Chu Kim Leung and Another v. Wong Suk Yee

HCA001682/1972

IN THE SUPPEME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1682 OF 1972

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Coram: Cons, J. in Court.

Date of Judgment: 13 February 1973

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JUDGMENT

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1. This is an action in regard to certain premises known as Flat F on the 14th floor of the Han Palace Building in King's Road, Hong Kong. The Plaintiffs allege that following negotiations with their agent in the spring of last year the Defendant agreed to sell them the flat and that in pursuance of that agreement a deposit was paid to her solicitors; shortly afterwards the Defendant refused to complete.

2. The Defendant by her defence denies the existence of both the negotiations and the agreement and further disclaims any knowledge whatsoever of either the Plaintiffs or their agent. She did not however give evidence at the trial nor was any witness called on her behalf. The evidence for the Plaintiff is uncontradicted. From that evidence I am quite satisfied that a verbal agreement was made between the Defendant and the Plaintiff's agent and that at that time the Defendant was well aware that he was acting in that capacity.

3. The principal issue in this trial is whether there is a sufficient memorandum of that agreement to satisfy Section 5 of the Law Amendment and Reform (Consolidation) Ordinance Cap.23. Two possible documents fall to be considered. The first is a receipt for the deposit, issued on the 22nd of June last year by the defendants then solicitors Messrs. Hwang & Company. This document cannot by itself be a sufficient memorandum for it does not set out the full purchase price. It does however identify the property and to some extent the parties. The Defendant is mentioned particularly as vendor but the name of only the first Plaintiff is included. The deposit is expressed to be "received from" the first Plaintiff "and another". I was hesitant for some time whether this was sufficient identification of the second Plaintiff although the point was not taken in argument. I have finally come to the conclusion that the absence of her name is not fatal in this respect. If the name of the vender need not be included so long as there is presence the name of an agent who is also contractually liable⁽¹⁾, then it would seem by analogy to me not necessary to include all the names of purchasers acting jointly. Furthermore the object of identifying the persons seeking to enforce the agreement, as opposed to those sought to be charged, is to identify the particular contract. I think this is done sufficiently where the name of one joint purchaser is mentioned together with the fact of another.

4. The second document to be looked at is one containing written instructions to Messrs. Hwang & Company and signed in the name of one LO Leung-ka. This is a document apparently executed in order to comply with the section and it does so except in one particular. The space set aside for the name of the purchaser has been left blank. This document again by itself is not sufficient. But the two documents together contain all that is necessary. It was suggested they could not be taken together in the present circumstances for neither document contains any reference to the other. But I think that the appropriate principle to be applied in this instance is that found in Studds v. Watson⁽²⁾ namely that two documents may be read together where each of them refers to the same contract. I have no hesitation in finding that these do. There is no evidence at all to support the vague possibility suggested by counsel that the written instructions related to a sale to some one other than the plaintiffs.

5. It then follows to consider whether each is signed by the Defendant's lawfully authorized agent. The receipt is signed by Mr. Hwang. He was at that time acting for the Defendant with regard to the property in question as well as several other properties in the same building that she was then selling. Authorities were quoted to show that a solicitor usually does not have power to bind his client to a memorandum of this nature⁽³⁾ This is so where he is only instructed to draw up the formal documents, a situation into which Hwang & Company attempted to put themselves by a letter written to the Plaintiff's solicitors right after the dispute had arisen. But in fact Mr. Hwang had gone further. He had accepted money on the Defendant's behalf and issued a receipt therefor. And I think there can be no doubt that if he had authority to act at all he had authority to do just that. It may not have been intended that the receipt should be a binding memorandum but that is not material. The court looks not for intention, but for evidence. Any document under the hand of the party is sufficient⁽⁴⁾. It follows that where the hand is that of an agent, all the Court need enquire is whether the agent was authorized to put it there.

6. Mr. Hwang's evidence is a little confusing and it is possible to interpret it to the effect that he received instructions with regard to this particular flat not from the defendant direct, but only through Mr. Lo. It is this which gives rise to doubt as to his authority at all, for it is argued, on the strength of Bell v. Balls ⁽⁵⁾ that his instructions are of no value, for one agent may not delegate to another. I am not sure that case extends to matters other than sales by auction with which it was particularly concerned. But I need express no opinion. It is possible to interpret Mr. Hwang's evidence in the way I have mentioned. But I do not think it is the proper way. Looking at the whole of his evidence, and bearing in mind there is no evidence to the contrary, I think it reasonable to assume that the defendant gave instructions to Mr. Hwang to act for her in regard to all the flats in that building that she was then selling, and to accept deposits and issue receipts on her behalf. I do not think it alters the position that some of the details to be filled in on particular receipts may have been passed through a third party.

7. The second document is signed by Mr. Lo. Mr. Hwang tells me that Mr. Lo acted as representative of the Defendant and gave instructions on her behalf. This has not been denied and indeed in his cross-examination counsel for the defence appears to accept that this is so. In these circumstances it is reasonable to assume that Mr. Lo acted as her general agent for the sales and had authority to do whatever was necessary to carry them out. It may be unusual that two memoranda which combine together to make one good memorandum should be signed by different persons but I cannot see this makes any difference provided that each signature is that of a lawfully agent.

8. There remains one matter to be considered, that is the fact that the memorandum contains no mention of the giving of vacant possession. I was referred to Hawkins v. Price⁽⁶⁾ where such omission proved fatal. But in that case there was a particular agreement that vacant possession was not to be given in full on completion. It was something special and unusual. There is no particular agreement in the present instance. Vacant possession would be expected from the normal implication of law and need not therefore be specifically mentioned in a normal case. There is no merit in this objection.

9. For these reasons the Plaintiffs are entitled to succeed and to have their costs of this action. I am willing to make a declaration that the Defendant has entered into a binding and enforceable agreement for the sale to them of such interest as she possessed in the premises in question on the 21st June last year. Further than that I am not prepared to go without the assistance of counsel. It may be that the Defendant no longer has title to the premises so that an order for specific performance would not be appropriate. On the other hand I have no evidence from which I might assess damages. Liberty to apply.

Representation:

(1) Davies v. Sweet (1962) 1 A.E.R. 92

(2) (1885) 28 Ch. D. 305

(3) Bowen v. Duc D'Orleans (1900) 16 T.L.R. 226 Smith v. Webster (1876) 3 Ch. D. 49.

(4) (1897) 1 Ch. 663

(5) In Re Hoyle (1893) 1 Ch.84, 99

(6) (1947) 1 Ch. 645