Dr Franklin Li and Another v. Crocus Property Inc

HCA004909/1980

Contract - for sale and purchase of part of floor of an office building - specific performance - need for all essential terms to be agreed - no agreement on terms of Deed of Mutual Covenant - such a Deed essential - contract unenforceable. (P. 5-13 only).

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Penlington, J. in Court

Date of Judgment: 5th October, 1981.

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JUDGMENT

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1. This is a consolidated action in which the Plaintiffs ("the Purchasers") seek specific performance of an agreement dated the 15th of July 1980 made between them and the Defendant Company ("the Vendor") for the sale and purchase of part of the 15th floor of World Wide House, an office building in Central owned by the Mass Transit Railway Corporation (M.T.R.) which, at the time of the signing of the agreement, was in course of construction. It was a joint development between the M.T.R. and Cheung Kong Holdings Limited.

2. It is the basis of the Purchasers' claim that the document, which is headed "Confirmation of Instruction", was a concluded written agreement which all parties intended should be a binding legal contract between them for the sale of part of the floor known as Unit 3 to Dr. Franklin Li or his nominee (which was to be Ariella Estates Ltd.) and Unit 4 to Dr. Henrietta Ip and Mrs. W. Mok or their nominees (respectively Dearmost Estates Ltd. and Cheuk Fai and Co. Ltd.). It was a term of the Confirmation of Instruction that a formal Agreement of Sub-Sale and Purchase would be signed by the parties once the M.T.R. had given its consent to certain plumbing alterations which were necessary if the premises were to be used as Doctor's consulting rooms but it is the Plaintiffs' case that subject to such consent being granted within the time limit allowed by the Vendor, there was a binding agreement between the parties. (It is not in dispute that such consent was in fact given.) They further say that the Confirmation of Instruction contained all the particulars that were necessary to form such a legally binding contract but that in any event there was a concluded oral contract between the parties reached on the 15th of July 1980 and that the Confirmation of Instruction was a sufficient memorandum in writing of such an oral agreement as to satisfy section 6 of the Law Amendment and Reform (Consolidation) Ordinance. Further that there had, in any event, been part performance of the oral contract so as to make it enforceable.

3. It is the Vendor's case that the Confirmation of Instruction was not intended to be a binding contract between the parties but was only instructions to the Vendor's solicitors to go ahead and prepare a formal greement for Sub-Sale and Purchase which would be executed by the parties, if they were so minded, incorporating the matters set out in the Confirmation of Instruction and such other terms as the solicitors might advise. In particular it would incorporate provisions for a Sub-Deed of Mutual Covenant defining the respective rights and interests of the parties who would then be joint owners of the 15th floor of World Wide House and would further particularise the properties being purchased. It is also alleged by the Vendor that at the time of the signing of the Confirmation of Instruction it had been agreed that the Units to be sold to the Purchasers would always be used as Doctor's consulting rooms only and for no other purpose. Such a provision (Clause 21) was in fact incorporated in the formal Agreement for Sub-Sale and Purchase but was rejected by the Purchasers. The Vendor says that such rejection amounted to a repudiation of the contract, if in fact any such contract existed.

4. The first issue to be dealt with is whether on the 15th July 1980 the parties intended that the Confirmation of Instruction was to be a binding legal contract between them for the sale and purchase of the two Units in dispute. The document was prepared, using the most modern office equipment, by the Vendor's own solicitors. It sets out the names of the parties, a description of the property, the purchase price and the manner in which the price should be paid. The document refers to itself throughout as "this agreement". It states, in Clause (c), that it shall be cancelled and the purchasers' deposits refunded if the M.T.R.'s consent is not obtained by the Purchasers within a period of a few days. Clause (f) (ii) provides for payment of the costs of registration of the agreement, even though it seems unlikely it would in fact be registered in view of the provision for a formal Deed of Sub-Sale and Purchase. It provides that substantial initial deposits were to be paid and it is not in dispute that those deposits were in fact paid on the 15th July. The receipts were dated the 16th July but nothing turns on that.

5. This was a document prepared by solicitors. There was to be a second formal greement for Sub-Sale and Purchase and this document was in fact prepared and signed by the Purchasers following the obtaining of the M.T.R.'s consent. If the Vendor did not intend that the Confirmation of Instruction should be a binding contract, it could simply have said that it was "subject to contract" and that, in the light of the authorities on the effect of that particular phrase, would have made the position clear that it was not intended to be binding.

6. The Confirmation of Instruction provides that if the Purchasers decline to complete the purchase after the consent of the M.T.R. is obtained their initial deposit shall be forfeited. This seems to be a strange provision if the Vendor did not consider that it was entering into a binding contract.

7. The Plaintiffs further rely on two letters from the Vendor's solicitors dated the 17th and 18th July 1980 to their own solicitors and to the M.T.R. respectively. The first one says, inter alia, "our client has agreed to sell the above premises" and the second says "agreement has been reached for the sub-sale of Units 3 and 4 on the 15th floor". It is true that the use of such words as "agree" and "accept" may not necessarily show more than agreement as to price. Clipton v. Palumbo⁽¹⁾. Even if letters pass between parties which would appear to have the effect of binding the parties, there may still not be a contract.

"and it appears to me that no such contract ought to be held established, even by letters which would otherwise be sufficient for the purpose, if it is clear, upon the facts, that there were other conditions of the intended contract, beyond those expressed in the letters, which were still in a state of negotiation only, and without the settlement of which the parties had no idea of concluding any agreement"

per Lord Cairns L.C. in Hussey v. Horne-Payne ⁽²⁾ at 323. I do not think that was the position here.

8. There was also oral evidence given by Drs. Ip and Li and by Mrs. Mok relating to the meetings held in the offices of the Vendor's solicitors Woo, Kwan, Lee and Lo on the day the Confirmation of Instruction was signed. That evidence is that the Purchasers thought that they were entering into a formal binding contract and that, when the document was eventually signed after considerable negotiation between the parties, the only thing that stood between them and ownership of their respective units of the 15th floor of World Wide House was the obtaining of the necessary consent from the M.T.R.

9. From all the evidence I am satisfied that the parties in this instance did intend that the Confirmation of Instruction was to be a binding legal contract between them. I am also satisfied from the evidence that there was never any agreement that the premises to be sold should always be used as Doctor's consulting rooms. This would undoubtedly have been a very restrictive covenant and must have diminished the value of the premises when they were eventually resold, as was inevitable. Dr. Ip said that while she had no present intention of doing so she might well one day cease practice and would want to sell her property. Mrs. Mok said that she had a son who was a lawyer and she might well wish to make the premises available for his use. I am quite satisfied that the only reason why Clause 21 was inserted in the formal greement for Sub-Sale and Purchase was that the Vendors were anxious to extricate themselves from the contract because they had had other offers for the premises and the price of office space in Central at that time was on the increase.

10. That is not, however, an end to the matter. There is settled authority that if a contract is to be enforceable, not only must the parties intend to enter into a binding agreement, but they must also agree on all the essential terms of such a contract. It is the Defendant's case that there were two matters which were essential to the contract which were not so agreed. The first was that there was to be a Sub-Deed of Mutual Covenant between the Vendor and the Purchasers and between the Purchasers themselves and the terms of such Deed had not been agreed and secondly that there were insufficient particulars in the Confirmation of Instruction to identify the properties to be conveyed. In particular there was no agreement as to how the gross area was to be calculated. As the sale was at $2,800 per gross square foot this meant that the price to be paid was also uncertain.

11. There is substantial authority to say that, if they can do so, the Courts will endeavour to avoid holding an agreement void for uncertainty. In Greater London Council v. Connelly⁽³⁾, Denning M.R. said:

"The Courts are always loath to hold a condition bad for uncertainty. They will give it a reasonable interpretation whenever possible."

That decision was followed in Brown v. Gould and Others⁽⁴⁾. There at 57 Megarry J. said:

"No doubt there may be cases in which the draftsman's ineptitude will succeed in defeating the court's efforts to find a meaning for the provision in question; but only if the court is driven to it will it be held that a provision is void for uncertainty."

At 61 he goes on to say:

"I readily accept that the words of clause 3(c) might have been more precise. But that is not the point: the point is whether it is void for uncertainty. If one approaches the formula stated in the clause with reasonable goodwill, as I think I am entitled and, indeed, required to do, does it appear to embody such uncertainty of concept as to make it void? Without saying that there is no room for argument on the details, I would answer No to that question, or, indeed, to any other reasonable way of formulating the question that I can conceive. The question is not, I think, whether the clause is proof against wilful misinterpretation, but whether someone genuinely seeking to discover its meaning is able to do so."

12. There is however also substantial authority that an agreement to agree is not binding. In May and Butcher Ltd. v. The King⁽⁵⁾, Lord Dunedin said at 21:

"To be a good contract there must a concluded bargain, and a concluded contract is one which settles everything that is necessary to be settled and leaves nothing to be settled by agreement between the parties. Of course it may leave something which still has to be determined, but then that determination must be a determination which does not depend upon the agreement between the parties. In the system of law in which I was brought up, that was expressed by one of those brocards of which perhaps we have been too fond, but which often express very neatly what is wanted: 'Certum est quod certum reddi potest'. Therefore, you may very well agree that a certain part of the contract of sale, such as price, may be settled by some one else. As a matter of the general law of contract all the essentials have to be settled. What are the essentials may vary according to the particular contract under consideration. We are here dealing with sale, and undoubtedly price is one of the essentials of sale, and if it is left still to be agreed between the parties, then there is no contract. It may be left to the determination of a certain person, and if it was so left and that person either would not or could not act, there would be no contract because the price was to be settled in a certain way and it has become impossible to settle it in that way, and therefore there is no settlement."

In G. Scammell and Nephew Ltd. v. H.C. and J.G. Ouston⁽⁶⁾, it was held that where the respondents had agreed to purchase a new motor van but stipulated that the order was given on the understanding that the balance of purchase price can be had "on hire-purchase terms over a period of two years", this clause was so vague that no precise meaning could be attributed to it, and consequently there was no enforceable contract. At 260, Lord Russell of Killowen said:

"An alleged contract which appeals for its meaning to so many skilled minds in so many different ways, is undoubtedly open to suspicion. For myself I feel no doubt that no contract between the parties existed at all; notwithstanding that they may have thought otherwise."

In the same case, the position is set out with customary clarity by Lord Wright at 268:

"The object of the court is to do justice between the parties, and the court will do its best, if satisfied that there was an ascertainable and determinate intention to contract, to give effect to that intention, looking at substance and not mere form. It will not be deterred by mere difficulties of interpretation. Difficulty is not synonymous with ambiguity so long as any definite meaning can be extracted ....... There are many cases in the books of what are called illusory contracts, that is, where the parties may have thought they were making a contract but failed to arrive at a definite bargain. It is a necessary requirement that an agreement in order to be binding must be sufficiently definite to enable the court to give it a practical meaning."

t 273 he goes on to say:

13. In Rossiter v. Miller⁽⁷⁾ at 1151 Lord Blackburn said:

"But as soon as the fact is established of the final mutual assent of the parties so that those who draw up the formal agreement have not the power to vary the terms already settled, I think the contract is completed."

14. The converse must also be the case. If the persons who draw up the final agreement have to go back to the parties to seek agreement on an essential term, there is no enforceable contract.

15. In Bushwall Properties v. Vortex Ltd.⁽⁸⁾, Buckley L.J. said at 605:

"No machinery is expressly provided for identifying the part of the land to be conveyed on any of those three completions. I fully accept that the Court should be reluctant to hold any contract void for uncertainty if that consequence can be avoided; but, on the other hand, it is not the function of the Court to make or to perfect contracts entered into between members of the public. In the present case, the contract does not provide any means of ascertaining with certainty what land should be conveyed on any of the three occasions when a partial completion is to be carried out; and, for reasons that have already been indicated by Sir John Pennycuick, I agree that that is an important term of this contract, for the interests of the vendor are liable to be very substantially affected by the choice of the parcels to be conveyed. The contract (so to call it) itself does not provide any machinery for ascertaining the answer to that question, from which, in my judgment, it must follow that this contract is not one of which the court would decree specific performance. If the contract is not one of which the court would decree specific performance, the principles of law relied upon for supplying the defect in the contract cannot apply to the case, and so it is impossible by that means to arrive at the conclusion that the purchaser ought to be regarded as the person having the power to decree what parcels should be included upon each of the occasions when completions are to take place. For that reason, it seems to me to be unavoidable that one must conclude that this is not a contract capable of being specifically performed and is not an enforceable contract."

Another authority which, it seems to me, is very close to the facts in this case is that of Love and Stewart Ltd. v. S. Instone and Co. Ltd.⁽⁹⁾. The headnote reads:

"On January 22, 1915, Mr. W. Ireland, the appellants' agent, sent a telegram to Messrs. Sherringham and asking if they could offer from 15,000 to 20,000 tons of the coal for delivery from April to December at 15s. a ton. To that telegram Sherringham and Co. replied by a letter of the same date in which they said that they must communicate with London. The letter contained a printed notice that 'all offers are subject to strike and lock-out clauses, and for reply by return of post unless otherwise specified'."

At 476 Lord Loreburn said:

"He had come to the conclusion that the parties agreed on price and quantity and period of delivery and time of payment, and he thought also on the port of shipment. It seemed also that they intended to make a firm bargain and not to make it conditional upon the completion of the formal document. But he had come to the conclusion that they also bound themselves to have a strike clause, in accordance with a red ink notice which appeared in the respondents' letters, and was not repudiated by the appellants. The inclusion of such a term would make no difficulty if it could be said that by usage or by previous dealing or by law these parties, in binding themselves to a strike clause, bound themselves to something certain, because id certum est quod certum reddi potest. But no one said, and no proof was given, that it was so. There might be various kinds of strike clause. No doubt both parties would have agreed as to the strike clause to be inserted in the formal document had the business gone on to completion, but they had not agreed upon such a clause at the time when the business came to be broken off. If, therefore, their Lordships were to say these parties had made a binding contract not subject to the completion of the formal document they must hold that a contract could be binding when the parties were not ad idem with regard to one of the intended terms of it. They were ad idem that there should be such a clause, but they were not ad idem as to what it should be. The law would not come in and say that they must agree on what was reasonable. It would say that there was no bargain. That was this case, and on that ground the appeal failed."

16. This general principle was followed in the Australian High Court Case of Sommergreene v. Parker⁽¹⁰⁾ There there was an offer document which had been signed by both parties, containing the following clause:

"The usual agreement for sale and purchase to be entered into by you and the company containing the usual terms of sale and these terms in a form to be satisfactory to you and to the company."

At 316, Latham C.J. after referring to Scammell and Nephew Ltd. v. Ouston⁽⁶⁾ said:

"There is no legal means of compelling any persons to agree upon anything. If the content of an agreement depends upon a further agreement between one of the parties and a third person, then the contract is as uncertain in its terms as if further terms had been left to be negotiated between the parties to the contract themselves."

I am quite satisfied on the evidence here that the parties all contemplated that there would be a Sub-Deed of Mutual Covenant between them. It is the case for the Vendor that such a deed was an essential term of the contract and its terms had not been agreed and could not have been settled other than by further negotiation. Clause (f)(iii) of the Confirmation of Instruction says:

"The Sub-purchaser shall pay the costs of preparation and completion of the Deed of Mutual Covenant and/or the furnishing of an attested copy to the sub-purchaser."

I am satisfied that that could not possibly be referring to the Deed of Mutual Covenant between the Vendor and the M.T.R. as was suggested as a possibility. Such a Sub-Deed was even more clearly contemplated in the formal Deed of Sub-Sale and Purchase which was signed by the Purchasers, with objection only being taken to Clause 21. Clause 20 of that document reads as follows:

"On completion, the Vendor and the Purchaser shall enter into a Sub-Deed of Mutual Covenant for the purpose of defining their respective rights, interest and obligations of and in the whole of the Fifteenth Floor of World-Wide House and all costs and expenses etc. shall be borne by the Purchaser."

Quite clearly, I think, it would have been quite inequitable and was never contemplated that the Purchasers should bear the costs of the preparation of a Deed of Mutual Covenant between the Vendor and the M.T.R.

17. There was also oral evidence given by the Purchasers, all of whom I may say I accepted as witnesses of truth who were being perfectly honest in endeavouring to recall events of over a year ago. Dr. Ip did not specifically say whether she thought there would be a Sub-Deed of Mutual Covenant but did refer to several matters such as the use of toilets on "our side" (the east side) by the occupiers of Unit 2 being only so long as it was occupied by tenants of the Vendor. If and unless the Vendors took it over themselves they would use their own toilets on the west side, but a little later she seemed to agree that the occupiers of Unit 2 would always have access to toilets on the east side. She also said that if the Defendants put a desk in the lift lobby that would be an infringement of the Purchasers' rights although a matter not mentioned in the Confirmation of Instruction. She said that matters such as signboards "would be agreed as to how they should be put up. Among neighbours it would not be a problem. It would be by mutual covenant". Dr. Li in his evidence clearly stated that there was to be such a Sub-Deed of Mutual Covenant.

18. While it was the intention of the parties who signed the Confirmation of Instruction on the 15th July that there was to be a Sub-Deed of Mutual Covenant between them and that, while they were in general agreement as to the sale of what they knew as Units 3 and 4, this was a matter, which they may well have regarded as being of detail only, on which final agreement had not been reached. This is what is said in Clause 20 of the formal Agreement of Sub-Sale and Purchase to which the Plaintiffs did not demur. However, as has been stressed by Counsel for the Vendor, what the parties may regard as detail and points which, with goodwill and reasonableness on each side may well be easily and speedily resolved, they are in fact very important when one considers that the agreement entered into will bind all subsequent Purchasers of the various parts of the 15th floor for many years to come. This was not the sale of a whole building or a piece of land. It was the sale of part of a floor of a modern, complex office building, the other part being retained by the Vendor. There is a very great difference between them when considering the rights of Vendor and Purchaser. Clearly matters such as use of toilets, maintenance costs, right of access to corridors, the respective rights exercised by all the occupiers if any party wished to make structural alterations on the floor were important and I am satisfied they were essential not only between the Vendor and Purchasers but between the Purchasers themselves. That these matters were not then agreed seems clear from the documents and from the evidence. There was an agreement to agree and on the authorities that is not enough. The facts here are, in my view, very close indeed to those in Scammell and Nephew Ltd. v. Ouston⁽⁶⁾ i.e. a hire-purchase agreement in one case, a sub-deed of mutual covenant in the other, and that case seems to have been regarded as settled law for the last 40 years and has been followed in other cases. Counsel for the Purchasers, in his very detailed and helpful written submissions, suggests that if there is an order for specific performance and the parties were to refuse to enter into a Sub-Deed of Mutual Covenant that would be simply just too bad. I do not think that that can be the position. The Sub-Deed of Mutual Covenant is for the benefit of the Vendor just as much as the Purchasers, and if the Purchasers at this stage refused to enter into such a deed or it was not possible for them to agree on the terms of such a Sub-Deed, it seems to me that the Vendor would have lost something to which they were entitled. There has been no evidence called as to what would be the usual terms of such a Sub-Deed, and it may have been difficult for satisfactory evidence to have been given on that as the practice of selling of parts of a floor in an office block is apparently relatively new in Hong Kong. That is, however, to speculate. Sommergreene v. Parker⁽¹⁰⁾ furthermore seems to be authority for the view that even if there is a clause used such as "the usual agreement for sale and purchase to be entered into" there is no binding contract if that agreement relates to an essential term though Lord Wright in Scammell v. Ouston⁽⁶⁾ does indicate that perhaps the Court would define the terms of such an agreement if supplied with the necessary evidence. However, as I have said, in this case the parties did not use such words in relation to the Sub-Deed of Mutual Covenant and there was no such evidence called.

19. It is true that there was a Deed of Mutual Covenant as between the Vendor and the M.T.R. by which the Purchasers would have been bound and this would have covered some of the matters affecting the relationship between the parties here. It would not, however, in my view have been sufficient to cover all the questions of proprietary rights: rising between them.

20. I am, therefore, of the opinion that the parties contemplated that there would be a Sub-Deed of Mutual Covenant between them, that such a Sub-Deed was essential for the conveyance contemplated and that the terms of that Sub-Deed had not on the 15th July 1980 been agreed between them, nor indeed was it ever subsequently agreed. On this ground the Plaintiffs' claim must fail.

21. I am furthermore of the view that the method by which the authorised Architect was to calculate the actual units to be conveyed and their size (on which the price depended) was not so defined as to enable him to act merely as a calculator. I do not see any evidence that indicates that the parties agreed he was to be an arbitrator and I do not think it was ever intended that he should have unbound discretion to define the areas being conveyed as he thought was reasonable. Indeed, correspondence produced between the Architect and the Vendor suggests otherwise. The Confirmation of Instruction did not have any plan annexed to it, although several plans had been referred to in the evidence. Because of that it seems to me it would be essential that the area to be conveyed would have to be so defined as to leave no doubts. On the evidence given by the Purchasers and the authorised Architect, it seems to me that there was a substantial area of uncertainty. The area referred to in the Confirmation of Instruction was a gross area and the Architect was to arrive at a final figure in square feet. It seems to me also clear that on the 15th July there was not sufficient agreement between the parties to enable the Architect to go ahead and simply calculate the areas being sold. If there was sufficient agreement for that to be done the maxim of id certum est quod certum reddi potest would apply but I do not think there was enough here for that. There was clearly a difference of opinion between Dr. Ip on one hand and Dr. Li and Mrs. Mok on the other as to the use of the female toilet and the two remaining corridors. I do not see how the Court can possibly say, as has been suggested, that as Mrs. Mok (who was to have 60% of Unit 4) and Dr. Li outnumber Dr. Ip and as their evidence was not challenged, their version must be the right one. If there was no clear agreement between the Purchasers themselveslet alone between the Purchasers and the Vendor, the Architect could not calculate the gross area of each unit.

22. The Plaintiffs have claimed that there were implied conditions in the Confirmation of Instruction that the formal Agreement for Sub-Sale and the actual Deed of Conveyance shall, in addition to the terms and conditions set out in the Confirmation of Instruction, only contain such other terms and conditions as are usual in such conveyancing documents in Hong Kong. There was no evidence as to what such usual terms and conditions were and, considering that this was, according to Mr. Roger Wong, the Architect, the first building he knew of to be sold floor by floor, I would have thought it was almost impossible to decide what such usual terms and conditions were. I have no doubt that on the 15th July the parties thought that these were matters of detail. There were matters which they could safely leave to the Architect to work out on an agreed formula. In fact, in my view, they were not matters of detail. They were important and, in my view, the Architect was not in possession of sufficient facts upon which he could proceed to make the calculations. I think this is quite clearly shown by the fact that the formal Agreement for Sub-Sale and Purchase sets out that the gross floor area to be transferred should be calculated in accordance with Regulation 23(1)(b) of the Building (Planning) Regulations. Such a calculation would take into the gross area all lift shafts, fire escape stairways, air-conditioning plant rooms and other areas on the floor which quite clearly the parties in their discussion on the 15th July did not contemplate. It seems to me that here was clearly a conflict between them. It is of course true that the Purchasers, by signing the formal Agreement for Sub-Sale and Purchase with only Clause 21 deleted, do appear to have accepted the new condition. Counsel for the Purchasers submits that if a party agrees to a term which is to his detriment then the other side must be bound by it. There is of course authority for that proposition. I do not think, however, that even using that formula the Architect would have been able to calculate the gross area being transferred and therefore the purchase price payable. I am, therefore, satisfied that the Purchasers' claim must also fail on that second ground.

23. It was the case for the Purchasers that even if the Confirmation of Instruction is not sufficient in itself it is nevertheless evidence in writing of an oral agreement. I do not see how that claim can possibly succeed. I do not think that there was anything agreed orally between the parties relating to the question of the Deed of Mutual Covenant or to the areas which were being conveyed which was not contained in the Confirmation of Instruction. I do not think there was a completed agreement here, either verbal or written which is legally enforceable.

24. I reach this conclusion with considerable reluctance. I have no doubt that if the Vendor had chosen to honour the agreement which it had undoubtedly reached on the 115th July, the remaining terms and conditions could have been settled. The Vendor has chosen not to do so and, whatever the ethics of that decision may be, I am satisfied that legally it is so entitled.

25. The Defendant is entitled to an order that the registration of the Confirmation of Instruction in the Land Office be vacated and it is so ordered.

26. The Defendant also counterclaims for damages. At the close of the argument I was not satisfied that there was authority indicating that they were so entitled but I said I would be prepared to hear further argument on that point. There has been no such further argument and the Defendant's counterclaim for damages also fails. The Defendant are entitled to their costs on the claim and the Plaintiffs are entitled to their costs in respect of the Defendant's counterclaim. The amount of time however spent in relation to the Defendant's counterclaim was virtually nil. There will be certificate for two Counsel on each side.

27. I would finally like to say that I am most grateful to Counsel for the most helpful and thorough written submissions which were furnished at the conclusion of the evidence.

Representation:

Mr. Martin Lee, Q.C. and Mr. Alfred Fung instructed by Lo & Lo for Plaintiffs.

Mr. Henry Litton, Q.C. and Mr. Ronny Tong instructed by Phillip K.H. Wong & Co. for Defendant.

(1) (1944) 2 A.E.R. 499

(2) (1879) Vol. IV H.L. 311

(3) (1970) 2 Q.B. 100

(4) (1972) 1 Ch. 53

(5) (1934) 2 K.B. 17

(6) (1941) A.C. 251

(7) (1878) Vol. III H.L. 1124

(8) (1976) 1 W.L.R. 591

(9) Vol. XXXIII The Times Law Reports, July 13 1917, 475

(10) (1950) 80 C.L.R. 304