Read the full judgment text of CACV 000083/1997 on BabelCite. This Court of Appeal judgment was delivered on 31 October 1997 before Nazareth VP, Godfrey JA, Mayo JA.
Property law – contract for sale of land – provisional agreement for sale and purchase – further deposit payable on signing of formal agreement – tender of personal cheque of purchaser's chairman as further deposit – vendor's solicitors returning cheque with only a general, unparticularised objection – whether vendor entitled to rescind for non-tender – Polglass v. Oliver (1831) 2 Cr. & J. 15 explained – principle is that payee must not 'delude' payer into believing objection is on some ground other than quality of tender – vendor's solicitors' conduct in not correcting purchaser's solicitors' misapprehension that objection was one of prematurity estopped vendor from later relying on quality of tender – silence in face of known misapprehension amounts to estoppel by representation – obligation to undeceive where omission would 'foster and perpetuate the delusion' – whether unconscionability remains a basis for specific performance of contracts for the sale of land – Union Eagle Ltd v Golden Achievement Ltd [1997] AC 514 considered – unconscionability not rejected outright but exceptional and special circumstances required – estoppel to be preferred basis – Hong Kong's binding provisional agreement system may require resort to unconscionability in exceptional cases – vendor's conduct amounting to sharp practice and trickery in suppressing real reason for rejection and rescinding at 12.27 a.m. to forfeit HK$5 million deposit – appeal dismissed by majority (Godfrey JA and Nazareth VP; Mayo JA dissenting) – specific performance affirmed – order nisi for costs to respondent purchaser.
Legal issues: Effect of payee's failure to particularise objection to tender on right to later object to quality · Whether unconscionable conduct can ground specific performance in sale of land · Vendor's entitlement to rescind for non-tender of further deposit
Outcome: Appeal dismissed by majority; specific performance of the contract for the sale of the 20th floor at 9 Queen's Road Central affirmed in favour of the purchaser.