Li Yuk Ling Rebecca v. Liu Tak Shan and Others

HCMP 1264/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1264 OF 2015

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J U D G M E N T

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1.This is an application by a vendor and purchaser summons on whether the plaintiff as vendor has proved her title to her property. The property is Flat 6 on the 17^th Floor of Block E, King Shan Court, Kowloon. It is a property within the Home Ownership Scheme.

2.There was a previous sale and purchase of the property that took place in July 1994.  The dispute is on whether that transaction took place on 26 or 28 July 1994. 

3.The Confirmation of Removal of Alienation of Restrictions was issued by the Housing Authority (“HA”) to the then vendor on 28 July 1994.  If that transaction had taken place on the same day, then it would be regarded as having taken place after the issuance of the confirmation and the plaintiff would have proved a good title to her property.  If the transaction should have taken place on 26 July 1994, then the defendants say that the transaction would have been rendered void by section 17B of the Housing Ordinance, Cap 283.  The plaintiff says that the transaction had in fact taken place on 28 July 1994.

4.Mr Timothy Wong, counsel for the plaintiff summarized the relevant transactions as follows:

(1)  On 25 April 1983, the HA assigned the property to a Madam Chim Kwai Ying for HK$256,800.  On 13 May 1983, the property was mortgaged to Liu Chong Hing Bank for HK$180,000, which mortgage was discharged on 2 August 1993.

(2)  On 8 July 1994, Madam Chim (though her attorney, one Madam Ng Chau Mei Grace) entered into a sales and purchase agreement with one Ng King Chung Calvin at a price of HK$2,170,000.  Mr Ng is said to be a son of Madam Chim. 

(3)  The agreement fixed the date of completion on 8 August 1994 or such earlier day as the parties may agree.

(4)  Owing to the mother-son relationship, the transaction was handled by one firm of solicitors, Messrs Tony Lam & Harrace Lau for both sides.

(5)  The date written on the assignment by Madam Chim to Mr Ng appears to be 26 July 1994 and not 28 July 1994.

(6)  The memorial registering the assignment however stated the date of execution as 28 July 1994.

(7)  The Confirmation of Removal of Alienation of Restrictions issued by the HA was dated 28 July 1994. 

(8)  Mr Ng mortgaged the property to the Hong Kong Bank also on 28 July 1994.

(9)  Messrs Tony Lam & Harrace Lau has ceased operation and no assistance can be obtained from that firm.

5.The proximity of the mortgage to the assignment (regardless of whether it was executed on 26 or 28 July) shows that it was probably for raising finance to complete the assignment. 

6.The assignment contained an acknowledgment of the receipt of the purchase price in full on the date of execution.  Hence, the assignment, even if executed before 28 July, would have probably been executed in escrow to take effect upon payment being made, and payment was to be made with the aid of the mortgage loan which was only available on 28 July 1994. 

7.The fact that the memorial of the assignment stated the execution date as 28 July is further proof of the intention that the assignment was to take effect on 28 July when the purchase price was paid in full with the aid of the mortgage finance.

8.In the premises, I conclude that the date 26 July was put in the assignment erroneously.  If the assignment was signed on 26 July 1994 or at any time before 28 July, it was only signed in escrow.  It was intended to and did take effect on 28 July when the purchase price was paid in full and the payment acknowledged in the assignment. 

9.Hence, the assignment did not take effect before the issuance of the confirmation by the HA.  It took effect on 28 July 1994. It was a valid transaction.  The plaintiff has thus proved her title to her property in accordance with the sale and purchase agreement (see Wong Yiu Ting v Kwok Wing Chiu [2009] 1 HKLRD 399).

10.Now that I have found for the plaintiff, the parties are willing to complete the transaction.  I therefore order that the sale and purchase agreement between the parties be specifically performed within a reasonable time from today.

11.I also make the following order in terms of the originating summons.  I declare that the plaintiff has proved the title to the property known as all those 24 equal undivided 32,474^th parts of shares of and in all that piece or parcel of ground registered in the Land Registry as the Remaining Portion of New Kowloon Inland Lot No. 5779 and of and in the messuages erections and buildings thereon now known as King Shan Court (“the Building”) together with the sole and exclusive right and privilege to hold use occupy and enjoy all that Flat No. 6 on the 17^th Floor of Block E of the Building in accordance with the sale and purchase agreement between the plaintiff and the defendants and dated 2 December 2014.

12.In line with the agreement of the parties, I also order that there be no order as to costs in these proceedings.

Mr Timothy Y H Wong, instructed by Au Yeung, Cheng, Ho & Tin, for the plaintiff

Ms Rachael Siu, instructed by Henry Chiu & Partners, for the 1st to 4th defendants