Sit Sau Ming v. Leung May Chun Alison Aliance (Formerly Known As Sham May Chun)

CAMP 195/2020

[2020] HKCA 1037

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 195OF 2020

(ON AN INTENDED APPEAL FROM DCCJ 4453/2008)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.Having considered the submissions of counsel (both written as well as oral), there are only two main points which we need to address for present purpose.

2.First, the finding by the Chief District Judge (“Chief Judge”) was that no completion took place on 2 January 2008 because both parties had agreed through Gordon Tsang (“GT”) to a postponement to 9 January 2008.

3.Mr Chan SC (appearing together with Mr Hung) urged on the Court that such finding is open to challenge by appeal because the Chief Judge failed to pay regard to the contemporaneous evidence.  In particular, he said that there could not be any agreement to postpone in the morning of 2 January 2008 since the serious title defect was only discovered in the afternoon after 15:19 hrs.

4.Counsel also said that the Chief Judge misunderstood the evidence concerning the timing for ordering the Occupation Permit and the receipt of the same.  He suggested that the Second Title Investigation could only have been started after the Occupation Permit and the missing deeds had been received.  The Defendant’s statutory declaration was only faxed at 15:19 hrs on 2 January 2008 and the request for Control Card was only made at 18:15 hrs on 2 January 2008.  As such it was argued that during the telephone conversation in the morning of 2 January 2008, it was not possible for the solicitor (GT) to inform the Defendant of the “serious title defect” which only arose in that afternoon.  It was thus impossible for GT to have obtained the Defendant’s consent to the postponement of the completion.

5.Notwithstanding Mr Chan’s efforts, we are not persuaded that the challenge to such finding of the Chief Judge has any reasonable prospect of success.  As explained by the Chief Judge’s in his main judgment of 6 March 2020, the difficulties in the proof of title were not confined to the defect now highlighted by Mr Chan.  The Chief Judge carefully and meticulously gone through the history of the conveyancing process.  The Defendant only provided the title deeds to MWC on 10 November 2007.  When it was discovered that there were missing title deeds and other conveyancing matters which needed to be addressed, some further documents were supplied by the Defendant on 19 December 2007.  It was only then that the Defendant put the solicitor in fund to obtain certified copies of remaining documents.

6.The solicitor was acting for both parties.  The failure of the Defendant as vendor to provide adequate title documents in good time to her own solicitor would not reduce the time that the vendor (and his solicitor) should have in the process of approving title.  It should be noted that in taking the various steps to procure documents to prove title from November 2007 to 8 January 2008, the solicitor was acting for the Defendant.

7.Bearing in mind that the Plaintiff as purchaser should have a reasonable time for approving the title after all the documents were available, it is difficult to cast any doubt on the need and thus GT’s suggestion to the parties (including the Defendant) for postponing the completion on 2 January 2008.

8.The Chief Judge also gave cogent reasons in his Decision of 12 October 2020 on refusing leave to appeal in refuting the submissions of Mr Chan.

9.The second point is the so-called law point based on Union Eagle v Golden Achievement Ltd [1997] AC 514 at p.518B-D.  The point is, with respect, misconceived.  The Privy Council did not deal with a situation where completion had been postponed by agreement.  In light of the finding of the Chief Judge on the agreement to postpone, it is not a case where a defaulting party sought to impose an alternative mode of performance on the innocent party.  There was no default on the part of the Plaintiff in the present case in not completing the transaction on 2 January 2008.

10.Mr Chan submitted there was inconsistency between the judgment of Lord Hoffmann in Union Eagle and Camberra Investment Ltd v Chan Wai-tak [1989] 1 HKLR 568.

11.With respect, it is plain to us that there was no inconsistency.  Lord Hoffmann’s observations in Union Eagle (cited at [86] of the main judgment of the Judge) must be read in the context of the case, viz where a party was in breach of the agreement in failing to complete within time which is of the essence.  It has no application to the situation where there was an agreement on the postponement of completion which led to the result that there was no breach by either party.

12.Thus, it is not surprising that notwithstanding Union Eagle, Camberra Investment was approved by the Privy Council (in which Lord Hoffmann sat as a member) as “well stated” in Chong Kai Tai v Lee Gee Kee [1997] HKLRD 461 at 470.

13.In a case like the present one where there was no breach, neither party is in a position to put an end to the contract by accepting any repudiation as there was none.  In such circumstances, there is no conflict with Union Eagle for the court to grant specific performance on reasonable time basis in accordance with Camberra Investment.  In other words, as Mr Chain submitted, the court is not enforcing the contract as varied, but enforcing the original contract on the basis that there was no repudiation.  It was therefore open to the court to grant specific performance based on Camberra Investment.

14.In other respects, we agree with the analysis of the Chief Judge in his Decision of 12 October 2020.

15.The intended appeal has no prospect of success.

16.We do not see any other reason in the interest of justice to warrant leave to be granted in this case.

17.For these reasons, we dismiss the summons of 27 October 2020 and order the Defendant to pay the costs of the Plaintiff in the summons. 

18.After hearing counsel on the statement of costs of the Plaintiff, we fix the costs of the Plaintiff at $ 307,550.

Mr Benjamin Chain, instructed by Pansy Leung Tang & Chua, for the plaintiff

Mr Edward Chan SC and Mr Andy Hung, instructed by Kim & Company, for the defendant