Yeung Sau Chuen Sammy v. Chung Chun Ting and Another

HCMP004080/1992

1992, No.MP4080

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram : Godfrey, J

Date of judgment : 2 February 1993

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J U D G M E N T

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1. This is a vendor and purchaser summons, issued on 17th December 1992, by which the plaintiff ("the purchaser") claimed a declaration that a particular requisition on title has not been satisfactorily answered by the defendants ("the vendors"). The purchaser claimed that the vendors had not shown a good title to the property and must repay the purchaser the amount of his deposit ($160,500) together with interest, his costs of investigating title, the estate agent's commission of $20,000 which the purchaser paid, and stamp duty of $21,400 which the purchaser also paid.

2. The property in question is Flat C6, 16th Floor, Block C, Garden Rivera, Shatin, New Territories. The contract was dated 3rd July 1992. The purchase price was $1,070,000. The completion date was 31st December 1992.

3. The requisition in question was set out in a letter of 20th July 1992 from the purchaser's solicitors William A. Hui & Ko to the vendors' solicitors T.C. Lau & Co., it was in the following terms :-

"The original or certified copies as listed in Schedule I hereto is required. Kindly let us have photocopies whereof for our perusal first. ..."

Listed in Schedule I were two debentures and reassignments. The first of these debentures was dated 28th June 1982; the reassignment 9th May 1983. The second debenture was dated 3rd June 1983; the reassignment 18th October 1984. When the vendors' solicitors sent to the purchaser's solicitors the deeds and documents of title (in place of an abstract, according to the familiar colonial practice) they did not include copies of these debentures and reassignments. These were discovered by the purchaser's solicitors when they came to make their search at the Land Office and it is in those circumstances that this requisition was raised on 20th July 1992.

4. The obligation of the vendors to supply originals or certified copies of these documents of title fell to be discharged only on the date fixed for completion which was 31st December 1992. However, since the debentures and reassignments were documents of title, it was necessary for copies of them to be provided to the purchaser's solicitors sufficiently long in advance of the date fixed for completion to give the purchaser's solicitors a proper opportunity of considering those documents of title and raising any requisitions upon them.

5. The contract contained the standard provision (in relation to the documents of title and requisitions thereon) to the effect that requisitions had to be delivered within seven working days after the receipt of the title deeds by the purchaser's solicitors. When not all the title deeds are delivered, and there are others which are delivered later, it follows that in relation to those title deeds of which copies are delivered late, the purchaser's solicitors must have seven working days after their receipt to consider those documents.

6. In the present case, no copies of the debentures and reassignments were delivered until what purported to be certified copies of them were sent to the purchaser's solicitors on 29th December 1992. In my judgment, the purchaser's solicitors were entitled to seven days to consider these. They were not given that time; because, on 31st December 1992, the vendors, treating the failure of the purchaser to complete on that date as repudiatory in character, treated the contract as at an end by reason and purported to forfeit the purchaser's deposit.

7. I have no doubt that the vendors were not entitled to do that. The seven days which the purchaser's solicitors had to have to consider the documents of title delivered on 29th December 1992 had not expired.

8. For those reasons, I come to the conclusion that the vendors themselves repudiated the contract by seeking to treat the failure of the purchaser to complete on 31st December 1992 as itself repudiatory when it was not. It follows that, the vendors being in breach of the contract, they must now repay the deposit with interest; pay to the purchaser the costs and expenses of investigating the title (which I shall direct to be assessed by the master if not agreed); and the stamp duty which the purchaser has paid.

9. Before leaving the case, however, I must say something about another point much debated in argument before me. Copies of the reassignments were annexed to memorials thereof. When the vendors came to complete (if that had happened) they were proposing, as I understand it, to hand over on completion to the purchaser the copies of the reassignments which they had obtained from the Land Office. Those would not be good enough unless those copies were certified as true copies by a public officer or by a solicitor; as appears from s.13(2) of the Conveyancing and Property Ordinance, Cap.219. But T.C. Lau, the vendors' solicitor, appears to have affixed a chop to the back of the document received from the Land Office (which was the memorial bound up with the copy of the reassignment in each case). He signed this. The chop read as follows :-

"I, the undersigned, do hereby certify that I have examined the foregoing document with the certified true copy and that the same is a true and complete copy of the certified true copy."

In fact, this cannot be strictly correct. It does not appear that the copies of the reassignments were themselves certified as true copies and so the certificate would be inaccurate. But I think no point should be taken on so minor a matter as the form of the certificate. The substance of it is that the certificate was given by a solicitor of the Supreme Court to verify that he had compared what he had certified to be a true copy with either the original or a document which is itself a certified true copy of the original. I do not think I can go behind the form of this certificate. As it seems to me, in the absence of a positive averment that the certificate was false, the court ought to assume it to be true. I remain, however, concerned about such certificates and I would issue a warning to solicitors not to certify as a true copy of an original or of a certified copy any copy document which they have not themselves examined against an original or a certified copy.

10. For the reasons I have endeavoured to state, I propose to grant to the purchaser the appropriate relief indicated, together with his costs of the action.

Representation:

Mr Anderson Chow, inst'd. by M/s William A. Hui & Ko, for Plaintiff

Mr Timothy Cheung, inst'd by M/s T.C. Lau & Co., for Defendants