Read the full judgment text of FACV 000016/1999 on BabelCite. This FACV judgment was delivered on 11 April 2000 before Litton PJ, Ching PJ, Bokhary PJ, Mortimer NPJ, Lord Cooke of Thorndon NPJ.
Property law – sale of land – requisitions on title – contractual time limit for raising requisitions – effect of clause 13 deeming out-of-time requisitions to be waived – Building (Planning) Regulation 41(1) – Code of Practice on Provisions of Means of Escape – whether Code applies to internal partitioning works not involving structural alteration – whether alleged breach of Regulation 41(1) amounts to defect going to root of title – equitable relief from contractual time limit – whether court may entertain late requisition based on surmise as to governmental authority's likely action – appeal dismissed with costs. Lippo Tower, 33rd floor subdivided in 1992 into six units without structural alteration as exempted works. Sale and purchase agreement dated 29 May 1997 with completion due 31 January 1998, clause 13 imposing 7-working-day time limit for requisitions on title, and clause 15 making time of the essence. Title deeds delivered 3 June 1997 including architect's certificate confirming exempted works status. Purchaser's requisition first raised 6 November 1997, almost five months out of time, alleging failure to specify compliance with fire regulations and later asserting breach of Building (Planning) Regulation 41(1) by reference to clause 12(b)(ii) of the Code of Practice on Provisions of Means of Escape. Vendor declared requisition waived and declined to entertain it. Purchaser rescinded, vendor forfeited deposit. The court held that the contractual time limit was binding, the alleged defect did not go to the root of the vendor's title and was peripheral in nature, the Code of Practice applied to new buildings and was not engaged for internal partitioning, and the purchaser's case rested on surmise as to what the Building Authority might do without taking practicable steps to clarify the position. The court applied Jumbo King Ltd v. Faithful Properties [1999] 2 HKCFAR 279 and gave effect to the bargain freely made between represented parties. Appeal dismissed with costs.
Legal issues: Effect of clause 13 time limit on late requisitions on title · Whether alleged contravention of Building (Planning) Regulation 41(1) constitutes a defect going to root of title · Equitable relief from contractual time limit for requisitions on title
Outcome: Appeal unanimously dismissed.