Mok Wai Lun Alan v. Yeung Tony Ming Kwong

DCCJ007255/2002

DCCJ7255/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7255 OF 2002

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Coram: Deputy Judge K.H. Hui in Court

Date of Hearing: 7 - 10, 16 - 17, 30 October 2003

Date of Handing Down Judgment: 18 December 2003

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JUDGMENT

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Background

1.In mid-2002, the Plaintiff, as purchaser, entered into a sale and purchase agreement with the Defendant, as vendor, to purchase the property known as Flat D, 1/F and Car Parking Space No. 26 on Ground Floor of Devon Court, No. 16 Cornwall Street, Kowloon ("the Property").

2.Prior to the signing of the Provisional Sale and Purchase agreement on 26th July 2002 ("the Provisional Agreement"), the Plaintiff's wife and the Plaintiff had inspected the Property on two different occasions. The first inspection took place in early July and attended by the Plaintiff's wife only ("the 1st Inspection"). The second inspection took place in mid-July 2002 ("the 2nd Inspection"). Both the Plaintiff and his wife had attended this inspection.

3.The Plaintiff's case is that during these inspections, one Mr. Pedrow Ma of Centaline Property Agency Limited ("Centaline"), being the estate agent acting for both parties, had made oral misrepresentations in respect of the Car Parking Space No. 26 ("CP26") in order to induce the Plaintiff to purchase the Property.

4.It was alleged that the misrepresentations were made in the presence of the Defendant's wife who was the agent of the Defendant. The Defendant's wife did nothing to vary or contradict the misrepresentations and thus the Defendant's wife was regarded to have made the misrepresentations on behalf of the Defendant by way of silence and/or inaction.

5.Further, the Plaintiff alleged that the Defendant had failed to show good title to the Property and claimed for return of deposit, damages for breach and/or rescission of contract and other consequential orders.

6.The Defendant denied that his wife had ever made misrepresentations as alleged or at all. He also denied that he had failed to show good title to the Property. The Defendant further counterclaimed, inter alia, for damages for breach of contract since the Plaintiff had failed to complete the transaction.

The Plaintiff's Case

7.The Plaintiff side called three witnesses: the Plaintiff himself, the Plaintiff's wife ("PW2") and his expert witness Mr. Henry Lai ("Mr. Lai"). It should be noted that the Court had ordered that all witness statements shall stand as examination in chief in the trial.

The Plaintiff's Evidence

8.The Plaintiff said that in around July 2002, he was desirous to buy a larger flat for this family as he was expecting another child. The new flat must have a car park to accommodate his car which is a Honda Odyssey ("the Car"). He approached Centaline for this purpose and he related his requirements to Mr. Pedrow Ma of Centaline.

9.In early 2002, PW2 inspected the Property for the first time. After the inspection, PW2 told the Plaintiff that the car parking space was a bit small and there was a column within the boundary of CP26. Thus, she could not park the Car within the boundary of the car park.

10.In mid-July, the Plaintiff and his family members inspected the Property again. On that occasion, the Plaintiff parked the Car at CP26. He noted that part of his vehicle went out of the boundary of the said car park. The Plaintiff thus asked whether it would cause any problem if he parked his car in this way. In the presence of the Defendant's wife, Mr. Ma told him that there would be no problem. Mr. Yeung further said that the owner of the Property had parked his Mercedes Benz of comparable size at the CP26 before. The Plaintiff was sure that Mrs. Yeung could hear what Mr. Ma had said since they were all surrounding the car park and inspecting it.

11.On 26th July 2002, the Plaintiff entered into a provisional agreement with the Defendant whereby the Plaintiff agreed to buy the Property (including CP26) at the sum of $4,380,000 (see Bundle of Documents "BD" p. 259). The formal agreement was signed on 9th August 2002 (see BD p. 270).

12.In early September, the Plaintiff's wife went to inspect the Property again. After the inspection, the Plaintiff's wife told the Plaintiff that the security guard said that she was not allowed to park the Car at CP26 because it obstructed the driveway. The security guard also told the Plaintiff's wife to contract a Mr. Gary Lau of Vigers Property Management Services (HK) Ltd ("Vigers"), the management company of Devon Court, to sort out the matter.

13.The Plaintiff then telephoned Mr. Lau and told him what the security guard had said. Mr. Lau told the Plaintiff that the owner of the Property had promised not to park his car at CP26 because it caused obstruction to the driveway. The Plaintiff then told Mr. Lau that the owner of the Property said that he could park his car at CP26 without any problem. The Plaintiff further requested Mr. Lau to double check the matter.

14.On 11th September 2002, Ms. Verna Lee of Vigers telephoned the Plaintiff and confirmed what Mr. Lau had said was correct. She also said that any parking outside the boundary lines of CP26 would obstruct the driveway and thus not permissible. The Plaintiff related the above to Mr. Ma and asked him to confirm with the Defendant whether what Ms. Lee had said were true or not.

15.Thereafter the Plaintiff received a letter dated 11th September 2002 from Vigers (BD, p. 309) ("the said Letter"). In this letter, Ms. Lee stated that the Plaintiff should park his vehicle within CP26 and any obstruction to the common driveway constituted a breach of the Deeds of Mutual Covenant. The Plaintiff related the contents of the said Letter to Mr. Ma who repeated that the Defendant had parked his Mercedes Benz at CP26 and no one had complained about that.

16.The Plaintiff had informed his lawyers about the contents of the said Letter. Subsequently, at the request of the Defendant's wife, a meeting was held on 17th September 2002 at the Property. The Plaintiff, the Defendant's wife and Mr. Ma were present. During the meeting, the Plaintiff shown the Defendant's wife some plans and said that there were discrepancies between the plans and the car park on site.

17.The Defendant's wife then said soon after her family moved in and parked their car at CP26, there were a number of complaints that their car obstructed the driveway. As a result, the Defendant rented another car park as it would not cost them much money. The Defendant's wife further said after they had rented another car parking space, the security guard had made use of CP26 to dry towels and she was annoyed by that.

18.The Plaintiff asked the Defendant's wife to talk to the management company to see if the Plaintiff could park the Car at CP26 and to clarify the boundary lines of CP26 since the boundary lines marked on the ground were not tally with that shown on the plans. The Defendant's wife did not give a firm reply. She only said she would talk to her husband regarding this matter.

19.The completion of the transaction was postponed to 23rd October 2002 to sort out the exact location of CP26 and to resolve the problem of parking the Car at CP26. Before the completion date, the Defendant offered an abatement of $12,600. However, the Plaintiff rejected this offer as CP26 could not accommodate the Car.

20.The Plaintiff rescinded the formal agreement on 23rd October 2002 but the Defendant refused to return the deposit of HK$432,000 to the Plaintiff.

21.Under cross-examination, the Plaintiff told the Court that he had a Master degree and had received education in Canada and United States. He first approached Centaline and came to know Mr. Ma in around early 2002. He had told Mr. Ma that he required a car park which can accommodate the Car.

22.The Plaintiff had confronted Mr. Ma prior to 23rd October 2002 because what he said about CP26 were contradicted by the said Letter. Mr. Ma just reiterated what he had said were true. The Plaintiff did not talk to Mr. Ma after 23rd October 2002. The Plaintiff did not claim back the commission paid to the estate agent as he was advised by his legal advisers that the estate agent had done their job and thus entitled to the commission.

23.The Plaintiff stated that he did not do anything to procure Mr. Ma to give evidence and he relied on his solicitors as to who should be called as a witness.

24.The Plaintiff also agreed that he had instructed Messrs. Charles Yeung Clement Lam Liu & Yip, solicitors, to handle this transaction even prior to the signing of the provisional agreement on 26th July 2002.

25.During the second inspection, the Plaintiff noted that quite a number of vehicles had parked beyond the boundary lines of their respective car parks. Further, the Plaintiff's vehicle had also exceeded the boundary lines of CP26. However, the security guard, who was near to CP26, made no objection.

26.The Plaintiff also explained that he did not ask the Defendant's wife to confirm what Mr. Ma had said during the second inspection because she was close to them. As she said nothing, the Plaintiff took that she concurred with what Mr. Ma had said.

27.When being asked why he did not request Vigers to put it on record that Mr. Lau had told him that the Defendant had given an undertaking not to park his car exceeding the boundary line of CP26, the Plaintiff explained that the said Letter referred to more serious matters, i.e. if exceeding the boundary lines, it was a breach of the Deeds of Mutual Covenant.

PW2's Evidence

28.PW2 adopted what she said in her witness statement as her evidence in chief (BD, p. 69).

29.In gist, PW2 said the new property to be purchased should come with a car park capable of parking the Car.

30.During the 1st inspection and in the presence of the Defendant's wife, Mr. Ma said that CP26 could be used to park the Car and would not cause any problem. Further, the Defendant had been using CP26 to park his Mercedes Benz, being a car of similar (or even larger) size then the Car without encountering any problem. The Defendant's wife heard all these but said nothing to correct or contradict him.

31.During the 2nd inspection, the Plaintiff asked the Defendant's wife if there would be any problem since the Car exceeded the boundary line of CP26. Mr. Ma, once again in the presence of the Defendant's wife, said that the Defendant had never received any complaint about the use of CP26. The Defendant's wife did nothing to correct or contradict Mr. Ma.

32.On 9th September 2002, PW2 inspected the Property for the third time. She parked the Car at CP26. After the inspection, PW2 went back to CP26 where she met a security guard who told her that no car was allowed to park outside the boundary lines. PW2 stated that other vehicles also exceeded the boundary lines of their respective car parking spaces. In reply, the security guard said that the Incorporated Owners of Devon Court had specifically disallowed parking exceeding the boundary lines of CP26. The guard asked PW2 to contact Mr. Gary Lau of Vigers to sort out the matter.

33.Under cross-examination, PW2 accepted that Mr. Ma was present when the security guard told her that she could not park her car exceeding the boundary lines. However Mr. Ma said nothing to contradict the security guard.

Mr. Lau's Evidence

34.Mr. Lai is a Registered Architect and an Authorized Person - Architect. He was called to give his expert opinion concerning the size and location of CP26 as appeared in the title deeds and that as marked on the ground, and the discrepancies between them. His expert report can be found at BP, p. 76 onwards.

35.At para. 7 of his report, Mr. Lai pointed out that "the Car Park Layout itself, prepared by an Authorized Person, is a scaled graphical representation of the building so as to be built or built. Hence, the Car Parking Space No. 26 shown on the plan, whether its relative size, dimensions etc. regarding to the rest of the building, should be to scale. Therefore scaled measurement of the subject carpark taken from the plan gives a reasonably accurate and cogent references to the size and location of the Car Parking Space No. 26."

36.As to the meaning of "Do not scale drawing", Mr. Lai said this at para. 9 " "Do not scale drawing" note marked on any building drawing/plan is generally to remind all building personnel involved not to ambiguously measure off any dimension from the plan/drawing itself. All information required during the construction process should be exact or/and to furnished and clarified by Architect himself. Accordingly, the statement "Do not scale drawing" on the Car Park Layout does not mean that one cannot do any scaled measurement as referred to in para. 7 above".

37.Mr. Lai, by using scaled measurements taken from the Car Park Layout Plan (BD, p. 95), concluded that the size of CP26 is 14'5" (L) x 7'(W). The adjacent Car Park No. 25 ("CP25") is of the same size like CP26 (para. 12 of his report).

38.According to Mr. Lai's site measurement, the size of CP26 is 14'9"(L) x 6'9"(W) as marked on the ground, whereas CP25 is 14'9"(L) x 6'5"(W) (see BD, p. 96). Mr. Lai was of the view that "there are discrepancies between the actual site conditions and the memorial records of the Car Parking Space No. 26, with respect to its size, location and boundary demarcation relative to its surrounding built structure" (para. 14 of his report) although he accepted a tolerance of ±1.5 inches.

39.At para. 18 of his report, Mr. Lai concluded that CP26 must have encroached upon either CP25 or the adjacent common area for the reasons that "(a) If the actual width of the Car Parking Space No. 25 (i.e. 6'5"(W)) represents the assigned width on the memorial records, it would imply that the Car Parking Space No. 26, as currently marked on the ground, have encroached upon the adjacent common area (i.e. the driveway) by 4" x its length. (b) By the same token if the actual width of the Car Parking Space No. 26 (i.e. 6'9"(W)) represents the assigned width on the memorial records, the Car Parking Space No. 26, as currently marked on the ground, have encroached upon the adjacent Car Parking Space No. 25 by 4" x its length, as the width of No. 25 is bounded in between the long side of No. 26 and a structural wall".

40.Mr. Lai also noted that "there is an adjacent structural column (sized 2'4" x 1'10") intruded into the Car Parking Space No. 26, whereas the column is shown completely outside the car park as represented on the memorial records." (para. 19 of his report) and that "there is a gas pipe and its protective metal cage (occupying a footage of 9" x 9") installed within the Car Parking Space No. 26, which are not shown on the memorial records" and "due to the intruded column and gas pipe installation, which should be supposed to be situated at the common area, rather than inside an assigned car park, the effective length of the Carpark is reduced from 14'3"(L) as scaled from the memorial records to just 12'2"(L) as measured on site." (para. 21 and 22 of his report)

41.Under cross-examination, Mr. Lai accepted that Car Park Layout Plan is part of the General Building Plan. (Car Park Layout Plan, General Building Plan and Ground Floor Plan are in fact the same plan or come from the same plan). Mr. Lai said that he did not use the assignment plan (BD, p. 247) because it is much simpler when compared with the Car Park Layout Plan which is more specific, with more data and with dimensions to check with the scale.

The Defence Case

42.The Defence side called 3 witnesses: the Defendant, his wife ("DW3") and his expert witness, Mr. Anthony Chan ("Mr. Chan").

Mr. Chan's Evidence

43.Mr. Chan has prepared 2 reports (BD, p. 143 and p. 147). In his first report, Mr. Chan pointed out that "since there is no explicit dimension evident on the drawings supplied in the assignment plan (Memorial No. 1854110), and the Car Park Layout Plan (Memorial No. 1254065) and the said approved Building Plan (Ground Floor), no definitive measurement can be obtained from the said drawings. Moreover, both the Car Park Layout Plan (Memorial No. 1254065) and the said approved Building Plan (Ground Floor) respectively clearly stated that "Do Not Scale Drawing" to warn against scaling-off from drawings. Given the age and inaccuracy due to repeated reproductions, I do not consider that measurements obtained from the said drawings by scaling to be totally reliable." (para. 10 of his report).

44.While giving evidence in chief, Mr. Chan elaborated on what he stated in para. 5 of his 2nd report (BD, p. 149). He accepted that he chose a wrong figure for Column A (as appeared at BD, p. 157). The width should be 1'6" instead of 1'7". Thus, the length of the CP26 should be 13'2" but not 13'1" as stated in the report.

45.In the Ground Floor Framing Plan (BD, p. 157), a lot of dimensions can be found. The distance between the right edge of Column C to right edge of Column A is 10' + 15'7" + 1" = 25'8". The length of CP26 = 25'8" - 11' - 1'6" (the width of column A) = 13'2". This is purely a matter of arithmetic and has nothing to do with scaling. The boundary line of CP26 now extends to the left edge of Column C and it now measures 14'9"(L) (with Column C inside CP26). The width of Column C (from left side edge to right side edge) is 1'10".

46.As to the gas pipe and its protective metal cage both fixed upon the longitudinal side of Column C, Mr. Chan opined that they are simple gas supply devices which could easily be re-diverted onto the longitudinal side of Column C by the technician of the gas company upon call, and at the most within a few hours work (BD, p. 153-154).

47.Mr. Chan had measured certain dimensions of the Ground Floor Plan (BD, p. 156) by scaling. They were marked M1 to M4. Mr. Chan noted that they were significantly different from the dimensions marked on the plan. For M1, he measured 19' while the marked dimension was 20'. For M2, he measured 19'8" while the marked dimension was 20'. For M3, he got 19'6" but the marked dimension was 20'. For M4, he got 10'6" but the marked dimension was "11' (approx)". According to Mr. Chan, this plan was provided by the Plaintiff.

48.Under cross-examination, it was suggested to Mr. Chan that the plan he measured was not of the scale 22 ft : 1 inch (as marked on the plan) and thus there were such significant discrepancies. In reply, Mr. Chan said there was no way to find out if a plan is of the scale 22 ft : 1 inch or so called a 100% reproduction of the original.

49.Another Ground Floor Plan (marked as Exhibit P1) was shown to Mr. Chan during cross-examination and he was asked to make scaled measurements in relation to M1 to M4. The results were: M1-21'; M2-20'5"; M3-20'2" and M4-11'2". Mr. Chan accepted that his plan (the plan at BD, p. 156) is smaller (in terms of scale) than Exhibit P1.

The Defendant's Evidence

50.The Defendant has made three witness statements. The first one was dated 22nd April 2003 (BD, p. 99), the second one was dated 5th September 2003 (BD, p. 108), and the last one dated 3rd October 2003 (BD, p. 118-01).

51.On the first day of the trial, the Defendant made an application for leave to put in the Defendant's last witness statement as aforesaid. This statement mainly dealt with the re-selling of the Property and itemized the consequential damage suffered. The Plaintiff objected to that on the ground that such evidence could be adduced earlier. I granted the application as there is no prejudice to the Plaintiff who is well aware of the items of damage. What he does not know is the exact amount. The costs of such application is costs in the cause. The Plaintiff made no consequential application after my ruling.

52.The Defendant said he resided at the Property since 1990. He owned one Mercedes Benz Model 500SEC (BX 1668) at that time and he parked it at CP26. In around 1996/1997, the Defendant bought another Mercedes Benz Model 500SE (FV 1) and rented one more car park. He sold BX 1668 in around 1997 but still kept 2 car parks. It was because the Defendant's friends came to visit him from time to time and there were insufficient visitor car parking spaces at Devon Court. He sometimes parked FV 1 at CP26 and sometimes reserved it to his friends or relatives.

53.The Defendant said that tiles were laid on the ground to mark as the boundary lines of car parks in about 1995/1996. The job should be done by the management company under the authorization of the Incorporated Owners of Devon Court.

54.The Defendant had never received any complaint about the parking of his cars at CP26 though both of them exceeded the boundary line of CP26. There was also no complaint whatsoever from CP25.

55.After the Defendant came to know the contents of the said Letter, which addressed the Plaintiff as the owner of the Property, the Defendant immediately contacted Vigers to lodge a complaint. He could not get in touch with Ms. Lee but was able to talk to a Mr. Lam, claimed to be the superior of Ms. Lee.

56.Mr. Lam said that Vigers recognized that the size of the car parking spaces at Devon Court were not standardized and therefore allowance had always been given to the owners of car parking spaces when their vehicles were found parked exceeding the boundary line provided that their vehicles had already been parked into the car parking space entirely and it was only because of the size of the vehicle that made it exceeding the boundary line.

57.In or around March 2003, the Defendant received a fax letter from Vigers dated 26th November 2002 (BD, p. 363) in reply to the Defendant's complaint aforesaid. It stated that Vigers had never received any complaint in respect of the use of CP26 and that the complaint of the obstruction in the said Letter was an isolated incident caused by someone carelessly parking his car well in excess of the boundary line of a car parking space. The letter however did not state what Mr. Lam had told the Defendant as referred to hereinabove. The Defendant told the Court that he had tried to contact Mr. Lam in order to ask him to be a witness in this trial. Nonetheless, when the Defendant approached Vigers, he was told that Mr. Lam had left the employment and could no longer be contacted.

58.The Property was recently re-sold at $3.6 million and the transaction was completed in mid-October 2003 (during the trial). The buyers were not related to the Defendant in any way. This was the best offer after the transaction with the Plaintiff had fallen through.

59.The Defendant said he suffered the following damages:-

(a)	Loss of bargain
	HK$4,380,000 - HK$3,600,000	HK$780,000
	Less: Deposit of HK$438,000	___________
		HK$342,000
(b)	Estate Agent Commission	HK$36,000
(c)	Legal expenses	HK$15,000
(d)	To be indemnified for commission payable to the estate agent under the abortive transaction	HK$43,800 (not paid yet)
(e)	Fees paid to experts
	(i) A&B Consultants Ltd.	HK$15,600
	(ii) Dudley Surveyors Ltd.	HK$500

(It should be noted that Counsel for the Defendant expressed abandoned the claim of HK$86,692.00 as stated in para. 6 (b) of the Defendant's 3rd witness statement at BD, p. 118-02).

60.Under cross-examination, the Defendant said he rented Car Parking Space No. 35 ("CP35") in around 1995 when he purchased another vehicle, FV1. Although the Defendant and his family had moved out from the Property in early 2001, he kept on renting CP35. It was used to park a van of the Defendant's company since mid-2001 (around 6 months after the Defendant had moved out) because the Defendant's company got a number of vehicles but did not have enough car parks for them.

61.When being asked why not parked the van at CP26, the Defendant replied that the driver was lazy and it was much easier to park the van, which was larger than the Defendant's Mercedes Benz, at CP35. The Defendant agreed that after he had moved out, CP26 was, for most of the time, vacant. The Defendant further explained that sometimes his brother-in-law will park his Jaguar at CP26 and thus he kept on renting CP35 for the van. The Defendant said the Jaguar was much larger than his Mercedes Benz.

62.For the time after the Defendant had sold BX 1668 and before he moved out from Devon Court, the Defendant parked his Mercedes Benz at CP35 for most of the time though sometimes at CP26. When being confronted that the reason of keeping two car parks and parking his Mercedes Benz and van at CP35 was that they were too large for CP26, the Defendant insisted that there was no problem to park at CP26 and it was just more convenient (in terms of maneuvering) to park at CP35. So long as the parking would not obstruct the entry/exit, there would be no problem and the owners of Devon Court will try to accommodate each others.

63.The Defendant further told the Court that Vigers did not become the manager of Devon Court until around 1995/96. As to the conversation with Mr. Lam of Vigers, Mr. Lam said that if the Plaintiff became an owner of Devon Court and if he parked his car without obstructing the driveway, there would be no problem.

64.The Defendant said he had never told Mr. Ma that he got a Mercedes Benz and that he got an extra car park at Devon Court. The Defendant had also asked his wife if she had told Mr. Ma that they got two Mercedes Benz and two car parks. The reply was negative.

DW3's Evidence

65.DW3 said that the Defendant gave instruction to estate agents to sell the Property. She had not given any instruction to any estate agent to do this work. She first met Mr. Ma in around 2001. Before the Plaintiff was introduced to inspect the Property, she had met Mr. Ma for over 10 times. For the 1st inspection, only Mr. Ma and the Plaintiff's wife attended. It was a short inspection. After they had left, the Defendant's wife stayed behind to lock up the windows and doors. Mr. Ma said nothing about the car park in her presence. In fact, nothing about CP26 was mentioned.

66． For the 2nd inspection, quite a number of people attended. That included the Plaintiff and his wife. They viewed the Property for around 10 minutes. Like the 1st inspection, the Plaintiff's party left first. DW3 stayed behind to lock up the place. When she left, she saw the Plaintiff's party at CP26. The security guard was also there. During the 2nd inspection, Mr. Ma did not say anything about CP26 in the presence of the Defendant's wife.

67.Sometime after the signing of the formal agreement, the key to the Property was given to Mr. Ma upon his request because he told DW3 that the Plaintiff's side would like to make some measurements of the Property for renovation purposes.

68.Subsequently, Mr. Ma told DW3 that the Plaintiff's side had inspected the Property and they wished to make an appointment to see her. As a result, the parties met each other on 17th September 2002. During the meeting, the Plaintiff and his wife told the Defendant's wife that they received a complaint when they parked the Car at CP26. They also received a warning letter from Vigers. The Defendant's wife was not sure if a copy of the letter was shown to her but she was certain that a copy was not given to her during the meeting. The Plaintiff asked if the boundary of CP26 could be re-drawn so that the car park space would be big enough to accommodate the Car.

69.The Defendant's wife denied that she had ever said that they had given an undertaking to the management company or received complaints about parking their Mercedes Benz at CP26 as alleged or at all. After the meeting, the Defendant's wife related everything to the Defendant and the Defendant took charge of the matter.

70.During the meeting, the Defendant's wife told the Plaintiff that they used to have 2 cars and thus have two car parking spaces. Further, if the Plaintiff felt that it was difficult to park their car, they could lease another car parking space.

71.Under cross-examination, DW3 said that the Defendant just asked her to show the Property to potential purchasers. When there were any queries about the Property, she would leave it to the estate agent. She had mentioned nothing about Mercedes Benz or the second car park to the estate agents or potential buyer.

Assessment of Evidence and Finding of Facts

72.I have carefully considered all the evidence and observed the demeanor of the witnesses when they gave evidence in the witness box.

73.Before I go on, it should be noted that the Plaintiff had, towards the end of the trial, applied for leave to amend the Statement of Claim in that the reference to "the Plaintiff' in para. 2 to 3 be amended to read "the Plaintiff's wife". I granted the application with no order as to costs. Filing and service of the amendment be dispensed with.

74.It should also be noted that the Court was only presented with the evidence from the parties themselves. Mr. Ma, the key person in question, was not called. Further, no one from Vigers or the Incorporated Owners came to testify. There is simply a lack of independent evidence.

The 1st Inspection

75.The evidence of the parties are different. The Plaintiff's version is that the Defendant's wife was present while the Plaintiff's wife was inspecting CP26. The Defendant's version is that the Defendant's wife did not leave the Property together with Mr. Ma and the Plaintiff's wife. The most important issue here is, of course, whether representations were made by Mr. Ma in the presence of the Defendant's wife.

76.The Plaintiff told the Court that he had related his requirement, i.e. there must be a car park which can accommodate the Car, to Mr. Ma. There is no reason to doubt it. It follows that it would only be natural for the Plaintiff's wife to inspect CP26. Indeed, even in the absence of the said requirement, any potential buyer will inspect the car park unless he has no interest in buying the flat. Since there was a column situated inside the boundary of CP26 thereby marking the usable length shorter, it is also natural that the Plaintiff's wife would make enquiry about it bearing in mind that the Car is comparatively speaking longer than ordinary private car.

77.The next question for me to resolve is what did Mr. Ma say in reply. It should be borne in mind that Mr. Ma is an estate agent and he has every motive to seal a deal. It is more likely than not that he would give a reply to the effect that there would be no problem for parking the Car at CP26. Otherwise, he would be failing his duty or rather not providing up to standard services for introducing a flat that does not suit the Plaintiff's need since he well knew the requirement about car park space.

78.The most difficult question is whether the Defendant's wife was present when Mr. Ma made the reply. As I pointed out hereinabove, there is no independent evidence to assist me to arrive at a conclusion. I am of the view that although there are conflicting versions before the Court, it does not necessary mean that either party is deliberately telling a lie. It may be that memory fails a particular party. It is really doubtful that the Defendant's wife could really recall whether she had accompanied the potential purchaser to inspect the car park because there is simply no need for her memorize it. This equally applies to the Plaintiff's wife

79.According to the Plaintiff's wife, apart from assuring her that there would not be any problem for parking the Car at CP26, Mr. Ma went on to state that the Defendant had been using CP26 to park his Mercedes Benz being a car, to say the least, of comparable size to the Car. The latter piece of information must come from the Defendant or the Defendant's wife. Whether it was supplied to Mr. Ma on purpose to induce potential buyer or under other circumstances has yet to be decided. I am of the view that if Mr. Ma was supplied with this piece of information for the purpose of inducing potential buyer to buy the Property, there is no reason for the Defendant's wife to remain silent upon hearing the representation. The reason is that giving assurance from the Vendor side would make it sound more forceful and reliable. It was exactly that had happened while the Plaintiff's wife was inspecting the flat as she said in her witness statement that "both Mr. Ma and the Defendant's wife told her a lot of good things or points about the Property". (BD, p. 70, para. 5). If the Defendant's wife was playing an active role in introducing the good points of the flat to the Plaintiff's wife, it is difficult to think of any reason why the Defendant's wife will keep her mouth shut when the Plaintiff's wife asked questions about CP26.

80.Thus, it is my findings that during the 1st Inspection, the Plaintiff's wife did make some enquiries about CP26 and Mr. Ma did make the representations as stated by the Plaintiff's wife. However, such representations were either not made in the presence of the Defendant's wife or if the Defendant's wife was present, they were made without her knowledge.

The 2nd Inspection

81.The differences here are more or less the same like that of the 1st Inspection.

82.On this occasion, the Plaintiff drove the Car to the Property. He went there together with his wife and other family members. It is once again natural for the Plaintiff to raise enquiry about CP26 bearing in mind that (1) he must have interest in buying the Property, otherwise, he would not go to inspect the Property and; (2) he had parked the Car at CP26 and part of the Car exceeded the boundary line and thereby somehow obstructing the driveway. Equally natural is that Mr. Ma answered the queries in the same terms as he did during the 1st Inspection.

83.The key question is once again whether the Defendant's wife was present when Mr. Ma made his replies. This is the second time the Plaintiff side inspected the Property. It, to certain extent, shows that the Plaintiff is interested in the Property. If the Defendant's wife was present, there are more reasons for her to actively deal with the Plaintiff's queries than remaining silent.

84.Thus, it is my findings that during the 2nd Inspection, the Plaintiff did make some enquiries about CP26 and Mr. Ma did make the representations as stated by the Plaintiff. However such representations were either not make in the presence of the Defendant's wife or if the Defendant's wife was present, they were made without her knowledge.

The 3rd Inspection

85.There is no evidence from the Defence to contradict the Plaintiff's version and I do accept the Plaintiff's wife evidence in this regard. However, having regarded to S49, Evidence Ordinance, Cap. 8, I place no weight on what the security guard had said. There is no evidence before the Court as to why the identity of the security guard cannot be ascertained and thus cannot be called to give evidence. Bearing in mind that there was no intervention on the 2nd Inspection, oral evidence of the security guard is of particular importance to ascertain the circumstances under which a car may exceed the boundary line of CP26.

The telephone conversation between the Plaintiff and Mr. Gary Lau/Ms. Verna Lee of Vigers

86.Once again, there is no evidence from the Defence to contradict the Plaintiff's version and I do accept the Plaintiff's evidence in this regard. The question is whether I can attach any weight to what Mr. Lau/Ms. Lee had said. The said Letter was sent to the Plaintiff upon his request since he wanted Vigers to put what had transpired in the telephone conversations into writing. The undertaking was however not mentioned in this letter and the Plaintiff had done nothing to procure Vigers to confirm this by another letter. Further, no reason was offered as to why Mr. Lau/Ms. Lee cannot or should not be called to testify. Having considered all these, I attached no weight to what Mr. Lau/Ms. Lee had said.

The meeting on 17th September 2002

87.The Plaintiff alleged that the Defendant's wife made confession during this meeting. This is denied by the Defence.

88.According to the Plaintiff, he contacted Mr. Ma asking him to clarify the position immediately after he had talked to Ms. Lee of Vigers over the phone. The next day, i.e. 12th September 2002, Mr. Ma called back and related the stance of the Defendant, i.e. denied the existence of undertaking and reiterated that there was no complaint about parking his Mercedes Benz at CP26, to the Plaintiff. It is thus clear that the Defendant must know what the Plaintiff was complaining about prior to the meeting.

89.The Plaintiff said that the meeting was initiated by the Defendant's wife as she would like to meet the Plaintiff to understand the issue. At that juncture, there were 2 issues (1) parking problem; and (2) layout plan not consistent with the car park on site. It is obvious that the parties were not in the position to resolve the latter issue. What is to be discussed in the meeting must be the parking problem. Why is there such a sudden change of attitude on the part of the Defence? There was no change of circumstance between 12th September 2002 and 17th September 2002. It is implausible that the Defendant's wife would initiate a meeting to confess.

90.The Plaintiff told the Court that he did relate to his then solicitors as to what were transpired during the meeting on 17th September 2002. However, this incident was not mentioned in any correspondences until 17th October 2002 when the Plaintiff's then solicitors wrote to the Defendant's solicitors. The Plaintiff knew how to protect his interest by requesting Vigers to reduce what were said by Mr. Lau/Ms. Lee into writing. It is difficult to understand why he did not instruct his then solicitors to write to the Defendant putting on record what had happened on 17th September 2002. For the reasons aforesaid, I do not accept the Plaintiff's evidence and I find that the Defence's wife did not make any confession as alleged or at all.

Application of the Law

91.The Plaintiff's claims based on two ground: (1) there was misrepresentation; and (2) the Defendant failed to show a good title to the Property.

(1) Misrepresentation

92.I have already found that Mr. Ma did make representations as stated by the Plaintiff's wife and the Plaintiff during the 1st and 2nd Inspection respectively. What effect does it have? Were the representations made on behalf of the Defendant? In my judgment they were not. The representations were made in the absence of the Defendant's wife or without her knowledge, it cannot be regarded as representations made by the Defendant's wife. They, of course, cannot be attributed to the Defendant since Mr. Ma was just a broker and there is no evidence to show that Mr. Ma made such representations with the authority of the Defendant or the Defendant's wife. In this case, Mr. Ma acted as agent for both parties and would receive commission from them (BD, p. 258). In the absence of authority from the Defendant, Mr. Ma, when he made the representations, was acting as agent of the Plaintiff (see Cheng Kwok Fai v. Mok Yiu Wah [1990] 2HKLR 440).

93.For completeness sake, I shall go on to deal with the submissions made by Counsel under this head.

94.Mr. Li, Counsel for the Defendant, submitted that it was not reasonable for the Plaintiff to rely on the representations, if they were made. I do not agree. It is entirely reasonable for a potential purchaser to rely on the words of the vendor. Holding otherwise would mean that the potential purchaser has to make his own investigations about the usage of the car park.

95.Are the representations false? There is no evidence to support this except perhaps the said Letter. This letter however did not deal with the points directly. It only spelt out the relevant clauses in the DMC which was not under dispute. It is clear that if a car exceeds the boundary line of the car park, it will somehow obstruct the common area of the building and thus in breach of the DMC. The issue here is under what circumstances would the DMC be strictly enforced. There was occasion, like the 2nd Inspection, that no action was taken. There was also occasion, like the 3rd Inspection, that the DMC was strictly enforced. In the light of the photos which depicted that quite a number of vehicles had exceeded the boundary lines of their respective car parks, the said Letter is not sufficient to prove that the representations are false.

96.Mr. Li submitted that even if there were misrepresentation, the Plaintiff's claim is defeated by the "entire agreement clause". Clause 13 of the provisional sale and purchase agreement (BD, p. 259) provides that "this agreement supersedes all prior negotiations, representation, understanding and agreements of the parties hereto". Clause 10 of the formal agreement (BD, p. 275) provides that "this agreement comprises all the terms agreed between the parties hereto and supersedes all previous agreements, whether oral or in writing entered into by the parties or their agents. No warranty or representation express or implied is or has been made a given by the Vendor or by any person on his behalf relating to the Property prior to the signing hereof and if any such warranty or representation express or implied has been made the same is withdrawn or deemed to have been withdrawn immediately before the parties entered into this Agreement".

97.Obviously, the scope of Clause 10 is wide enough to cover the representations made by Mr. Ma. Mr. Dawes, Counsel for the Plaintiff, submitted that it is not applicable as it fails to pass the reasonable test as laid down by S3, Control of Exemption Clauses Ordinance, Cap. 71. I do not accept this submission. The Plaintiff had already retained his then solicitors before signing the provisional agreement. Although the provisional agreement is a standard form contract, it is not that of the Defendant. It is the standard form of Centaline. There is no evidence that it cannot be amended. Indeed, two clauses were inserted to cover the building order and fixtures. It shows that the terms of the provisional agreement are negotiable. Further, there were negotiations between the parties' solicitors concerning the terms of the formal agreement. The Plaintiff can ask to have Clause 10 amended or deleted. In the present case, the terms of the formal agreement were negotiated through their solicitors. It cannot be said that it is unfair and unreasonable for the Defendant to rely on the "entire agreement clause".

98.For the reasons aforesaid, the misrepresentation claim must fail.

(2) Failing to show a good title

99.The Plaintiff's contentions under this heading are that (i) the boundary lines of CP26 as marked on the ground do not correlate with the plans; (ii) by reason of (i), CP26 encroached upon CP25 and also the common area on the ground floor; (iii) therefore, the Defendant cannot show and/or pass a good title of the Property (in essence, CP26) to the Plaintiff. The Plaintiff also alleged that the Defendant had failed to answer his requisitions sufficiently and satisfactorily.

100.The Plaintiff's case is that the Defendant is obliged to assign the car park as shown in the general building plan (but not the assignment plan).

101.In the formal agreement (BD, p. 286), the subject matter of the sale and purchase is described as "All those 6/179th parts or shares of and in the New Kowloon Inland Lot No. 3507 (Flat D on 1st Floor and Car Parking Space No. 26 on Ground Floor of Devon Court, No. 16 Cornwall Street, Kowloon, Hong Kong). There is no reference to any plan, whether assignment plan or general building plan. The absence of express reference has no bearing in the sense plans must have to be referred to so as to ascertain the subject matters of the transaction. The question is which plan should be referred to.

102.Experts from both sides are of the view that the assignment plan cannot be relied on. Mr. Lai, the expert witness of the Plaintiff, was of the view that the Car Park Layout Plan can be relied on. Mr. Chan, the expert witness of the Defendant, held the opposite view as such plan had a clear caution of "Do Not Scale Drawing". In my judgment, scale measuring of the Car Park Layout Plan is not desirable and unsatisfactory.

103.Mr. Lai said that the Car Park Layout Plan is a scaled graphical representation of the building prepared by an Authorized Person. Therefore, scaled measurement of CP26 taken from the plan gives a reasonably accurate and cogent reference to the size and location of CP26. While I accept it as a matter of general principle, its application to the present case, and indeed, to all cases, is subject to a reservation that the plan itself must be a 100% reproduction of the original plan, i.e. there is no distortion in any sense and that there is no enlargement or reduction in size. One must bear in mind that the scale of the plan is 22':1" (264:1), a slight distort would result in a discrepancy of a few inches. Is there any method to find out whether the plan obtained from the Building Department is a 100% reproduction without any distortion? Mr. Chan said "no" while Mr. Lai said "yes". Mr. Lai said that one can scale measure certain dimensions (a distance or length or width with its dimension expressly stated or marked on the plan) and if they are tally with the scale, the plan is a 100% reproduction. Mr. Lai used this method and confirm the plan he retrieved from the Building Department is a 100% reproduction. However, he had only scale measured one dimension: the distance between the front edge of CP25/26 to the left edge of Column A (the column to the right of the car park). The dimension stated on the plan is "11'(approx)". Two problems arise here: (i) how do we know the dimension is accurate? (ii) how much allowance does the word "approx" confer? We must deal with these very carefully because during the trial, it was found out that 3 different copies of the Car Park Layout Plan had been measured and the scaled measurements of selected dimensions were all different (the Plaintiff's copy, BD, p. 95, the Defendant's copy, BD, p. 156 (supplied by the Plaintiff) and Exhibit P1). The differences vary from 12" (M1 at p. 156) to 2" (M3 of Exhibit P1). When I compared the scaled measurements of the plan used by Mr. Chan (BD p. 156) and that of Exhibit P1, I noted that the differences are not merely due to enlargement or reduction in size of the plans. For the Defendant's plan, the measurements are 19' - 19'8" - 19'6" - 10'6" (M1 to M4). The measurements for Exhibit P1 are 21' - 20'5" - 20'2" - 11'2". Should the discrepancies be the sole result of enlargement or reduction in size, the measurements should be the same for M1 to M3 as their marked dimension are identical - 20'. However, it is not so here. The measurements are different. It shows that enlargement/reduction in size is not the single problem, there are also other distortions by other means. Of course, one other reason is that the dimensions themselves are not accurate. In my judgment, making scaled measurements is unsafe and unsatisfactory.

104.The method used by Mr. Chan is more reliable and accurate. It involves no scaling. It is purely arithmetic. I accept his figure: the length of CP26 should be 13'2". If the width of Column C (1'10") is also taken into account (Column C is now within CP26), the length of CP26 will be 15'. It is 3" differ from the actual size of CP26 (14'9"(L)).

105.I reject the views of Mr. Lai concerning the size of CP26 and his conclusion that CP26 encroached upon CP25 or common area. Indeed, quite apart from scale measurement, the conclusion of encroachment is not sustainable on the ground that the actual width of both CP25 and CP26 is the same: 6'9". Mr. Lai said that the width of CP25 is 6'5" because he did not count the width of the boundary line (4") by the side of a column (BD, p. 96). It must be wrong because he counted in the width of the tile when he measured CP26. One must not use different criteria to measure.

106.As there is no other evidence to show the width of CP26, one can only take the on-site measurement. It should be borne in mind that the present floor tiles making the boundary lines of CP26 were laid in 1995/96. It was not done by the Defendant and presumably done by the management company with the approval of the Incorporated Owners. In reality, there is virtually no risk of complaint by the management company that CP26 encroached upon the common area (the two small patches at the two sides of Column C) because the laying work was done by them. Further, such parts of the common area are not useable for parking. The area involved is small (4'5" x 1'10"), only 8ft² or 8% (the area of CP26 is 14'9" x 6'9" = 99.5ft²). There is also no evidence to suggest that such marking of boundary line contravenes the Building Ordinance or Building Regulation or any other legislation. In my judgment, the Defendant is in the position to convey substantially what the Plaintiff had contracted to buy.

107.This is so even assuming one can take scaled measurements from the Car Park Layout Plan. The scaled measurements is 14'5"(L) x 7'(W). The area is thus 100.9ft². The difference is also around 8%.

108.Since the car park to be conveyed should be 13'2" by length and not to include Column C, the complaint of the existence of a gas pipe and its protective metal cage is not sustainable. Even it should be entertained, I accept the view of Mr. Chan that the gas pipe and cage can be relocated within a few hours by technicians from the gas company.

109.The Defendant had on 12th October 2002 offered rebate and raise the point of substantial performance (BD, p. 337). It was rejected by the Plaintiff. In my judgment, the Defendant had shown and could pass a good title. The Defendant had also sufficiently and satisfactorily answered the requisitions made by the Plaintiff. The title claim must fail.

110.As a result, I dismiss all the claims of the Plaintiff.

The Counterclaim

111.There is insufficient evidence to show that the Plaintiff had taken possession of the Property. It was merely a mistake when Vigers addressed the Plaintiff as the owner. Item (1) of the counterclaim is dismissed.

112.In the light of my findings and judgment aforesaid, the Defendant is entitled to items (2), (3), (4) and (5) of his counterclaim and declarations are made in terms of items (2), (3) and (4) accordingly.

113.Item (5) relates to damages. The Defendant had set out the quantum. There is no evidence from the Plaintiff to contradict the same. The Plaintiff has to pay HK$409,100 as damages for breach of the formal agreement. The Plaintiff has also to indemnify the Defendant should he be required to pay commission to the estate agent under the abortive transaction.

114.The Defendant is entitled to interest at judgment rate pursuant to S50, District Court Ordinance, Cap. 336.

115.There will also be an order nisi that the Plaintiff do pay the Defendant the costs of this action, to be taxed if not agreed. The order nisi to be made absolute after the expiration of 14 days from the date of handing down of the judgment. Certificate to Counsel.

Representation:

Mr. Victor DAWES instructed by Messrs. Deacons for the Plaintiff.

Mr. C.Y. LI instructed by Messrs. Chan, Leung & Cheung for the Defendant.