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HCMP000597/1990
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HEADNOTE
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A document produced as proof of title to land is not to be regarded as one which "purports to have been executed ... under a power of attorney" within the meaning of s. 13(4A) of the Conveyancing and Property Ordinance, Cap. 219, if it can be seen from the title deeds themselves that the person on whose behalf the document was executed was not in fact the donor of the power. The sub-section does not go so far as to override even such inconsistency thus appearing. However, consistency may be assumed if there is nothing to suggest the contrary. It does not matter if there is nothing positively to prove consistency (because, for example, the power of attorney has been lost).
1990, M. P. No. 597
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
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IN THE MATTER of a Vendor and Purchaser Summons pursuant to Section 12 of the Conveyancing and Property Ordinance, Cap. 219 of the Laws of Hong Kong
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IN THE MATTER. of an agreement for sale and purchase dated 5 December 1989 made between the Plaintiff and the Defendant
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IN THE MATTER of All Those Two equal undivided 28th parts or shares of and in Lot No. 935 in Demarcation District No. 180 in Tai Po and of and in the messuages and erections and buildings thereon known as Hing Wan House and King Sing House, Tai Wai, Shatin together with the full and exclusive right and privilege to hold use occupy and enjoy All that Shop B on the Ground Floor (including the cockloft therein) of the said Ring Wan House
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BETWEEN
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LEUNG WOON CHAU |
Plaintiff |
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AND
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GLADEAL LIMITED |
Defendant |
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Coram: Bokhary J. in Court
Date of hearing: 21 May 1990
Date of delivery of judgment: 21 May 1990
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JUDGMENT
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1. This is a vendor and purchaser summons. The premises concerned are Shop B (including the Cockloft therein) on the Ground Floor of Hing Wan House, 74 Chik Chuen Street, Tai Wai in the New Territories.
2. By an agreement dated December 5, 1989, the plaintiff vendor agreed to sell and the defendant purchaser agreed to buy the premises. The purchaser does not accept that the vendor has shown good title.
3. The instruments which fall to be considered on this summons included a Power of Attorney dated November 8, 1969, a Deed dated October 1, 1971, and an Assignment dated October 22, 1971.
4. The vendor maintains that the Power of Attorney was executed by one Yam Tze Ming and that the Deed and the Assignment were executed on his i.e. Yam Tze Ming's behalf by the donee of such power, one Yam Kai Wah. He i.e. the vendor relies on s.13(4A) of the Conveyancing and Property Ordinance, Cap. 219, which reads : -
"Where a document is or has been produced by a vendor as proof of title to any land and that document purports to have been executed, not less than 15 years before the contract of sale of that land, under a power of attorney, it shall for the purposes of any question as to the title to that land, be conclusively presumed-
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(a) |
as between the parties to that contract; and
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(b) |
in favour of the purchaser under that contract as against any other person, |
that the power of attorney -
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(i) |
was validly executed;
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(ii) |
was in force at the time of the execution of that document; and
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(iii) |
validly authorized the execution of that document." |
5. In the Power of Attorney, the donor is named as "Yam Tze Ming alias Yam Tse Ming alias Yam Kam Cheng alias Yam Kai Cheng"; and he signed as "Yam Kam Cheng".
6. In executing the Deed and the Assignment, Yam Kai Wah - who was a tenant in common of the premises as well as the donee of the power - signed twice : once simply as "Yam Kai Wah" and once as "Yam Kai Wah the attorney of Yam Tze Ming".
7. Reverting to s.13 (4A), the Deed and the Assignment are among the documents produced by the vendor as proof of title, and they were executed not less than 15 years before the contract here in question.
8. Now what does the expression in s.13 (4A) "purports to have been executed ... under a power of attorney" mean? Looking at those words in their context, I do not think that a document produced as proof of title is to be regarded as one purporting to have been executed under a power of attorney if it can be seen from the title deeds themselves that the person on whose behalf the document was executed was not in fact the donor of the power. Much as s13 (4A) does for those who have to show good title, I do not think that it goes so far as to override even such inconsistency if it were apparent on the face of the title deeds.- Consistency may be assumed if there is nothing to suggest the contrary. It does not matter if there is nothing positively to prove consistency (because, for example, the power of attorney has been lost). But if such inconsistency thus appears, then s.13(4A) will not override it. In so far as the vendor's argument suggests that it will, I reject it.
9. Is any such inconsistency apparent here? In my judgment, none is. The use - and inconsistent use at that - of aliases is untidy. This is particularly so when it is accompanied - as here - by a failure to follow a consistent course in identifying the person in question by reference to a single document of identity. But at the end of the day in the present case, an examination of the title deeds - which includes, for present purposes, the Power of Attorney, which happens to be available and not missing as such, instruments not infrequently are - does not reveal that the person on whose behalf the Deed and the Assignment were executed under the Power of Attorney was someone other than the donor thereof.
10. In such circumstances, by virtue of s. l3 (4A), it is conclusively persumed as between the parties hereto, and also as between the purchaser and any other person, that the Power of Attorney was validly executed; that it was in force at the time of the execution of inter alia the Deed and the Assignment; and that it validly authorised the execution of the Deed and the Assignment.
11. Looking at the whole of the circumstances, it does appear plain, and I so hold and declare, that the Yam Tze Ming referred to in the documentation throughout is one and the same person. That this was not plain was the purchaser's worry, and underlies the requisition which I am dealing with here. I have already made certain observations in regard to the use of aliases and in regard to documentation of identity. Nevertheless, it does seem to me plain, on the whole of the circumstances, that it is the same Mr Yam Tze Ming throughout even though his use of aliases had not always been wholly consistent.
12. In particular, it is desired by the purchaser that if I hold and declare, as I do hold and declare, that the vendor has shown good title, I should declare in terms among other things that the Yam Tze Ming named in the New Grant dated May 1, 1968, is the Yam Tze Ming who executed the Power of Attorney with which I have been dealing. I am satisfied that they are one and the same person; and I so hold and declare.
13. The precise form of the order that I should make is something on which I will now hear counsel if they wish to be heard thereon. On the whole, I am not convinced that the declarations sought in the originating summons are the most appropriate ones to make. It seems to me that the most useful declarations which I can make are those which I have indicated. Nevertheless, this is something on which I will hear counsel further if they wish to be heard; and of course there is the question of costs on which I will hear them as well.
[Submission on costs]
14. Both counsel are content with the declarations which I have made, so I say nothing further in that regard. As far as costs are concerned, both counsel join in inviting me to make no order as to costs; and that is what I will do leaving the parties to bear their own costs. The last thing that I have to say is that I am very grateful to counsel for their assistance.
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(K. Bokhary)
Judge of the High Court |
Representation:
Mr L Chan (instructed by Deacons) for the plaintiff vendor
Miss Alice Mok (instructed by Gary Mak & Co) for the defendant purchaser
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