WONG SHUI YUN BERNADETTE v. LAU WAI PUI

HEADNOTE

A power of attorney authorising the sale of property by the donee contained nothing which expressly authorised the donee to execute a conveyance of the property.

HELD : A power to execute such a conveyance was to be implied.

(Observations on unnecessary verbiage in the title to originating summonses.)

1987, M.P. No. 1830

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is a vendor and purchaser summons. The Plaintiff is the vendor and the Defendant is the purchaser of property at 54 Pan Hoi Street, Quarry Bay ("the property"), at the price of HK$235,000.00, under an agreement dated 8th June 1987.

2. The proceedings raise a point on which there appears to be no authority. When the summons came before me for hearing, I decided the point in favour of the vendor, but that I ought, in these circumstances, to take time to reduce my reasons to writing, which I now do. The summons was heard in Chambers (in my view an inproper practice in the case of a vendor and purchaser summons, but nevertheless the practice which currently prevails in Hong Kong); however, the parties have no objection to the release of this judgment and I authorise its release accordingly.

3. The point concerns (as these summonses so often do) a power of attorney, in the present case a power of attorney dated 1st March 1977, given by one Lai Ng Po Kam to one Lai Yuk-ku. This authorised the donee "to dispose of or deal with [the property ] and in particular ..... to sell [it]. The power was conferred by deed, and, pursuant to it, the donee executed a conveyance of the property to the vendor. The problem is that the power of attorney contained nothing which expressly empowered the donee to execute such a conveyance.

4. On this ground, the purchaser objects to the title. The vendor answers that the power to sell the property (which I have quoted) must by necessary implication include a power to execute a conveyance on sale. The purchaser does not accept this answer. He points to the observation in Williams on Title (4th Edition) that "the attorney should be given power to execute a proper conveyance or other necessary deed or deeds" and to the observation in Halsbury's Laws of England, 4th Edition, Vol. I, Title "Agency" at paragraph 730, that "a power of attorney is strictly construed by the Courts".

5. However, in my opinion the further observation in the last mentioned paragraph, that "incidental powers necessary for carrying out the authority will be implied" is correct and resolves the matter in favour of the vendor. The power to sell the property, conferred as it is by deed, carries with it by necessary implication a power to execute any deed necessary to give effect to the sale. Any other conclusion would produce a result obviously contrary to the intention of the donor and I see no reason whatever why I should find myself impelled to such a conclusion. In my view the appointment of an attorney by deed in relation to the sale of property does imply an authority to execute any conveyance necessary to give effect to the sale specifically authorised by the donor of the power.

6. One further point, I have reproduced at the head of this judgment the title of these proceedings. It is full of unnecessary verbiage (and many such are even worse). This wastes time and money. Unfortunately, there is as yet no practice direction in Hong Kong to the effect of that concerning the title to proceedings set out in the Supreme Court Annual Practice, 1988, Vol. 2, page 217. But I should wish the profession to know that, in my opinion, the English practice can and should be followed by those responsible for drafting originating summonses. There is no need to perpetuate archaisms which can be abandoned voluntarily while waiting for a similar practice direction to be made in Hong Kong.

7. In the present case, although I have dismissed the purchaser's objection to the title, I am satisfied that it was an objection taken reasonably and in good faith and in these circumstances I will not make any order as to the costs of this application; compare in re Baker v. Selmon's Contract [1907] 1 Ch. 238; and see also my own decision in Xiamen International Finance Co. Ltd. v. Tsui Tai Yan, 8th May 1987 (unreported).