TANG CHI MING and Another v. SOUTHERN WISE LTD.

1997, No.MP930

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This petition issued pursuant to s.12 of the Conveyancing and Property Ordinance, Cap.219 arises out of a Sub-Agreement for Sale and Purchase ("the Agreement") dated 13 December 1996 made between Southern Wise Limited, the Vendor and Tang Chi Ming and Yuet Sam Fan as Purchasers relating to the sale of the property known as Flat B on the 16th Floor of Block 4 of No.7 Shung King Street, Whampoa Garden Site 4, Kowloon, Hong Kong ("the Property").

2. The petition was taken out by the Purchasers who entered into the Agreement on 13 December 1996 to purchase the Property from the Respondent who was itself purchasing the Property from the Head Vendor. The Respondent was proposing to act as confirmor having made a profit on the resale of the Property. Since the date of the Agreement nothing has been heard from the Respondent. Its solicitors never responded to letters from the Purchasers' solicitors asking for title deeds so that the sale could be completed in accordance with the Agreement which was scheduled for 14 January 1996.

3. The petition is dated 26 March 1997. On the same day, a notice of appointment was taken out for directions to be given in this matter at 9:30 a.m. today, 10 April 1997. There is an affidavit of service on the Respondent, of the petition, the supporting affirmation as well as the notice of appointment for this morning's hearing. Service was effected on 27 March 1997 at the registered office of the Respondent. The solicitors that had acted for the Respondent at the time of the Agreement do not appear to have instructions to represent the Respondent in these proceedings.

4. The Respondent did not appear at the call-over hearing this morning. At the direction of the court, notice was duly served on the Respondent notifying the Respondent that the petition would be heard today at 2:30 p.m. The Respondent was advised to attend the hearing either to defend the petition or to seek an adjournment for the purpose of filing further evidence or otherwise. The Respondent has not appeared.

5. The cases is a very simple one. The Respondent as Vendor had simply failed to comply with its obligations under the Agreement to provide title deeds to the Purchasers for perusal. Completion has not taken place and the Purchasers seek the return of the deposit, the stamp duty paid, interest as well as the costs of this petition. The commission paid to the agent had been repaid by the agent prior to today's hearing.

6. In these circumstances and on the evidence before me, the Purchasers are entitled to the relief sought. Accordingly, it is declared that good title to the Property has not been shown by the Respondent or its solicitors. The Respondent is to pay to the Petitioners the sum of $727,500 and the further sum of $133,375, being, respectively, the deposit and stamp duty paid by the Petitioners. The Petitioners are also entitled to interest thereon at the rate of 10% per annum from the date of completion specified in the Agreement as extended which is 31 January 1997 to the date of this Order and thereafter at the judgment rate until payment.

7. I also make an order nisi that the Petitioners are entitled to the costs of this petition.