CHAN KIN LEUNG v. LOK KAR CHEONG

1997, No.MP3993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

-----------------

----------------------

--------------------

J U D G M E N T

--------------------

This is a Vendor and Purchaser Summons between the Plaintiff and the Defendant respectively. The subject matter is Flat A on the second Floor standing on Section D, Lot No.1169 in D.D. No.453 of Tsuen Wan. I shall first of all set out those title documents in chronological order before I set out in the next section the history of requisition herein. There are two main requisitions concerning the New Grant No.2250 and a Building Licence No.13 of 1976.

Title Documents

(1) New Grant No.2250 of Lot No.1169 in D.D. No.453 apparently for a term of 99 years less the last three days commencing from 1 July 1898. This New Grant was lost and could not be traced, i.e. neither the Vendor, including his predecessors-in-title, nor the government has a copy of the same. The only document evidencing this New Grant to the Grantee Yeung Tak, is in the next document.

(2) An entry in the New Grant Register being kept by Tsuen Wan Land Registry with Yeung Tak being the name of purchaser grantee from the Crown. It was stated by a chop thereon at the top that : -

"The original copy of the New Grant was lost and untraceable. The information contained in the copy of this New Grant Register is not an official land record held under the Land Registration Ordinance and is for reference only. The Land Registry does not guarantee the accuracy of the information contained in this New Grant Register."

(3) Building Licence No.13 dated 16 January 1976. The Grantee was described as Peter Yeung alias Yeung Tak. The Licence was granted to him to build a three-storey building not exceeding 25 feet in height and should not have a built-over area exceeding 700 square feet. In the map attached thereto, the building lot is in pink on the western side of Lot 1169 R.P.

(4) Rectification of house boundaries on Lot 1169 R.P. in D.D.453 dated 14 December 1977 and registered in the Land Office on 21 December 1977 whereby the location, area and boundaries of the house site as shown thereto was thereby substituted for the plan annexed to the aforesaid Building Licence No.13. In the new plan, the house site is now situated at the northern side of 1169 R.P. and the coloured pink area was said to be 65.04 square metre, i.e. about 700 square feet.

(5) Letter of Compliance dated 22 December 1977 of the Town Manager and District Officer, Tsuen Wan, which stated that the small house erected in accordance with Building Licence No.13 has been inspected and consequently it was certified that all conditions of the Grant had been found to be complied with to the satisfaction of the Officer.

(6) Shortly thereafter by a Deed Poll dated 23 January 1978 Peter Yeung, alias Yeung Tak sub-divided Lot.1169 of the old R.P. into Section D, Section E and the New R.P. Section D is, according to the Vendor, where the property in question now stands.

(7) By a Deed of Mutual Covenant dated 10 February 1978 the Grantee Peter Yeung alias Yeung Tak was described as the first owner, whereas one Li Kam Por, was described as the second owner of Flat A on the first floor. It was recited that the first owner was in possession of the said land, i.e. Section D of Lot No 1169 in DD No.453, together with the building thereon erected and was entitled to a Crown Lease for a term of 99 years less three days from 1 July 1898 by virtue of New Grant No.2250 in that the said building comprises six residential flats (being Flats A and B on each floor) from the ground to the second floors inclusive.

(8) By a Deed of Assignment dated the same date as the DMC, i.e. 10 February 1978, the Grantee Peter Yeung alias Yeung Tak assigned the suit property, i.e. Flat A on the second floor to one Lok Hang Yue, the Vendor/Defendant's predecessor-in-title. It was stated also in the recital therein that the property was described as Section D of Lot No.1169 in D.D 453 and of and in the building thereon.

The issue

There are two issues involved in the requisitions, namely :-

(1) Whether the Purchaser has fully answered the requisition as to whether the construction of the building of which the property forms a part (which building is situated on Section D of Lot No.1169) was covered by Building Licence No.13 issued in respect of the land then known as Lot No.1169 R.P. together with the subsequent Rectification Agreement - "the Building Licence Requisition".

(2) Whether the requisition requesting the production of a original or certified copy of New Grant No.2250 has been waived by the Plaintiff or otherwise the Plaintiff was estopped from requesting for the production of a certified copy thereof and/or the Plaintiff has accepted the Defendant's title in this regard - "the New Grant Requisition".

In view of the way the Vendor answered or dealt with the two Requisitions, it is encumbent to set out the history of the correspondances in these Requisitions in detail hereinbelow.

The History of Requisition

(1) Pursuant to the aforesaid Sale and Purchase Agreement of 26 September 1997 the Defendant's solicitors by a letter of the same date, i.e. 26 September 1997, sent some of the original title deeds and documents to the Purchaser/Plaintiff's solicitors including the aforesaid Deed Poll of 23 January 1978 and the Assignment of 10 February 1978 as aforesaid and other subsequent documents and deeds.

(2) 3 October 1997 - Plaintiff's solicitors asked for other title deeds including the certified copy of New Grant No.2250.

(3) 9 October 1997 - Defendant's solicitors replied and enclosed a plain copy of New Grant Register of D.D. 453 and the aforesaid DMC of 10 February 1978.

(4) 13 October 1997 - Defendant's solicitors sent to the other side another copy of the New Grant Register and stated that it was obtained by them from the Tsuen Wan Land Registry wherein particulars of New Grant No.2250 in respect of Lot No.1169 in DD 453 are recorded. As stated in the said Register, the original of the said New Grant was lost and untraceable.

(5) 14 October 1997 - the Plaintiff's solicitors based upon the New Grant Register, requested evidence showing permission for the building of the house and the certified copy of the New Grant Register. They also said : -

"we reserve our right to raise further requisition upon receipt of your reply"

(6) 22 October 1997 - Defendant's solicitors sent Rectification Agreement M/N 151754. They further stated that the Tsuen Wan, NT Land Registry would not supply certified copy of the New Grant Register, but that the original register would be available for inspection.

(7) 24 October 1997 - the Plaintiff's solicitors now requested certified copy of the Building Licence and the certified copy of the Rectification Agreement. They also said : -

"we reserve our rights to raise further requisitions upon our receipt of the aforesaid Building Licence."

(8) 25 October 1997 - Defendant's solicitors said : -

"... we propose that completion shall take place on scheduled date subject to our undertaking to send you the certified true copy of Rectification Agreement ... upon receipt from Land Registry and the certified true copy of Building Licence upon receipt of the same from the District Lands Office, Tsuen Wan ..."

(9) 27 October 1997 - the Plaintiff's solicitors rejected the aforesaid proposal of the Defendant's solicitor. They said : -

"... we reserve our right to raise further requisition pending perusal of the said Building Licence No.13 and in the absence of the said document, your client has not yet proved good title"

(10) 27 October 1997 - the Plaintiff's solicitors said : -

"... we would like to confirm that our respective clients have agreed that the completion date to be postponed to seven working days from the date of our receipt of the certified copy of Building Licence No.13 and also subject to your client having by then proved good title in accordance with Section 13 of the Conveyancing & Property Ordinance, Cap. 219."

(11) 28 October 1997 - the Defendant's solicitors :

"... put on record that upon review of your requisitions raised, you have already accepted good title on behalf of your client in accordance with Section 13 of the C& PO save and except for the production of a certified true copy of Building Licence No.13..."

(12) On the same day, on 28 October 1997, the Plaintiff's solicitors replied as follow :

"We would put on record that we have never accepted that good title has been shown. May we draw your attention to the requisition raised in our letter of 14/10/1997 of which no satisfactory reply has been given. In your purported answer to the said requisition, you have sent us a plain copy of Rectification Agreement M/N151754 relating to certain Building Licence of which you alleged that the same is in relation to the house of which the captioned property form part"

"We would reiterate that we reserve our rights to raise further requisitions upon our receipt of the said Building Licence and the sale and purchase shall only be completed subject to your client having proved good title in accordance with Section 13 of the C&PO."

(13) 30 October 1997 - the Defendant's solicitors sent a plain copy of Building Licence No.13 with their undertaking to provide a certified copy thereof.

(14) 1 November 1997 - The Plaintiff's solicitors requested clarification as to whether the Building Licence (issued in respect of Lot No.1169RP in DD No.453) covered the property erected on Section D of Lot No.1169RP in DD No.453. They further said :

"In view of the above, we regret to inform that unless the aforesaid issues can be clarified, we cannot accept that good title has been shown."

(15) 4 November 1997 - the Defendant's solicitors sent the certified true copy of the Building Licence No.13. This letter is the Defendants' reply to the requisition concerning Building Licence No.13, I shall reduce them in full here below : -

" Since the Building Licence No.13 was granted on 16th January 1976 with house boundaries rectified on 14th December 1977 by way of a Rectification Agreement Memorial No.151754 (the latter being supplied to you under cover of our letter dated 22nd October 1997), both are issued before the Lot No.1169 R.P. in D.D. 453 was divided up on 23rd January 1978 into Sections D, E & R.P., it is normal and absolutely correct that the Building Licence or Rectification Agreement should not at that time relate itself to section D of Lot No.1169 in D.D. 453. It does not in any way lead any adverse evidence that the said building Licence No.13 or Rectification Agreement does not refer to the building erected on the said section D of Lot No.1169 R.P. in D.D. 453.

As all the title documents (save for the Building Licence No.13) have been sent to you on or before 22nd October 1997, our client is not obliged to answer your new requisitions arising out of the other title documents which is time-barred. However, as a gesture of goodwill, we would like to assist without accepting any further duty to satisfy your new requisitions. In fact, it appears from the plan annexed to the Rectification Agreement Memorial No.151754 that Building Licence No.13 relates to the building presently erected on Section D of Lot No 1169 in D.D. 453 while the plan annexed to the Rectification Agreement Memorial No.151753 (copy attached) in respect of Building Licence No.12 related to the building erected on Section E of Lot No. 1169 in D.D. 453. Cross-reference to the plans of Deed Poll Memorial No.154548 and First Assignment Memorial No.155303 is helpful.

In view of the proximity of time between the Building Licence, Rectification Agreement, the Deed Poll, Deed of Mutual Covenant and the said First Assignment and relying on the plans therein, we opined that 'the said building' as referred in the Deed of Mutual Covenant and First Assignment is in fact the building erected in accordance with Building Licence No.13.

As previously agreed the completion date shall be postponed to seven working days after supply of Building Licence and good title being proved in accordance with S.13 of the Conveyancing and Property Ordinance, we are instructed to inform you that the completion date shall be on or before 11th November 1997 and that our clients' rights under the Agreement for Sale and Purchase dated 26th September 1997 are hereby reserved."

(16) 5 November 1997 - the Plaintiff's solicitors denied their requisition is out of time. They said : -

"It is clear from our correspondence that we have not at any material time accepted your clients title and we would reiterate the contents of our letter dated 1/11/1997 and would also inform that if your client shall fail to prove good title within the next 7 days from the date hereof, our client shall seek to rescind the sale and purchase Agreement for the reason aforesaid in which event all moneys paid to your client shall be returned to us forthwith."

(17) 7 November 1997 - the Plaintiff's solicitors further replied and argued that the requisitions were not out of time, they further said this : -

"In the meantime, you are required to furnish us with the full text of New Grant No. 2250 to show the terms and conditions therein contained and to prove that the said New Grant No.2250 is properly executed and stamped (if applicable)."

(18) On the same day on 7 November 1997, the Defendant's solicitors replied as follows : -

" In respect of your requisition on supply of the text of New Grant No.2250, we have duly answered by our previous letter dated 13th October 1997 that the original document was lost and untraceable and in lieu thereof the copy New Grant Register was supplied. Your further requisition on the supply of New Grant Register was also dealt with in our letter dated 22nd October 1997. No objection thereto or further request for the New Grant or New Grant Register is received within 7 working days from your receipt of our letter dated 22nd October 1997 and the copy of the New Grant Register, and we are entitled to take that this requisition has been duly dealt with by the said letter dated 22nd October1997."

" Any subsequent re-opening of this requisition will not be entertained..."

The Building Licence Requisition

From the aforesaid correspondances I accept the Defendant's submission that this requisition was sufficiently answered at the latest by the Defendant's solicitor's letter dated 4 November 1997 as aforesaid. It is clear from those title documents that the building of which the property forms a part is situated on a piece of land presently known as Section D, Lot No.1149 in D.D. No 453. I reach this conclusion for the following reasons.

The New Grant Register stated that D.D. No 453 was for agricultural purpose and it was registered in the name of Yeung Tak. The Building Licence No.13 dated 16 January 1976 was granted to Yeung Tak for the erection of a small house of the remaining portion of Lot No.1169 but that was marked on the western left hand side of the plan.

The Rectification Agreement dated 14 December 1977 was entitled "Rectification of House Boundaries on Lot No.1169 R.P. in D.D. 453, Building Licence No.13, dated 16 January 1976". It was issued by District Office to Yeung Tak. The house lot was relocated to the position where Section D was later on marked out. In other words, by virtue of this Rectification Agreement, the location and boundaries of the house shown on the plan annexed to Building Licence No.13 were rectified. Shortly afterwards the Letter of Compliance dated 22 December 1977 was issued. Although this Letter of Compliance (which has the effect of an occupation permit for houses in urban area) only stated that the small house erected was in accordance with Building Licence No.13 and there was no reference to the Rectification Agreement, the sequence of this Letter of Compliance most probably referred to the Building Licence No.13 as rectified by the Rectification Agreement by necessary implication.

Be that as it may, the Deed Poll made by Yeung Tak shortly thereafter, on 23 January 1978, divided the old Remaining Portion of Lot No.1169 into Sections D and E and the new Remaining Portion. By comparing the plan annexed to the Deed Poll with the plan annexed to the Rectification Agreement, the piece of land on which the small house was built by virtue of the Deed Poll was renamed Section D and it was carved out from the old Remaining Portion of Lot No.1169.

It is true that the Deed Poll did not refer to any building on Section D. However, the aforesaid Deed of Mutual Covenant entered into a few days later on 10 February 1978, by Yeung Tak as the first owner with the second owner in respect of Flat A on the first floor of that building together with the assignment dated the same date on 10 February 1978 in respect of Flat A on the second floor to the Defendant's predecessors-in-title made it quite clear that the building on Section D could not have come into existence within a few days' time after the carving out.

When one compared the plan annexed to the first assignment with the plans respectively annexed to the Rectification Agreement and the Deed Poll, it would become clear that the property forms part of the small house erected pursuant to Building Licence No.13 as rectified by Rectification Agreement on the old Remaining Portion of Lot No.1169 and this piece of land has been renamed as Section D of Lot No.1169 subsequently by the said Deed Poll. All in all, the Letter of Compliance could only refer to the building there and then until now has been standing on Section D of Lot No.1169.

Obviously by letter dated 5 January 1998, the District Land Office confirmed that : -

"In accordance with our survey record, the Building Licence No.13 relates to Section D of Lot No. 1169 in D.D. 453"

This would give absolute proof of a good title in respect of the Building Licence Requisition. This was after the completion date of 11 November 1997. However the Defendant has, in my view, answered this requisition sufficiently by his solicitors' letter dated 4 November 1997, i.e. before the extended completion date on 11 November 1997.

The New Grant Requisition

The issue herein is whether the Plaintiff has accepted the Defendant's title in this regard or has otherwise waived the requisition and objection or was estopped from requesting for the production of a certified copy of New Grant No.2250.

The Plaintiff/Purchaser relied on Clause 6 of the Sale and Purchase Agreement which provided as follow : -

"6. Any requisitions or objections in respect of the title or otherwise arising out of this contract shall be delivered in writing to the Vendor's solicitors within seven working days from the date of receipt of all the relevant title deeds by the Purchaser's solicitors otherwise the same shall be considered as waived (in which respect time shall be of the essence of the contract)"

They further relied on s.13 (1) on the Conveyancing and Property Ordinance, Cap219 which provided that :

"13. Proof of title and recitals

(1) Unless the contrary intention is expressed, a purchaser of land shall be entitled to require from the vendor, as proof of title to that land, only production of the Crown lease relating to the land sold and-

(a) proof of title to that land-

(i) where the grant of the Crown lease was less than 15 years before the contract of sale of that land, extending for the period since that grant; or

(ii) in any other case, extending not less than 15 years before the contract of sale of that land commencing with an assignment, a mortgage by assignment or a legal charge, each dealing with the whole estate and interest in that land; ..."

The Purchaser thus submitted the following which I shall summarise as follows :

(1) By the aforesaid s.13(1) the Defendant Vendor is under an obligation to produce to the Plaintiff Purchaser the Government lease or a certified copy of it that being the ultimate root of title. The Plaintiff is entitled to know the terms of the Government lease in order to see whether all the covenants had been complied with in deciding the ultimate question whether a good title has been shown (Chan Shu Keung v. So Wing King [1998] 1 HKC 495, Le Pichon J. which is a case directly on this Lot No.1169 in D.D.453 but in respect of Section E concerning Flat D on the second floor and roof thereof. But there was no issue of waiver/estoppel raised by the Vendor thereof.)

(2) Clause 6 of the subject Sale and Purchase Agreement does not preclude the Purchaser's solicitors from raising the above objection/requisition as the 7-working-day period did not begin to run until after the receipt by the Purchaser's solicitors of all the relevant title deeds of the subject property. Since the Defendant's solicitors have not supplied to the Plaintiff's solicitors a copy of Building Licence No.13 until 30 October 1997, so the objection/requisition raised by the Plaintiff's solicitors on 7 November 1997 was not time-barred.

(3) Further alternatively the said Clause 6 does not prevent objection/requisition going to the root of title being raised out of time. The Government lease, i.e. New Grant No.2250, goes to the root of the Defendant's title to the subject property.

(4) Further alternatively an objection/requisition going to root of Vendor's title, as a fundamental objection importing that the Vendor cannot convey what he has contracted to give, i.e. a good title, cannot be waived except by the Purchaser accepting the Vendor's title. On the facts of the case, the Plaintiff Purchaser has never accepted the title of the Defendant Vendor.

(5) Further alternatively, on the facts of the case, the Purchaser's solicitors have never waived the right of the Plaintiff to object to the non-production of certified copy of the Government lease and/or the terms thereof.

However I accepted the submissions of the Defendant/Vendor put forward by his counsel Mr Keith Yeung, which I shall set out hereinbelow.

The House of Lords in McGrory v. Alderdale Estate Co. Ltd. [1918] AC 503 affirmed the well settled principle that where a purchaser has right to ask for a good title he may, after acquiring that right, waive that right. In the speech of Viscount Haldane at p.511, he said : -

"No doubt where a purchaser has a right to ask for a full title he may waive that right and be bound by his waiver. But the cases where this occurs are cases in which it is established that since acquiring the right he has waived it."

The case before me is a case where wavier was alleged to have been made after the Sale and Purchase Agreement.

Even an objection of requisition which goes to the root of title can be waived either expressly or by necessary implication. In Hillier Development Ltd v. Tread East Ltd [1993] 1 HKC 285 at pp. 295-296, Nazareth J.A. said: -

"The original requisition or objection, it is quite plain, is exactly the same as that raised by the prospective mortgagee's solicitors on 23 July 1990, and passed on to the vendor's solicitors by the purchaser's solicitors on the next day. Having waived it (as indeed the judge himself found) the purchaser cannot rely upon what in reality is the same requisition simply because a third party, even if it be the proposed mortgagee's solicitor, has raised it. However the judge apparently considered that because the requisition went to the root of the title, neither the time limit of six days for raising requisitions nor the waiver applied, although the latter was not expressly addressed. My Lord has explained why the contention that the second requisition goes to the root of the title does not avail the purchaser. In referring to that matter, I would say that I am in addition not persuaded that the requisition does go to the root of the title.

However that may be, I did not understand counsel on either side to suggest that an objection or requisition, even one which goes to the root of the title could not be waived. Plainly it can; and in many cases, that precisely is what is done when a calculated risk is taken by a purchaser on possible objections that are thought unlikely to arise. It was no doubt in recognition of this that Miss Chow for the purchaser submitted that such waiver had to be express. But she produced no authority for that proposition, which must be rejected."

In respect of the time limit for raising requisitions under the aforesaid Clause 6, if the Purchaser is aware of the alleged defects, any time limit for raising requisitions continued in the Sale and Purchase Agreement will run against him, notwithstanding that the alleged defect affects the root of title. In the aforesaid case of Hillier Development Ltd. Penlington J.A. at p.293 C-I said that : -

" The question of the effect of a time limit on requisitions when they go to the vendor's root of title was considered in detail in Giant River Ltd v Asie Marketing Ltd [1990] 1 HKLR 297. At p 311 Deputy High Court Judge Cruden refers to Warde v Dixon (1858) 28 LJ Ch 316, Re Tanqueray-Willaume & Anor (1881-2) 20 Ch D 465 and Re Cox & Neve's Contract [1891] 2 Ch 109. I am satisfied that those authorities only go to the proposition that where a vendor, having used due diligence, is unaware of some defect in the vendor's title, the time limit imposed in the agreement does not run against him. In Re Cox & Neve's Contract the agreement provided that the purchaser should within 14 days of the delivery of the abstract, send to the vendor's solicitors all his objections and requisitions as to title. After the expiration of that 14 days, the purchaser discovered that there was a restrictive covenant as to the right to build on part of the property and objected to the title on those grounds. North J held that under those circumstances the 14-day time limit did not apply. During the course of argument, at p 114, he said :

The covenant ought to have been disclosed in the abstract of title; if it had been the purchaser would have had 14 days within which to make the objection; why should he have less time because the covenant was not disclosed?

Clearly he considered that if the purchaser had been aware of the covenant the 14 day time limit would have run, notwithstanding that it affected the root of title. Re Tanqueray-Willaume & Anor was concerned with the possibility of land held by trustees being charged with debts due to legatees. Again it is clear that a time limit does not run if the purchaser has no knowledge whether such debts exist. Here, it seems to me, the situation is entirely different in that the matter now complained of, ie the sale by Oliver Paris to one of its own directors at what seems to be an undervalue, was obvious from the papers already in the possession of the purchaser's solicitors at the time the agreement was entered into. It certainly became clear to the mortgagee's solicitors who were in possession of no more information than the purchaser. I do not think that the proposition contended for by Miss Chow applies in this instance and that the purchaser's solicitors were under a duty to make requisition within the time stipulated in the agreement."

In the aforesaid case it was held that the submission by the purchaser to the vendor of the draft assignment constituted an implied waiver of any subsequent requisition. Implied waiver or acceptance of the title of the Vendor may take many forms. The aforesaid correspondances between the two firms of solicitors between 3 October 1997 and 7 November 1997 are to my mind clear waiver of the certified copy of New Grant No.2250 or the New Grant Requisition or acceptance on the Plaintiff's behalf of the Defendant's title in this regard (i.e. not in respect of Building Licence No.13).

The Purchaser's solicitors were aware in clear terms on 13 October that New Grant No.225 was lost and untraceable. They had received all relevant title deed and information enabling them to pursue or in respect of the New Grant Requisition further should they choose to do so. The request of production of New Grant No.2250 was however not pursued until 7 November 1997. They only acted on the copy of the New Grant Register supplied since the original, i.e. the Register, was in the Land Office for inspection.

Thereafter only the Building Licence Requisition was pursued. The Vendor's solicitors were in fact led and induced to believe that the Building Licence requisition was the only outstanding one. Induced thereby and in reliance thereof, the Defendant's solicitors continued to pursue the sale and purchase by seeking to answer the Building Licence requisition and thereby incurring further legal costs. Should the Purchaser's solicitors had insisted upon the production of a certified copy of New Grant No.2250 on 13 October 1997, or within seven working days thereafter, the Defendant could, within five working days thereafter, have there and then annulled the Agreement pursuant to Clause 6 of the Agreement and return the deposit to the Plaintiff.

I do not accept the construction of Clause 6 as put forward by the Plaintiff that the seven working days would start to run only after the copy of Building Licence No.13 has been supplied on 30 October 1997. This title deed document is only relevant to the Building Licence requisition and not to the New Grant Requisition.

Be that as it may, Building Licence No.13 produced would only confirm the New Grant requisition and did not raise any doubt thereon as the Building Licence stated clearly that the Licence is granted to the Grantee, being Peter Yeung alias Yeung Tak. Further, it is quite clear, as submitted by Mr Yeung for the Defendant, that the penultimate paragraph in the Plaintiff's solicitors' letter of 7 November 1997 was something said by the way and a revival of the New Grant Requisition long after the Plaintiff was fully aware of its loss and the only available secondary evidence was the New Grant Register, a copy of which was sent on 14 October 1997.

Finally, s.13(4) of the Conveyancing and Property Ordinance provided that a recital statement and description of any fact or matter or partly contained in any document of title relating to any land dated or made not less than 15 years before the contract of sale of that land shall, for the purpose of any question as to proof of title concerning the parties to that contract and unless the contrary is proved, be sufficient evidence of the truth of that recital, statement and description. The First Assignment clearly is not less than 15 years before the contract of sale and it stated that New Grant No.2250 was granted to Yeung Tak. That was dated 10 February 1978, some 19 years before the contract of sale. A similar description was also found in the Deed of Mutual Covenant of the same date.

Now any copy of New Grant No.2250 was lost and cannot be traced. Even the Government themselves have no copy of the same. The only available evidence was that it was granted to Yeung Tak and the land in question is for agricultural purpose subject, of course, to Building Licence No.13 which Requisition, I have decided, has sufficiently been answered by the Vendor. Accordingly, the contention by the Purchaser that without the known terms and conditions of the New Grant, the Purchaser is open to the risk of being in breach of the Government lease, is quite remote since even the Government themselves do not know the exact terms and conditions of this New Grant apart from those which can be deduced from the New Grant Register.

In conclusion, I came to a firm conclusion that the Vendor has proved good title and answered all requisitions by the Purchaser and the Purchaser has impliedly waived his entitlement to insist on a certified copy of New Grant No.2250 or otherwise estopped from insisting the same. Consequently, the Originating Summons of the Purchaser is dismissed with costs to the Defendant.

(D. Yam)

Judge of the Court of First Instance,
High Court