PANG HIN LAM AND ANOTHER v. LAU WAH KWAN AND ANOTHER

HCA 6378 of 1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. In this action the Plaintiffs sue the Defendants for the repayment of deposits totalling $276,800.00 paid by the Plaintiffs to the Defendants pursuant to an agreement in writing between the parties dated 10th March 1996 (the Agreement) relating to Flat G, on the 1st Floor of Tower 18 of Riviera Gardens, 2-12 Yi Lok Street, Tsuen Wan (the Property) and for the stamp duty incurred upon the agreement and their solicitors' costs incurred upon investigating title. The Defendants' counterclaim against the Plaintiffs for the Estate Agent's commission paid by the Defendants and their legal costs in respect of the conveyancing transaction.

2. By order made in Court on 27th May 1998 the Statement of Claim was amended to quantify the stamp duty and the solicitors costs claimed by the Plaintiffs.

The Provisional Agreement.

3. This Agreement which is in the usual agents form and in which the agent is joined to secure payment of commission, recites that the purchase price was to be $2,768,000.00; that a deposit of $50,000.00 was to be paid upon the signing of the agreement and that a further deposit of $226,800.00 was to be paid upon the signing of a formal agreement for sale and purchase on or before 20th March.

4. It was further provided that the balance of the purchase price was to be paid upon completion which it was specified would take place on or before 23rd May.

5. There is no reference in the Agreement to the sale being subject to a formal sale and purchase agreement but reference is made in paras. 6 and 7 to the consequences of either the Purchasers or the Vendors failing to complete in the manner set out in the agreement.

The Issue.

6. The principal issue in this case is whether the Vendors' solicitors were obliged to answer the requisitions on title raised by the Purchasers' solicitors and, if so, whether they had done so.

7. Before turning to this issue it is necessary to set out the chronology of events about which there is no dispute.

Chronology.

8. On 15th March 1996 the solicitors acting for the Purchasers (who are not the solicitors acting for the Plaintiffs in this action) wrote to the solicitors acting for the Vendors (who are not the solicitors acting for the Defendants in this action) confirming the agreement, setting out its principal terms and requesting a draft formal agreement for sale and purchase and "all relevant title deeds and the documents" relating to the property for perusal and approval.

9. On 18th March the Purchasers' solicitors received an undated letter from the Vendors' solicitors enclosing a draft sale and purchase agreement for approval. In that letter, the Vendors' solicitors confirmed that the Purchasers' solicitors should send a cheque for the balance of the deposit in the sum of $226,800.00 on or before 20th March.

10. On 20th March the Purchasers' solicitors wrote to the Vendors' solicitors enclosing such a cheque in accordance with the agreement and confirming that they were considering the draft formal agreement.

11. Two days later on 22nd March they returned the draft formal agreement approved as amended.

12. On 2nd April the Vendors' solicitors informed the Purchasers' solicitors that some of the proposed amendments were not acceptable.

13. There followed a telephone conversation between the solicitors and on that same day - 11th April - the Purchasers' solicitors wrote to the Vendors' solicitors regretting that agreement could not be reached regarding the terms of the draft formal sale and purchase agreement and stating that the transaction would proceed on the basis of the agreement of 10th March.

14. Four weeks later on 9th May the Purchasers' solicitors sent a letter dated 8th May to the Vendors' solicitors expressing concern that they had not by then received the title deeds and documents relevant to the property (plainly foreseeing that failure to do so might affect the completion of the transaction).

15. A week later on 16th May (7 days before the date agreed for completion) the Vendors' solicitors delivered to the Purchasers' solicitors 34 documents. After perusing those documents the Purchasers' solicitors, on 20th May wrote to the Vendors' solicitors raising 9 requisitions. On the following day 21st May the Vendors' solicitors sought to deal with some of the requisitions but declined to provide copies of certain documents requested, saying that they did not form part of the title deeds.

16. On 22nd May (1 day before the due completion date) the Purchasers' solicitors took issue in detail with the Vendors' solicitors concerning their replies to the requisitions and requested satisfactory replies by the end of that day as completion was imminent.

17. On that same day the Vendors' solicitors by letter declined to go further than they had previously done and this was met by a rejoinder from the Purchasers' solicitors (still on 22nd May) to the effect that that was not good enough, and that 3 outstanding requisitions had not been answered to their satisfaction. Nonetheless that same day by separate letter, having previously reiterated that the Purchasers were ready, willing and able to complete, the Purchasers' solicitors sent a draft Assignment for approval subject to the outstanding requisitions being satisfactorily answered.

18. The following day, the 23rd May (the date fixed for completion) there was a further flurry of correspondence between the solicitors each maintaining its position concerning the requisitions and culminating in a letter from the Vendors' solicitors, in effect, demanding completion that day in accordance with the agreement, and in a letter from the Purchasers' solicitors, in effect, saying that they were not obliged to complete until such time as the outstanding requisitions were answered.

19. On 24th May the Vendors' solicitors wrote to the Purchasers' solicitors claiming, inter alia, that the Purchasers by failing to complete on 23rd May were in breach of the Agreement and that the deposit was forfeit.

20. On receipt of that letter the Purchasers' solicitors replied saying that completion had not taken place on 23rd May because their requisitions had not been satisfactorily answered and that, in those circumstances, the deposit could not be forfeit.

21. That same day, the 24th May, the Purchasers' solicitors wrote another letter to the Vendors' solicitors plainly indicating that the Purchasers wished to proceed with the transaction and stating that the matter concerning the outstanding requisitions might be resolved by taking out a Vendor - Purchaser summons to resolve the issue. Three days later - on 27th May - the Vendors' solicitors declined that suggestion and stated that as the Purchasers had repudiated the agreement by failing to complete on 23rd May, the Vendors had accepted that repudiation.

22. On 5th June 1996 the writ issued and in the Statement of Claim dated 30th July the Purchasers (Plaintiffs) sought to accept what they described as the repudiation of the agreement by the Vendors (Defendants).

The Requisitions.

23. Of the Requisitions raised initially by the Purchasers' solicitors in their letter of 20th May, three have given rise to this action. They are as follows:-

"1. Conditions of Exchange New Grant No. 6577

Please prove Letter with amended Master Plans and Landscaping Proposal M/N. 515389 and Letter with amended Master Layout Plan M/N. 977830 having been duly approved by the Director pursuant to Clause 9(d) of the Special Conditions.

2. Assignment Memorial No. 676523

One of the capacities of Lee Man Ngar in this Assignment is the lawful attorney of the First Confirmor. Her power to do so was derived from a Deed of Delegation dated 3rd June 1988 made pursuant to a Power of Attorney bearing the same date and year. As this Assignment was executed by the said Lee Man Ngar as the lawful attorney of the First Confirmor over 12 months from the date of the execution of the said Deed of Delegation, please prove the non-revocation of the said Deed of Delegation at the time of the execution of this Assignment by producing the original or the certified copy Statutory Declaration of Wong Fung Ying and Wong Sua Ying in accordance with Section 5 of the Power of Attorney Ordinance, Cap. 31 or any other sufficient documentary proof.

The Vendor signed by one person only, please prove its due execution.

3. Apart from the preceding, please let us have the original or the certified copies of the following title deeds and documents."

[there then follows a list of 13 documents]

24. In response to those requisitions, the solicitors for the Vendors said in their letter of 21st May as follows:

"1. Please note that a Certificate of Compliance has been issued. There is no need to be concerned about the approval by the Directors.

2. Assignment Memorial No. 676523

Pleas note that the Power of Attorney of the 3rd June 1988 is irrevocable.

3. We sent you herewith certified copy of Certificate of Compliance Memorial No. 887572, Release Memorial No. 777331 and Occupation Permit Memorial No. 733993. We shall not let you have items 1, 5, 6, 7, 8, 10, 11, 12 and 13 as they do not form part of the title deeds."

25. On 22nd May, the solicitors for the Purchasers wrote as follows:

"1. As the Letter with amended Master Layout Plan M/N. 977830 was indeed made after the issue of the Certificate of Compliance Memorial No. 887572, please prove that the said letter had been duly approved by the Director pursuant to Clause 9(d) of the Special Conditions.

2. Even though the Power of Attorney dated 22nd May 1988 was irrevocable, we do not think that the donee have the relevant power to make an irrevocable Deed of Delegation in favour of Lee Man Ngar. As you know, the power to grant an irrevocable Power of Attorney is a Statutory Power governed by Section 4 of the Power of Attorney Ordinance, Cap. 31. But that Section does not apply to your client's case. Accordingly, we are of the view that Lee Man Ngar under the said Deed of Delegation had no power to execute the Assignment Memorial No. 676523 on behalf of Cheung Wan Mei and Lee Kam Yuk. Alternatively, even if the said Chiu Sun Kwong and Lau Yuk Chun had the power (which is denied), that power is not an irrevocable power and accordingly, evidence of non-revocation of that Power of Delegation needs to be provided.

3. According to the Land Registration Ordinance, so long as the instruments which may affect the title of a property are registerable in the Land Registry, so we are entitled to have all the title deeds and documents shown on the land search record as incumbrances against the Property. Putting our client's case at the lowest, our client is at least entitled to have the photocopy of the title deeds and documents to verify whether that title deeds and documents affect our client's title. Therefore, please let us have the originals or certified copies of all the title deeds and documents of the Property as listed in our letter dated 20th May 1996 on or before completion."

26. The solicitors for the Vendors replied on 22nd May as follows:

"1. Even the Master Layout Plan Memorial No. 977830 was made after the issue of the Certificate of Compliance Memorial No. 887572, it does not form part and affect title. We shall not provide you certified copy of the same.

2. In your letter of 20th May 1996, you raised that the power of Lee Man Ngar was derived from a Deed of Delegation dated 3rd June 1998 made pursuant to a Power of Attorney bearing the same date and year. In your letter of 22nd May 1996, you mentioned another Power of Attorney dated 22nd May 1988. There is no such Power of Attorney dated 22nd May 1988 and we doubt very much about your inconsistency. Moreover, we do not understand why Section 4 of the Power of Attorney Ordinance does not apply to our client's case. We are of the view there is no substance in your requisition.

3. We would like to refer you to the case of Lee Kim Ha v. Yip Moon Chiu (1990) DCLR 29. It was held that a Purchaser cannot legitimately demand production of all documents falling within the 15 years statutory title period, but only those documents required for proof of title."

27. On 22nd May, the solicitors for the Purchasers wrote as follows:-

"1. It is one of the Conditions in the New Grant No. 6577 that any amendment of any Layout Plan has to be approved in writing by the Director and any breach would entitle the Government to re-enter upon the Property. Please refer to Clause 9(d) of the Special Conditions therein.

2. The irrevocable Power of Attorney we referred to was the one dated 27th May 1988 made by Cheung Wan Mei and Lee Kam Yuk in favour of Chiu Sun Kwong and Lau Yuk Chun ("the said Power of Attorney") and the Power of Delegation we referred to was the one dated 3rd June 1988 made by Chiu Sun Kwong and Lau Yuk Chun. The mistake in previous letters were clerical errors only. The reason why Section 4 of the Power of Attorney Ordinance does not apply to your client's case is clear. Section 4(2) only applies to a Power of Attorney given to secure a proprietary interest and the right to appoint Substitutes. In your client's case, the said Power of Attorney was not to secure a proprietary interest but only to secure the observance and performance owed to the Donor and the deed by the then donee to Lee Man Ngar was a Deed of Delegation and not Substitution.

3. Our requisition was simple. On the fact of the land search record. The title deeds and/or documents were registered against the Property. According to the Land Registration Ordinance, no instrument or deed could be registered against a real property unless it affects the interests therein. Having been registered against the Property, the title deeds and/or documents are at least prima facie instruments that would affect your client's title in the Property. Our client is therefore entitled to require for their production (at least photocopy documents to verify whether they would indeed affect your client's title)."

28. On 23rd May, the solicitors for the Vendors wrote as follows:

"1. Since a letter with Amended Master Layout Plan had been registered in the Land Registry, there should be no worry that any breach would entitle the Government to re-enter.

2. We totally disagree with your view that the Power of Attorney was not to secure a proprietary interest. In any event, we believe that Section 4 of the Power of Attorney Ordinance provides for such kind of irrevocable Power of Attorney to be relied on. Further, Clause 14 of the two Powers of Attorney in question provided expressly for further delegation of such power. In the circumstances, the two Powers of Attorney in question were valid at the time of execution of the Assignment in question.

In your letter of 20th May and 22nd May, you asked for proof of non-revocation of the Deed of Delegation. But in your 2nd letter of 22nd May, you are not pursuing the point of revocation but instead suggested that Section 4(2) of the Power of Attorney Ordinance does not apply to our case. We wonder for your uncertain and inconsistent point of view.

With respect, we are of the view that the concept of substitution or succession were not created by Section 4(2). In fact, their origin lies in the common law relating to agency. Unless there is some statutory provision forbidding delegation or succession, there is no reason why a successor or delegate could not be appointed if the original Power of Attorney gives power to the donee to appoint one. The appointment or delegation is not the creation of a new Power of Attorney but a further carrying into effect of the original one.

Further we cannot see any difference between Delegation and Substitution in this respect. Please note that it is provided in the irrevocable Power of Attorney dated 27th May 1988, under Clause 17, the Attorney was empowered to appoint Substitutes while now under the Power of Attorney dated 3rd June 1988, the Attorney therein was doing exactly what the Power of Attorney dated 27th May 1988 empowered him to do, that is to appoint a substitute, while, whether the new Attorney is named as delegate or substitute or any other terms, it makes no difference in the substance and please be reminded that one should not look into the form but the substance of a document.

3. We reiterate our view as stated in paragraph 3 of our letter of 22nd May."

29. On 23rd May, the solicitors for the Purchaser wrote as follows:-

"1. The Condition to have a written approval is expressly stated in the relevant Condition. A Purchaser should not be compelled to accept a title based on pure mercy of the Government.

2. Our point was clear and let us further elaborate it.

An irrevocable Power of Attorney could only be made when certain rights as laid out in Section 4 of the Power of Attorney Ordinance have to be secured. Therefore, we are of the view that it is a statutory creature. That Section has not laid down any provisions to enable a donee under an irrevocable Power of Attorney to make an irrevocable Power of Delegation to a third party. It does however lay down the possibilities and thus the requirement to enable a donee under an irrevocable Power of Attorney to make a Power of Substitution. But that only applies to a Power of Attorney given to secure a proprietary interest and not otherwise.

In the present case, the original irrevocable Power of Attorney dated 27th May 1988 was given to secure the observance and performance owed to Chiu & Lau and not to secure a proprietary interest. The Power of Delegation made by Chiu & Lau in favour of Lee Man Ngar was a Power of Delegation and not Substitution. We are therefore of the view that Chiu & Lau could not make an irrevocable Power of Delegation in favour of Lee. The best they could give was an ordinary Power of Delegation. But that power still remains doubtful. Such being the case, the said Power of Delegation is revocable by either express deed or by operation of law. As the relevant Assignment Memorial No. 676523 was executed by the delegate of the donee of Cheung & Lee over 12 months from the date the Power of Delegation was made, Section 5(4)(a) of the Power of Attorney do not apply to the present case and in order to apply the presumption as set out in Section 5(4) thereof, a Statutory Declaration under Section 5(4)(b) need to be made.

3. We could not agree with your views therein expressed and we reiterate our views expressed in our previous letter."

Argument in respect of the 1st requisition.

30. In relation to this matter Miss Chan has referred me to 2 entries on the search in the Land Registry under Memorial Nos. 887572 and 977830. The first a certificate of compliance and the second a letter with an amended master layout plan annexed. Miss Chan has referred me to the Original Grant and Conditions for Exchange which makes provision for any amendment to the Master Plans and Landscaping Proposals to the extent that if there is any amendment it will only be valid and binding if a signed record of such amendment is registered in the District Land Office. Miss Chan says that the solicitors for the Purchasers were in those circumstances perfectly justified in requisitioning a record of the approval and registration of the amendment and that it was no answer for the Vendors' solicitors simply to point to the Letter of Compliance which was in any event plainly followed in time by an amended master plan. That being, so says Miss Chan, if there was no evidence of approval and registration (both of which were required) and thus proof that the conditions of exchange had been complied with, there was a real risk of breach of lease conditions and consequential re-entry. That is why it was incumbent upon the Purchasers' solicitors to raise this requisition - to pursue it - and to decline to complete the purchase until it was satisfactorily answered.

31. Mr. Ip on the other hand takes issue with Miss Chan's contention concerning the conditions for exchange and he suggests that the wording of paragraph 9(d) of that document requires not the registration of the Director's approval and the amendment but only the latter. Mr. Ip also submits that in any event any risk of enforcement action was merely "theoretical or fanciful" and was not "a practical and a real blot on the Vendors title". [See Giant River Ltd. v. Asie Marketing Ltd. [1990] 1 HKLR at 297].

32. In respect of this 1st requisition, Mr. Ip's submission has considerable force and it is my view that whilst the requisition was properly raised, it was also properly, if not very helpfully answered.

Argument in respect of the 2nd Requisition.

33. The matter of the Powers of Attorney and the Deed of Delegation - as against any appointment of a substitute - was a matter of very real concern to the Purchasers' solicitors - and in my view rightly so. This matter went directly to the question of title and is unusually complicated in that in an Assignment dated 17th May 1990 to the Defendants, there were no fewer than 4 confirmors (comprising 7 individuals) and the same person Lee Man Ngar purported to sign as attorney for 2 of them and in her own right as the 3rd confirmor. Lee Man Ngar was undoubtedly entitled to sign in her own right, but what of her signatures as an attorney?

34. Miss Chan for the Plaintiffs complains, if I have understood her argument correctly, that whilst the 1st Power of Attorney was made between the 1st confirmor and the 2nd confirmor, the 2nd confirmor had no legal authority to delegate his authority to Lee Man Ngar - he only had authority to make a substitution and thus Lee Man Ngar could not sign as attorney for the 1st confirmor. In addition, Section 4 of the Power of Attorney Ordinance is not applicable and this was argued at some length in correspondence arising out of the requisition in question. Miss Chan also took issue with the Lee's authority to sign as attorney for the 2nd confirmor.

35. Mr. Ip on the other hand has argued that so far as the signature purported to be for the 2nd confirmor is concerned that cannot be an issue in this case as no requisition was ever raised concerning it.

36. Mr. Ip also repeats the arguments for the Defendants which appear in the correspondence consequent upon this requisition being raised.

37. On the question of delegation, Mr. Ip has referred me to "Powers of Attorney" by Andrew Long at Chapter 7. In part it reads as follows:-

"A distinction must be drawn between 'delegation' and 'substitution'.....

Substitution ..... is technically something more than delegation. If a substitute is appointed this strictly means that, so far as concerns the activities covered by the substitution, the agent ceases to be able to exercise the powers until the substitution is revoked."

From this Mr. Ip submits that any Power of Substitution clearly embraces a Power of Delegation and that thus Lee Man Ngar was entitled to sign as a delegate for an attorney even though the power appointing that attorney expressly referred only to the Power of Substitution and not to any Power of Delegation.

38. Mr. Ip goes on from there to refer me to Bowstead on Agency at Chapter 5 which in part reads as follows:-

"(1) An agent may not delegate his authority in whole or in part except with the express or implied authority of the principal.

(2) The authority of the principal is implied in the following cases

.................................

(e) Where, from the conduct of the principal or of the principal and the agent, it may reasonably be presumed to have been intended that the agent should have power to employ a sub-agent."

39. Mr. Ip then referred me to an illustration of this principle which appears at page 161 -

"Attorneys under a Power of Attorney may delegate the signature of an agreement for sale to the auctioneer."

In support of this proposition is the case of Parkin v. Williams [1986] 1 NZLR 294 in which it was held on the facts of that case that as the attorneys had agreed to all the terms of the contract, the signing of the agreement by the auctioneer was only a mechanical act and was within the implied authority conferred upon the Power of Attorney.

40. Whether in fact Lee Man Ngar was duly authorised to sign on behalf of two of the confirmors or not - which I must say is questionable - it is, in the context of the case as it now is before me, academic.

41. The fact of the matter is that whether or not she was duly authorised went to a question of good title: the solicitors for the Purchasers were alive to that fact, conscientiously and properly so. They raised a requisition about it to which they did not receive satisfactory answers.

Argument in respect of the 3rd Requisition.

42. Counsel for the Plaintiffs Miss Chan has argued before me that, inter alia, the solicitors acting in the purchase of the property were duty bound to raise requisitions concerning those entries revealed by the Land Registry Search and at the very least to obtain copies of the documents referred to. Miss Chan points out that the solicitors acting in the sale handed over copies of 4 of the documents sought but refused to hand over copies of a further 9 including (and this is by way of example only) what has transpired to be an irrevocable undertaking concerning Caltex Oil under Memorial No. 387169: a Deed Poll under Memorial No. 402449 concerning, inter alia, provision for the future surrender of land to Government, and a Statutory Declaration by a solicitor under Memorial No. 469325. Miss Chan argues that each of these documents was of great importance and each was highly relevant to the title of the land.

43. As to the law Miss Chan relies upon Section 2 of the Land Registration Ordinance Cap. 128 which deals with the establishment and purpose of the Land Registry and which section, at the very least by inference, shows that only those matters which may affect the land in question may be registered and thus, if registered, must put a solicitor acting for a Purchaser on notice and oblige him to raise requisitions to explain or to account for such entries.

44. Miss Chan also relies in respect of the 3rd Requisition on the case of Lord Energy Ltd. both at first instance (1991 No. A7124) and on appeal (1997 No. 194).

45. Mr. Ip, Counsel for the Defendants, has argued that the documents requisitioned by the solicitors for the Purchasers were not title deeds and that by virtue of Section 13 of the Conveyancing and Property Ordinance, they were not entitled to ask for them and the solicitors for the Vendors were not obliged to supply them. Albeit that it seems to me to go against his argument, Mr. Ip drew my attention to that part of the judgment of Mr. Recorder Edward Chan Q.C. in Wong Bik Ching v. Yu Hon Chung and Tam Yeung Man Mandy [1996] No. MP 2969 at page 8 which reads as follows:-

"I am of the view that prima facie when an instrument was registered against the property and it was not apparent from the land search that the document had ceased to affect the property, the document ought to be treated as part of the title deeds which the Vendor should make available to the Purchaser."

Although Mr. Ip did not refer me to it, that part of the judgment continues as follows:-

"It may well be that upon perusal of the document, the enjoyment of the property was hardly affected by this document so that it would not have any effect on whether a good title to the property had been shown. However, without actually seeing the document how can the Purchaser know in what way, if at all, would he be affected by this document." ..... "In my view it does not matter whether the Vendor was eventually proven to be right in saying that this statutory easement would not affect the enjoyment of the property and would not affect the quality of the title to the property agreed to be sold. If the Vendor had not answered the requisitions properly by proving and explaining to the Purchaser why and how that this statutory easement would not affect the quality of the title, the Vendor had not answered the requisition and had not proved a good title."

46. Mr. Ip then referred me to para. 2 of the headnote in the case of Active Keen Industries Ltd. v. Fok Chi Keong [1994] 2 HKC which reads as follows:-

"If the matter raised in the requisition was self evident, the Purchaser could not insist upon a fuller reply."

And Mr. Ip sought to argue that the matters to which the 3rd requisition related were indeed self evident.

47. That paragraph in the headnote, however, goes on to say this:-

"the Vendor must act with total candour and common sense, so that the Purchaser could be reasonably certain that there were no facts or materials relevant to the requisition known to the Vendor which had not been disclosed."

48. In my judgment, this 3rd requisition was properly raised and was not properly or fully answered.

Conclusion.

49. During the course of his submission, Mr. Ip told me that shortly after the Vendors' solicitors had unilaterally (on 27th May 1996) declared the Purchasers to have repudiated the contract, they had accounted to their clients for the deposit, the principal subject of this action. The Defendants have been in enjoyment of that deposit since then.

50. I enquired of Mr. Ip why it was that when these difficulties concerning the requisitions had first arisen, the Defendants or their solicitors had not either postponed the date for completion or agreed to the Plaintiffs' solicitors suggestion that the matter be resolved by a Vendor and Purchaser summons. Mr. Ip replied that the decision to regard the Purchasers as being in repudiation and to retain the deposit was a commercial one for which neither the Defendants nor their then solicitors could be criticised.

51. I understand that to mean, quite simply, that an opportunity to make a substantial sum of money was seen and taken. In all the circumstances of this case as I have outlined them, in my view such conduct is unacceptable. The solicitors for the Purchasers and indeed the Purchasers themselves were placed in an impossible position presented very late in the day with the existence of documents which cried out for explanations - which explanations were not forthcoming.

52. It follows from all that I have said that requisitions raised by the solicitors then acting for the Plaintiffs were properly raised and that they were not all properly dealt with by the solicitors then acting for the Defendants.

53. For these reasons, I come to the conclusion that the Defendants themselves repudiated the agreement by seeking to treat the failure of the Purchasers to complete on 23rd May 1996 as itself repudiatory when it was not.

54. It follows that I find for the Plaintiffs and I reject the counterclaim of the Defendants. The Defendants must now repay the deposit of $276,800.00 with interest from 23rd May 1996 and pay to the Plaintiffs the costs and the expenses of investigating the title of $6,490.00 and the stamp duty of $55,360.00.

55. I make an order nisi, with liberty to apply, that the Defendants pay the costs of this action.