NGAN MAN LAI EMILY v. WONG LAI MING AND ANOTHER

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H E A D N O T E

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ON THE ABSENCE OF SPECIAL CIRCUMSTANCES, A PERSON WHO JOINS IN AN ASSIGNMENT OF PROPERTY AS A CONFIRMOR WITHOUT ANY STATEMENT IN THE ASSIGNMENT AS TO THE CAPACITY IN WHICH HE CONFIRMED IS TO BE TAKEN TO HAVE CONFIRMED IN EACH AND EVERY CAPACITY WHICH HE HELD; AND HE WOULD NOT BE ALLOWED TO APPROBATE AND REPROBATE THE ASSIGNMENT BY SUGGESTING THAT THERE WAS SOME CAPACITY IN WHICH HE HAD NOT CONFIRMED.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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JUDGMENT

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1. This is a vendor and purchaser summons. It is taken but in the matter of an agreement for sale and purchase dated December 1, 1989, made between the plaintiff purchaser and the defendant vendors. The property in question comprises Shops Nos. 19, 20 and 43 on the ground floor of Gold Mine Building erected on Chai Wan Inland Lot No. 80, which shops were sold for $2.2 million under the agreement to which I have just made reference.

2. A gentleman by the name of Lui Man had been the registered owner of the shops. He died intestate on September 3, 1984. Letters of administration of his estate were granted to his "kit fat" wife, Lui Chung Ho on November 15, 1985. She in turn died intestate on December 29, 1985, leaving part of Lui Man's estate unadministered. As a result, letters of administration de bonis non of Lui man's estate so left unadministered were granted on December 9, 1987, to one Lui Kau, one of the children of the union between Lui Man and Lui Chung Ho.

3. Now the assignment - dated February 10, 1988 - to the defendant vendors was by Lui Kau as the administrator of Lui Man's estate as "Vendor" and by Lui Kau himself and his 7 siblings as "Confirmors".

4. In the agreement for sale and purchase - dated February 18, 1987 - preceding such assignment, Lui Kau and his 7 siblings were named as "Vendor" and described as "being all the beneficiaries of the estate of Lui Chung Ho."

5. Mr Chan, who appears on behalf of the plaintiff purchaser, concedes that there would have been no difficulty over title if all that one had was an assignment simply by Lui Kau in his capacity of administrator of Lui Man's estate. The problem is said to arise because the reference to beneficiaries of the estate of Lui Chung Ho in the agreement for sale and purchase dated February 18, 1987, raises the spectre of some beneficial interest in the shops vested in Lui Chung Ho and after her death - her estate, which interest might survive overreaching upon a sale by Lui Kau as the administrator of Lui Man's estate. What interest could survive such overreaching has not been identified. In my judgment, no interest capable of surviving such overreaching appears. The agreement for sale and purchase dated February 18, 1987, was no doubt drawn as it was because it followed Liu Chung Ho's death but preceded the grant of administration de bonis non.

6. Furthermore, it is conceded on behalf of the plaintiff purchaser that if there is any such interest, then it must vest in Lui Kau himself and his 7 siblings. So even if I did not take the view that no interest capable of surviving overreaching appears, I would still be prepared to declare that the defendant vendors have shown good title. Here my reason is this: The 8 beneficiaries in question all joined in the assignment as confirmors. They did not indicate and therefore did not limit the capacity in which they confirmed. It is true that the fourth recital to the assignment contains a statement to the effect that the "... Vendor and the Confirmors are all the persons entitled to share in the estate of ..." Lui Man. I do not think, however, that that statement of fact operates to define or limit the capacity in which those 8 persons confirmed.

7. In my judgment, no Court would ever allow them to approbate and reprobate the assignment by suggesting that there was some capacity in which they had not confirmed. In the absence of special circumstances - and none appear here they must be taken to have confirmed, in so far as confirmation was or may have been necessary, in each and every capacity which they held.

8. In the result, I refuse to grant the plaintiff purchaser the relief sought in her amended originating summons. What I declare is that good title has been shown by the defendant vendors. The only remaining thing, as it appears to me, is to hear counsel on the question costs.

9. [Counsel invited to address the Court on costs]

10. Mr Chiu, who appears on behalf of the successful defendant vendors, does not seek costs. Had costs been sought, I think that the result, after argument, would probably have been the same. It seems to me that this is a case in which the parties are best left to bear their own costs. Nothing remains for me to say except that I make no order as to costs, leaving the parties to bear their own costs, and that I am grateful to counsel for their assistance.