PAK LAN CHING alias PAK SHUET CHING v. CROWN GREAT COMPANY LIMITED

M.P. No. 2253 of 1988

IN THE HIGH COURT OF HONG KONG

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HEADNOTE

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On a vendor and purchaser summons, under section 12 of the Conveyancing and Property Ordinance (Cap. 219) the court was asked to consider on an objection to the title whether an indenture constituted the parties thereto joint tenants or tenants in common, there being indications both ways:

 

M.P. No. 2253 of 1988

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 a (see section 12 of the Conveyancing and Property Ordinance, Cap. 219). The Vendor originally made an ex-parte application (1988 MP No. 1996) which I refused to entertain for the reasons given in a judgment in those proceedings which I delivered on 12th October 1988. The matter has now been properly brought before me inter-partes, because, since the date of my earlier judgment, the plaintiff Vendor has entered into a contract with the defendant Purchaser, dated 29th October 1988, for the sale and purchase of the property (which is a 1/96th part or share of and in Kwun Tong Inland Lot No. 386 (Flat F, 10th Floor, Kai King Building, No.12 Yuet Wah Street, Kwun Tong, Kowloon).

2. The Purchaser has raised an objection to the title, which arises out of the provisions of a Deed of Gift dated 27th June 1977 and made between Pak Lan Ching (the present Vendor) and Fong Wai Chow (her husband). In the Deed of Gift, Pak Lan Ching is described as the Assignor and Fong Wai Chow as the Assignee. The Deed of Gift contains the following recital:

 

"Whereas the Assignor is desirous of assigning All that one equal undivided moiety or half share of and in the said part or share of and in the said lot together with the right to the exclusive use occupation and enjoyment of the said part of the said building to the Assignee by way of gift." (Emphasis added.)

In its operative part, the Deed witnesses that the "the Assignor doth hereby assignor to the Assignee all that one equal undivided moiety or half share of and in [the property]". (Emphasis added. )

3. So far, one would assume that it was the intention of the Assignor to constitute herself and the Assignee tenants in common of the property. But, in the habendum, a different intention is expressed. The habendum reads as Follows:

 

"TO HOLD the said premises unto the Assignee under and in accordance with the said Conditions TO THE INTENT that the entirety of the said premises shall at all times hereafter be held by the Assignor and the Assignee as Joint Tenants." (Emphasis added.)

This indenture is very inartistically expressed. It operates, on the face of it, as an assignment only of a one-half interest in the property from the Assignor to the Assignee; and yet the intention as expressed was to constitute the Assignor and the Assignee Joint Tenants.

4. In my judgment, the expressed statement of the intention of the parties ought to prevail over the inartistically framed provisions which I have set out : cp. In re Stirrup's Contract [1961] 1 WLR 449 (there are many other cases in the books to the same effect). The indenture was executed both by the Assignor and the Assignee and I am, I think, entitled to assume that in stating in unambiguous terms what their intention was they accurately expressed what effect it was they intended the indenture to have.

5. Accordingly, I am of the opinion that, on the true construction of the Deed of Gift dated 27th June 1977, the same was effective to constitute the Assignor and the Assignee therein named Joint Tenants of the above-mentioned property; and I propose to make a declaration to that effect accordingly. It follows that the objections to the title raised on behalf of the Purchaser by a letter dated 3rd November 1988 from his solicitors to the Vendor's solicitors must be overruled, and I will declare that the objection has been sufficiently answered.

6. There is no dispute between the parties as to costs. Neither party asks for any order as to costs.

7. I would add one further point: notwithstanding the fact that, in my earlier judgment mentioned above, I indicated that a Vendor and Purchaser Summons should be set down for substantive hearing in open Court, this Summons has been brought on before me in Chambers. I appreciate that it is the usual practice in Hong Kong to treat all Originating Summonses as matters which ought to be heard in Chambers. That practice is wrong. An Originating Summons is a form of originating process which enables parties to commence an action in a summary and less expensive way than the institution of an action by writ. But the public interest in seeing that justice is done in open Court is in general the same for an action commenced by Originating Summons as for an action commenced by writ.

8. Where matters of private concern only are being considered, such as the execution of trusts or the administration of estates, the proper practice is to deal with such administrative matters in Chambers. But hostile litigation is different. For example, a Construction Summons, that is to say, an Originating Summons which raises a question on the construction of a written instrument, can be and should be heard in open Court. So also a Vendor and Purchaser Summons.

9. I express the hope that in future the Court's listing officers and the profession will realise that unless an Originating Summons is concerned only with administrative matters it should be set down for substantive hearing in open Court. This is in accordance with the practice in England; and in accordance with the fundamental principle of justice that it should be done in public and not behind closed doors. (None of this applies to hearings of the summons which are of a procedural nature, such as appointments for directions as to filing of evidence and matters of that sort, which should continue to be held in Chambers. )