Olympic Garden Properties Ltd v. Gold Rich Investments (Asia) Ltd

HCMP002705/1997

IN THE HIGH COURT OF THE HONG KONG SAR

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

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Coram: Hon. Mr. Recorder Tang, S.C. in Court

Date of Hearing: 28 August 1997

Date of Delivery of Judgment: 28 August 1997

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JUDGMENT

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1. No.23 Plantation Road is a 4 storey-building. It has two garage spaces on the ground floor, namely, garage spaces A and B.

2. On 19th May 1960, a Deed of Mutual Covenant was executed. The effect of the Deed of Mutual Covenant is that R.B.L.680 was vested in tenants in common in equal shares, namely; Wong Yuet Oi as to 1/2 and James Hsioung Lee and his wife, Rebecca, as to the other 1/2.

3. Under the Deed of Mutual Covenant, James and Rebecca Lee were entitled to the exclusive use and enjoyment of the ground floor, the 1st floor, garage space A and a garden.

4. The Plaintiff relies on an Assignment dated 15th September 1975 as its root of title. By this assignment, Mr. Lee assigned his exclusive right to the use and enjoyment of the 1st floor and garage space A to Mrs. Lee. However, as the submission of Mr. Christopher Wong who appeared for the purchaser (Defendant) has made clear, by that assignment, Mr. Lee assigned to Mrs. Lee,

"All that one equal and undivided moiety or half part of share of and in ALL THAT one equal and undivided 4th part or share of and in ALL THAT piece or parcel of ground registered in the Land Office as Rural Building Lot No. 680."

If that is the root of title, there would be some doubt as to whether Rebecca Lee had a 1/4 share in the land. It may be that the reference to an equal undivided 1/4 share in the assignment was a mistake. I am told on the same day, James Lee made an assignment in favour of his daughter in respect of the ground floor and garden and that in that assignment, Mr. Lee apparently also only conveyed an 1/8 share in the land to his daughter. I think it is unlikely that Mr. Lee only intended to assign an 1/8 share in the land to his daughter. But I am not concerned with that.

5. By an Assignment dated 15th February 1986, Rebecca Lee assigned the right to the exclusive use of garage space A to Wong Chor Cheung and Wong Yuen Wai for HK$20,000. No share or interest in land was assigned by this assignment.

6. Mr. Wong submitted that the Plaintiff's title is unclear because

7. I would agree with Mr. Wong that if the Plaintiff's title rests on the 1975 deed of assignment alone, then unless the 1975 deed of assignment is rectified or that the reference to a 1/4 share therein is held to be merely a typographical error, the Plaintiff's title is unclear. However, the matter does not stop there. It is clear from the devolution of title recited earlier, that as a result of the Deed of Severence, Mrs. Lee had vested in her a 1/4 share in the land as a tenant in common already.

8. Whatever may be the position regarding Mr. Lee's assignment to his daughter in 1975, as to which I express no view, I am satisfied that Mrs. Lee had at least a 1/4 interest in the land.

9. Moreover, I am of the view that the assignment to her by Mr. Lee in 1975 of the exclusive right to use and enjoy of the 1st floor and garage space A was sufficient. Prior to the assignment, she and Mr. Lee were the only persons entitled to use the 1st floor and garage space A. After the assignment, she became entitled alone.

10. It follows that, in my judgment, as a result of the Deed of Severence and the 1975 Deed of Assignment, Rebecca Lee had good title to at least a 1/4 share in the land together with the exclusive right to use the 1st floor and garage space A.

11. Although Mr. Wong rightly did not press this point, I turn to consider the effect of Rebecca Lee's separation of garage space A from the 1st floor. Lai Wing Ho and Lai Kam Fong v. Chan Siu Fong Chan Siu Fong, a decision of Gordfrey J. (as he then was) is in point:

12. There, a predecessor in title of the Vendor was entitled to 2/68th share together with the exclusive right to use and enjoy the 11th floor and roof of No.42 Nullar Road. However, later the roof was assigned separately from the 2/68th share. The 2/68th share together with the exclusive right to use the 11th floor devolved on to the Vendor. On a claim by the purchaser that the Vendor's title was defective, Godfrey J. declared that the Vendor has shown a good title. He said at page 8.

"What a vendor agreed to sell to the purchasers was 2/78th share in Rural Mansion, "together with the sole and exclusive right and privilege to hold, use, occupy and enjoy 11th floor". I entertain no doubt that the Vendor has shown a good title to this 2/78th share, equally I entertain no doubt that under the scheme created by the DMC, no owner of any of the other shares could succeed in establishing any right in himself, inconsistent with or averse to the right in respect of the 11th floor express to be conferred on the owner of this 2/78th share. Nor, a fortiori, could a owner of the main roof. So the Vendor's title is, in my judgment, an assailable."

13. I think the same applies here. Here, under the Sale and Purchase Agreement, the vendor, that is the Plaintiff, has agreed to sell a 1/4 share together with the right to use the 1st floor to the Defendant hereto, no owner of any other share in the land can succeed "in establishing any right in himself inconsistent with or averse to the right in respect of" the 1st floor or the 1/4 share expressed to be conferred on the purchaser here by the Plaintiff. That is to say the fact that garage space A has been separately assigned does not affect the Plaintiff's title to the 1/4 share in the land or the exclusive right to enjoy the 1st floor.

14. Thus, I make an order declaring that the title of the property is good. I make no order as to costs.

Representation:

Mr. Keneath C.L. Chan - instructed by M/s Yeung & Chan for the Plaintiff.

Mr. Christopher Wong - instructed by M/s Robert W.H. Wang & Co. for the Defendant.