CHAN KAM SING AND ANOTHER v. LAM PING PING GRACE

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Case No:1989, MP 3276

Between

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JUDGMENT

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1. This is a vendor and purchaser summons taken out under section 12 of the Conveyancing and Property Ordinance (Chapter 219) in which the plaintiffs ask we to declare that the defendant's requisitions have been sufficiently answered and that good title to the property concerned has been shown.

2. By an agreement dated 7 September 1989, the plaintiffs agreed to sell and the defendant agreed to purchase one equal undivided sixth part of Lot 376 in Demarcation District 227, together with the exclusive right to enjoy all the second floor of block A and the roof. By clause 20 of the agreement, Part A of the Second Schedule of Chapter 219 was incorporated into the agreement, and clause 9 of that Part provides that the plaintiffs shall give good title to the property sold.

3. There are two outstanding requisitions by the defendant.

4. The first asks for a certified true copy of the Block Crown Lease relating to the property sold. The plaintiffs say that they cannot supply this because the original Block Crown Lease relating to Demarcation District 227 has been mislaid by the Sai Kung District Land Registry. All that the plaintiffs can supply Is an uncertified photostat copy of a document purporting to be the lease, which, apparently, has been reproduced from another copy of the lease obtained by someone else from the registry before the original went astray.

5. Section 13. (1) of Chapter 213 provides -

                            (a) ... ; or

                            (b) certified by a public officer or a solicitor, to be a true copy.'

6. The terms of these provisions are perfectly clear. The only question is whether, in spite of the fact that the law says that the defendant is entitled to require from the plaintiffs production of the Crown lease, or a copy certified by a public officer or a solicitor, and the fact that the defendant has done just that, I am able to say that the plaintiffs need not comply with the defendant's requisition. I would have thought, immediately, that I cannot do that, but Miss Cheng has produced an authority that, she submits, says that the plaintiffs are bound to accept secondary evidence of the Crown lease. That authority is Re The Halifax Commercial Banking Co. and Wood (1898) 79 LT 536. 1 have now read that authority, and I do not accept Miss Cheng's interpretation of it. As I read it, the Halifax case is authority only for the proposition that, it may be that, where original documents are lost, the vendor may show good title by producing clear and cogent evidence of the contents, execution and stamping of the lost deeds. Where, however, the contract, or, a fortiori, the law itself, entities the purchaser to require that the vendor produce the deeds, I do not think the case is authority for the view that the court may dispense with this requirement. At page 537 of the report of Halifax, Chitty L.J. asks counsel for the vendor in that case: 'Do you say that you can give secondary evidence of a deed where the contract of sale provides that you shall produce the deed itself? Counsel replies: 'No; but the contract here is not to produce the particular deed.' Counsel was right. In that case, the contract required only that the vendor to deliver an abstract of title to the property concerned.

7. Miss Cheng has adduced no other argument, and I can think of none, that would entitle me, if I were so disposed, to ignore the clear terms of the statute, and say to the defendant that he may not ask by requisition for something that the law says he is entitled to require.

8. In any event, I am not at all sure that the plaintiffs have produced clear and cogent secondary evidence of the Block Crown Lease. All I have before me is a photostat copy of a document that may be the Crown lease in question. I think a court, before being satisfied as the authenticity of a document as representing the true terms of the Crown lease, would require evidence tracing that document back to the original that was in the custody of the Sai Kung District Land Registry; in this case, by the evidence of the person who received a copy of the original before it disappeared and the evidence of officials of the registry to back this up. I am aware that the Land Registry officials have declined to make a statutory declaration regarding this matter, but, if it would make a difference to this matter, they could be compelled to give evidence. I think it would be incumbent on the Registry  to assist people who have got into difficulties because the Registry is unable to produce documents that it has a duty to keep.

9. The other requisition made by the defendant relates to the authenticity of the documents in respect of the assignment of the property to the plaintiffs. In view of my finding in respect of the other requisition, it is not necessary to go into detail here, but I do say that I am satisfied that the problems relating to signatures raised by the defendant are not such as would justify a failure to complete the transaction. I believe that the defendant should be content to accept that the relevant documents establish that the assignment to the plaintiffs was executed with proper authority.

10. In the result, the plaintiffs' summons is dismissed.

11. There is no obvious reason why the plaintiffs should not pay the defendant's costs, and I make an order nisi to that effect.