Read the full judgment text of CACV 000203/1992 on BabelCite. This Court of Appeal judgment was delivered on 2 April 1993 before Litton JA, Sears J, Godfrey J.
Property law – provisional agreement for sale and purchase of domestic flat – broker's standard form agreement – interpretation of clauses 1, 7 and 8 – clause 1 requiring parties to complete the formal Agreement for Sale and Purchase on or before 3 April 1992 – clause 7 entitling vendor to forfeit all deposits on purchaser's default – clause 8 providing that if the vendor is unable or unwilling to enter into the formal agreement "all deposits already paid shall be double refunded to the Purchaser without interest, otherwise the Purchaser reserves the right to buy the premises" – whether broker's form creates an immediately binding contract for sale and purchase – whether obligations of parties crystallize on the specified date – whether each party has a locus poenitentiae until the specified date – whether "all deposits already paid" in clause 8 refers only to the temporary deposit or also to the balance of the deposit payable on signing of the formal agreement – whether alternative performance of refunding double the deposit must be tendered on or before 3 April 1992 – whether general equitable principle that time is not of the essence in contracts for the sale of land entitles vendor to rely on a tender made after the contractual deadline – Rainieri v. Miles [1981] AC 1050, Phillips v. Lamdin [1949] 2 KB 33, Maclaine v. Gatty [1921] 1 AC 376, Goding v. Frazer [1967] 1 WLR 286 considered – Chan Chun Ming Colman v. Chung Lik Keung, A4025/1991 and Soo Kok v. Tsui Yat Ming Rustam, A4614/1991 distinguished as involving differently formulated provisions – whether purchaser's solicitors' correspondence of 3 and 9 April 1992 extended the contractual date such that time became "at large" – held, on proper construction, that "all deposits already paid" in clause 8 refers only to the temporary deposit of HK$200,000 – held, that the vendor's option under clause 8 to render alternative performance by refunding double the deposit must be exercised on or before the specified date of 3 April 1992 – held, that equity will not rewrite the parties' contract so as to leave the purchaser's right to buy the premises in abeyance for an indefinite period – held, that the purchaser's solicitors' letters did not vary the contractual deadline and time did not become at large – vendor's tender of HK$400,000 on 22 April 1992 was not due tender under clause 8 and did not deprive the purchaser of his right under the concluding words of clause 8 to buy the premises – appeal dismissed – order for specific performance in favour of the purchaser, requiring the vendor to assign the property on payment of HK$617,500 and HK$4,632,500 – order nisi for costs to the respondent – form of the order below to be amended, if possible by agreement between the parties, and submitted to the judge for approval; failing agreement, the case remitted to the judge to determine the form of the order.
Legal issues: Meaning of "all deposits already paid" in clause 8 · Timing of "alternative performance" under clause 8 · Whether equity permits late tender of the double deposit · Whether purchaser's solicitors' correspondence extended the contractual date
Outcome: Appeal dismissed; purchaser entitled to specific performance, with the vendor required to assign the property to the purchaser on payment of the balance of deposit and balance of purchase price.