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HCMP1505/2007
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO.1505 OF 2007
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IN THE MATTER of Section 12 of the Conveyancing and Property Ordinance, Cap.219, Laws of Hong Kong |
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and |
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IN THE MATTER of an Agreement for Sale and Purchase dated 8 August 2006 and a Supplement Agreement dated 29 August 2006 made between Fong Shik Yee(方雪儀)as the Vendor and Cheng Cheuk Leung(鄭灼良)as Purchaser for the sale and purchase of a Property known as All Those 14 equal undivided 168,000th part or share of and in All That piece or parcel of ground registered in the Land Registry as The Remaining Portion of Aplichau Inland Lot No.121 and of and in the messuages erections and buildings thereon now known as South Horizons (海怡半島)(“the Development”) Together with the sole and exclusive right and privilege to hold use occupy and enjoy All That Flat B on the 19th Floor of Tower 17 of the Development |
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| BETWEEN |
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CHENG CHEUK LEUNG (鄭灼良) |
Plaintiff |
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and |
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FONG SHIK YEE (方雪儀) |
Defendant |
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Before : Hon Yam J in Court
Date of Hearing : 18 September 2008
Date of Handing Down Judgment : 21 November 2008
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J U D G M E N T
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1. The plaintiff was the purchaser and the defendant vendor of the suit Property by a Sale and Purchase Agreement provisionally on 8 August 2006. The formal Sale and Purchase Agreement was signed on 29 August 2006 and the completion date was eventually agreed to be on 3 October 2006. The purchase price was $2.5 million and the purchaser had paid 10% deposit of $250,000.
2. The Property had subsequently become the subject matter of a Mareva injunction in another proceedings by another plaintiff.
3. On 9 August 2007, the plaintiff took out the present vendor and purchaser summons claiming, inter alia, specific performance.
4. However, on 4 January 2008, the Property was sold by the mortgagee bank to a third party at $3.7 million. This would defeat the plaintiff’s claim for specific performance and therefore the plaintiff is now seeking damages in lieu of specific performance.
5. On 12 June 2008, the plaintiff purchaser was paid back the deposit of $250,000.
6. The defendant has not shown any defence to the present proceedings.
7. I accept the submission of Mr Jimmie Ho, counsel for the plaintiff, that the plaintiff is entitled to damages on the date the claim for specific performance became aborted by reason of the sale of the Property by the mortgagee bank. This is according to the case of Johnson v. Agnew [1980] AC 367. The damages would be in the sum of $1.2 million, i.e. the market value of the Property as at 4 January 2008 when the Property was sold at $.7 million less the purchase price of $2.5 million.
8. Accordingly, there is a declaration that the defendant has wrongfully repudiated the Agreement for Sale and Purchase dated 8 August 2006 as supplemented by the Supplemental Agreement dated 29 August 2006.
9. There shall also be judgment for the plaintiff :
(a) in the sum of $1.2 million, being damages for loss of profit; and
(b) interest at 8% p.a. on $1.2 million from 4 January 2008 until payment.
10. Further, the plaintiff is entitled to costs of these proceedings, to be taxed if not agreed.
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( D. Yam ) |
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Judge of the Court of First Instance |
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High Court |
Mr Ho Chee Choi, Jimmie, instructed by Messrs Liu, Chan and Lam, for the Plaintiff
Defendant in person, absent
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