Wong Ping Lau and Another v. Cheung Chi Hung

HCMP002102/1999

HCMP 2102/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.HCMP 2102 OF 1999

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Coram: The Hon. Madam Justice Yuen in Court

Date of hearing: 21 September 1999

Date of Delivery of Judgment: 21 September 1999

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J U D G M E N T

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1. This is an application by the registered owners of certain premises in Kowloon for a declaration that an Agreement for Sale and Purchase dated 31st July 1990 in favour of the Defendant and registered in the Land Registry by Memorial No. 685221 was either void ab initio or voidable and/or a declaration that the Plaintiffs were at all material times entitled to determine the Agreement for Sale and Purchase.

2. The affirmation of the 1st Plaintiff revealed that in 1987, the 2nd Plaintiff and herself agreed to purchase the subject property at a price of slightly less than $500,000.00. After holding the property for about 3 years, the Plaintiffs agreed to sell the property to the Defendant (who they say was a friend) at a price of $750,000.00. The Agreement was registered in the Land Registry under the Memorial I have referred to above. At that time, the Plaintiffs instructed Messrs. Clifford Yeung & Co. to act on their behalf in the conveyancing. The Agreement for Sale and Purchase stated at Clause 3 that a deposit of HK$50,000.00 had been paid by the purchaser to the vendors directly, and indeed there is a receipt clause in the Agreement for Sale and Purchase in which the Plaintiffs acknowledged that they had received a deposit of $50,000.00.

3. However, according to the Plaintiffs on affirmation, they had in fact not received any deposit, and according to their affirmations, the Defendant had promised that he would pay them a deposit shortly thereafter but had asked them to acknowledge receipt of the deposit so that he could show the Agreement to a bank for the purchase of obtaining finance.

4. However, on the scheduled day for completion in August 1990, completion did not take place. Thereafter, the Plaintiffs went abroad and apparently left the matter in the hands of their then solicitors Clifford Yeung & Co..

5. They had only returned to Hong Kong recently and during their absence, the premises were taken care of by friends. When they recently considered dealing with the property, they found that the registration of the Agreement in favour of the Defendant still appeared in the Land Search and they then attempted to contact Clifford Yeung & Co.. However, Clifford Yeung & Co. had been closed down as a result of intervention by the Law Society of Hong Kong, and it would appear that even the original conveyancing documents relevant to the Sale and Purchase have gone missing.

6. The papers have been served on the Defendant at the address indicated in the Agreement for Sale and Purchase. The Plaintiffs' solicitors have undertaken to file an affirmation within 7 days of today to the effect that none of the correspondence addressed to the Defendant at that address has been returned by the Post Office. The Defendant has not appeared either today or at the call over in June of this year.

7. In the premises, I consider that it would be appropriate to grant a declaration that the Plaintiffs are entitled to determine the Agreement for Sale and Purchase dated 31st July 1990 under Memorial No. 685221 and that the Plaintiffs are the legal and equitable owners of the subject property absolutely free and discharged from the said Agreement. And I would further give an order that the registration of said Agreement be vacated from the Tsuen Wan Land Registry.

Representation:

Mr. Hylas Chung instructed by Josip Ma & Co for Plaintiffs

Defendant in person being absent