Read the full judgment text of CACV 197/2017 on BabelCite. This Court of Appeal judgment was delivered on 7 March 2018 before Cheung CJHC, Lam VP and Poon JA.
Civil appeal – contract – sale of property – receipt clauses in Memorandum of Agreement and Assignment – whether receipt clauses give rise to contractual estoppel barring vendor's claim for unpaid purchase price – whether s.18(1) of Conveyancing and Property Ordinance (Cap 219) provides conclusive discharge of payment obligation – industrial unit at Kwun Tong sold for HK$1,500,000 to defendant and uncle as tenants-in-common in equal shares – Memorandum and Assignment contained receipt clauses acknowledging full payment prior to signing – defendant claimed HK$750,000 paid but trial judge found only HK$67,000 in part payments made between February and September 2011 – first issue: whether the Receipt Clauses gave rise to a contractual estoppel – held that even if they did, the estoppel was abrogated by a counter-estoppel or waiver arising from the defendant's subsequent part payments which could only be explained as an acknowledgement by the defendant that her payment obligation had not been discharged by the Receipt Clauses – court applied principles from Ming Shiu Chung v Ming Shiu Sum (2006) 9 HKCFAR 334 and Prime Sight Ltd v Lavarello [2014] AC 436 on the binding nature of signed documents and estoppel by convention – second issue: construction of s.18(1) CPO – whether the 'sufficient discharge' in the first part of s.18(1) is conclusive between the parties – held that the discharge is sufficient but not conclusive – court traced legislative history to ss.54 and 55 of the English Conveyancing and Law of Property Act 1881 and ss.67 and 68 of the Law of Property Act 1925, and followed Capell v Winter [1907] 2 Ch 376, Bateman v Hunt [1904] 2 KB 530, Greer v Kettle [1938] AC 156, Kwok Wai Fan v Tse Kin Chung [1998] 2 HKC 105 and Close Asset Finance Ltd v Taylor [2006] EWCA Civ 788 – court respectfully disagreed with Best Joint Investments Ltd v Kagani Ltd – third issue: leave to re-amend Reply to plead counter-estoppel or waiver – granted in exceptional case where underlying facts had been fully pleaded and tried – no remittal as defendant could not identify further evidence – fourth issue: costs of appeal – no order for costs of appeal due to late amendment and inadequate focus on unmeritorious arguments by plaintiff's counsel – defendant ordered to pay costs of leave applications – appeal dismissed.
Legal issues: Effect of Receipt Clauses as contractual estoppel · Construction of s.18(1) of the Conveyancing and Property Ordinance · Whether to grant leave to re-amend the Reply · Costs of the appeal
Outcome: Appeal dismissed; leave to re-amend the Reply granted; costs order below maintained; no order as to costs of the appeal; Defendant to pay Plaintiff's costs of the leave applications both in the Court of Appeal and below.
Cited by 1 case · Cites 3 cases