Wingo International Ltd. v. Ma Wai Man and Another

HCMP002809/2000

HCMP 2809/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2809 OF 2000

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Coram: Deputy High Court Judge Gill in Court

Date of Hearing: 22 September 2000

Date of Judgment: 29 September 2000

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J U D G M E N T

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1. This is a vendor and purchaser summons.

2. The plaintiff is the purchaser and the defendants are the vendors in an agreement executed on 4 January 2000 for the sale and purchase of the ground floor of a house of three stories situated in Shatin, New Territories. The parties were represented and the agreement was professionally drawn. Those terms of it pertinent to this summons are as follows:

"1. The Vendor shall sell and the Purchaser shall purchase the property as more particularly described in the Second Schedule hereto ("the said premises") together with the Fixtures, Fittings, Furniture and/or Electrical Appliances installed (if any) therein as set out in the Fifth Schedule hereto ("the Furniture and/or Appliances").

2. The purchase money shall be in the sum set out in the Third Schedule hereto which shall be paid and satisfied by the Purchaser to the Vendor in manner also set out in the Third Schedule hereto.

3. The purchase shall be completed at the offices of Messrs Ng, Tam, Ko & Chan, Solicitors at their Central Branch Office at Unit B, 16th Floor, Wing Hang Insurance Building, No. 11 Wing Kut Street, Central, Hong Kong in manner specified in the Fourth Schedule hereto ("the Completion Date"). The balance of the purchase money shall be fully paid upon completion.

14. The said premises are sold (as the case may be) absolutely subject to the provisions contained in the Government Grant under which the said premises are held from the Government and/or in so far as the Vendor's interest in the said premises is a legal estate for the residue(s) of the term of years for which the said premises are held from the Government Subject to the payment of the Government rent and to the performance and observance of the Government Lessee's covenants and conditions payable and to be performed and observed in respect of the same and also subject to all easements (if any) subsisting therein and with the benefit of and subject to all rights of way (if any) Subject to and with the benefit of the instrument(s) as mentioned in the Eighth Schedule hereto.

16.(a) The Vendor shall show and give good title to the said premises at his own expense and at the like expense shall make and furnish to the Purchaser such certified copies of any deeds or documents of title, wills and matters of public record including certified copy of Occupation Permit as may be necessary to complete such title pursuant to Section 13 of the Conveyancing and Property Ordinance (Chapter 219). The costs of verifying the title by inspection and examination including search fees shall be borne by the Purchaser.

(b) For the purpose of proving good title to the said premises, the Purchaser shall accept copies of title deeds not exclusively relate to the said premises obtained from the Land Registry duly registered with a Memorial Number as sufficient proof thereof provided that the Vendor's Solicitors shall undertake to provide to the Purchaser certified copies of the said title deeds within 30 days after completion.

17. Any requisitions or objections in respect of the title shall be delivered in writing to the Vendor's Solicitors within seven (7) working days after the date of the receipt of the title deeds by the Purchaser's Solicitors herein otherwise the same shall be considered as waived (in which respect time shall be of the essence of this agreement). If the Purchaser shall make and insist on any objection or requisition either as to title conveyance or any matter appearing on the title deeds or particulars or conditions or otherwise which the Vendor shall be unable or (on the ground of difficulty delay or expenses or on any other reasonable ground) unwilling to remove or comply with or if the title of the Vendor shall be defective, the Vendor shall notwithstanding any intervening negotiation or litigation be at liberty on giving to the Purchaser or his Solicitors not less than 7 working days' notice in writing to annul the sale, in which case unless the objection or requisition shall have been in the meantime withdrawn or complied with the sale shall at the expiration of the notice be annulled the Purchaser being in that event entitled to the return forthwith upon the expiry of the Notice of the deposit money paid hereunder (hereinafter called "the said deposit") but without interest (if the said return is made within five days) costs or compensation and the parties hereto shall at their own costs and expenses enter into an and cause to be registered at the Land Registry an Agreement for Cancellation and neither party shall have any claim against the other.

18. Such of the documents of title as relate exclusively to the said premises will be delivered to the Purchaser. All other documents of title in the possession of the Vendor relating to property/properties still retained by the Vendor will be retained by him and he will, if required, give to the Purchaser a covenant for production and delivery of certified copies and for safe custody thereof and such covenant to be prepared by and at the expenses of the Purchaser.

21. Time shall in every respect be of the essence of this Agreement.

22. Should the Purchaser (other than due to the default of the Vendor) fail to complete the purchase herein in accordance with the terms and conditions herein contained the Vendor may (without tendering an Assignment to the Purchaser) forthwith determine this Agreement by giving notice of termination in writing to the Purchaser or his Solicitors to such effect and the Vendor shall thereupon be entitled to re-enter upon the said premises and repossess the same together with the Furniture and/or Appliances (if any) if possession shall have been given to the Purchaser free from any right or interest of the Purchaser therein and the Vendor shall be entitled to forfeit all the said deposit or further deposit paid (but not as penalty) to the Vendor absolutely. Upon determination of this Agreement the Vendor may resell the said premises either by public auction or by private contract or partly by one and partly by the other subject to such stipulations as the Vendor may think fit and any increase in price on resale shall belong to the Vendor. Without prejudice to the Vendor's right to recover the actual loss which may flow from the Purchaser's breach of this Agreement, on such resale any deficiency in price shall be made good and all reasonable expenses attending such resale shall be borne by the Purchaser and such deficiency and expenses shall be recoverable by the Vendor as and for liquidated damages but not as penalty provided that such resale will take place within six months upon termination. On the exercise of the Vendor's right to determine this Agreement as aforesaid the Vendor shall have the right, if this Agreement shall have been registered at the Land Registry, to register at the Land Registry or the relevant New Territories Land Registry an instrument signed by the Vendor alone evidencing such determination or rescission as aforesaid of the sale of the said premises.

23. In the event of the Vendor (other than due to the default of the Purchaser and save as provided in Clause 17 hereof) failing to complete the sale in accordance with the terms hereof, all moneys paid by the Purchaser to the Vendor pursuant to the provisions of this Agreement shall upon request be forthwith returned to the Purchaser who shall also be entitled to recover from the Vendor damages (if any) which the Purchaser may sustain by reason of such failure on the part of the Vendor and it shall not be necessary for the Purchaser to tender an Assignment to the Vendor for execution.

31.(a) In respect of the balance of purchase price or any part thereof, the Purchaser shall deliver to the Vendor or his solicitor on the date on which such payment is required to be made a cashier order issued by a licensed bank in Hong Kong and/or a solicitors' cheque in favour of the Vendor (or as he may direct) for the relevant amount.

(b) ... ...

(c) The Purchaser shall not be deemed to have discharged the obligation to make payment hereunder unless in making such payment, the Purchaser also complies with the provisions of this Clause.

THE SECOND SCHEDULE ABOVE REFERRED TO
("the said premises")

THAT one equal undivided 3rd part or share of and in All That piece or parcel of ground registered in the Sha Tin New Territories Land Registry as LOT NO. 895 in DEMARCATION DISTRICT NO. 181. And of and in the messuages erections and buildings thereon ("the Building"). Together with the sole and exclusive right to hold use occupy and enjoy ALL THAT the GROUND FLOOR of the Building.

THE THIRD SCHEDULE ABOVE REFERRED TO

Purchase price:

The purchase price shall be HONG KONG DOLLARS ONE MILLION AND SIX HUNDRED THOUSAND ONLY (HK$1,600,000.00) which shall be paid and satisfied by the Purchaser to the Vendor in the following manner:- (a) HK$1,000,000.00 being deposit which has been paid by the Purchaser to the Vendor prior to the signing of this Agreement (receipt whereof is acknowledged); and (b) HK$600,000.00 being balance thereof to be paid by the Purchaser to the Vendor on completion.

THE FOURTH SCHEDULE ABOVE REFERRED TO

Date of Completion:

on or before 31 January 2000 (between hours 9:30 a.m. and 5:00 p.m. if the Completion Date falls on a weekday and between hours 9:30 a.m. and 1:00 p.m. if the Completion Date falls on a Saturday)

THE EIGHTH SCHEDULE ABOVE REFERRED TO

Nature of Deed :	Deed of Mutual Covenant
Memorial Number:	737012 (re-registered by Memorial No. 759949)"

3. The purchaser paid the deposit for the full amount and by due date. At some stage the parties agreed to extend the completion date to 31 May 2000, a Wednesday. The vendors' solicitors, Messrs Ng Tam Ko & Chan (Ng Tam) forwarded the documents of title against the usual undertaking to the purchaser's solicitors, Messrs Tony Kan & Co. (Tony Kan) by letter of 3 January 2000.

4. Exercising its rights under clause 17 of the agreement the purchaser through its solicitors by letter of 7 January to the vendors' solicitors raised a number of requisitions, only one of which is now pertinent to these proceedings, as follows:

"TONY KAN & CO.
Solicitors & Notaries

Date: 7 January 2000

Messrs Ng, Tam, Ko & Chan,
Solicitors,
Hong Kong.

Dear Sirs,

Re: Ground Floor, Lot 895 in D.D. 181, Tai Wai, Shatin,
New Territories

We refer to the captioned property. Having perused the title deeds and documents supplied by your client, we would like to raise the following requisitions on title:-

... ...

2. Assignment Memorial No. 737408

The subject property was allocated 1 undivided 3rd part or share of and in captioned lot under the said Deed of Mutual Covenant. However, in the said Assignment, no such undivided share was assigned to the purchaser therein. Please refer to the description of the property in the Schedule to the said Assignment. As such, we are of the view that the undivided share of the property had never been assigned to the subsequent purchasers. As such discrepancy amounts to a title defect, we require that a Confirmatory Assignment to be executed by the parties to the said Assignment. In the mean time, kindly advise forthwith whether your client is willing and able to arrange for the execution of the Confirmatory Assignment.

... ...

	Yours faithfully
	(signed)"

5. In the assignment challenged by Tony Kan (which was, in fact, in the chain of title, a purported assignment to the vendors herein) the assignor assigned to the assignee "the land described in the schedule hereto (the property)".

6. That schedule I reproduce as follows:

"SCHEDULE

1. THE PROPERTY:-

(a) Lot number, sections, undivided shares, description and address etc.:-

ALL THAT GROUND FLOOR of HEUNG FAN LIU VILLAGE RESITE (PHASE II) erected on LOT NO. 895 in DEMARCATION DISTRICT NO. 181 (which said Ground Floor is shown and coloured Pink on the plan annexed hereto).

(b) Exceptions and reservations, etc.:-

All exceptions and reservations as set out in the Crown Lease hereinafter described so far as the same are still subsisting, applicable and capable of taking effect.

(c) Easements and other appurtenant rights, if any:-

Subject to and with the benefit of all easements rights and rights of way (if any) and other privileges easements and appurtenant rights thereto belonging or appertaining to the Property so far as the same are still subsisting, applicable and capable of taking effect.

(d) The said Deed:-

A Deed of Mutual Covenant registered in the District Land Registry, Sha Tin by Memorial No. 737012."

7. The purchaser's complaint is that by that assignment the then vendor failed to transfer all of its interest in the subject property, missing out its undivided one third share of all the land and buildings. Thus in the chain the vendors in this agreement did not acquire all that they were purporting to sell to the purchaser.

8. Ng Tam referred the requisition of Tony Kan to the solicitors acting for the vendors when they first purchased the subject property, Messrs S K Wong & Lee (S K Wong) as follows:

"NG, TAM, KO & CHAN
SOLICITORS

Date: 17 Jan 2000

Messrs S K Wong & Lee,
Solicitors,
Hong Kong.

Dear Sirs,

Re:	(1) Wai Sun Metal And Plastic Manufactory Limited
	(2) Ground Floor, Lot No. 895, D.D. 181, Heung Fan Liu Village

We act for the registered owners of the above property, Ma Wai Man and Tang Sau Kuen Cindy.

... ...

Also, in the said Assignment Memorial No. 737408, the subject property was allocated 1 undivided 3rd part or share of and in the captioned lot under the said Deed of Mutual Covenant. However, in the said Assignment, no such undivided share was assigned to our client, the purchaser therein. Please refer to the description of the property in the Schedule to the said Assignment. As such, we are of the view that the undivided share of the property had never been assigned to our client which discrepancy would certainly render our client's title defective. We would require a Confirmatory Assignment to be executed by the parties to the said Assignment. Please revert as soon as possible whether you will at your own costs arrange for the execution of the Confirmatory Assignment.

The completion falls on or before 31 Jan 2000, your early reply hereto will be much appreciated.

	Yours faithfully,
	(signed)"

9. The response was brief and cryptic:

"S. K. WONG & LEE
SOLICITORS & NOTARIES

20 January 2000

Messrs Ng, Tam, Ko & Chan,
Solicitors,
Hong Kong.

Dear Sirs,

Re: Ground Floor, Lot No. 895, D.D. 181, Heung Fan Liu Village

We refer to your letter of 17 January 2000.

... ...

On page 2 of Deed of Mutual Covenant Memorial No. 737012 (of which Assignment Memorial No. 737408 was executed subject thereto), the land owner allocated 1/3 undivided share to the property. There is no doubt that the property with 1/3 undivided share conveyed by the said Assignment, let alone alleged defective title.

	Yours faithfully,
	(signed)"

10. This was copied by Ng Tam to Tony Kan, but not until 31 May 2000, the revised date of completion. In it they wrote: "... ... up to the dispatch of this letter, Messrs S K Wong & Lee are still unable to give us a satisfactory answer ... ..."

11. Tony Kan responded the next day, after the revised completion date:

"TONY KAN & CO
SOLICITORS

Date: 1 Jun 2000

Messrs Ng, Tam, Ko & Chan
Solicitors
Hong Kong

Dear Sirs

Ground Floor, Lot No. 895, D.D. 181 Heung Fan Liu Village

We refer to the Agreement for sale and purchase dated 4 January 2000, the sale and purchase of the captioned property and your letter of 8 April 2000.

We put on record that in breach of the Agreement, your client still fails to answer our requisitions raised in our letter of 7 January 2000 and fails to prove and give a good title to the Property, notwithstanding the extended time for completion (i.e. 31 May 2000) has expired.

Without waiving your breach of the Agreement, we write to give you notice that unless our requisitions are satisfactorily answered on 1 June 2000 at or before 5:00 p.m., of which time is of essence, pursuant to clause 16 of the Agreement, our client shall rescind the Agreement and demand your client's return of all the deposits paid.

All our client's rights are hereby expressly reserved.

Yours faithfully

(signed)"

12. Ng Tam wrote back by letter of 5 June 2000:

"NG, TAM, KO & CHAN
SOLICITORS

Date: 5 June 2000

Messrs Tony Kan & Co.,
Solicitors,
Hong Kong.

Dear Sirs,

Re:	Ground Floor, Heung Fan Liu Village, Tai Wai, Sha Tin, New Territories, Hong Kong. (Lot No. 895 in D.D. 181)

We refer to your letters to us both dated 1 June 2000 and ever since your said letter, we have not heard anything more from you.

We take a liberal view that, by drawing reference to the preceding sale and purchase agreement memorial no. 730654 and the subsequent dealings of the above property after the Assignment Memorial No. 737408 ("the said Assignment"), the omission of "1/3rd equal undivided share of and in Lot No. 895 in D.D. 181" in the said Assignment was merely a clerical error since a vendor could not give more that he had under the said Assignment and had covenanted with the Purchaser to assign all those their estate right title benefit and interest thereunder. Thus, there was nothing left in the air that had not been dealt with under the Assignment in issue.

... ...

We trust that all your requisitions have been satisfactorily answered.

We are instructed that our clients is still willing and prepared to complete their sale of the above property to your client and are further instructed to notify your client to complete their purchase of the said property on or before 5:00 pm 12 Jun 2000 (of which time shall be the essence).

All our client's rights under the Agreement for Sale and Purchase dated 4 Jan 2000 between our respective clients are expressly reserved.

	Yours faithfully,
	(signed)"

13. Tony Kan's response and final word was:

"TONY KAN & CO.
SOLICITORS & NOTARIES

Date: 9 Jun 2000

Messrs Ng, Tam, Ko & Chan
Solicitors
Hong Kong

Dear Sirs

Ground Floor, Lot No. 895, D.D. 181 Heung Fan Liu Village

We refer to your letter of even date.

We take the view that your proposed verification and the purported answer do not satisfactorily answer our requisitions and that your client has failed to prove and show good title to the above property in accordance with the terms and provisions of the said Agreement.

All our client's rights are hereby reserved.

Yours faithfully

TONY KAN & CO.

(signed)"

14. For the sake of completion I should mention that in the meantime the assignor in the challenged assignment, a limited company, had been wound up. There is exhibited correspondence between S K Wong and the Registrar of Companies whereby the former sought the latter's assistance to complete on behalf of the liquidated company a rectification, using his powers under section 291B of the Companies Ordinance. It seems that this came to nought, at least by completion date.

15. Needless to say, the sale and purchase did not proceed.

16. By its summons the purchaser now seeks the following declarations and orders:

1. a declaration that the requisition of the purchaser contained in the letter dated 7 January 2000 from Tony Kan to Ng Tam in respect of the title to the property has not been sufficiently answered by the vendors;

2. a declaration that a good title to the property has not been shown by the vendors in accordance with the agreement for sale and purchase dated 4 January 2000 in respect of the property;

3. a declaration that the purchaser shall be entitled to rescind and/or cancel the agreement;

4. an order that the vendors do pay the purchaser damages to be assessed;

5. an order that the vendors do pay the purchaser the costs of and incidental to these proceedings;

6. an order that the vendors are liable to pay the purchasers interest on the amount as stated in paragraph 4 hereinabove or such sum as may be awarded by the court at such rate and for such period as the court shall think fit pursuant to sections 48 and 49 of the High Court Ordinance (Cap. 4);

7. such further or other relief as the court shall see fit.

17. The vendors' response is that by their solicitors' letters of 31 May, 2 June and 5 June 2000 they have satisfactorily answered the requisitions raised. The purchaser was thus in default for failing to complete. Their counterclaim is for:

(a) a declaration that a good title to the property has been shown by the vendors in accordance with the agreement;

(b) damages to be assessed;

(c) interest on such sum as awarded by the court at such rate and for such period as the court shall think fit pursuant to sections 48 and 49 of the High Court Ordinance (Cap. 4); and

(d) such further or other relief as the court shall see fit; and

(e) costs.

18. It is pertinent to copy one more letter, which tells its own tale, from S K Wong to the vendors of 27 April 2000:

" S. K. WONG & LEE
SOLICITORS & NOTARIES

27 April 2000

Mr Ma Wai Man and
Ms Tang Sau Kuen Cindy
c/o Messrs Ng, Tam, Ko & Chan,
Solicitors,
Hong Kong.

Dear Sirs,

Re: Ground Floor, Lot No. 895, D.D. 181, Heung Fan Liu Village

We refer to your telephone enquiry today.

While we take the view that by the Assignment in question, Wai Sun Metal And Plastic Manufactory Limited has passed 1/3 undivided share of the land to you, we have nevertheless sought assistance of the Registrar of Companies to act on behalf of the company or Liquidator to endorse the suggested amendment. We shall inform you as soon as the Registrar's reply is received.

May we please assure you that if there is any fault on our part which incurs you in any loss or damage, we shall compensate you for our fault.

	Yours faithfully,
	(signed)"

19. There is but one issue for me to consider; has Tony Kan's requisition of 7 January 2000 been satisfied?

20. Clause 16(a) of the agreement requires the vendors to show and give a good title. Title in the ground floor unit comes in two parts, namely, an undivided one third share in the land and buildings and exclusive right to occupy the ground floor.

21. The exclusive right to occupy a part of a multi-unit property in Hong Kong may only be assigned when the assignment includes the undivided interest the assignor owns in the building which has given rise to the exclusive occupancy of a part.

22. Dealing with the point in the case Lai Wing Ho & Anor v. Chan Siu Fong [1993] 1 HKLR 319 Godfrey J (as he then was) said at p. 324:

"The result is that while a tenant in common can assign his interest in the premises, i.e., his shares which he holds in co-ownership, he cannot create, or convey, or assign any right to exclusive possession of part only of the premises, being a right capable of subsisting as a legal estate in land and binding on his co-owners as well as himself. Where a deed of mutual covenant is expressed in terms which purport to entitle a tenant in common in right of his undivided shares to exclusive use of part of the building, for example, the top floor and the main roof above it, the nearest he can get to assigning the roof will be to grant a licence, binding on him personally and on his personal representatives, but not otherwise on his successors in title, permitting the use of the main roof by the grantee. Such licence might be either personal to the grantee or assignable by the grantee; and, if the latter, it will be enforceable by an assignee of the licence against the grantor or his personal representative. But it will not be enforceable against the other co-owners of the premises or against anybody else."

23. This ruling was considered and approved by the Court of Appeal in Jumbo King Limited v. Faithful Properties Limited [1999] 3 HKLRD 231.

24. At page 245 Rogers JA said:

"An undivided share is just what it says: it is an undivided share in the legal estate of the whole property. Without a deed of mutual convenant, each co-owner of the property, that is those who hold undivided shares, would be entitled to the full use and enjoyment of the whole property. The deed of mutual convenant governs the rights of the co-owners amongst themselves and regulates, amongst other things, the portions of the property in respect of which each owner would have the exclusive right of enjoyment. That exclusive right of enjoyment cannot be assigned on its own, but it has to be assigned together with a part interest in the legal estate.

This point was discussed in Lai Wing Ho and Another v. Chan Siu Fong [1993] 1 HKLR 319, one of the cases relied upon by the respondents. In that case, a co-owner had purported to assign part of the premises (a roof) of which he was entitled to exclusive possession but without any share in the ownership of the land. He then sold the rest of the premises (the flat underneath that roof) with his shares in the ownership of the land. What was at issue in that case was the validity of this second sale (the sale of the flat). Godfrey JA held that this second sale was valid as the vendor had transferred the right of exclusive possession of the second part (the flat) as part and parcel of the transaction whereby he had transferred his undivided shares. It was not strictly necessary to consider what were the rights of the "owner" of the first part (the roof). However, the judgment did go on to deal briefly with the position with regard to the roof. It was pointed out that a co-owner could not create or carve out a right of exclusive possession so as to bind the other co-owners and assign it separately. The reason for that is quite simply that the right of exclusive possession of any part of the premises could only arise out of the deed of mutual convenant.

It follows, therefore, that for anyone to enjoy rights of exclusive possession of part of a property he must be a co-owner, in other words, the owner of undivided shares."

25. That case went further; to the Court of Final Appeal. In Jumbo King Limited v. Faithful Properties Limited [1999] 3 HKLRD 757 at p. 767 Litton PJ said:

"This issue is simple. Prima facie, the co-owners of land have the right of possession in common to every part of the land. In relation to a multi-storied building there cannot be a proprietary right to the exclusive possession of part of the building except as an incident of common ownership in the land and building. The vendors were, at the time of the agreement, co-owners. They all derived their title ultimately from the developer. So long as the developer had the right of exclusive possession to the utility rooms and the roof spaces, he was able to pass such right to subsequent purchasers of undivided shares, including the vendors in this case. Any person who acquires an undivided share can acquire the exclusive use of any space in the building and exercise proprietary rights over such space.

... ...

Counsel for the appellant, Ms Audrey Eu SC, spoke of shops or offices "carrying" undivided shares. This turns the legal position on its head. As mentioned earlier, the proprietary right of a co-owner in a multi-storied building is the right to an undivided share in the land and building: prima facie the owner is entitled to exert rights of possession to every part of the building, in common with his co-owners. This is what is meant by the expression "unity of possession". But by the deed of assignment and by the DMC, the rights of exclusive possession to individual parts are marked out as between the co-owners. To use Ms Eu's vocabulary: the true analysis is that an undivided share may "carry" a right to exclusive possession of a defined space. Not the other way round. Here, so long as the vendors were owners of undivided shares in the land and building, deriving title from the developer, they were entitled to assert rights of exclusive possession to parts of the building, such as the utility rooms and the roof spaces. Their title to those units cannot be impeached."

26. Mr Wei, for the vendors, valiantly has attempted to distinguish the case before me from Lai Wing Ho and Jumbo King on the basis that in those cases purported separation of the exclusive right of occupation was deliberate. He invites me to read into the assignment the words that would give meaning to what was a clear intent.

27. I regret I cannot do that. The assignment reads clearly and unequivocally. It may be that part only of what was intended to be assigned was assigned. In the absence of such remedial process as may be available (such as for instance, that pursued, without apparent success, by S K Wong of the Registrar of Companies) I cannot repair such a significant drafting deficiency.

28. It follows that the vendors' title in the property is defective because two assignments prior in the chain they received by assignment what their vendor could not at law transfer to them, namely, only the exclusive right of occupation of the ground floor of the property. At no stage have they owned the undivided one third share of the land and building known as Lot 895 of Demarcation District 181 which by Clause 1 of this agreement they were committed to sell the purchaser.

29. I need take the matter no further.

30. The vendors on the documents were unable to give good title. The purchaser was entitled to raise the requisition. The vendors were unable to satisfy it. The purchaser was entitled to rescind and pursue its rights.

31. The purchaser shall have the orders and declarations asked for from 1 to 6, as reproduced at page 13 of this judgment. The interest rate in no. 6 shall be the judgment rate. The costs in no. 5 shall be taxed if not agreed. The order as to costs shall be nisi at first instance.

32. The vendors' counterclaim is dismissed.

Representation:

Mr H Au Yeung, instructed by Messrs Tony Kan & Co., for the Plaintiff

Mr M Wei, instructed by Messrs Ng Tam Ko & Chan, for the Defendants