HILLIER DEVELOPMENT LTD. v. TREAD EAST LTD.

IN THE COURT OF APPEAL

1992, No. 209
(Civil)

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J U D G M E N T

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Penlington, J.A.:

Background

1. By an agreement dated the 27th April 1990 ("the agreement") the defendant ("the vendor") agreed to sell to the plaintiff ("the purchaser") Unit 10 on the Ground Floor of Carson Mansion, 113-123 King's Road, Hong Kong for $2.9 million. The legal description was "8 undivided 2,689th parts" of three inland lots. On the 12th April 1990 the purchaser paid to the vendor an initial deposit of $150,000 and on the 27th April 1990 the purchaser paid to the vendor's solicitors a further deposit of $140,000 to be held by those solicitors as stakeholders.

2. Completion was due to take place on the 31st July 1990 but on the 30th July the purchaser's solicitors claimed that the vendor had failed to answer certain requisitions on title. They said the purchaser would not go on with the contract. The vendor's solicitors said that they had satisfactorily answered the requisitions and that in any event the purchaser had already, through the action of its solicitors, accepted the title before attempting to resile from the contract. The purchaser claims that the vendor must repay to it the initial deposit of $150,000 and sought a declaration that it was entitled to give a good receipt to the vendor's solicitors for the further deposit of $140,000.

3. The matter came before Godfrey J. on the 10th and 11th November 1992 and in a judgment dated the 23rd November 1992 he found for the purchaser and ordered that the initial deposit of $150,000 be so repaid and he granted the purchaser the order sought in respect of the further deposit of $140,000. The vendor now appeals against that decision.

4. The property which is the subject of the agreement was assigned in 1984 from a company called Oliver Paris (Hong Kong) Limited ("Oliver Paris") to one Chan Bing Fai ("Chan"). The assignment stated that the consideration for the purchase was $125,000. It was sealed by Oliver Paris and signed by Chan himself, the purchaser, as "one of its directors as directed and authorised by the board of directors to sign". Chan also executed as purchaser and was therefore the only person to sign the deed. This assignment is the one which was the subject of the requisitions raised by the purchaser.

5. The agreement provided as follows:

"11. Any requisition or objection in respect of the title shall be delivered to the Vendor's solicitors within 5 days after the delivery of sufficient title deeds to the Purchaser's solicitors.

.....

(c) The Purchaser shall be deemed to have accepted the Vendor's title if requisition or objection on title is not so delivered to the Vendor's solicitors within the times hereinbefore stipulated."

The agreement further provided:

"7. Time shall in every respect be of the essence of this Agreement."

6. Before the date of the agreement some documents had been delivered by the vendor's solicitors to the purchaser's solicitors and on the 25th April 1990 the purchaser's solicitors requested further documents. On the 8th May, after the agreement had been signed, the purchaser's solicitors raised three requisitions of which only no. 2 is material. This read as follows:

"2. Assignment Memorial No. 2652561

It is noted that the Vendor, Oliver Paris (Hong Kong) Limited, executed the said Assignment only signed by Chan Bing Fai, one of its Directors. However, according to our company search of the said Company, it notes that all deeds or instruments requiring the Seal of the Company shall be signed by two Directors or in such manner as the Directors shall from time to time by resolution determined. In this circumstance, we shall be much obliged if you can kindly send us a certified true copy Board Resolution of the said Company showing the such authority. Copies of the said company search and the said Assignment are enclosed for your reference."

As was noted by Godfrey J. this requisition is a challenge to the due execution of the assignment of 12th September 1984. It does not challenge the validity of that assignment on any other ground.

7. This requisition was answered by the vendor's solicitors on the 30th May as follows:

" As regards your requisitions raised in paragraph 2 of your letter dated 8th May 1990, we would like to refer you to the Law Society Circular No. 105/90 where upon we are of the view that the Assignment Memorial No. 2652561 is deemed to have been properly executed and that our client is not required to produce any evidence of authorisation by the board of directors of Oliver Paris (Hong Kong) Limited."

The Law Society Circular referred to states that opinion has been obtained from leading London counsel who was of the opinion that a vendor is not required to produce evidence of authorisation by a board of directors in order to prove title because s. 23 of the Conveyancing and Property Ordinance, Cap. 219 provides that:

"An instrument appearing to be duly executed shall be presumed, until the contrary is provided, to have been duly executed."

There was no reply to that letter and on the 6th June and on the 5th July the vendor's solicitors delivered to the purchaser's solicitors further documents relating to the property.

8. On the 24th July sent by hand the purchaser's solicitors forwarded a draft deed of assignment to the vendor's solicitors for their perusal and, if in order, for execution by their client, and asking in whose favour the cheque for the balance of the purchase price should be drawn. There is no reference in that letter to any unanswered requisition.

9. By a letter dated the 23rd July but not sent until 6:14 p.m. on the 24th July by facsimile, solicitors acting for the proposed mortgagee of the purchaser wrote to the purchaser's solicitors raising queries regarding the title being offered to the mortgagee. It read as follows:

"In the course of perusing the title deeds and documents relating to the above property ('the Property'), we have noted the following:-

1. We find the assignment of, inter alia, the Property in Assignment Memorial No. 2652561 rather unusual for the following reasons:

(1) The Property was, together with other units in the same building constituting 678/2689th undivided parts or shares of the building, purchased by Oliver Paris (HK) Ltd ('Oliver Paris') on 8/9/79 under Assignment Memorial No. 1786033 which was executed by Oliver Paris under its Common Seal and endorsed by two of its directors Wu Ceng Chi and Chow Chi Ki. The purchase price was HK$36,000,000.00.

(2) On 12/9/84, Oliver Paris purportedly sold the Property, together with some other units in the same building constituting 34/2689th undivided parts or shares of the building to one Chan Bing Fai, for the consideration of HK$125,000.00 under Assignment Memorial No. 265261.

We find this Assignment unusual in that firstly, the consideration was extraordinarily low and secondly, the Assignment was purportedly executed under Oliver Paris's Common Seal and signed by only one of its directors, namely Chan Bing Fai who was also the purchaser to the Assignment Memorial No. 2652561. Such execution was purportedly 'directed and authorised by the Board of Directors'.

(3) On 19/10/84, slightly over one month after the sale in Assignment Memorial No. 2652561, the Property which constitutes 8/2689th undivided shares of the building was sold by the said Chan Bing Fai to one Chang Sie Ying for the consideration of HK$450,000.00.

2. In view of the circumstances as related above, we following queries:

(a) was affixure of the Common Seal by and signature of one director in line with the provisions governing the use of the Common Seal of Oliver Paris in its Articles of Association?

(b) is the resolution of the Director's Board approving the sale of the units to the said Chan Bing Fai and authorising the said Chan Bing Fai to execute the Assignment and affix the Company's Common Seal available for our inspection?

(c) Chan Bing Fai being interested in the transaction, was there proper disclosure of his interest to the Directors' Board and/or the shareholders?"

On that same day, the 24th July, at 7:24 p.m. the purchaser's solicitors sent a copy by facsimile of the proposed mortgagee's solicitors' letter to the vendor's solicitors, asking for an urgent reply.

10. The purchaser's solicitors endeavoured to persuade the proposed mortgagee's solicitors that the title was in order but were unable to allay their concern. The purchaser's solicitors accordingly insisted on an answer to the requisitions raised by the mortgagee's solicitors and on the 26th July received a response from the vendor's solicitors as follows:

"As regards your fax dated 24th July 1990 and your letter dated 25th July 1990, queries (a) mentioned in the letter of Messrs. W.I. Cheung & Co has already been dealt with by our letter to you dated 6th June 1990.

As regards queries (b) and (c) mentioned in the letter of Messrs. W.I. Cheung & Co, We wish to point out that the time for raising requisition had already expired. In the circumstances, we are not prepared to give any comment on those queries raised by Messrs. W.I. Cheung & Co."

11. On the 27th July the purchaser's solicitors wrote to the vendor's solicitors stating that they required to sight a shareholders' resolution sanctioning or ratifying the execution of the assignment of 12th September 1984. In the absence of such shareholder's resolution, the purchaser would reject the vendor's title. This the vendor's solicitors declined to do and said that the purchaser was entitled to assume that the internal procedures of Oliver Paris had been complied with.

12. On the 30th July the purchaser's solicitors, being dissatisfied with the reply they had received, called off the contract and submitted their bill to the purchaser for fees and disbursements.

13. Godfrey J. said that he was satisfied that the requisition relating to the due execution by Oliver Paris was satisfactorily answered on the 6th June 1990 and that the purchaser, not having challenged that answer until the 23rd July must be taken to have waived its objection. He held, however, that the purchaser had not accepted the title prior to the 24th July although he said:

"by failing to express any dissatisfaction with the reply they received, on 6th June 1990, to their own requisition raised on 8th May 1990, and by forwarding for approval of the vendor's solicitors a draft assignment on 24th July 1990, the purchaser's solicitors did come very close to accepting the title on behalf of the purchaser."

However, he found that they had not in fact accepted the title.

14. He then went on to find that there was nothing in the initial requisition regarding the due execution of the assignment from Oliver Paris to Chan and that s. 23 of the Conveyancing and Property Ordinance provided for due execution to be inferred and that the purchaser was not entitled to call for a sight of the resolution of the directors of Oliver Paris authorising the assignment to be executed in the manner in which it was. A purchaser was not entitled to enquire into the matters of internal management of a limited company; it is enough for him to satisfy himself that the power to do what has been done did exist.

15. However, he did find that the purchaser's solicitors were entitled even at a very late stage to raise the requisition which has been forwarded to them by the mortgagee's solicitors regarding the apparent assignment by Oliver Paris to one of its directors at what seemed to be a low purchase price. He said:

"A vendor who offers to the purchaser title depending on an assignment by a limited company to one of its directors, signed by no other director, and being at what may be an undervalue, must, in my judgment, be prepared if asked to do so to satisfy the purchaser that the assignment is not liable to be set aside at the suit of the company. This is what, in effect, the requisition of 23rd July 1990 required the vendor to do. But the vendor refused to do it. In these circumstances, I hold that the purchaser was justified in calling off the contract, with the consequences I have already indicated."

16. This was a trial in which no evidence was called by agreement between the parties. It was argued entirely on the documents and there was no question of the credibility of witnesses being involved.

Acceptance of title

17. Godfrey J. found that the purchaser's solicitors did "come very close to accepting the title on behalf of the purchaser". He was under the impression that the letter from the mortgagee's solicitors to the purchaser's solicitors dated the 23rd July 1990 raising the requisitions regarding the consideration which had been paid was forwarded to the vendor's solicitors by facsimile on that day. This was not correct as it can be seen from an examination of the document itself which shows that it was sent at 6:14 p.m. on the 24th July. Accordingly, it was received after and not before the draft assignment was forwarded to the vendor's solicitors.

18. I am unable to see what further action the purchaser's solicitors could have taken whereby acceptance by them of the title offered on behalf of their client could have been inferred. In the fourth edition of Farrand on Contract and Conveyance at 130 the learned author says:

"An implied acceptance of title depends on whether it appeared from the purchaser's conduct that he intended to waive any objections. This is a question of fact only to be determined in the light of the whole of the circumstances of the case. The quality of conduct to be looked for involves the performance by the purchaser of acts which a prudent purchaser would not normally perform until a good title has been shown, ie, not until completion would be bound to take place".

He goes on to say:

"Conduct implying acceptance of the title may take many forms (eg, payment of the purchaser price), two only of which are worthy of special mention. Firsts, the submission of a draft conveyance for approval by or on behalf of the vendor is significant if not conclusive (see per Plumer MR in Burroughs v Oakley (1819) 3 Swanst 159, at p 171; the circumstances there were that questions arising on the title had still to be discussed; see also Sweet v Meredith (1862) 8 Jur (NS) 637). In practice, however, the draft conveyance very often accompanies the purchaser's requisitions, the covering letter stating that it is submitted subject to the answers being satisfactory. This time-saving device should never imply acceptance of the title".

19. Here that was certainly not the case. The purchaser's requisitions had been forwarded on the 8th May 1990 and had been replied to on the 30th May. Nothing further had been received from the purchaser's solicitors indicating in any way that they were dissatisfied with the reply which, on the face of it, seemed to be perfectly proper. The draft conveyance was then sent almost two months afterwards. It certainly did not accompany the requisitions. Short of a letter from the purchaser's solicitors expressly stating that they considered their requisition had been satisfactorily answered, it is difficult to see what else they could have done to indicate to the vendor's solicitors that they now accepted the vendor's title. The letter which accompanied the draft deed said it was for the vendor's solicitor's approval and enquired as to the way in which the cheques for the purchase money should be made out. There was not the slightest indication in that letter that there was any unsatisfied requisitions. As Mr. Patrick Fung for the vendor has said, it is highly desirable that requisitions should be forwarded to the vendor's solicitors promptly. In my opinion from the circumstances here it must be implied the purchaser's solicitors had accepted the vendor's title on the 24th July by forwarding the draft deed of assignment.

Time limit for requisitions

20. The vendor further relies on clause 11 of the agreement which provided that requisitions were to be made within five days after the delivery of "sufficient title deeds" to the purchaser's solicitors, time being of the essence.

21. Miss Chow, who appears for the purchaser, submitted that this was of no assistance to the vendor because firstly, further title deeds had been delivered by the vendor's solicitors after the period of five days had expired following the delivery of the first bundle of documents and secondly, a time limit on the lodging of requisitions was of no effect if the requisition went to the root of the title. Here that was the case because there might be a successful action brought by the minority shareholders of Oliver Paris against the directors for selling the property to Chan as an undervalue.

22. A large number of documents of title were delivered to the purchaser's solicitors on the 24th April 1990 prior to the filing of the agreement. There is no suggestion that these documents were not sufficient to enable the purchaser's solicitors to check whether or not their client was going to receive a good title. Those documents included a copy of assignment memorial no. 2652561. The further documents did not go to the root of title. In my view, therefore, the five days would run in effect from the date of the agreement, i.e. the 27th April 1990. I do not consider that time limit had been waived by the vendor's solicitors forwarding further documents after that date or in replying to the requisition of 8th May.

23. The question of the effect of a time limit on requisitions when they go to the vendor's root of title was considered in detail in Giant River Ltd v. Asie Marketing Ltd [1990] 1 HKLR 297. At 311 Deputy High Court Judge Cruden refers to Warde v. Dixon (1858) 28 LJ Ch 316, Re Tanqueray-Willaume and Landau (1881-2) 20 Ch D 465 and In re Cox & Neve's Contract [1891] 2 Ch 109. I am satisfied that those authorities only go to the proposition that where a vendor, having used due diligence, is unaware of some defect in the vendor's title, the time limit imposed in the agreement does not run against him. In Re Cox v. Neve's Contract the agreement provided that the purchaser should within 14 days of the delivery of the abstract sent to the vendor's solicitors all his objections and requisitions as to title. After the expiration of that 14 days, the purchaser discovered that there was a restrictive covenant as to the right to build on part of the property and objected to the title on those grounds. North J. held that under those circumstances the 14 day time limit did not apply. During the course of argument, at 114, he said:

"The covenant ought to have been disclosed in the abstract of title; if it had been the purchaser would have had 14 days within which to make the objection; why should he have less time because the covenant was not disclosed?"

Clearly he considered that if the purchaser had been aware of the covenant the 14 day time limit would have run, notwithstanding that it affected the root of title. Re Tanqueray-Willaume and Landau was concerned with the possibility of land held by trustees being charged with debts due to legatees. Again it is clear that a time limit does not run if the purchaser has no knowledge whether such debts exist. Here, it seems to me, the situation is entirely different in that the matter now complained of, i.e. the sale by Oliver Paris to one of its own directors at what seems to be an undervalue, was obvious from the papers already in the possession of the purchaser's solicitors at the time the agreement was entered into. It certainly became clear to the mortgagee's solicitors who were in possession of no more information than the purchaser. I do not think that the proposition contended for by Miss Chow applies in this instance and that the purchaser's solicitors were under a duty to make requisition within the time stipulated in the agreement.

Inadequate consideration

24. Godfrey J. held that s. 23 of the Conveyancing and Property Ordinance had the effect of presuming that the execution of assignment memorial no. 2652561 by Chan alone was due execution by Oliver Paris. That, in my opinion, must also mean that there was a proper resolution of the board of directors of Oliver Paris authorising the sale to Chan, otherwise it could not be said to be "duly executed". What the final requisition of the purchaser's solicitors required was a resolution of the shareholders of Oliver Paris to be passed, almost six years after the sale, authorising such sale. I do not consider that the purchaser could make such a requisition on the basis that the consideration for the sale seemed inadequate (though it was apparently not challenged by the Commissioner of Stamp Duties). "There is a presumption in favour of persons dealing with a company that acts within its constitution and powers have been properly and duly performed" Halsbury Laws of England, 4th Ed., Vol. 17, para. 118. In Morris v. Kanssen [1946] AC 459, at 474, Lord Simonds said:

" My Lords, I think that this question admits of an easy answer. The so-called rule in Turquand case is, I think, correctly stated in Halsbury's Laws of England, 2nd ea., vol. V., at p. 423: 'But persons contracting with a company and dealing in good faith may assume that acts within its constitution and powers have been properly and duly performed and are not bound to inquire whether acts of internal management have been regular.' It was competent for three directors of the company to allot its shares; three persons purporting to act as directors did allot its shares; therefore Morris, who acted in good faith, was entitled to treat the shares as validly allotted."

If that was not so it would in my view impose an intolerable burden on the solicitors acting for any purchaser to enquire into any prior sale within 15 years by a company had been for adequate consideration. Here the sale was to a director who himself was the person authorised to execute on behalf of the company but I do not consider that fact is enough to remove the presumption. It must be presumed that the board of directors of Oliver Paris did have power to sell the property to Chan and did so without fraud on their part.

25. I am therefore of the opinion that this appeal should be allowed and the order of Godfrey J. set aside.

Nazareth, J.A.:

26. I agree that for the reasons given by my Lord, the appeal must be allowed. As we are disagreeing with the judge, I would add the following.

27. My Lord has set out the facts. Having outlined those facts in his judgment, the judge at page 8 said:

" On these facts, I am satisfied that the purchaser's solicitors were entitled to raise the requisition they did raise by forwarding to the vendor's solicitors on 24th July 1990 the letter they had themselves received from the proposed mortgagee's solicitors. The nature of the requisition was such that it went to the root of the title offered by the vendor; if the assignment of 19th September 1984, made less than 6 years before the date fixed for completion of the agreement, was liable to be set aside at the instance of Oliver Paris, the title offered by the vendor would clearly be defective. For this reason, I do not think that anything turns on the question whether the requisitions were or were not raised within the stipulated period of 5 days after "sufficient" title deeds (whatever that means) had been delivered by the vendor's solicitors to the purchaser's solicitors. Nor, looking at the matter as a whole, am I prepared to conclude that the purchaser must be taken to have accepted the title before 24th July 1990, although it is fair to say that by failing to express any dissatisfaction with the reply they received, on 6th June 1990, to their own requisition raised on 8th May 1990, and by forwarding for approval of the vendor's solicitors a draft assignment on 24th July 1990, the purchaser's solicitors did come very close to accepting the title on behalf of the purchaser.

The point left in the case is the point of substance; that is to say, whether the vendor's solicitors ever did satisfactorily answer the requisition concerning the assignment of 12th September 1984 raised by the proposed mortgagee's solicitors and passed on by the purchaser's solicitors to the vendor's solicitors on 24th July 1990.

In my judgment, the vendor's solicitors failed satisfactorily to answer that requisition and the purchaser is accordingly entitled to relief as indicated earlier in this judgment.

As to the due execution point, (the subject of the first and second parts of the requisition) I am of the opinion (a) that there never was anything in it; (b) that it had been taken on 8th May 1990 and satisfactorily answered on 6th June 1990; and (c) that the purchaser, not having challenged the answer until 23rd July 1990, must be taken to have waived its objection."

28. With respect, in my view, the judge's conclusions on the execution point were entirely correct, for the reasons he gave:

(a) In substance, that the directors of Oliver Paris had the power to effect the transaction, and the purchaser was not entitled to enquire into the internal management of Oliver Paris;

(b) That the vendor's reference to the Law Society's circular provided a satisfactory answer to the requisition; and

(c) That the purchaser had a reasonable time to assert that the answer was unsatisfactory, and by not doing so until the 23rd July 1990 [actually the 24th July 1993] it must be taken to have waived the objection.

29. The original requisition or objection, it is quite plain, is exactly the same as that raised by the prospective mortgagee's solicitors on 23rd July 1990, and passed on to the vendor's solicitors by the purchaser's solicitors on the next day. Having waived it (as indeed the judge himself found) the purchaser cannot rely upon what in reality is the same requisition simply because a third party, even if it be the proposed mortgagee's solicitor, has raised it. However the judge apparently considered that because the requisition went to the root of the title, neither the time limit of 6 days for raising requisitions nor the waiver applied, although the latter was not expressly addressed. My Lord has explained why the contention that the second requisition goes to the root of the title does not avail the purchaser. In referring to that matter, I would say that I am in addition not persuaded that the requisition does go to the root of the title.

30. However that may be, I did not understand counsel on either side to suggest that an objection or requisition, even one which goes to the root of the title could not be waived. Plainly it can; and in many cases, that precisely is what is done when a calculated risk is taken by a purchaser on possible objections that are thought unlikely to arise. It was no doubt in recognition of this that Miss Chow for the purchaser submitted that such waiver had to be express. But she produced no authority for that proposition, which must be rejected.

31. As to the judge's unwillingness to conclude that the purchaser must be taken to have accepted the title before 24th July 1990 although the purchaser's solicitors did come very close to doing so, it seems to me that the judge was led into error by the confusing reference to the time and date printed at the top of the copy of the proposed mortgagee's solicitors' letter to the purchaser's solicitors. That came about when it was faxed by the purchaser's solicitors to the vendor's solicitors on the 24th July, 1990, the day after the purchaser's solicitors received it.

32. The evidence conclusively shows that the purchaser's solicitors accepted the vendor's solicitors' answer to their first requisition. Nothing was heard by the vendor's solicitors from the former after they received the answer until the 24th July 1990. Meanwhile, the purchaser's solicitors had actively sought to persuade the proposed mortgagee's solicitors that the title was not affected by the absence of evidence of due execution. Had the finance sought been forthcoming, clearly the purchaser would have completed the purchase. What puts the acceptance of the title beyond argument is that the draft assignment was sent by the purchaser's solicitors to the vendor's solicitors on the 24th July 1990, prior to the second requisition and contemporaneously with their enquiry as to how the payment cheque should be split. The judge's misdirection of fact as to the date of the second requisition entitles, indeed requires this Court itself to determine the issue of whether the title was accepted. In my judgment the evidence that it was accepted is so overwhelming as not to admit of the possibility of any other conclusion.

33. The judge concluded his judgment in the following way:

"But the other point on the assignment of 12th September 1984 is, in my judgment, a good one. A vendor who offers to the purchaser title depending on an assignment by a limited company to one of its directors, signed by no other director, and being at what may be an undervalue, must, in my judgment, be prepared if asked to do so to satisfy the purchaser that the assignment is not liable to be set aside at the suit of the company. This is what, in effect, the requisition of 23rd July 1990 required the vendor to do. But the vendor refused to do it. In these circumstances, I hold that the purchaser was justified in calling off the contract, with the consequences I have already indicated."

34. With respect, the plaintiff having accepted the title and in the process having waived the requisition, it was not open to the judge to rely upon either. Further, as I have said, I am not persuaded that the requisition went to the root of title, the basis upon which the judge apparently accepted that the requisition could be made out of time. Moreover the matter is not just one of the 6 day time limit being exceeded, but of the objection or requisition having been waived, and therefore it not being open to the purchasers to seek thereafter to rely upon it.

35. For the reasons I have endeavoured to give and the reasons my Lord has given, I would also allow the appeal.

Sears J.:

36. I agree that this appeal should be allowed, but as we are differing from the Judge below, who has wide experience in this branch of the law, I would, with respect to him, add a few words.

37. The assignment from Oliver Paris to Chan was on 12th September 1989. It does, on its face, appear unusual. The company was selling a block of property to one of its directors for a very low price and the signature on behalf of the company was that of the purchaser. No one had up to July 1990 sought to challenge the validity of that assignment, but I recognise that there was a risk, because of the unusual features disclosed in the document itself, that such might occur.

38. I agree with my lord Penlington J.A. that s. 23 of the Conveyancing and Property Ordinance presumes that the assignment by Chan was due execution by Oliver Paris and it would also follow that there was assumed a valid resolution of the board of Oliver Paris to sell the property for the consideration stated.

39. This appeal, however, could be decided on one narrow ground. The judge found that the purchaser's solicitors had "come very close to accepting the title on behalf of the purchaser". The letter from the mortgagee's solicitors is dated 23rd July, but it was not sent by fax until 6:14 p.m. on 24th July. If the judge had recognised this fact, he would, as is clearly implicit in his choice of words, have found that the purchaser's solicitors had accepted title on behalf of the purchaser.

Penlington, J.A.:

40. There will be an order nisi that the vendor is entitled to retain the deposits paid and to have its costs below and of this appeal.