Madam Chen Wong Law Bo v. Goldorchit Properties Ltd.

CACV000065/1991

BETWEEN

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Coram: Hon. Sir Derek Cons, Ag. C.J., Fuad, V.P., & Clough, J.A.

Date of hearing: 5 November 1991

Date of delivery of judgment: 5 November 1991

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JUDGMENT

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Sir Derek Cons, Ag. C.J.:

1. On 28th November 1989 Madam Chen Wong Law Bo, through her agent Miss Hui, was considering the purchase of a flat on the 11th floor of a block in Caine Road. Miss Hui dealt with a Mr. Mui, who appears to be a broker, and a Miss Cheung of the office of the defendant vendors, Goldorchit Properties Limited.

2. At that time the 11th floor of the block in Caine Road was divided into three flats, in one of which Madam Chen was interested. The original plans must have provided for only one flat on the floor, as is apparent from the occupation permit. However, Miss Hui was given certain assurances by Mr. Mui, which were in effect confirmed by Miss Cheung. As a result Miss Hui agreed on behalf of Madam Chen to purchase the flat. She paid a deposit of $50,000.

3. In the course of time the purchase fell through. In a subsequent action for rescission of the agreement and repayment of the $50,000 deposit, there was pleaded on behalf of Madam Chen, in a statement of claim which was by no means a model of the pleader's art, amongst other things, misrepresentation. The particulars of the misrepresentation were given in six paragraphs. At the hearing before Judge Downey he found that five of those particulars had not been proved. The remaining particular, as it stood in the statement of claim as (4) of paragraph 9, alleged:

4. During the course of the hearing the judge gave leave to make two amendments. One was to add (4A), that "All alterations to the flat were carried out properly, legally, and in full compliance with all relevant statutes and regulations"; the other was to add a paragraph 9A, that "Each and every representation as particularised in paragraph 9 hereinabove is false and incorrect and in particular the alterations to the flat were carried out illegally". These amendments never appear to have been perfected.

5. In a reserved judgment, given some four months after the two-day nearing, the judge found on the evidence that the representations in (4) and (4A) had both been made, that they were binding on the vendor, that they were not true and that they were material in that they affected the title to the property. He therefore gave judgment in favour of Madam Chen.

6. During the course of his, if I may say so, very able submissions, Mr. Leong on benalf of the vendors who bring this appeal, drew our attention to a suggestion in the notice of appeal for which leave was sought from the judge below, that the application for the amendments had in fact been withdrawn before the judge gave leave for them to be added. Counsel for the purchaser, when asked why the application was being made at that time, had said "I just have thought of them. I won't insist on a ruling." He explained today that by that he merely meant that he was not pressing his application too seriously, but was not witharawing it. That was the view which must have been taken by the judge because he refused leave to proceed on that ground.

7. He gave leave however for the two grounds which are pursued before us. The first is that he was wrong to grant the leave to amend. Certainly two of the reasons which he subsequently gave for so doing are not all that easy to understand. But the matter was essentially one for his discretion. It is clear that it caused no embarrassment to the other side for no request for any adjournment was made. In my view there is no merit in that ground of appeal.

8. The second ground is that on the evidence before him the judge was wrong to draw, as he did, the inference:-

Mr. Leong has drawn our attention to the apparent inconsistency of that with the judge's earlier finding that Miss Hui was effectively told that there was no need to submit plans. The material evidence of Miss Hui appears at p. 35 of the appeal bundle. She said:

Dealing with that passage the judge said:

It seems to me that it is there that the judge was led astray, for that is not necessarily the only implied representation. It may equally represent that approval was necessary and had been sought and obtained, as the judge subsequently inferred.

9. Taking matters all in all, and having been through the evidence carefully, it seems to me that there was sufficient for him to do so and to come to the conclusion that he did. For my part I would dismiss the appeal.

Fuad, V.P.:

10. I agree that the appeal should be dismissed for the reasons given by my Lord.

Clough, J.A.:

11. I also agree and have nothing to add.

Representation:

Alan K.K. Leong (M/s. Lo, Wong & Tsui) for defendant/appellant

Kenneth C.C. Chan (M/s. Hon & Co.) for plaintiff/respondent