Yam Yun Fai v. Yip Siu Hung
Read the full judgment text of HCMP 3348/1991 on BabelCite. This High Court CFI judgment was delivered on 30 November 1984.
1. This is a vendor and purchaser summons.
Cited by 5 cases
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HCMP003348/1991 Miscellaneous Proceedings No. 3348 of 1991 ----------------------- H E A D N O T E ----------------------- Vendor and purchaser summons. Vendor agreed to sell whole floor less one of four designated carports thereon. Query as to whether assignment to him had been of whole floor or only the four designated carports. Requisition on title accordingly. In assignment to vendor description of property in words (whole floor) inconsistent with description by way of plan (four designated carports). Neither portion of description defined property clearly or definitely to exclusion of the other. But yet another portion of description showed that one equal undivided 20th part or share was assigned. And Deed of Mutual Convenant showed that it took whole floor to make one equal undivided 20th part or share. Good title shown accordingly. Per curiam: "Where different portions of the description of the property in question are inconsistent, then the first step is to see if any portion clearly and definitely defines the property. If such clear and definite portion is found, then it is to be taken as the operative description prevailing over the remainder inconsistent with it. But if no such clear and definite portion is found, then it will be necessary to look at other parts of the deed or contract in order to see if they contain a clear expression of the intention of the parties as to what property is to be conveyed or otherwise dealt with thereby. And if such clear expression is found, then it will provide the operative description. But if no such clear expression is found, then extrinsic evidence should - subject to the general principles governing the use thereof - be resorted to in the search for an operative description. In a vendor and purchaser summons context, there is of course superimposed the rule that a title is not to be forced on an unwilling purchaser who reasonably doubts it.
------------------ Re 40 and 42 Bonham Road ------------------
Coram: Bokhary, J. in Court Date of hearing: January 8, 1992 Date of delivery of judgment: January 8, 1992 ----------------------- J U D G M E N T ----------------------- 1. This is a vendor and purchaser summons. 2. By an undated Provisional Agreement for Sale and purchase in the Chinese language signed on or about March 8, last year, the plaintiff vendor agreed to sell and the defendant purchaser agreed to purchase the Ground Floor of 40 and 42 Bonham Road, Hong Kong, less Carport No. 4 thereon for $780,000.00. That floor comprises a car parking area which includes four designated carports. 3. The plaintiff's solicitors have raised a requisition on title. They did so by their letter of April 4, 1991, to the vendor's solicitors. The requisition is in these terms :-
The Assignment referred to in that requisition is the one dated November 30, 1984, to the vendor's predecessor-in-title, Kingsect Ltd. 4. In the Assignment dated March 7, 1985, by Kingsect to the vendor, the property assigned is described thus :-
The plan referred to in that description is, as one sees, the one annexed to the Assignment to Kingsect. 5. On that plan, only the four designated carports are coloured pink. The requisition is, therefore, understandable. 6. Has it been sufficiently answered? 7. By their letter of June 12, 1991, to the purchaser's solicitors; the vendor's solicitors said this :-
8. Here, it is not accurate to speak in terms of a description in words as if there were one distinct from a separate description by way of the plan. The description is constituted by both words and a plan. Each forms a portion thereof. 9. I adopt this statement in para.15.010 of the 19th edition of "Emmet on Title" :-
10. In the present case, neither portion of so much of the description of the property assigned to the vendor as is set out under item (a) of the description in the Assignment to him defines the property clearly or definitely to the exclusion of the other. It is not as if somebody had mistakenly used a powder blue pencil rather than a pink one, or had - lazily perhaps - chosen to hatch rather than colour. Here there has been, on the face of the plan, an apparently deliberate colouring in pink of the designated carports and of nothing else. 11. So one moves on to so much of the description as is set but under item (b): There one sees that the property assigned is one equal undivided 20th part or share of the building and the land on which it stands. That is a matter on which - in the course of the argument - I invited counsel to concentrate. 12. In this connection, I adopt another statement in "Emmet". This one is in para.15.011 of the same edition; and it reads thus :-
13. The Deed of Mutual Covenant for the development here in question - which deed is dated December 19, 1984 has been produced by consent. The first schedule thereto shows that it takes the whole of theground floor of the development to constitute one equal undivided 20th part or share of the development, which is the very part or share assigned to the vendor, as we have seen. 14. On the extrinsic evdience of the Deed of Mutual Covenant - if the deed is extrinsic, and the case for a good title would be even stronger if it is not - I am satisfied that the vendor got the whole of the ground floor rather than just the four designated carports thereon, and that he has shown good title accordingly. Any doubt which may remain in that regard would not be reasonable. 15. In arriving at that conclusion on the facts of the present case, the principles on which I have proceeded are these. Where different portions of the description of the property in question are inconsistent, then the first step is to see if any portion clearly and definitely defines the property. If such clear and definite portion is found, then it is to be taken as the operative description prevailing over the remainder inconsistent with it. But if no such clear and definite portion is found, then it will be necessary to look at other parts of the deed or contract in order to see if they contain a clear expression of the intention of the parties as to what property is to be conveyed or otherwise dealt with thereby. And if such clear expression is found, then it will provide the operative description. But if no such clear expression is found, then extrinsic evidence should - subject to the general principles governing the use thereof - be resorted to in the search for an operative description. In a vendor and purchaser summons context, there is of course superimposed the rule that a title is not to be forced on an unwilling purchaser who reasonably doubts it. 16. I make a declaration simply to the effect that the vendor has shown good title to the property which he has agreed to sell to the purchaser. It remains only to thank counsel for their assistance, and to hear them on the question of costs. [Costs] 17. The parties are agreed that each of them should bear his own costs. Therefore, I leave them to do that.
Representation: Mr Michael Liu (instructed by Raymond Chan & Co.) for the plaintiff vendor Miss Alice Tsang (instructed by Kenneth C.C. Man & Co.) for the defendant purchaser | ||||||||||||||||||||||||||||||||||