Cheng Keung Yut Yung and Another v. Mok Ting Fong
Read the full judgment text of HCA 516/1967 on BabelCite. This High Court CFI judgment was delivered on 24 June 1968.
1. In this action the plaintiffs pleaded that they, the defendant, and one Chang Kor Yip were tenants in common in certain shares of a number of pieces of land; that a partition had been agreed upon whereby certain of the various pieces of land were allotted exclusively to the plaintiffs and the defendant respectively; that mutual powers of attorney were executed in order to carry the said partition into effect; and that the defendant had wrongfully revoked the powers of attorney given by him. A
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HCA000516/1967 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO.516 OF 1967 -----------------
----------------- Coram: Mills-Owens J. in Chambers. Date of Judgment: 24 June 1968 ----------------- JUDGMENT ----------------- 1. In this action the plaintiffs pleaded that they, the defendant, and one Chang Kor Yip were tenants in common in certain shares of a number of pieces of land; that a partition had been agreed upon whereby certain of the various pieces of land were allotted exclusively to the plaintiffs and the defendant respectively; that mutual powers of attorney were executed in order to carry the said partition into effect; and that the defendant had wrongfully revoked the powers of attorney given by him. Accordingly the plaintiffs claimed a declaration that a valid partition had been effected, alternatively for partition, with ancillary relief. It also appears that following upon the agreement for partition the plaintiffs and the defendant respectively caused buildings to be erected upon the respective portions allotted to them, each dealing with their and his portions as if they and he were the respective owners thereof; and it was claimed that the plaintiffs had assigned certain undivided parts or shares in the lands allotted to them and in respect of which building covenants imposed by the Crown had been fulfilled. The defence, putting it very briefly, was firstly that the parties had agreed to form a syndicate for developing the various pieces of land and that the powers of attorney were given for that purpose; that there was no agreement or intention to partition; secondly, that no dealing in the lands was permissible until the District Commissioner was satisfied that the conditions upon which the pieces of land were held had been fulfilled; alternatively, that the agreement to partition (if any) had been repudiated; thirdly, that the powers of attorney were not given for valuable consideration and had been validly revoked; fourthly, that the plaintiffs had failed to perform the agreement for joint development of the lands. There was also a counterclaim for expenditure incurred and damages sustained by the defendant owing to alleged failure by the plaintiffs to implement the development of certain portions of the land. 2. Upon the case coming on for trial (before another judge) the Court was informed that a settlement had been arrived at and the case was adjourned to enable the Terms of Settlement to be finally drawn up. The case then came before me, on the adjourned date namely the 9th November 1967 when Terms of Settlement, dated the same day and signed by both counsel, were handed in. I have no doubt that in accordance with my usual practice I enquired whether a judgment was required and that I was answered in the affirmative. Mr. Arculli, for the defendant, however, according to my recollection, asked that the judgment be not drawn up until after the defendant had complied with clause 6 of the Terms of Settlement. This was agreed to by Mr. Bernacchi, for the plaintiffs. My note reads as follows:-
3. Referring to the Terms of Settlement, clause 9 reads as follows -
4. Clause 6 reads as follows -
The contractor is, in fact, the defendant himself. 5. The plaintiffs have now issued a summons asking for "the Judgment given in this action on the 9th November 1967" to be perfected. The claim made therein to have the overall confirmatory assignment now executed is not pursued, at the present time. 6. It is on affidavit, filed by the plaintiffs and not denied by the defendant, that the plaintiffs gave their estimates of completed work at $100,000 and uncompleted work at $26,000 (which latter figure is the maximum contemplated by clause 6). In reply the defendant claimed a valuation in respect of the completed work. Pursuant to para. (f) of clause 6 the plaintiffs have made the deposit of $26,000. Despite this the defendant refuses to carry out the terms of clause 6(e), namely to proceed with the work. The plaintiffs' solicitors wrote making time of the essence, but the position remains that the defendant refuses to comply with clause 6(e). The plaintiffs are ready and willing to pay their share of the cost of the completed works under clause 6(g). 7. No affidavit was filed by the defendant and there is no suggestion that he requires further time. 8. Counsel for the plaintiff, Mr. Bernacchi, referred to a number of authorities, in particular Green v. Rosen(1) at p.799. The latter case deals with various methods of settling an action and counsel submitted that the present case fell within one or more of the types of case where the mode of settlement adopted results in an enforceable judgment. He contended, further, that the direction that the judgment be not drawn up until compliance with clause 6 was in the nature of a stay of execution. 9. Mr. Bernacchi's contentions may be summarised as follows - (1) There was a judgment; (2) The Court had power to order the judgment to be drawn up and entered under the liberty to apply (see Fritz v. Hobson(2)) particularly since there had been a change of circumstances (see Cristel v. Cristel(3)); (3) It was a case of self-induced frustration, the defendant seeking to take advantage of his own wrong in departing from the settlement arrived at (see Joseph Constantine ..... v. Imperial Smelting .....(4); Mertens v. Home .....(5); and Lyle-Meller .... v. A. Lewis ....(6)); (4) There was nothing in equity to prevent the plaintiffs from now seeking to have the judgment perfected (see Emmanuel .... v. Briscoe ....(7)). Mr. Arculli contended, as to (1) above, there was no judgment and none was intended until clause 6 had been complied with; if there was a judgment it was a conditional judgment; as to (2) above, this was not a case of some matter arising from the working-out of the settlement; as to (3) above, the principle of self-induced frustration might possibly arise in a case where it was sought to enforce a settlement; it did not arise in the present case, or, at least, at the present stage; as to (4) above, estoppel is a defence; further, there was no detriment to the plaintiffs whose proper course was to restore the action for trial. He submitted further that it was not open to the Court to revoke the direction that judgment be not entered until clause 6 had been complied with, and he referred to Dashwood v. Dashwood(8), where Tomlin J. considered the nature of a Tomlin order. In reply Mr. Bernacchi asked how could the action proceed - there would be two judgments. He referred to the rule (noted at R.S.C. 42/3/6) that an order judgment is effective from the date it is made or given. In regard to estoppel he referred to Combe v. Combe(9). 10. The crux of the matter, as it appears to me, is whether there was an order for judgment, and, if so, whether it was a conditional order in the sense of being subject to a condition precedent that clause 6 be first complied with, in which case the question would arise whether I now have power to set aside that condition and allow judgment to be entered. 11. I am entirely satisfied that there was an order for judgment in the terms of clause 9, and that it was not for a conditional judgment in the sense that the judgment should not become binding until a condition precedent had been fulfilled namely compliance with clause 6. As is evident on the face of the Terms of Settlement compliance with clause 6 is itself a term of the settlement; and the clause envisages action thereunder by the plaintiffs as much as by the defendant. The direction that the judgment be not drawn up and entered until clause 6 was complied with was, as I would understand, purely part of the 'mechanics' of carrying the Terms of Settlement into effect - to enable the parties to proceed to carry out their settlement, so far as possible, amicably and not by force of legal compulsion. There was not any intention that it should be a condition precedent to judgment that clause 6 be complied with. It was in the nature of a stay upon the entry of the judgment so that, as far as possible, the settlement could be carried out amicably. In these circumstances, it appears to me, I am entitled to lift the stay and direct that judgment in the terms of the settlement be now entered. This, as I see it, will carry into effect the intention of the parties. I agree also with the contention for the plaintiffs that to do otherwise would be to allow the defendant to take advantage of his own wrong in seeking to resile from the settlement. 12. Ordered that judgment be now drawn up, entered and parfected in accordance with the terms of the settlement. Costs of and incidental to the summons to the plaintiff. Certificate for one Counsel. 24th June, 1968.
Representation: Bernacchi Q.C. and Henry Wong instructed by Edmund Cheung & Young for plaintiffs. Ronald Arculli instructed by Philip Remedios & Co. for defendant. (1) (1955) 2 All E.R. 797. (2) (1880) 14 Ch. D. 542. (3) (1951) 2 All E.R. 574. (4) (1941) 2 All E.R. 165. (5) (1921) 2 K.B. 526. (6) (1956) 1 All E.R. 247. (7) (1964) 3 All E.R. 556. (8) (1927) W.N. 276; 71 Sol. Jo. 911. (9) (1951) 1 All E.R. 767. |