WONG YAN YAN, AMY v. MODERN PARK LTD AND ANOTHER

HCA11920 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11920 OF 1998

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J U D G M E N T

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1. There are three actions before me in relation to three property transactions where the Plaintiff purchaser had paid deposits to the 1st Defendant as vendor under three Sale and Purchase Agreements. The dispute arose over the refusal by the vendor 1st Defendant to return the deposit to the Plaintiff purchaser. Instead the 1st Defendant vendor had forfeited the deposit on the basis that the Plaintiff purchaser had failed to complete on the due date.

2. Before the Master, the summary judgment was given to the Plaintiff for the return of the deposit. On appeal to me, the issue was narrowed down to two:

(1) whether the requisition of the Plaintiff purchaser had been properly answered; and

(2) whether there was a premature termination by the vendor.

The first issue is a crucial issue.

3. The argument of Miss Chui on the first issue is that the two relevant requisitions of the Plaintiff had been properly answered. The first relevant requisition is in relation to the opening of side windows at the premises. Under Condition 7 of the relevant conditions at p.206 of the bundle, it provided that

“the Licensee shall not make or permit to be made any window or other opening in any building erected or to be erected on the lot without the prior written consent and approval of the District Lands Officer provided that a window or windows, opening or openings may be made in the front or rear of such building without such written consent and approval.”

4. I think it is agreed that there was side window opening It is also admitted that in answer to the requisition, the 1st Defendant did not produce any written consent. What was, however, produced was a document in answer to requisition, a document dated 17th May 1996 being a Certificate of Compliance. Is that sufficient? Obviously not. The reason is first the date of that document is not the date close to the contract or completion. Secondly, it does not answer the question of the written consent. In my view, clearly in relation to the first matter of requisition, the requisitions had not been properly answered.

5. The second matter under the requisition is the mortgage in the form of a legal charge registered against the property. The requisition sought either original or a certified copy of that legal charge. I think it is admitted that the answer to requisition did not produce it. There is a telling letter at p.196 of the bundle from the solicitors for the Plaintiff to the solicitors for the 1st Defendant which reads thus:

“With regard to Legal Charge Memorial No. 786573 which forms part of the title document, your client is obliged to produce for our perusal the certified true copy although the original is to be retained by the solicitors acting for the chargee. The fact that the original is being kept by the chargee (or its solicitors) does not negateyour client’s obligation to produce its certified true copy for our perusal in accordance with section 13 of the Conveyancing & Property Ordinance, Cap. 219. We therefore insist your client to produce the certified true copy document without delay.”

It is to be noted that this is a letter dated 30th June 1998, the date fixed for completion. I have therefore no doubt that the Plaintiff is correct. This aspect of the requisition has not been properly answered.

6. I conclude therefore on the first Issue in favour of the Plaintiff. It seems to me unnecessary to go on to deal with the second Issue. In fact, I have not called upon Mr. Chan. The appeal against the Master’s order is dismissed with costs to the Plaintiff.

7. So far as the amendment is concerned, it is a technical amendment on the matter of interest and it is not opposed.