Chudai (H.K.) Development Co. Ltd. v. Portia International Ltd.
Read the full judgment text of HCMP 3928/1991 on BabelCite. This High Court CFI judgment.
1. This is a vendor and purchaser summons.
|
HCMP003928/1991 Miscellaneous Proceedings No.3928 of 1991 ----------------- HEADNOTE -----------------
Miscellaneous Proceedings No.3928 of 1991 IN THE SUPREME COURT OF HONG KONG HIGH COURT -------------------- Re Times Tower --------------------
---------------- Coram: Bokhary J. in Court Date of hearing: January 13, 1992 Date of delivery of judgment: January 13, 1992 ---------------------- J U D G M E N T ----------------------- 1. This is a vendor and purchaser summons. 2. By a Provisional Agreement for Sale and Purchase dated November 22, 1991, the plaintiff purchaser agreed to buy and the defendant vendor agreed to sell Floor No.25 of Times Tower at Nos 391-407 Jaffe Road in Wanchai for $13,752,000. $300,000 was paid by way of deposit and part payment on the same day. 3. On December 5, 1991, by their letter of that date to the vendor's solicitors, the purchaser's solicitors raised seven requisitions on title. $1,075,200 was paid by way of earnest money on the following day. 4. The purchaser now seeks declarations to the effect that two of its requisitions, the fifth and seventh, have not been sufficiently answered and that, accordingly, good title has not been shown. It also seeks repayment of the deposit and the earnest money if the Court so declares. 5. As I have indicated, the building here in question stands on Nos 391-407 Jaffe Road. The fifth requisition pertains to No.393, while the seventh requisition pertains to No.401. 6. What lies behind the fifth requisition is this. A Madam Lam Chun is named as the assignee in the assignment dated May 16, 1949, and registered under Memorial No.191075. The next assignment in the chain is the one dated February 29, 1988, registered under Memorial No.3644888. In it a Madam Lam Chun alias Lam Yin Chor is named as the assignor. Is there a reasonable doubt as to whether the assignee called "Lam Chun" in the 1949 assignment and the assignor called "Lam Chun alias Lam Yin Chor? in the 1988 assignment are the same person? 7. With that introduction, one is able to follow the fifth requisition, which reads:-
8. The answers which the vendor's solicitors made to the requisitions are contained in their letter of December 20, 1991, to the purchaser's solicitors. The answer to the fifth requisition reads:-
In addition, Madam Lam's declaration was in fact corroborated by a Statutory Declaration of her husband, Mr. Wat Lun, who not only confi'rme'd both the names of Lam Yin Chor and Lam Chun referring to the same person but also declared the fact that he had been referring his wife as Lam Yin Chor as well as Lam Chun on several occasions in his will dated 23rd December 1974. It is, of course, for obvious reasons that the said will was not exhibited to his Declaration at the time, which would otherwise become a public document once registered with the Land Office. (e) Mr. Ng Chun Ho Kenneth was the solicitor who prepared and attested the will of Mr. Wat Lun dated 23rd December 1974. The fact that Mr. Wat Lun referring his wife as Lam Yin Chor as well as Lam Chun in several occasions in his will was something preceived by Mr. Ng personally. It was apparent that Statutory Declaration of Mr. Ng Chun Ho Kenneth was to corroborate the contents of Wat Chun's declaration, in particular, the said names of Madam Lam referred therein. Mr Ng's declaration is in our opinion very good supportive evidence.
9. I turn now to what lies behind the seventh requisition. The issue is again one of identity; and it arises like this. On September 8, 1987, a Mr Chan Fook Sun executed an assignment registered under Memorial No.3512671 as assignor in his capacity as executor of the estate of a Mr Chan Chi Sang who, according to the recitals in the assignment, had died in 1953 and had been the surviving joint tenant of the property in question, the other joint tenant, Madam Yip Yee alias Chan Yip Sam having pre-deceased him in 1951. In the assignment to them - which is dated May 10, 1949, and registered under Memorial No.190862 the joint tenants are called Chan Chi Sang and Yip Yee. This time the question is this. Is there a reasonable doubt as to whether the joint assignee called "Yip Yee" in the 1949 assignment and the person described in the 1987 assignment as the first joint tenant to die and therein called "Yip Yee alias Chan Yip Sang" were the same person? 10. One is able with that introduction to follow the seventh requisition, which reads:-
11. The vendor's solicitors' answer to the seventh requisition reads:-
12. Both counsel have invited me to frame my judgment so as to give as much guidance as possible to conveyancers facing similar situation in future, their researches having failed to unearth any authority which affords much, if any, such guidance. 13. Mr Mok for the purchaser submits that a bare assertion by an interested party is never sufficient to repair a break in the chain of title. 14. In the present case, which concerns identity, what we have is not so much a break in the chain as a flaw appearing in one of its links. The discrepancy does, not arise out of unrecognizably different names. Rather we have in each instance the addition of an alias. So it is not a question of someone being called Tom in one document of title and Dick in the other. It is a question of someone being called Tom in one and Tom alias Dick in the other. 15. Also in relation to the fifth requisition, it is not a case by any manner means of a bare assertion by, an, interested party. The husband is not an interested party. The effect of his statutory declaration appears from the answer to the fifth requisition, which answers I have quoted. And what is more, the 1974 will is an objective piece of evidence brought into existence long before the questioned 1988 assignment came into being. 16. Overall, there is here evidence to put beyond doubt . that which - although one might have had some doubt about it before - one would have in any event been inclined to believe to be the truth of the matter, namely, that the person who took under one name and the person who assigned under that name plus an alias is the same person. Tnat is an inherently probable thing; and the evidence required to put it beyond reasonable doubt reflects that starting, point. 17. As to the seventh requisition, the administrator says in his statutory declaration that his mother, whose maiden name was Yip Yee was commonly known as Chan Yip Sam after her marriage to his father, Chan Chi Sang. That is sufficient evidence of identity in the present circumstances. Again, we are dealing with the addition of an alias rather than the use of unrecognizably different names. 18. Where a name is used in one document in the chain of title, and that name together with an alias is used in another document in that, chain, the evidence required to put identity, and accordingly title, beyond reasonable doubt is generally less than the evidence which, would be required to, do that if, unrecognizably different names had been used. 19. All things considered, I am of the view that no doubt remains in respect of this title. The requisitions have been sufficiently answered. Good title has been shown by the vendor. 20. That - apart from the need to express my gratitude to counsel for their assistance, which I do with great pleasure, and the need to hear them on costs if any argument thereon arises - is an end of the matter. [Submissions on costs] 21. Mr Merry for the vendor has suggested that this case is sufficiently out of the usual, run to warrant an order for costs in favour of his client. I do not see it that way. In my judgment, it is appropriate to leave each party to bear its own costs; and I do so.
Representation: Mr Y.C. Mok (instructed by K.W. Ng & Co.) for the plaintiff purchaser Mr M. Merry (instructed by Hastings & Co.) for the defendant vendor |