TAM SHIU KI RICKY v. The Personal Representative of the estate of LI CHAO CHIN, the Deceased

DCMP 4027/2019

[2021] HKDC 471

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4027 OF 2019

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J U D G M E N T

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1.  This is the substantive hearing of the Originating Summons taken out by Mr Tam issued on 16 December 2019 against the estate of Mr Li.

2.  The present dispute arose from an aborted sale transaction (“the Transaction”) as agreed by the parties in an agreement for sale and purchase dated 18 September 2018 (“the Sale and Purchase Agreement”).  By the Sale and Purchase Agreement, Mr Tam agreed to sell to Mr Li a flat in Yu Tung Court, which is a Home-Ownership Scheme property at the purchase price of HK$4.75 million and the completion date was agreed to be 29 November 2018 (“the Completion Date”).  Pursuant to the Sale and Purchase Agreement, Mr Li paid an initial deposition of HK$150,000 on 30 August 2018 and a further deposit of HK$325,000 upon signing the Sale and Purchase Agreement.  Mr Li passed away on 6 October 2018 before the Completion Date.

3.  The daughter of Mr Li, Madam Li, being the intending administratrix of Mr Li’s estate, indicated that she wanted to complete the Transaction on behalf of the estate of Mr Li.  In view of this intention, Mr Tam, through his solicitors, agreed to extend the Completion Date to 28 February 2019 by a letter dated 16 November 2018.  However, subsequently, Madam Li retracted and expressed her intention to abort the Transaction by way of a letter dated 28 November 2018.  By a letter dated 29 March 2019 of the solicitors for Mr Tam, Mr Tam exercised his right to rescind the Sale and Purchase Agreement.

4.  I have read the relevant provisions in the Sale and Purchase Agreement including clauses 12 and 14.  I am satisfied that Mr Tam was entitled to rescind the Sale and Purchase Agreement under those circumstances.

5.  In respect of the Originating Summons, Mr Tam asked for a declaration that he has validly terminated the Sale and Purchase Agreement and validly forfeited the deposits in the aggregated sum of HK$475,000 as liquidated damages pursuant to clause 14 of the Sale and Purchase Agreement.  Further, he asked for damages to be assessed pursuant to the same provision.

6.  The Originating Summons is supported by the affirmation of Mr Tam himself, whereas Madam Li has not filed any affirmation in opposition to explain why Mr Tam is not entitled to such relief despite the abortion of the Transaction.  She merely filed an affirmation to indicate her original intention that she wanted to complete the Transaction.  Obviously, her intention was not brought to fruition.

7.  By a letter dated 24 March 2021, the solicitors acting for Madam Li as the personal representative of the estate of Mr Li, Messrs So, Ho & Co, indicated that Madam Li will not oppose the present application of Mr Tam, and as such, they did not file any submission to this court for the purpose of this hearing.  In this morning, Mr So appeared on behalf of Madam Li and confirmed this position.

8.  This court has reconsidered the evidence of Mr Tam in light of the helpful written submission lodged by Mr Lau on behalf of Mr Tam. I can conclude that this is a simple and clear case of breach of contract and there is no defence at all. This court is convinced that under the Sale and Purchase Agreement, Mr Tam is entitled to the declaration sought and an order for assessment of damages.  In the circumstances, this court shall enter judgment against the estate of Mr Li and grant the relief sought by Mr Tam set out in the Originating Summons.

9.  As regards costs, there is no reason to depart from the general principle of costs following the event.  I make an order nisi that Mr Tam should have costs of this action, including any costs previously reserved with certificate for counsel. Mr Tam’s own costs should be taxed in accordance with the Legal Aid Regulations. 

10.  In case of any differences as to the quantum of costs, such costs should be taxed.

11.  Lastly, I thank Mr Lau for his assistance in this matter.