff (see Lau Yun Lin v Kwan Tseung Co Ltd [2017] 2 HKLRD 596).  Hence the present second attempt by the plaintiff, naming the Registrar of Companies as the defendant this time.

13.  As mentioned, the documents show that the Area was never designated as a common part of the building.  The circumstances do not suggest the probability that any other owner or person may be interested in the Area, so that he or she must also be named as a party for the determination of this application.

14.  The Registrar of Companies appears today and adopts a neutral stance in respect of the application.

15.  Without further evidence and exploration, I say no more about the potential significance of the apparent difference between the floor layoutand the plan approved by the Buildings Department back then.  Nor would I say it has bearing on what as a matter of inevitable deduction was covered by the sale and assignment of the South Shop by the vendor to the plaintiff.

16.  There is no other consideration against the orders being sought.

Order

17.  I therefore make the following order:

(1) a declaration that there is an error in the plan annexed to the Assignment of the Property (ie, all that shop space on the South Side on the Ground Floor of Man Cheong Building, No 5 Tsing To Path, Tuen Mun, New Territories) dated 28 August 2012, executed by the plaintiff as the purchaser and Kwan Tseung Company Limited (“the Dissolved Company”) as vendor, and registered in the Lands Registry by Memorial No 12090600520018 (“the Assignment”), namely that the area coloured in pink and marked “P” on the said plan does not accurately delineate the area of the Property covered by the Assignment, and that the correct plan to the Property is attached to the Summons dated 15 May 2017 with the area coloured in pink and marked “P”;

(2) an order directing the Registrar of the High Court to execute a confirmatory assignment merely, but no more than, to rectify the aforesaid error by reference to the correct plan mentioned in the above paragraph, as if the same were executed by the Dissolved Company;

(3) the plaintiff do lodge the said confirmatory assignment to the Registrar of the High Court within 28 days for the Registrar’s approval and execution;

(4) liberty to apply; and

(5) the plaintiff shall pay to the defendant costs of this application, summarily assessed at HK$1,500.