Ying Ho Co. Ltd. v. Man Kwok Leung t/a David K L Man & Co. (A Firm)

CACV000084A/2000

CACV 84/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 84 OF 2000

(ON APPEAL FROM HCA No 3070 of 1998)

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Coram: Hon Mayo VP and Leong JA in Court

Date of Hearing: 17 November 2000

Date of Judgment: 17 November 2000

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D E T E R M I N A T I O N

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Hon Leong JA (giving the determination of the Court):

1. The is an application for leave to appeal to the Court of Final Appeal under s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 on the ground that there are questions of great general or public importance that require a decision by the Court of Final Appeal.

2. In a purchase by the applicant of certain land entitlement, the transaction was to be completed in the Hong Kong style of completion. The applicant through its solicitors allowed the balance of the purchase money to be released to the vendor on the personal undertaking of the respondent who was solicitor acting for the vendor, as to the proper identification of the vendor, the due execution by the vendor of the assignment and statutory declarations and the delivery of such documents to the applicant's solicitors. The vendor turned out to be an imposter and the assignment did not pass title. Only part of the purchase money was recovered. In an action against the respondent to recover the money lost, the applicant obtained summary judgment against the respondent on the ground of breach of an absolute undertaking by the respondent.

3. This Court decided that the undertaking is one which obliged the respondent to deliver to the applicant an assignment which passed title to him but that obligation is not absolute and the respondent would only be liable if he failed to take reasonable care to ensure that the person executing was the registered owner. Whether the respondent had failed to do so is to be investigated in a trial. The summary judgment was set aside.

4. The applicant's motion identifies two questions which the applicant submits are questions of great general and public importance which ought to be decided in the Court of Final Appeal.

1 Whether the undertaking as given by the respondent as solicitors for the vendor meant that the respondent was obliged to deliver to the applicant an assignment which passed title to him.

2. If the respondent was so obliged, whether applicant was in breach of the undertaking if he failed to realised that the assignment was executed by an imposter despite taking reasonable care.

5. Mr Martin Lee, SC submits this court's interpretation of the undertaking will set a precedent for all cases where this form of undertaking is used in future. Mr Lee further submits that the defence of reasonable care would have wide implications.

6. Mr Bunting, SC submits that the point decided by this court is clear and even if there is a question of great general or public importance, this court should not exercise the discretion to grant leave. The matter should be pursued to the Court of Final Appeal.

7. We agree that the questions raised in the notice of motion are of great and general or public importance that it ought to be exercised other discretion to allow the matter to go to the Court of Final Appeal for decision. Accordingly, we grant leave to appeal.

Representation:

Mr Martin Lee, SC & Miss Po Wing-kay, instructed by Messrs Ford Kwan & Co. for the plaintiff (applicant)

Mr Michael Bunting, SC, instructed by Messrs Herbert Smith for the Defendant (respondent)