Read the full judgment text of FACV 000009/1999 on BabelCite. This FACV judgment was delivered on 3 March 2000 before Litton PJ, Ching PJ, Bokhary PJ, Fuad NPJ, Hoffmann NPJ.
Conveyancing – sale of land – requisition as to title – Crown lease covenant restricting building height to 35 feet without consent of the Governor-in-Council – 5-storeyed apartment block (Block C Repulse Bay Mansions) erected in 1955 on Rural Building Lot No. 168 with occupation permit issued in June 1955, plainly exceeding the 35-foot limit – whether vendors had 'shown and proved good title' under clause 7(a) of the agreement for sale and purchase read with s.13 of the Conveyancing and Property Ordinance, Cap. 219 – test for showing good title on a requisition concerning a potentially breached restrictive covenant in a Crown lease – whether there was a real risk of the government taking enforcement action (re-entry) under s.4 of the Government Rights (Re-entry and Vesting Remedies) Ordinance, Cap. 126 – proper approach of looking at the 'larger picture' where concrete proof of the government's knowledge and attitude is not easy to find – role of the Director of Public Works as the Crown's land agent (Hang Wah Chong Investment Co. Ltd v. Attorney General [1981] HKLR 336) – informal modification of Crown lease conditions by correspondence in the 1940s and 1950s – s.150 of the Buildings Ordinance empowering the Director of Public Works to grant modifications and exemptions – 42 years of undisturbed possession and Crown rent accepted without objection – no precedent of government forfeiting innocent owners' interests by re-entry – 1961 deed of variation modifying height restriction related only to Remaining Portion of RBL 168 and not to Block C's subdivision – s.8(1)(b) of Cap. 126 and equitable considerations against forfeiture affecting third parties – whether the Court of Appeal (Nazareth VP and Stock J, Liu JA dissenting) erred in setting aside Yeung J's order – mistaken factual findings of Stock J regarding alleged applications for modification of Blocks A and B and alleged later unlawful additions to Block C – appeal allowed, Court of Appeal's judgment quashed, Yeung J's order restored, costs to the vendors in this Court and below.
Legal issues: Whether vendors showed and proved good title despite potential breach of 35-foot height restriction in Crown lease · Whether there was a real risk of government enforcement (re-entry) in respect of the height restriction
Outcome: Appeal allowed; the Court of Final Appeal unanimously allowed the vendors' appeal, quashed the Court of Appeal's judgment, and restored the order of Yeung J in favour of the vendors.
Cited by 1 case