Cheng Kwei Sheng and Others v. Li Shek Tong
Read the full judgment text of CACV 24/1975 on BabelCite. This Court of Appeal judgment was delivered on 26 February 1973.
2. Both sides rely heavily on the speeches in the House of Lords in Prenn v. Simmonds (1971) 1 W.L.R. 1381 and Mr. Heyman cites from the speech of Lord Wilberforce at p.1383:
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CACV000024/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 24 of 1975 (On appeal from O.J. 700/74) -----------------
----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ. Date of Judgment: 5th February 1976. ----------------- JUDGMENT ----------------- Huggins, J.: This case raises once again the difficult question To what extent is it legitimate to admit extrinsic evidence as an aid to the interpretation of a written document? The appellant Plaintiffs seek to rely on extrinsic evidence of the ultimate intention of the parties in making what has been described as "the Chinese Agreement". Although the Statement of Claim alleged that that Agreement "was in substance an agreement to purchase the whole of the issued share capital of Loong Kee Company Limited", they now say that "in substance" that Agreement was an agreement for the sale and purchase of land and that the learned judge was wrong when he said it was in substance one for the sale and purchase of shares. For my part I think there may be some danger in talking of "the substance of an agreement" for it may mean different things to different persons. I understand Mr. Heyman to mean that although the Chinese Agreement was in part a contract for the sale and purchase of shares it was also something more than that and, by its express terms, was concerned with the land which, he says, was found by the judge to be the sole asset of the company whose shares were in question. He further submitted, however, that it was legitimate in the present case (and I think he would say in every case) to look at the surrounding circumstances in interpreting the written document. Mr. Wilmers did not contest that the judge had found the land to be the sole asset of the company nor could he argue that the Respondent's notice challenged that finding, but he none the less asserted that the finding was unsupported by any evidence. I think we must consider the Respondent bound by the finding. 2. Both sides rely heavily on the speeches in the House of Lords in Prenn v. Simmonds (1971) 1 W.L.R. 1381 and Mr. Heyman cites from the speech of Lord Wilberforce at p.1383:
and at p.1385:
Mr. Wilmers says that recourse may be had to the surrounding circumstances only where there is an ambiguity and that in that case there was an ambiguity - as to the meaning of the word "profits" - whilst in the present case there is none. Since the wider rule contended for by Mr. Heyman does appear to receive some support from the passages cited, it is necessary to look at River Wear Commissioners v. Adamson (1877) 2 A.C. 743, upon which Lord Wilberforce based his statement of the law, to see what it decided. It was a case where most of their lordships expressed difficulty and even doubt and Lord Gordon dissented. The majority dismissed the appeal, although for reasons different from those which had led the Court of Appeal to reverse the decision of the trial judge. The house was concerned with the interpretation of a statute, but as will be seen that is not material. Lord Blackburn said at p.763:
The effect of that statement seems to me to be that there is a sense in which both the principles advanced before us are correct. Where there is an apparent ambiguity no difficulty arises. Difficulty does arise where by adducing evidence of the surrounding circumstances it can be shown that language which at first sight appeared clear and unambiguous is not as clear as it seemed. Once the Court is thus persuaded that there is an ambiguity, it may have regard to those surrounding circumstances in deciding what was the intention of the parties. However, where the language of the document is clear and there is no ambiguity, evidence of the surrounding circumstances is not admissible to contradict what the parties have chosen to say. 3. What we are concerned to interpret is the Chinese Agreement between the Plaintiffs and the Defendant. That is said to incorporate "the English Agreement" by virtue of Clause 2, but, more accurately, it binds the parties to the Chinese Agreement to accept the benefits and liabilities of the purchasers under the English Agreement - whatever those benefits and liabilities may be - in the proportions set out in Clause 3 of the Chinese Agreement. There is nothing ambiguous about that: any substantial ambiguity there may be is in the English Agreement. The only ambiguity in the Chinese Agreement is in Clause 1, which, with the introductory words, is in these terms:
Mr. Wilmers submits that Clause 1 is nothing more than a recital, while Mr. Heyman says it forms part of the covenants. A covenant may be found in a recital, for any words which show an agreement to do a thing or a promise that something is already done amounts to a covenant: Easterley v. Sampson (1830) 6 Bing. 644 and Sheppard's Touchstone 160. The introductory words relating to the purpose of the investment cannot, it seems to me, be interpreted as a covenant: they were a mere recital which might have been better rendered in the form
Only if the operative part of the Agreement was ambiguous as to its purpose could recourse be had to this recital: see the cases cited at 11 Halsbury's Laws of England (3rd Ed.) 419 (677) notes (o) and (r). But what of Clause 1? Although it was one of "the... terms to be observed and performed" it did not relate to anything to be done. In so far as it related to something already done it was, on a true construction of the agreement, intended to be the statement of the Plaintiffs and not that of the Defendant: see Greer v. Kettle (1938) A.C. 156. What the Plaintiffs thereby asserted was that the English Agreement was for the sale and purchase of a piece of vacant land, which it was not. They also asserted that the Loong Kee Company Ltd. had received from the Government a written agreement to modify the user of that Iand to non-industrial purposes. Whether that was true or not (and this is the question to which I shall next turn) it was, again, the statement of the Plaintiffs and not that of the Defendant. 4. The Plaintiffs say that the second recital in Clause 1 was substantially true because the exceptions made by the Government was such as to bring into play the maxim de minimis non curat lex. Mr. Wilmers says the exceptions are substantial, but he contends first that what the Government offered was not a "modification" at all. This raises the question, What was to be modified? Mr. Wilmers's argument depends upon the modification's being to a single condition in the Crown grant and he says that that condition has not been modified but replaced by something which is entirely new. The words in the Chinese Agreement are somewhat contradictory. "A modification as to user" I read as meaning "a modification of the Conditions of Grant in so far as they relate to user" rather than "a modification of the condition in the grant which relates to user". But "to modify the user" suggests a modification of the single condition. Bearing in mind that what we are interpreting is a translation of an Agreement drawn up by Chinese businessmen, I think it would be wrong to attach any weight to an argument based upon such a legislatic nicety. Equally I attach no importance to the fact that the Government had not "agreed to modify" but only expressed its willingness so to agree. 5. The recital, therefore, correctly stated what the Loong Kee Company Ltd. had applied for and what the Government had offered, save that the offer was expressly of a change to "non-industrial purposes only". However, clause 4 of the Special Conditions subsequently agreed to limited use of the land to
The Defendant originally objected to all three exclusions, but later dropped his objection to the third for the reason that offensive trades were excluded under the proceeding conditions. As Mr. Heyman submits, if what the Defendant expected was non-industrial user of every kind, logically it mattered not whether this exclusion was a change from the preceding conditions or not, but the Defendant waives any objection to this exclusion and nothing more need be said about it. What he complains of is that the first two exclusions were such as must have some effect upon the value of the land and he submits that therefore the Plaintiffs were in breach of an implied term in the Chinese Agreement when, without first having consulted him, they allowed the 1st Plaintiff to exercise the option in the English Agreement in a manner which would adversely affect his interests: there was an opportunity for him to be released from liabilities arising from the English Agreement which he had assumed, and it was lost. If the Plaintiffs' contention is right there never was such an opportunity. Clause 3 of the English Agreement is in these terms:
The Plaintiffs say that the letter of 25th October 1973 was "a letter from the District Officer, Tsuen Wan, confirming the Government's approval of a modification of the Lease Conditions .... to permit non-industrial user at a specified premium": accordingly the date for completion was not later than "fourteen days from the Purchaser being notified of the receipt of [that] letter", i.e. 9th November 1973, the proviso to Clause 3 did not apply and there was, therefore no option exercisable. Mr. Heymant then argues that because we are concerned with the interpretation of the Chinese Agreement the relevant surrounding circumstances are those existing at the time that Agreement was executed, i.e. 17th April 1973. In my view that argument does not give sufficient weight to the fact that whether or not the 1st Plaintiff had an opportunity to obtain the Defendant's release from the liabilities he had assumed under the English Agreement depended upon the terms of the English Agreement. The interpretation of the English Agreement could not - on the facts of this case - be affected by events which took place, or circumstances which existed, after 31st January 1973: see F.L. Schulor A.C. v. Wickman Machine Tool Sales Ltd. 1974 A.C. 235. That means that the intention of the parties to the Chinese Agreement in entering into that Agreement cannot be material to the interpretation of the English Agreement, and there is nothing to show that the intention of the parties to the English Agreement was other than that which appears from the words actually used. That has two consequences: (1) that the Agreement was nothing more nor less than an agreement for the sale and purchase of shares, and (2) that the purchaser was to have an option if the Government did not within twelve months notify its approval of a modification of the Lease Conditions to permit "non-industrial user". In this Agreement there is no doubt that it was "the Lease Conditions" which were to be modified and not the particular condition relating to user. Therefore the purchaser would not have had just cause for complaint if non-industrial user was substituted for, rather than added to, the user previously permitted. 6. I should perhaps mention here that some emphasis was put upon the fact that the Defendant, within a short time of his having signed the Chinese Agreement, expressed his wish to withdraw from his undertakings - even at a considerable loss. As what we are concerned with is a question of legal interpretation, that seems to me totally irrelevant. 7. The same argument was advanced in relation to the English Agreement as was advanced in relation to the Chinese Agreement. First it was said that a godown is, in any event, "industrial user" and required no express exclusion. No doubt a godown directly associated with an industrial undertaking so as to be part and parcel of that undertaking may be so regarded, but the ordinary commercial godown is not. It is true that there was some evidence that the Government "considers godown as industrial user", but that evidence was clearly suspect in the light of the express exclusion of godowns from non-industrial user and of the same witness's evidence that what he really meant was that the Government "has decided godowns are consonant with industrial user". In my judgment to say that user as a godown is, generally, an industrial user is contrary to ordinary English usage. It is, therefore, not surprising that Mr. Mackinnon said: "I know of no case where godown user is granted together with a non-industrial user": it is included in non-industrial user unless expressly excluded. Secondly it is submitted that the difference between the "non-industrial user" mentioned in the English Agreement and the user permitted under Clause 4 of the Special Conditions accepted by the 1st Plaintiff was minimal. In my view it matters not whether the 1st Plaintiff and his original partners thought the difference was of no importance because they did not intend to build a godown or cinema: there was nothing to show that the intention of the purchasers was known to the vendor. If the Defendant had not become an interested party, the 1st Plaintiff and his partners could have agreed to any variation of the initial agreement they pleased. The proper approach is to ask whether, if the 1st Plaintiff had for some reason wished to exercise the option to annul the agreement, he could have done so. Whatever may be the correct view as to the exclusion of a cinema, which was probably an uneconomical user, I think the 1st Plaintiff could fairly have refused to agree to the exclusion of godowns. That would have been a substantial non-industrial user. It follows that in my judgment the 1st Plaintiff should not have agreed to the exclusion without the Defendant's consent and the Defendant was, as the judge held, entitled to seize upon the 1st Plaintiff's failure to obtain his consent as an excuse for not fulfilling the Chinese Agreement. 8. That is not all. The Defendant says that the 1st Plaintiff accepted an additional modification of the conditions of grant, namely a restriction on the power of mortgaging. The material part of Clause 3(i) of the Special Conditions reads:
This might well present some difficulties of interpretation in view of the fact that some of the conditions (e.g. the condition as to user) operate throughout the term of the grant, but it seems clear that some restriction is placed on the power of mortgaging. It is argued on behalf of the Plaintiffs that the Government's policy has for several years been to include such a restriction and, as I understand it, the suggestion is that the Defendant must be presumed impliedly to have consented to the inclusion of a usual provision of this kind - although it was not so put. The learned judge rejected this argument and I think he was right. I am not persuaded that the Defendant must be taken to have agreed to a restriction on the hitherto unlimited power of mortgaging and I think the restriction was a matter of substance. 9. For these reasons I would dismiss the appeal and I do not find it necessary to consider the argument based upon a trust. 5th February 1976. Representation: IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO.24 OF 1975 (On appeal from C.J. 700/74) -----------------
----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ. Date of Judgment: 5th February 1976 ----------------- JUDGMENT ----------------- Pickering, J.: The land which we are concerned is situated near Tsuen Wan in the New Territories. At one stage the conditions of the Crown lease permitted the land to be used (inter alia) for general industrial and/or godown purposes. Subsequently the Town Planning Board issued a plan which showed the land to be in an area zoned for "commercial/residential purposes". Thereupon the owners, Loong Kee Co. Ltd., submitted an application for the modification of the lease in order that they could develop the land for such commercial/residential purposes. On 26th February, 1973 the Estate Surveyor of the District Office, Tsuen Wan notified the company that he was prepared to put forward a recommendation that such modification should be allowed and should be effected by an in situ exchange upon terms which would include a building covenant in the sum of almost $2,000,000.00 to be fulfilled within four years, and a restriction upon the user to "non-industrial purposes only". 2. The whole share capital of Loong Kee Co. Ltd. was owned by a Mr. Yeo who agreed to sell all the shares to the first appellant herein. The first appellant was in fact acting for a syndicate which consisted of himself, the second appellant, a certain Mr. Pang with whom we are no longer concerned, and the two companies which are the third and fourth appellants herein. The purchase price of the shares was to be $20,000,000.00 which was to be contributed as to 35% each by the first and second appellants, 20% by Mr. Pang and 5% each by the third and fourth appellants. 3. The agreement for sale between Mr. Yeo and the first appellant was dated 31st January, 1973 and has been referred to in this appeal and in the court below as the "English Agreement". It was signed for the one part by Mr. Yeo and for the other part by the first appellant alone, and a deposit of $6,000,000.00 was paid to the Loong Kee Co. Ltd. The most relevant clause of the agreement for the purposes of this appeal is Clause 3 which deals with completion. The clause reads:
4. Subsequently Mr. Pang was confronted with financial difficulty and, wishing to withdraw from the syndicate, asked the first appellant to find someone to take his place. The first appellant found the respondent who stepped into Mr. Pang's shoes with the difference that whereas previously the shares of the first and second appellants had been 35% each and that of Mr. Pang 20%, the new arrangement was that the first and second appellants and the respondent should each have a share of 30%. The 5% shares of the third and fourth appellants remained unaltered. 5. This new arrangement was embodied in a document which has become known as the "Chinese Agreement". It is dated 17th April, 1973 and states that the five parties thereto entered into the agreement "for the purpose of joint investment in respect of a property at Lot 716 in D.D. 450". The agreement further states that the Loong Kee Co. Ltd. had applied to the Government for a modification of the user of the land to commercial and residential purposes and, incorrectly, that the Government had agreed on 26th February to modify the user to non-commercial purposes; for it will be recalled that what had in fact happened was only that the Estate Surveyor had informed the Loong Kee Co. Ltd. that he was prepared to make a recommendation to that effect. Clause 2 of this agreement allied the English Agreement to the Chinese Agreement in the following terms:
6. It will be apparent that the deposit of $6,000,000.00 having been paid, and the respondent being entitled to a 30% share in the enterprise, his liability in respect of the sum already paid was $1,800,000.00, but on signing the Chinese Agreement the respondent gave the first appellant a cheque for only $500,000.00. 7. There was interposed a brief visit by the respondent to the United States upon his return from which he told the first appellant that he wished to withdraw from the syndicate since his expectations of obtaining money by the public flotation of a private shipping Co. had not materialised. 8. Matters remained quiescent until in October of the same year, the solicitors for the Loong Kee Co. Ltd., who also acted for the first appellant, wrote to him to say that they had received the appropriate letter from the District Office and that the first appellant should now pay the balance of $14,000,000.00 of the purchase price in accordance with his agreement. The first appellant thereupon unsuccessfully pressed the respondent for payment of the balance of his share of the purchase price. In early November, the solicitors then acting for the respondent asked for copies of the notice from the vendor company's solicitors and of the document from the Crown which gave effect to the modification of user. These were supplied. 9. Since the date which the appellants understood to be the date for completion was imminent, and since they were unable to raise the balance of the purchase price, i.e., $14,000,000.00 without the assistance of the respondent, the first appellant reached an agreement with Mr. Yeo of the Loong Kee Co. Ltd. whereby the time for completion of the English Agreement was extended for one year upon the immediate payment of a non-returnable instalment of $10,000,000.00, together with an arrangement for the payment of interest upon the outstanding balance of the purchase price of $4,000,000.00. The agreement to this effect was dated 9th November, 1973 and stated that the vendor, the Loong Kee C. Ltd., had fulfilled all the sale conditions imposed upon it by the English Agreement. On 20th November, 1973 the respondent's solicitors wrote to the third appellant stating that in their view the Agreement and Conditions of Exchange tendered by Mr. Yeo did not fulfil the conditions of Exchange tendered by Mr. Yeo did not fulfil the conditions of Clause 3 of the English Agreement. No reasons were given in support of that opinion at that time. 10. To complete the factual picture I would add only that at the expiration of the twelve months' extension period, a further six months' extension was allowed upon certain terms and that since that date of the commencement of the action the balance of the $20,000,000.00 has been paid to Mr. Yeo. 11. In the court below the appellants sued the respondent for specific performance of the Chinese Agreement and alternatively for damages. The respondent counterclaimed for a declaration that he was no longer bound by that agreement and for the return of the $500,000.00 which he had paid thereunder together with interest. The learned judge dismissed the appellants' claim and gave judgment for the respondent on the counterclaim. The appellants, who do not pursue their claim for specific performance against the respondent, now appeal upon the issues of damages and the declaration. 12. In the court below the appellants' claim was basically that by the Chinese Agreement they and the respondent had agreed to take over the benefits and liabilities accruing to the first appellant under the English Agreement; that under the latter agreement certain monies were due from the five parties to the Chinese Agreement, but that the respondent declined to pay his share. It was the respondent's case that in fact no monies were owing under the English Agreement since Mr. Yeo had not fulfilled his obligations under that agreement; and that until Mr. Yeo did so, the respondent could not be compelled to fulfil his monetary obligations under the Chinese Agreement; further, that by entering into the agreement dated 9th November, 1973, for an extension of the completion time, the first appellant had purported unilaterally to waive Mr. Yeo's failure to fulfil all the conditions of the Chinese Agreement, a waiver which could not bind the respondent. 13. This failure, it was contended, took three forms. The first was that the change of user contemplated by the English Agreement was the addition of non-industrial user to the existing permitted industrial user and not a substitution of industrial user by non-industrial user. The learned judge, in my view rightly, dismissed this argument. However he upheld the two remaining arguments upon this point. 14. The first of these was to the effect that what Mr. Yeo must offer under the English Agreement was a change of user to unrestricted non-industrial user whereas all he had been able in fact to offer was user for non-industrial purposes but excluding a godown or a cinema. The learned judge held in effect that what the English Agreement had contemplated was unrestricted non-industrial user and went on to hold that the inability to utilise the land for a godown or a cinema, resulted in what was offered being something less than what had been undertaken to be offered by Mr. Yeo. 15. The remaining respect in which it was said that what Mr. Yeo eventually offered was less than what he was required to offer under the English Agreement, related to the power to mortgage the land. The Loong Kee Co. Ltd.'s power to mortgage was unrestricted but under the new Crown lease permitting non-industrial user, the power of mortgage was restricted by Clause 3(i) of the Special Conditions which had been accepted by the first appellant and which read as follows:-
16. As I have said, the learned judge upheld the respondent's arguments upon the issue of unrestricted non-industrial user and upon the restrictions of the power of mortgage and dismissed the appellants' claim whilst allowing the respondent's counterclaim. It is upon these two matters that the present appeal substantially turns. 17. In regard to the term "non-industrial" both sides claim to derive support from the case of Prenn v. Simmonds(1) and Mr. Heyman, for the appellants, relied upon a passage from the speech of Lord Wilberforce at p.1383:
18. Mr. Heyman says that the "circumstances" with reference to which the phrase "non-industrial" was used were that the parties were purchasing the land with a specific object, as evidenced by calculations of probable profit made by them, namely to erect thereupon a building containing shops on the ground floor, offices on the first floor and flats above. 19. Mr. Wilmers, for the respondent, says that the "circumstances" were that Mr. Yeo had bought the shares and contracted to sell them to the first appellant who had thereupon entered into the Chinese Agreement. The passage quoted above, the argument went, meant no more than that the surrounding circumstances could be looked at in order to identify the meaning of a descriptive term. In Prenn v. Simmonds(1) the descriptive term in question was "profits" whereas in the present case no descriptive term was in issue. For my part, I find that submission wholly unacceptable for the descriptive term with which we are concerned is "non-industrial". 20. As it seems to me both sides can derive support from Prenn v. Simmonds(1), and Mr. Heyman's arguments might have been more effective had he relied more fully upon a simplistic interpretation of the phrase "non-industrial", and to this I will return. 21. Acknowledging, on the authority of Whitworth Street Estates Ltd. v. Miller(2) and Wickman Tools v. Schuler(3), that a contract cannot be construed by reference to the subsequent conduct of the parties, it must nonetheless be borne in mind that we are here concerned with the later, that is, the Chinese Agreement. It is true that in that agreement the parties accepted all the terms and conditions contained in the English Agreement which was an agreement for the sale and purchase of shares. But to say that the Chinese Agreement was no more than this is to tell only part of the story. That agreement was essentially one for joint investment in land. It is specifically said so and its adoption of the English Agreement was no more than a necessary incidental to the ultimate purpose of getting control of the land: the parties were not interested in the shares as shares or in the company as a company. Their interest was in the land and the agreement was for the purpose of recording the proportions in which the parties should contribute to their "joint investment" - a reference to the land; and the land was to be developed for "non-industrial purposes", a term which I must now consider. 22. Paragraph 3 of the English Agreement, which I have cited, anticipated the receipt of a letter confirming the Government's approval of a modification of the lease conditions to permit "non-industrial user". When that letter was eventually received it permitted non-industrial user with three exceptions, one of which is not relevant to this appeal. The two relevant exceptions, as we have seen, were that the land could not be used to contain either a godown or a cinema. It is Mr. Wilmers' contention that the phrase "non-industrial user" is totally unambiguous and that a clause which merely permits some industrial user does not comply with the terms of the English Agreement. For my part I do not find the expression "totally unambiguous" in the sense for which Mr. Wilmers strives. 23. Clause 3 of the English Agreement did not refer to a permit for "unrestricted non-industrial user" or "all and any non-industrial user" on anything of that sort. It spoke simply of non-industrial user and the permit which has been granted renders the land capable of development for very nearly as wide a spectrum of non-industrial purposes as can be imagined. There are but two reservations from the whole wide ambit of non-industrial purposes and one of those relates to use as a cinema as to which there was convincing evidence that this would have spelt financial disaster. For commercial purposes - and the object of the enterprise was profit - there was but one potential reservation. I say potential because there was no evidence before the learned judge of the likely profitability or otherwise of a godown upon the site. 24. In my opinion the change of permitted user of the land obtained by Mr. Yeo fully complied with his obligations under Clause 3 of the English Agreement. If that view be wrong I should certainly be prepared to apply the maxim de minimis non curat lex for the exclusions were unimportant. 25. The respondent, however, does not rest his case upon the permitted user of the land. He complains also that the first appellant accepted a further modification of the conditions of the Crown lease in the form of a restriction upon the power of mortgage. The English Agreement had contained an undertaking by the vendor,
26. At that time there was no restriction upon the company's power to mortgage the land in question. However, Clause 3(i) of the Special Conditions accepted by the first appellant, which I have already recited, forbade the mortgaging of the land except for the purpose of development and then only by way of a building mortgage the form and provisions of which were to be controlled by the Land Officer. 27. The effect of this clause was seriously to inhibit the previous unrestricted power of mortgaging the land. Now the learned judge had found the land to be the company's sole asset. Hence it is apparent that the company had "prior to the conclusion of the purchase" and without "the previous consent of the purchaser" - for it was never the appellant's case that the first appellant consented to the inhibiting clause - done something whereby its financial position was less favourable than at the date of the English Agreement. It follows that the parties to the Chinese Agreement, having agreed to accept the benefits and liabilities of the English Agreement, were accepting, albeit unwittingly, something less than the whole benefits thereof. Nor does it help the appellants that they were all in the same position. The respondent simply was not getting what he had bargained for. And on this aspect of the matter the maxim de minimis non curat lex cannot be called in aid for the unrestricted ability to mortgage land is an important financial lever and that lever had been so shortened by the restrictions placed upon the power to mortgage, as drastically to reduce its purchase. 28. There was a suggestion that since it had been the custom of the Crown Lands Office for some five years or so to include a similar restriction upon mortgaging, in the Special Conditions affecting all Crown Leases, the respondent must be deemed to have been aware of this and to have accepted the restriction. That may or may not be true of the first appellant who, upon the evidence, was an experienced land developer but I cannot find evidence that the respondent stood in the same position. The only testimony as to his experience in this direction came from the first appellant who said that the respondent had told him that he had purchased a property in North Point and a house at Jardines' Corner. That mere assertion is insufficient to fix the respondent with knowledge of the Crown's five-year-old habit, the more so since the dates of the two alleged purchases were not in evidence. 29. It is these restrictions upon the company's formerly uninhibited powers of mortgaging the land, which cause me to agree with the learned judge's conclusion that what was offered to the respondent was something less than that to which he was entitled, and to say that I would dismiss the appeal. Briggs, C.J.: 30. I agree with the result arrived at in the judgments of Huggins and Pickering, JJ., and concur in dismissing the appeal. Representation: Heyman, Q.C. and J. Swaine, Q.C. (T.S. Tong & Co.) for appellants Wilmers, Q.C., H. Litton, Q.C. and M. Lee (Lau, Chan & Ko) for respondent. (1) 1971 1 W.L.R. 1381. (2) 1970 A.C. 583 (3) 1974 A.C. 235 |