Kwok Wai Fan v. Tse Kin Chung
Read the full judgment text of HCMP 3154/1997 on BabelCite. This High Court CFI judgment was delivered on 26 February 1998.
1. This is the hearing of a Vendor and Purchaser summons issued by the Plaintiff (Purchaser) in which he is seeking the following relief :
Cited by 2 cases
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HCMP003154/1997 1997, No.M.P.3154 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS ------------------
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------------------ Coram : The Hon Mr Jusitce Cheung in Court Date of Hearing : 26 February 1998 Date of Delivery of Judgment : 26 February 1998 ---------------------- J U D G M E N T ---------------------- The application 1. This is the hearing of a Vendor and Purchaser summons issued by the Plaintiff (Purchaser) in which he is seeking the following relief :
Mode of proceedings 2. Before I embark on the issues, it is necessary to comment again on the mode of proceedings instituted by the Plaintiff. Apart from setting out the reliefs sought by the Plaintiff, the Originating Summons does not contain any information at all about the issues between the parties : matters affecting title or the requisitions raised were not disclosed. The issues could only be discovered halfway into the affidavit and by reference to the correspondence exhibited to the affidavit. This is not right. The Originating Summons must identify the issues clearly and succinctly either in the body of the summons or by way of a schedule. I understand other judges had likewise expressed their disapproval of the practice I had earlier mentioned. In future, plaintiff's solicitors are expected to be ordered to redraft the originating summons and will be penalised by costs personally if the direction is not observed. The requisitions 3. In this case, the Plaintiff entered into a Sale and Purchase Agreement dated 27th August 1997 with the Defendant in respect of the property known as Flat C, 11th Floor, Tower 15, Tai Po Centre, Tai Po, New Territories, Hong Kong ("the Property"). Among the title deeds forming the chain of title is an assignment dated 3rd September 1987 ("the Assignment"). Four parties were involved in this Assignment, namely, Salen Properties Limited ("Salen") as the vendor, two confirmors and the purchaser, Mr Chung. 4. Requisitions of title were raised on this document. In the letter dated 20th September 1997, the Plaintiff's solicitors stated that the Assignments failed to state :
Missing words 5. In Storey on Conveyancing (4th Edition) the authors stated that :
The recital to the Assignment stated that Salen was the beneficial owner of the property and had agreed to sell to the 1st Confirmor the property for the sum of $313,000; the 1st Confirmor had agreed with the 2nd Confirmor for the sale of the same property to the 2nd Confirmor for the same amount; the 2nd Confirmor had agreed with Mr Chung for the sale of the property for the sum of $350,000. The two confirmors requested Salen to execute the Assignment and assign the property direct to Mr Chung which Salen had agreed to do. Then the Assignment went on to state :
6. What is missing from the words of grant are the words "The Vendor" before the words "ASSIGN and CONFIRM to the Purchaser the property". The Plaintiff further complained that the Assignment did not specify in what capacity Salen was selling. Clearly the intention of Salen was to assign the property as its beneficial owner to the Purchaser. This is apparent from the recital. I just cannot see what purpose would be served by Salen executing the Assignment if such was not the intention. The Plaintiff's complaint that the Defendant's title is defective in this regard is misconceived. Receipt clause 7. Secondly, it is stated that the Assignment did not contain a receipt clause. There was an acknowledgement of receipt by Salen in the sum of $313,000. But in respect of the sum of $37,000, which was the difference of the $350,000 and $313,000 paid by Mr Chung to the 2nd Confirmor and by the 1st Confirmor to Salen, there was no acknowledgement of receipt. 8. In Williams on The Law and Practice Relating to the Contract of Sale of Land and the Title to Land (3rd Edition) at page 598, it was stated that :
The case of Renner v. Tolley (1893) 68 LT 815 was cited. That case concerns with s.55(1) of the Conveyancing Act of 1881, which stated that :
9. The issue in Renner v. Tolley was quite simply whether the absence of an acknowledgement of receipt in a deed constitute a receipt within the meaning of s.55. 10. At the footnote of page 598 of Williams, it was stated that
11. I have looked at the case of Forbes v. Peacock and referred it to Counsel. The case does not support the proposition made by the learned author. 12. The question of receipt of the purchase money is only relevant to the question of a vendor's lien on unpaid purchase money. Section 18(1) of the Conveyancing and Properties Ordinance provides that :
This section is a combination of s.67 and s.68 of The Law of Property Act 1925. The authors of Barnsley's Conveyancing Law & Practice (4th Edition) (at page 440) commenting on s.68 of The Law of Property Act stated that the enforceability of a vendor's lien ultimately rests on the doctrine of notice rather than on a purchaser's reliance upon a receipt clause. The prima facie sufficiency of the receipt is displaced if the vendor, having parted with the deeds on completion, registers the lien as a Class C(iii) land charge, for this will give the purchaser actual notice. Similarly, if he retains the deeds their non-availability will constitute constructive notice of the vendor's rights. 13. In the present case the only person who could possibly complain of non-payment of the purchase money was the 2nd Confirmor who made $37,000 out of the transaction. The transaction was carried out over 10 years ago on 3rd September 1987. There was certainly no evidence of any registration of claim arising out of any lien. Leaving aside the question whether such a lien is available to a confirmor, there was not the slightest indication that the 2nd Confirmor had not received the purchase money. On the contrary, the Assignment referred to the $37,000 being paid by Mr Chung to the 2nd Confirmor and the recital stated that the Confirmors requested the property to be assigned directly by Salen to Mr Chung. In the circumstance of the case, I just fail to see why the Defendant's title is in anyway defective in this regard. Answer to the requisitions 14. The Plaintiff argued that even if the title is not defective, the Defendant had not answered the requisitions properly. I disagree. The Defendant's solicitors had stated that the errors were clerical errors and that they had nothing to do with title. The omission of the words "The Vendor" in words of grant is clearly clerical. The absence of the receipt clause clearly does not affect title. Other arguments 15. It is argued that in the copy of the Assignment obtained by the Plaintiff's solicitor from the Land Registry, there was alteration to the document. The words "First Confirmor" was inserted after the "Second Confirmor" in the words of grant. This had never been raised by way of requisition previously. The Defendant was never given an opportunity to deal with this in correspondence and the Plaintiff is not entitled to rely on it in this application. Likewise in the course of Mr Shum's submission, reference was made to the absence of Salen's signature in the Memorial. This was not a matter that had been raised in the requisition and this is not a matter that the Plaintiff is entitled to rely in this application. Conclusion 16. In the circumstances, the summons must be dismissed with costs to the Defendant. (P. Cheung) Judge of the Court of First Instance, Representation: Mr Edward Shum, inst'd by M/s K.M. Lai & Li, for the Plaintiff Mr Kenneth C.L. Chan, inst'd by M/s Wong & Poon, for the Defendant |
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