Lee Kwai Tai v. Topking (H.K.) Ltd

HCMP 1497/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1497 OF 2017

________________________

________________________

________________________

REASONS FOR DECISION

________________________

A. Introduction

1.At the hearing on 18 September 2017, I granted leave to the Plaintiff to amend her Originating Summons and dispensed with the service of it.  In relation to the Originating Summons (as amended), I made a declaration that the provisional agreement dated 4 November 2011 (the “Provisional Agreement”) is not binding on the Plaintiff, and that the same is not registrable at the Land Registry.

2.I now give my reasons for my decision.

B. Background

3.The Plaintiff is the daughter of one late Li Tin Sang.  Li Tin Sang and his brother Li Choi, who had also passed away, were the joint owners of various pieces of lands in the New Territories (the “Lands”).  For many years, the Plaintiff had attempted to succeed Li Tin Sang’s interests in the Lands, but was of no avail.

4.In 2011, through the suggestion of a friend, the Plaintiff’s adopted daughter, one Madam Chan Tsui Shan (“Plaintiff’s Daughter”), paid a visit to a district councilor, one Chan Kuen Kwan (“Chan”), in the hope that Chan could assist the Plaintiff to succeed her father’s interest in the Lands.

5.On 4 November 2011, Chan invited the Plaintiff’s Daughter to meet at his office (the “Meeting”) where he introduced her to one Wong Chi Keung (“Wong”), the representative of the Defendant. 

6.At the Meeting, Wong told the Plaintiff’s Daughter that the Defendant was interested in acquiring the Lands and that his consortium could assist the Plaintiff to inherit her interest in the Lands.  Wong brought to the Meeting the Provisional Agreement relating to the sale and purchase of the Lands, and successfully persuaded the Plaintiff’s Daughter to sign on it (purportedly on behalf of the Plaintiff).  Wong handed a cheque in the amount of HK$235,000 as deposit, which was later banked by the Plaintiff’s Daughter into her own account.  Wong also reassured the Plaintiff’s Daughter that it was only a provisional agreement, and that if the consortium could not make any progress as to the Plaintiff’s inheritance to the Lands, the agreement would come to an end and the deposit needed not be returned.

7.The Plaintiff’s case is that the Plaintiff’s Daughter had no authority from the Plaintiff to sign the Provisional Agreement.  The Plaintiff had never met Wong or any person from the Defendant, nor did she know of the existence of the Provisional Agreement.  As far as the deposit is concerned, it was kept by the Plaintiff’s Daughter without the Plaintiff’s knowledge.

8.Later, steps were taken to verify the Plaintiff’s identity and her relationship with Li Tin Sang.  However, no record could be found in the Immigration Department as to who were the parents of the Plaintiff. From that point onwards, the consortium took no further step in the matter and refused to further communicate with the Plaintiff’s Daughter.

9.On 27 June 2017, the Plaintiff took out an Originating Summons to seek a declaration that the Provisional Agreement is not binding on her, and that its registration at the Land Registry should be vacated.  The relief sought in the Originating Summons is supported by an affirmation made by the Plaintiff’s Daughter.

10.The basis of the Plaintiff’s application is that the Plaintiff’s Daughter had no actual authority from the Plaintiff to sign the Provisional Agreement on the Plaintiff’s behalf.  Further, the Plaintiff also contends that since there had never been any communication between the Plaintiff and the Defendant either before or at the Meeting, the Plaintiff could not have made any representation to the Defendant which would have clothed the Plaintiff’s Daughter with ostensibly authority in relation to the signing of the Provisional Agreement.

11.The Originating Summons, the supporting affirmation and the Notice of Appointment to hear the Originating Summons were duly served on the Defendant at its registered address.

12.Later, the Plaintiff upon further reflection considers that it is more appropriate to ask for a declaration that the Provisional Agreement is not registrable (instead of it being vacated) since the same only appears in the land registration record as an instrument pending registration. Consequently, the Plaintiff took out a Summons on 13 September 2017 seeking leave to amend the Originating Summons to this effect.

13.The Summons dated 13 September 2017, together with the hearing bundles and the Plaintiff’s submissions for the hearing, were also duly served at the Defendant’s registered office.

C. Discussion

14.As noted by Yuen J (as she then was) in Titan Ltd v Deng Zhishun (unreported, HCMP 4804/1999, 11 November 1999), the civil procedural rules do allow originating summons to be dealt with at the first hearing in the absence of the defendants where the facts are sufficiently clear and liability is established.

15.In the present case, the Plaintiff’s Daughter has put in a detailed supporting affirmation explaining the circumstances giving rise to the signing of the Provisional Agreement, and confirming that she had no actual authority to sign the same on behalf of the Plaintiff.

16.At the hearing, I did ask Mr Poon (counsel for the Plaintiff) as to why the Plaintiff had not made an affirmation in support of her application. In response to my enquiry, Mr Poon informed this Court that the Plaintiff is in the advanced age of 83 and is currently living at an elderly home due to her poor health, and the legal team therefore decided not to trouble her to make a supporting affirmation.  In light of what I was told by Mr Poon, I do not think that there is any reason for me to draw any adverse inference against the Plaintiff as a result of her not making a supporting affirmation.  

17.At the same time, I cannot see why I should not accept the evidence given by the Plaintiff’s Daughter in her affirmation. Hence, I find on the basis of the evidence available before me that the Plaintiff’s Daughter has no actual authority to bind the Plaintiff to the Provisional Agreement.

18.On the question of ostensible authority, Mr Poon submitted that according to the evidence of the Plaintiff’s Daughter, the Meeting with Wong was not pre‑arranged.  The Plaintiff’s Daughter was only asked by Chan in the evening of 4 November 2011 to attend his office where she met Wong for the very first time and signed on the Provisional Agreement.  Hence, there was no possibility of the Plaintiff making any communication with the Defendant that would have clothed the Plaintiff’s Daughter with ostensible authority to bind the Plaintiff to the Provisional Agreement.  He went on to submit that anything said or done by the Plaintiff’s Daughter is irrelevant since the Court of Final Appeal in Thanakharn Kasikorn Thai Chamkat v Akai Holdings Ltd (No 2) (2010) 13 HKCFAR 479 (at paras 64 – 72) has held that representation made by an agent will not clothe him with any ostensible authority to bind his purported principal.  I accept Mr Poon’s submissions.

19.Accordingly, I am satisfied that the Plaintiff has made out a clear case that the Provisional Agreement is not binding on her for want of authority.

D. Deposition

20.In the affirmations of service filed by the Plaintiff, the deponent confirms that the address at which the court documents were served is the Defendant’s registered address.  However, no record filed in the Companies Registry is produced in those affirmations of service to verify the Defendant’s registered address.

21.At the hearing, I asked the Plaintiff’s solicitors to confirm to this Court that the Defendant’s address referred to in the affirmations of service is the Defendant’s registered address.  The Plaintiff’s solicitors duly confirmed the same through Mr Poon.  Hence, I am satisfied that these proceedings have been duly served on and brought to the attention of the Defendant.  That said, I required the Plaintiff’s solicitors to undertake to file a further affirmation within 2 days to exhibit such record(s) filed in the Companies Registry verifying the Defendant’s registered address.

22.Upon the Plaintiff’s solicitors giving the said undertaking, and also upon my being satisfied that the Provisional Agreement is not binding on the Plaintiff for want of authority, I made those orders and declarations set out in paragraph 1 above, with no order as to costs.

23.I wish to thank Mr Poon for his assistance.

Mr Kevin Poon, instructed by Hoosenally & Neo, for the Plaintiff

The Defendant was not represented and did not appear