XCHRX REGAL WINNER LTD. v. HIGH LINK ENTERPRISES LTD.

HCA 10347/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10347 OF 1999

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J U D G M E N T

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1. This is an application by the Defendant to vacate the registration from the Land Registry of a Provisional Agreement for Sale and Purchase and a Writ of Summons which was registered at the Land Registry against the property specified in the schedule to the summons ("the property").

2. The Plaintiff was the purchaser and the Defendant the vendor of the property. By the Indorsement of Claim, the Plaintiff claims rescission of the Provisional Agreement and repayment of the deposit paid in the sum of HK$100,000.00 together with interest thereon. The Plaintiff also claims damages for breach of the Agreement with interest thereon and costs. There is also a claim for a declaration that the Plaintiff is entitled to a lien on the property for the said deposit and interest, the said damages and interest and costs of the action.

3. The Amended Statement of Claim quantifies the damages claimed at HK$570,000.00. Although the Amended Statement of Claim omits to claim the declaration for a lien which was claimed in the Indorsement of Claim, I am satisfied that the omission can be cured by a further amendment to the Statement of Claim to include the declaration for a lien set out in the Indorsement of Claim as Counsel for the Plaintiff has submitted.

4. The Defendant has offered to let their solicitors stakehold only the sum of HK$100,000.00 pending the outcome of the action. That is only sufficient for the sum of the deposit, but not for interest, damages and costs. There is no reason why the Plaintiff cannot claim a declaration for a lien on the property for the deposit, interest thereon as well as damages and costs of the action. (See Fung Kan Wai & Anor. v. Leung Shui Fat & Ors. [1998] 2 HKC 115 and Superkeen Investment Ltd. v. Global Time Investment Ltd. & anor. Third Party [1996] 4 HKC 355.)

5. Whether or not the Plaintiff will succeed in its claim is a matter which will have to be resolved. In the meantime, the Plaintiff was entitled to register the said documents against the property. I am not satisfied that the registration of the same should be vacated. The summons is dismissed with costs to the Plaintiff.