WONG SHIU HUNG v. SHINE BRIGHT INVESTMENT LTD.

1998, M.P. No. 316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINSTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The Plaintiff is the registered owner of a unit situated in the Tsuen Wan area. The full description of this property for conveyancing purposes is:-

"All those 159 equal undivided 672,997th parts or shares of and in All That piece or parcel of ground registered in the Tsuen Wan New Territories Land Registry in TSUEN WAN TOWN LOT NO. 258 and of and in the messuages erection and buildings thereon now known as NAN FUNG CENTRE, Nos. 264-298 Castle Peak Road and 64-98 Sai Lau Kok Road, Tsuen Wan, New Territories, Hong Kong ("the Building") Together with the sole and exclusive right and privilege to hold use occupy and enjoy All That UNIT A074 on FIRST FLOOR of the Building ("the Property").".

2. By a written agreement for sale and purchase dated 25 September, 1997 ("the Agreement"), the Plaintiff agreed to sell and the Defendant agreed to purchase the Property at the price of $14,830,000.

3. It was agreed between the parties that the further deposits payable by the Defendant were to be paid in the following manner:-

(a) cashier order for $500,000 drawn in favour of the Plaintiff to be paid on 28 November, 1997;

(b) cashier order for $983,000 drawn in favour of the Plaintiff to be paid on 15 January, 1998.

Time has been made the essence of the Agreement pursuant to Clause 17 thereof.

4. As was usual in Hong Kong conveyancing transactions, documents relating to the title of the Property were sent to the Defendant's solicitors. After perusing those documents, in a letter dated 16 October, 1997, the Defendant's solicitors raised a number of requisitions ("the Defendant's requisitions"). The Plaintiff's solicitors answered these requisitions in their letter dated 20 November, 1997 ("the Plaintiff's answers"). This action is concerned with the requisition set out in paragraph 4 of the Defendant's requisitions and the Plaintiff's answer thereto. The Defendant was of the view that this particular requisition had not been satisfactorily answered and therefore on 15 January, 1998 asked for the return of all the deposits previously paid by the Defendant to the Plaintiff.

5. Paragraph 4 of the Defendant's requisitions was as follows:-

"The property referred to in Assignment Memorial No. 488317 (on p. 2) and Release Memorial No. 488316 (on p. 3) should be "A074" instead of "074". Please clarify and rectified [sic] accordingly.

In addition, the word "a" before "159" equal undivided 672,977 parts or shares on p. 3 of the said Assignment should also be deleted."

(see pp. 32-3 of the Plaintiff's Bundle of Pleadings and Documents).

6. The relevant parts of the Assignment in question are as follows:-

"SCHEDULE

1. The Property : -

(a) Description and address :

The sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT UNIT "074" on the FIRST FLOOR of "NAN FUNG CENTRE .... (which said Unit is more particularly shown the first floor plan annexed to the said Assignment and thereon coloured oink and marked 'A74') ”

" (b) Lot Number, Sections, Undivided Shares etc. :

ALL THOSE a159 equal undivided 672,977th parts or shares of .... ”

(see pp. 36-7 of the Plaintiff's Bundle of Pleadings and Documents).

The relevant part of the Release is as follows:-

"THE SECOND SCHEDULE ABOVE REFERRED TO

1. The Property : -

(a) Description and address :

The sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT UNIT "074" on the FIRST FLOOR of "NAN FUNG CENTRE .... ”

(see p. 44 of the Plaintiff's Bundle of Pleadings and Documents).

7. In their letter dated 20 November, 1997, the Plaintiff's solicitors enclosed a copy of, and essentially adopted the comments in, a letter dated 17 November, 1997, from Messrs. Johnny K.K. Leung & Co. The answer given was that:-

"the mistakes made in the Assignment in question are manifestly clerical/typing errors which do not have any adverse effect on the instrument. Such error can simply corrected [sic] by application of rules of construction without the necessity of formal rectification."

(see p. 52 of the Plaintiff's Bundle of Pleadings and Documents). This was repeated in a letter from the Plaintiff's letter dated 9 January, 1998 (see p. 60 of the Plaintiff's Bundle of Pleadings and Documents).

8. Having considered the whole circumstance, I entirely agree with these comments. In my view, paragraph 4 of the Defendant's requisitions raised a matter which the Court of Appeal has deplored in Active Keen Industries Limited v. Fok Chi-keong [1994] 1 H.K.L.R. 396, 414 (at lines 5 to 15) and 415 (at lines 1 to 5). The Court of Appeal in that appeal observed that:-

" .... if those instructed to act for purchasers could be brought to realize that they would serve their clients better by exercising their common sense rather than by exhibiting their zealousness, matters would be ... improved. The time has come for Hong Kong conveyancers to put an end to the practice of magnifying difficulties which are really non-existent, .... ”.

9. In any event, even if there be any substance in paragraph 4 of the Defendant's requisitions, I find that the Plaintiff's solicitors had already sufficiently answered them in their letter dated 20 November, 1997.

10. For these reasons, I consider that the Plaintiff is entitled to paragraphs 1, 2 and 4 of the Re-Amended Originating Summons. There is no reason why costs should not follow the event. The costs of this action should be paid by the Defendant to the Plaintiff to be taxed if not agreed.

(Andrew Chung)

Deputy Judge of the Court of First Instance