CHIU SHUK FONG v. NG PING CHIU DESMOND AND ANOTHER

1998, MP252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

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BETWEEN:

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Dates of hearing: 15th and 22nd October 1998

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JUDGMENT

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1. This is yet another Vendor and Purchaser Summons arising from the Vendor's inability to produce a legible certified true copy of the Government Lease. The matter arises in this way.

2. On 27 October 1997, the Plaintiff ("the Vendor") and the Defendants ("the Purchasers") entered into an Agreement for the sale and purchase ("the Agreement") of the property in question ("the Property").

3. Clause 9(a) of the Agreement provided:

"Subject to sub-clauses (b) and (c) hereof, the Vendor shall prove his title to the Property pursuant to section 13 of the Conveyancing and Property Ordinance (Cap.219) at his own expense and shall at the like expense make and furnish to the Purchaser such certified copies of any deeds or documents of title, wills and matters of public record as may be necessary to prove such title".

4. Sub-clause (b) provided:

" ... the production of photocopies of any title deeds and documents together with the undertaking to forthwith apply for certified copies thereof from the Land Registry or the relevant New Territories Land Registry and deliver the same to the Purchaser as soon as they are available shall discharge the Vendor's duty to produce and deliver title deeds and documents under Clause 9(a) hereof and the Purchaser shall not require the production and delivery of certified copies of any title deeds and documents prior to completion. This clause shall not apply to title deeds relating exclusively to the Property."

5. Sub-clause (c) is not relevant for present purposes. As I read Clauses 9(a) and (b), the parties have agreed that for title deeds that do not relate exclusively to the Property, it would be sufficient if the Vendor produces photocopies, together with an undertaking that certified true copies from the relevant Land Registry would be delivered to the Purchasers as soon as they were available, but the Vendor remains obliged to prove title under s.13 CPO.

6. The issue here is whether the Vendor can prove title under s.13 CPO.

7. What the Vendor has produced are :-

(1) a certified true copy of a Memo from District Lands Officer North to District Lands Officer, Sai Kung dated 14 July 1983 referring to "Taxlord Lots" and stating that what was being forwarded therewith were "copies of the said Block Crown Leases of the Taxlord Lots" (my emphasis);

(2) a certified true copy of a typed copy of a Crown Lease made on 22 March 1910. There is nothing in this document that identifies it with the Property in question. At the end of the typed copy are the words (similarly typed) "Examined and certified to be correct, Signed. LAND OFFICER". However, no name or signature appears.

(3) a certified true copy of an original Schedule of Crown Lessees of District 244 on which has been written in manuscript "Taxlord". Lot No.1468 (the present Property) is one of 18 lots in this Schedule;

(4) six pages of paper, each endorsed with the chop "This is a certified true copy of a page of Block Government Lease of Taxlord", and certified as true copies by an officer in the Land Registry. These six pages are illegible. It is impossible to see if they form one complete document, let alone the contents thereof.

8. There is evidence from the Vendor's present solicitors (Miss Fong Shun Fong of Or, Ng & Chan) that when she asked the Sai Kung Land Registry for the original Block Government Lease for the Property, she was told that that Lease was "also known as the Block Government Lease of Tax lord". When she asked for a certified true copy of the "Block Government Lease of Tax lord", she was given the illegible six pages (i.e. document (4 ) above).

9. As for documents (1)-(3) above, this was referred to in the Affirmation of the Vendor's previous solicitors (Mr. Alexander Ng Pak Chung of Ng & Co) as "the Block Crown Lease" without further explanation. There is some reference in the correspondence from Or, Ng & Chan to the Land Registry that (1)-(3) had been obtained by yet another firm of solicitors (Messrs Chan & Cheng) when they applied to the Land Registry for the Government Lease of the Property.

10. I should also state that the Vendor's present solicitors did engage the Land Registry in further correspondence in an attempt to clarify the matter but that correspondence did not assist in clarifying the doubt that I am about to describe.

11. In my judgment, the Vendor has failed to prove title pursuant to s.13 CPO. I follow with respect the judgment of P. Chan J (as he then was) in Wong Wai Ming v. Tang Tat Chi [1993] 1 HKC 341 that a certified true copy of the Government Lease for the property did not necessarily have to be legible. It would be sufficient if a tangible certified true copy is produced, together with secondary evidence of the contents of the lease.

12. Here, there is a tangible certified true copy of 6 pages of paper (although it is unknown whether the 6 pages comprise a complete document), but the problem that the Vendor has is that there is no sufficient conveyancing evidence that the typed copy at (2) contains the lease conditions for the Property in question, as opposed to other Taxlord lots.

13. It is important to note that the Property is one of 18 lots in the Schedule of Lessees described as "Taxlord". There is no evidence that the conditions for each such lot is the same.

14. Indeed the 1983 Memo refers to “copies” of the "Block Crown Leases" of the Taxlord Lots. This shows that there was more than 1 Block Crown Lease for the Taxlord Lots, and it is unknown whether the conditions for each were identical or different.

15. As I have said, there is nothing to prove that the typed copy at (2) contains the conditions for this Lot. The Vendor's solicitors had themselves noted that the date of the Block Crown Lease referred to in the Assignment to herself was said to be 5 March 1905, i.e. a different date from that appearing in the typed copy at (2).

16. The correspondence from the Land Registry does not help. It did not address the inquiry on the discrepancy in the date of the Block Crown Lease. It referred to "Taxlord Block Government Lease" as if there was only one Block Government Lease, whereas the 1983 Memo shows there were more than one.

17. In the light of this, I cannot accept that the typed copy at (2) is secondary evidence of the conditions of the Government Lease governing this pm1icular Lot. I would hold that the requisition has not been satisfactorily answered and this Originating Summons would have to be dismissed. In the light of my judgment, it is not necessary to consider the secondary issue raised by the Defendants as to whether the completion date (as extended) has elapsed.

18. As for costs, I would make an order nisi that if the Defendants (who have appeared in person) have incurred any costs, they should be borne by the Plaintiff.