Read the full judgment text of FACV 000015/2001 on BabelCite. This FACV judgment was delivered on 7 May 2002 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Sir Anthony Mason NPJ.
Conveyancing – sale of land – unauthorised extensions to property – whether purchaser accepted encumbered title, waived right to object or affirmed contract – whether new point on appeal permissible. The property was the ground floor and cockloft of 53 Granville Road, Tsimshatsui, sold subject to an existing tenancy. The Vendor (Flywin) contracted on 20 August 1997 to sell the premises to the Purchaser (Strong & Associates) for $63.7 million with completion fixed for 3 April 1998. The formal agreement of 29 October 1997 provided that the premises were sold 'free from encumbrances' and on an 'as is' basis. The Purchaser paid $9.555 million deposit but did not complete after raising requisitions on title concerning unauthorised structural extensions to the premises. Whether the Vendor could raise a new 'subject-matter of sale' point in the Court of Final Appeal arguing that the parties intended the subject-matter of the sale to be the property with the unauthorised extensions – Held: the 'subject-matter of sale' point is a new point not open to the Vendor; the 'state of the evidence' bar operates and the 'not considered on intermediate appeal' hurdle applies because the point was abandoned in the Court of Appeal and would require a major development of the law departing from Cato v Thompson and In re Gloag and Miller's Contract. Whether the Purchaser had accepted the encumbered title, waived its right to object, or affirmed the contract – Held: no acceptance, waiver or affirmation. Appeal dismissed with costs.
Legal issues: Whether the 'subject-matter of sale' point is a new point the Vendor may raise on appeal · Whether the Purchaser accepted the encumbered title, waived its right to object, or affirmed the contract
Outcome: Appeal dismissed with costs
Cited by 2 cases