Kwok Kin Fai v. Chan Ping Yi

DCMP 2756/2024

[2024] HKDC 1272

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2756 OF 2024

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DECISION

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Introduction and Background

1.This is an application made by the Plaintiff (“P”) by way of an Originating Summons dated 23 May 2024 for an order that: (1) the Defendant (“D”) do sign and execute a Deed of Rectification to remedy an error in the Assignment signed by P and D on 5 December 2016; and (2) in the event that D neglects or refuses to sign and execute the same, to appoint the Registrar of the District Court to sign the same on D’s behalf.

2.P had purchased the subject property (“the Property”) from D under the Home Ownership Secondary Market in 2016.

3.In about March 2024, P intended to sell the Property to an intended purchaser (“the Purchaser”). However, in the process of checking title, the legal representatives of the Purchaser pointed out that the original assignment of the Property signed by P and D (“the Assignment”) was not in the form authorized under the Schedule to the Housing Ordinance, Cap 283 (“HO”) and was therefore void under HO.

4.Solicitors for P (“P’s Solicitors”) who had acted for P in the purchase of the Property now accepts that as the Assignment was not executed in the form in accordance with the terms prescribed in s 4(c)(C) of the Schedule to HO, it was void under s 17B of HO.

5.Although P’s Solicitors was able to reach D by telephone on 30 April 2024, D expressed that he would not be willing to execute any confirmatory assignment or have anything to do with the property transaction which was more than 7 years ago. Hence P has taken out the present application.

6.A deed of rectification has now been prepared by P’s Solicitors (“the Deed”).

7.I am satisfied from the affirmations of service filed that all the documents and notice of today’s hearing were served on D. D does not appear today. I see no reason why this application should not proceed in the absence of D.

Discussion

8.Having considered the sale and purchase agreement leading to the Assignment, I am satisfied that P and D contemplated that the conveyance of the Property by D to P would have to accord to the terms prescribed by HO.

9.Furthermore, s 35(1)(b) of the Conveyancing and Property Ordinance, Cap 219 (“the Ordinance”) expressly provides for and implies into an assignment a covenant as set out in paragraph 5 of Part II of the First Schedule to the Ordinance: “That all such lawful acts, assurances and things for further or more perfectly assuring the land and every part thereof to the purchaser and to those deriving title under the purchaser shall, from time to time and at all times at the request and cost of the purchaser or any person deriving title under him, be executed and done (subject to the manner in which the assignment is expressed to be made) as by the purchaser or any such person may be reasonably required.”

10.Accordingly, it is clear that D has covenanted that he would do what P may reasonably require in order to perfect the conveyance and this is to be done “at all times”, even though after many years have elapsed.

11.Counsel for P, Mr Tsui, has cited two cases where the assignment of properties under the Home Ownership Scheme were found not to be in compliance with the prescribed terms under HO and the court had approved a deed of rectification (see Sin Tai Kong & another v Tang Kam Ming Keith [2019] HKDC 781) and a confirmatory assignment (see Kwong Muk Hing, one of the executors named in the Will of Luk Heung deceased v Cheng Pui Nin William & another [2019] HKCFI 1726) respectively.

12.In Sin Tai Kong, His Honour Judge Andrew Li ordered the Registrar of the District Court to execute the deed of rectification in the event the defendant neglects or refuses to sign the same. In Kwong Muk Hing, Deputy High Court Judge Leung ordered pursuant to s 25A of the High Court Ordinance, directing and appointing the Registrar of the High Court to execute the confirmatory assignment for and on behalf of the respondents.

13.I am therefore satisfied that I can order execution of the Deed by D and, if he neglects or refuses to do so, to appoint the Registrar of the District Court to do so on his behalf.

14.Having considered the circumstances of this case and the evidence before me, I am of the view that this is an appropriate case where the court should accede to P’s application. My only reservation, as indicated to Mr Tsui, is that by letter dated 16 April 2024, the Housing Authority (“HA”) has requested parties to approach their HOS Secretary Market Scheme Unit for their consent should parties like to execute a Deed of Rectification. It was confirmed by Mr Tsui that the Deed has not been approved by HA. Obviously, consent of HA must be obtained.

Order

15.I therefore order that subject to the consent of HA being obtained:

(1)  Within 7 days from the date of receipt of the consent of HA for parties to execute the Deed of Rectification, D do execute the Deed of Rectification;

(2)  In the event that D neglects or refuses to sign and execute the said Deed of Rectification as per paragraph (1) above, pursuant to s 38A of the District Court Ordinance, Cap 336, the Registrar of the District Court be appointed to sign and execute the said Deed of Rectification on behalf of D, and for such purpose the Deed of Rectification must be lodged for the Registrar’s approval; and

(3)  There be no order as to costs.

Mr Wilfred C K Tsui, instructed by Lee & So, for the plaintiff

The Defendant was not represented and did not appear