HUI KIN SANG and Another v. YEUNG YEE HOO

1996 No. MP 1755
and 1996 No. MP 1780

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is a vendor and purchaser summons arising out of the contract for the sale and purchase of the 4th Floor of No. 262 Hai Tan Street, Kowloon. The vendor, by reason of the Plaintiff purchaser's proceedings, has issued an identical summons against Madame Yeung Yee Hoo from whom he agreed to buy the property on 9th March 1996. This is a sale and sub-sale.

2. The purchaser (on the sub-sale) Turn-Key International Limited through its Solicitors raised a requisition on the 25th March 1996. The material part of it concerned an alleged failure in the original memorial 224464

"to assign to the Purchaser the right, interest title and benefit of and in the sole and exclusive occupation of the 4th Floor of the building situate at No. 262 Hai Tan Street,"

In other words the purchaser was contending that the vendor was unable to show and give good title to that which he purported to convey. A Deed of Rectification was sought.

3. The vendor's reaction was that a full and proper title was shown and was being conveyed.

4. It is necessary to review the assignments. Memorial 219917 of 15th September 1953 was an Indenture which vested in one Hong Tung Tick

"all that portion of the said piece or parcel of ground registered ... as the remaining portion of ... Lot No. 975 ... delineated and described on the plan ... to be registered ... as Section B of ... Lot Number 975 ...

AND all the estate right title interest property claim and demand whatsoever of the Vendor ... and thereto except and reserved as in the said Crown Lease is excepted and reserved ...

AND that the said premises may be quietly entered into and during the residue of the said term of 75 years, held and enjoyed without any interruption by the Vendor or any person or persons claiming through under or in trust for the Vendor".

5. The assignment of 11th February 1954 (registered as memorial 223481), to which Hong Tung Tick was a party, vested the said property in him and two others as tenants in common. The property was divided into fifths, he having two-fifths. The property now consisted of a 5-storey building known as 262, Hai Tan Street. Hong Tung Tick's specific entitlement was described as

"The full right and privilege to hold and enjoy to the exclusion of the (other two tenants in common) the ground and fourth floors of the building with the rights in common of access to and egress from the entrance hall staircases landings [and common] passages and to use the roof of the building for lawful and usual purposes."

6. Clause 11 provided that

"Each party ... shall have the fullest right and liberty without reference to the other owners and without the necessity of making the other owners parties thereto to sell, mortgage or otherwise dispose of its share in the said premises together with the benefits of and subject to these presents, and to let or demise any floor to which such party is entitled hereunder to any tenant or lessor provided that such party shall be responsible to the other owners for the due performance and observance ... of the terms and conditions hereof."

On the 13th March 1954, one month later, an assignment divided the two one-fifth shares held by Hong Tung Tick between himself and Madame Wong Miu Chun - he retained the 4th Floor - she had the ground floor and cockloft. Hong Tung Tick held "full right and privilege to hold and enjoy to the exclusion of the second owner (Wong Miu Chun) the fourth floor" with common rights to common passages etc. The fullest right to sell mortgage or otherwise dispose of his share in the same premises was provided for in clause 10 (which followed the same form as clause 11 in the earlier assignment.)

7. Just over a fortnight later (31st March 1954) by an assignment (registered as memorial 224464) Hong Tung Tick conveyed on sale to Madame Yeung the "one equal undivided fifth part or share in the said premises ... and of and in the messuage erections and buildings thereon." The assignment went on to deal with the rights of way over common parts and then provided :

"And all other rights, privileges, easements and appurtenances thereto belonging or appertaining or therewith at any time used held occupied or enjoyed AND all the estate right title interest property claim and demand whatsoever of the Vendor in and to the said premises hereby assigned and every part thereof except and reserved as in the said Crown Lease is excepted and reserved."

8. The assignment was also expressed "to be subject to and with the benefit of" the two 1954 Deeds of Mutual Covenant and Grant. The Vendor (Hong Tung Tick)

"now hath good right and full power to assign the said premises as aforesaid free from incumbrances and that the said premises may be quietly, entered into and ... held and enjoyed without any interruption by the Vendor or any person ... claiming through under or in trust for the Vendor."

9. I am satisfied that this conveyed to the purchaser, Madame Yeung, all the Vendor's estate and interest in the said premises together with quiet enjoyment and the full rights of access to and egress from it with rights of way through common parts. It is unequivocally expressed to be so despite the much shorter form of the assignment and the different order. It is quite clear that he was conveying the whole of his interest in the premises without reservation. It is the same estate which he enjoyed traced down through the sequence of assignments.

10. Madame Yeung therefore is able to show good title to and convey her complete interest and estate in the premises. Likewise on the sub-sale by Hui and Sin to Turn-Key.

11. The requisitions are not therefore valid. They are in any event out of time. There is no impediment to this sale and sub-sale.

12. The Declarations sought are refused. The Defendant's costs of these proceedings shall be paid by the Plaintiff. Madame Yeung had to be brought into the proceedings because of the linked transactions. Her costs will have to be paid by the Defendants but since the Plaintiffs (Turn-Key) brought that position about they must indemnify the Defendants in respect of Madame Yeung's costs of these proceedings as well as pay the Defendants' costs.

(Conrad Seagroatt)

Judge of the High Court