XCHRX Milli-Link Investment Ltd. v. HO Yuen Chi

HCA765/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 765 OF 1998

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REASONS FOR DECISION

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1. This is an appeal against the order of Master CHUNG granting summary judgment in favour of the plaintiff against the defendant. There is no dispute that the defendant under a Sale & Purchase Agreement agreed to purchase a flat in Forest Hill, Tai Po from the plaintiff at the price of $12,480,000 and a deposit of 10 per cent had been paid. Completion of the transaction was to take place on or before 29 December 1997.

2. It is the plaintiff case that the defendant failed to complete on 29 December 1997 and the following day, namely 30 December 1997, the plaintiff forfeited the 10 per cent deposit.

The defendant was notified of such forfeiture by a fax message, to be followed by a letter to the same effect. By this action, the plaintiff also claims against the defendant for damages arising out of the breach of the contract in question.

3. The defendant, on the other hand, alleged that the written Sale & Purchase Agreement had been varied by an oral agreement, whereby the price of the flat was reduced to $10,300,000 and the completion date was put off for a period of three to six months. The exact time was to be agreed by the parties.

4. This oral agreement was said to have been reached between the defendant and a Mr Wilson WU, who was at the material time an estate agent working for Centaline Company.

5. The plaintiff agrees that there have been requests by the defendant for a reduction in price and for a postponement of the completion date, but those requests have been flatly refused by the plaintiff.

6. There is no dispute that insofar as the oral agreement is concerned there has been no document to support it, other than certain self-serving diaries allegedly to have been made by the defendant herself. On the other hand, there is evidence from the agent himself who was involved in this transaction to the effect that this request for reduction of price and the postponement of the completion date have been flatly refused.

7. It is also not disputed that when the plaintiff forfeited the 10 per cent deposit, on 30 December 1997, the plaintiff had never raised any protest at all, and instead the title deeds were then returned to the plaintiff's solicitor by the defendant's solicitors.

8. The defendant, clearly, is a person of good business sense. If her assertion is correct that three days after this oral agreement, the plaintiff purported to go back on the agreement and purported to forfeit a deposit amounting to over $1 million, she would not have behaved in a manner as she did.

9. I have considered the evidence carefully. I have also considered the various aspects raised by the defendant in the course of her submissions. I agree with the observations, indeed the conclusions, reached by the learned Master that on their entire background of this case, the assertions by the defendant on this alleged oral agreement is simply not believable.

10. In any event, the alleged oral agreement, as a matter of law, cannot vary or contradict the written contract, and the alleged oral agreement, not being an agreement in or evidenced in writing signed by the parties thereto, is not effective by reason of Section 3 of the Conveyancing and Property Ordinance. On the matter both as to law and as to fact I'm satisfied that the defendant had no defence to this action.

11. I'm satisfied that the learned Master had come to a correct decision in granting summary judgment in favour of the plaintiff and that the decision is a correct one. In the circumstances, the appeal against that decision must be dismissed.