Chan Sai Fu and Another v. Lee Wai Kwong Johnny

HCMP005879/2000

HCMP 5879/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5879 OF 2000

____________

____________

Coram: Deputy High Court Judge Woolley in Court

Date of Hearing: 14 March 2001

Date of Handing Down Judgment: 21 March 2001

_______________

J U D G M E N T

_______________

1. This is a vendor and purchaser summons. The facts may be briefly stated. By an agreement for sale and purchase dated 20 September 2000 the defendant agreed to sell and the plaintiffs agreed to purchase a property described as:

"ALL THOSE 16 equal undivided 29,234th parts or shares of and in ALL THAT piece or parcel of ground known and registered in the Sha Tin New Territories Land Registry as THE REMAINING PORTION OF SHA TIN TOWN LOT NO. 229 And of and in the messuages erections and buildings thereon now known as "MAY SHING COURT" (in Chinese)("the Building") TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT NO. 5 on the TWENTY-NINTH FLOOR of BLOCK B of the Building, Nos. 32-36 (No. 34) Mei Tin Road, Shatin, New Territories, Hong Kong."

2. The purchase price was $1,468,000.00 and the completion date was to be on or before 31 October 2000.

3. The plaintiffs' solicitors raised a number of requisitions by letter, and it is with two of those that we are now concerned, the plaintiffs contending that they have not been adequately answered. I will use the same numbering as in their letters.

Requisition No. 4

4. This reads as follows:

"We note that the description of the captioned property in the said Release Memorial No. 435714 and Assignment Memorial No. 949301 was stated as "ALL THAT piece or parcel of ground known and registered in the Sha Tin New Territories Land Registry as THE REMAINING PORTION OF SHA TIN TOWN LOT NO. 229 And of and in the messuages erections and buildings thereon known at the date hereof as "MAY SHING COURT". However, according to the description as stated in the first Assignment Memorial No. 263751, "May Shing Court" comprises of a number of multi-storey buildings comprises (sic) a kindergarten empty bays management offices caretakers quarters other non-residential accommodation and residential unit erected on The Remaining Portion of Sha Tin Town Lot No. 229 and a Carpark building erected on Section A of Sha Tin Town Lot No. 229. In such circumstances, we opine that rectification on the said Release and the said Assignment is necessary and the same is now returned to you herewith for your further action. Kindly return to us the same duly rectified and initialed together with the relevant Memorial(s), the re-registration fee and the explanatory letter to the relevant Land Registry for our further (sic) before completion."

5. It is the plaintiffs' contention that the description of the property is ambiguous and not clearly identified in that there is an apparent discrepancy in the definition of May Shing Court. However, it is clear from the original Crown Lease of 31 May 1984, that the parcel of land demised to the Housing Authority was Town Lot No. 229, and that this was divided by them into Section A and the Remaining Portion of Town Lot No. 229. It is also clear that all the residential buildings, kindergarten, management offices, empty bays, caretakers' quarters and other non-residential accommodation were on the remaining portion of Lot No. 229, and Section A was used only for the carpark. May Shing Court was the name given to the whole development.

6. I find no ambiguity here. The plaintiffs agreed to buy a particular flat, which is clearly identified, in the development, and 16 shares of the 29,234 equal undivided shares into which the Remaining Portion of Lot No. 229 had been divided. There was no such division made for the carpark on Section A, and there can accordingly be no confusion when the name May Shing Court is used, as it is a name which covers both Section A and the Remaining Portion. There is no doubt in my mind that the property was clearly identified and that this requisition was accordingly satisfactorily answered.

Requisition No. 5

7. The defendant had originally purchased this property on I May 1997 from one Lau Yuet Ming. The latter had acquired the property by inheritance from the first purchaser Chow Jing who had died on 23 November 1988 leaving a will in which she had left her entire estate to Lau Yuet Ming. Probate was granted to Madam Lau on 28 January 1991. In the assignment to the defendant, it was stated inter alia that "the Vendor as Beneficial Owners (sic) ASSIGN to the Purchaser the land....". The plaintiffs' requisition in respect of this reads as follows:

"We further note that in the Assignment Memorial No. 949301, Madam Lau Yuet Ming was described as Beneficial Owner. However, we note that the correct capacity of the said Lau Yuet Ming should be the personal representative of Chow Jing, deceased under Probate Memorial No. 567793. In such circumstances, we opine that a Confirmatory Assignment should be executed by the said Madam Lau Yuet Ming so as to rectify such error/mistake. Kindly therefore confirm us in writing and let us have your draft Confirmatory Assignment for our approval as soon as possible."

8. The submission on behalf of the plaintiffs here is that, as no written assent had ever been executed, Madam Lau could not have described herself as beneficial owner, and further that there was nothing for the plaintiffs to rely on for the assumption that Madam Lau was selling in the course of administration of the estate.

9. Mr Cheng for the plaintiffs conceded at the commencement of this hearing that, on the basis of the authorities relied on by the defendant, Madam Lau had been entitled to convey the property describing herself as beneficial owner. However, he said that the plaintiffs was still entitled to raise a requisition as the facts put them on enquiry as to whether she had been selling in the course of the administration. He cites in support of this the time gap between probate being granted on 28 January 1991 and the assignment to the defendant on 1 May 1997.

10. I have little sympathy with this argument. While I agree that the plaintiffs were entitled to raise the requisition to find out what the position was, once it had been clearly established, as Mr Cheng concedes it was, that Madam Lau was the personal representative of Chow Jing, and the sole beneficiary of her estate under her will, in the absence of an assent there can be only one capacity in which she is conveying the property, and that is as executor. That being the case, the purchaser, and subsequent assignees, are protected under section 57 of the Probate and Administration Ordinance, and there is no need to enquire further. In my view, while the time gap may well put the plaintiffs on enquiry, there was ample documentary evidence here that there was no way that the defendant's title acquired from Madam Lau could be challenged.

11. I am accordingly of the view that the defendant has shown a good title here and that the requisitions have been properly and adequately answered.

12. I am told by the parties that they have agreed that, regardless of the outcome of these proceedings, there should be no order as to costs, and I so order.

Representation:

Mr Chris Cheng, instructed by Messrs Chan & Tsu, for the Plaintiffs

Miss Julia Lau, instructed by Messrs Chan, Evans, Chung & To, for the Defendant