G and Y Co. Ltd. v. Kwok Kim Leung and Another
Read the full judgment text of HCA 3586/1989 on BabelCite. This High Court CFI judgment was delivered on 2 July 1991.
1. On 16th June 1989, in the Un Long office of its solicitors, a director of the plaintiff waited until 6:00 p.m. for the defendants to attend at the scheduled joint execution of an assignment for the sale and purchase of the suit premises. As at 6:00 p.m., the plaintiff treated the sale agreement as rescinded. Between 6:15 - 6:20, the wife defendant finally arrived. She was soon followed by the husband defendant who came to the solicitors' office at or about 6:25 - 6:35 p.m.
Cited by 2 cases
|
HCA003586/1989
IN THE SUPREME COURT OF HONG KONG HIGH COURT ------------------ BETWEEN
------------------- Coram: Hon. Liu, J. in Court Dates of hearing: 12 - 14, 19 and 27 - 28 June 1991 Date of delivery of judgment: 2 July 1991 ------------------ JUDGMENT ------------------ 1. On 16th June 1989, in the Un Long office of its solicitors, a director of the plaintiff waited until 6:00 p.m. for the defendants to attend at the scheduled joint execution of an assignment for the sale and purchase of the suit premises. As at 6:00 p.m., the plaintiff treated the sale agreement as rescinded. Between 6:15 - 6:20, the wife defendant finally arrived. She was soon followed by the husband defendant who came to the solicitors' office at or about 6:25 - 6:35 p.m. 2. It is the plaintiff's case that the Agreement for Sale and Purchase of the suit premises was wrongfully repudiated by the defendants. A deposit of $172,000 had been paid. The plaintiff therefore claims the return of the deposit together with interest and costs. The defendants deny repudiation on their part. The plaintiff company declined an offer from defendants to complete later in time. On an alleged wrongful failure to complete, pleaded as a breach or an anticipatory breach which is said to have been accepted by the defendants, the defendants seek a declaration that the said Agreement for Sale and Purchase was thus rescinded and they were entitled to forfeit the deposit of $172,000 and a further declaration that they had the right to re-sell the suit premises. The defendants are prepared to give credit to the forfeited deposit in their claimed damages of $160,000 together with accrued interest thereon. See Shuttleworth v. Clews, [1910] Ch. D. 176. In practical terms, the defendants are content with a forfeiture of the $172,000 deposit and costs of the action and the counterclaim. 3. The husband defendant is a teacher, then working in Sai Ying Pun. The wife defendant is a nurse, working at the material time in Tsuen Wan. Some time in April 1986, they purchased the suit premises. It was the second of the two flats acquired by the defendants, both on mortgage. The other flat was self-occupied but the suit premises were subject to a tenancy which expired subsequently in April 1989. The defendants were primarily motivated by financial consideration to sell the suit premises. 4. On 14th May 1989, Mr Yau together with his present wife, then Miss Ng, and another gentleman inspected the suit premises. A Temporary Sale and Purchase Agreement in Chinese was signed by Miss Ng on behalf of the plaintiff company. Miss Ng was a director. It was provided by the Temporary Agreement for Sale and Purchase that completion was to be within three weeks thereafter i.e. three weeks from the 14th May. The actual date for entering into a formal agreement in May was left blank in the Temporary Chinese agreement to suit the convenience of the firm of solicitors designated. Mr Yau was in ostensible control of the situation, but he cautiously described Miss Ng as his client. It was originally intended to be a cash purchase, but when the formal Agreement for Sale and Purchase was signed on 19th May, completion was scheduled for 16th June beyond the agreed period of three weeks so as to allow the plaintiff time to procure mortgage finance. On 19th May, the formal Agreement for Sale and Purchase was signed between 6:00 and 6:30 p.m. 5. The plaintiff was desirous of completing the sale and purchase of the suit premises a day earlier on 15th June. It was Mr Yau who instructed Miss Wong of Messrs. Edward Wong & Ng, solicitors for both of the parties to the sale and purchase of the suit premises, to inquire of the defendants as to whether they would agree to an earlier completion. According to Miss Wong, she duly spoke to the defendants through the wife defendant as instructed, but the wife defendant was unwilling to oblige. Miss Wong conveyed the defendants' alleged attitude to Mr Yau. The wife defendant strenuously denied that she had been consulted on any proposed earlier date for completion. The suit premises were then vacant and bank mortgage instalments had to be met. The defendants explained that they would have been keen, if consulted, to advance the completion date by even a day. 6. There are other matters on which the parties differed. According to the husband defendant, three days before the date of completion on a Tuesday, 13th June, he telephoned Miss Wong inquiring as to the progress. Thereupon, Miss Wong assured the husband defendant that all was in order and that the assignment would be ready for execution at 3:00 p.m. on 16th June. The husband defendant was quick to remind Miss Wong of his previous request to execute the assignment and other documents for completion outside office hours and an appointment was duly made with Miss Wong for 6 o'clock. The wife defendant put the date for that discussed time-switch on the 15th. Miss Wong had no recollection of this telephone communication on 13th June. Apart from her narration of an earlier consultation with the wife defendant on the plaintiff's proposed advanced date for completion, Miss Wong described to the Court only four calls, all allegedly made on the 16th : in the morning, the wife defendant requested a postponement from 3 o'clock to 6 o'clock. Miss Wong took instructions from Mr Yau who agreed in the same telephone conversation to postpone completion but only to "before 6 o'clock" and she returned a call to the wife defendant passing on the same message. Although Miss Wong did not recall any conversation with the husband defendant on the 13th, she categorically stated that there had been no prior agreement for any time change. The second call from the wife defendant on the 16th came shortly after 2:00 p.m. when the wife defendant gave notice that the defendants might be slightly late for their appointment. And according to Miss Wong, she impressed upon the wife defendant that no further delay could be accommodated beyond the arrangement made that very morning. After 4:00 p.m., Mr Yau came to her Un Long office for the signing of all the documents except for the assignment. Then at about 5 o'clock, the wife defendant telephoned again informing Miss Wong that the defendants were on their way to Un Long but caught in the heavy traffic. Miss Wong again allegedly impressed upon the wife defendant that no further delay was acceptable as "the purchasers" had arrived and were waiting. Miss Wong denied that she spoke to the husband defendant. Of these four calls on 16th June, the defendants denied the first three. Even for the last call at about 5, both defendants claimed to have spoken separately with Miss Wong, not just the wife defendant. The wife defendant's version of the last call at about 5 is similar to that of Miss Wong's, but the husband defendant maintained that he reminded Miss Wong of the agreed extension to "about six". The husband defendant continued : "Then Miss Wong said she would have to speak to Mr Yau about it. After that, I waited for little while and Miss Wong said 'Well, you come. ' " . 7. None of the witnesses gave wholly satisfactory evidence. Mr Yau claimed to have no recollection of the husband defendant's concern that his employment on the Hong Kong Island would not spare him time for a visit to the Un Long solicitors' firm during office hours. Mr Yau volunteered in evidence twice the time of "6:30 p.m." at which his "client" was told to attend on the 16th, but he instantly corrected himself to 6 o'clock. On those two occasions, he instructed Miss Ng to "go there before 6:30 to complete the things". It was the consensus that Mr Yau's effective "client" was the plaintiff company. His father was then virtually the owner of the plaintiff company. Except for a few issued shares, he held all. Miss Ng, obviously an nominated director of the plaintiff, was also rendering secretarial assistance to Mr Yau in his accounting firm. Mr Yau showed interest in the acquisition of the suit premises, inspected the same and was present throughout, from the signing of the Chinese Temporary Agreement for Sale and Purchase, the formal Agreement for Sale and Purchase to the day of completion. He was to become a guarantor for the plaintiff's bank mortgage loan. He liaised with Miss Wong. Yet, Mr Yau maintained that the decision not to complete beyond 6 o'clock on 16th June was taken solely by his present wife, then Miss Ng, a director of the plaintiff. Mr Yau also had no memory of the wife defendant requesting Miss Wong and her refusal to record the time and the names of the persons present on the 16th. There was a commotion on 16th June when police was summoned and arrived at about 6:30 p.m. to 6:40 p.m. It would seem incredible for Mr Yau not to have any recollection of the wife defendant's request. Mr Yau was himself unable to explain why the plaintiff company would readily agree to a 3 hours' postponement to 6 o'clock for the 16th but flatly refused to accommodate the defendants in distress in a matter of minutes. There had even been a prior rescheduling of the completion date by 7-8 days. The Temporary Chinese Agreement for Sale and Purchase stipulated for a completion date three weeks from 14th May i.e. 8th or 9th June. The defendants accepted a completion date 7 or 8 days later on 16th June without much ado. When the formal Agreement for Sale and Purchase was signed on 19th May, the defendants were waiting from 5:20 - 5:25 p.m. for Mr Yau and his present wife who were themselves late. Mr Yau agreed that on 19th May the procedure was not over until 6:00 - 6:30 p.m. At whatever time the telephone call for the 3 hours' postponement was actually made, the plaintiff through Mr Yau agreed to it. It was a requested postponement for hours, not minutes. There was no necessity for the vendors and the purchaser company to be both present at the time of the execution of the assignment. The next day, 17th June, was a public holiday. The execution of the assignment, however late, by the defendants on the day before could not have made any difference to land registration. Mr Yau shifted the responsibility for deciding on completion before 6 o'clock sharp to his present wife, then Miss Ng and a director of the plaintiff, and he conceded that the timing "before six" had no special meaning or significance to him personally. 8. Mrs Yau, a director of the plaintiff, left virtually the whole transaction to her present husband. On the disputed facts, she relied mainly on what had been related to her by him. She offered the explanation that extension of time was given as the final extension in consultation with all the directors of the plaintiff company. 9. Miss Wong gave a vivid description of her four calls with the wife defendant on 16th June. Strange enough, even Mr Yau put the date of the call from Miss Wong for the time extension to 6 p.m. as the 14th, a few days before the 16th. More bewildering is the fact that the pleadings of both parties accepted the telephone call for the postponement to be 2/3 days before 16th June. Whilst Miss Wong maintained that Mr Yau promptly agreed to 6 p.m. in the same telephone conversation, Mr Yau testified that he consulted Miss Ng who, in turn (so she testified) sought the views of the three other directors. Miss Wong did not go as far as denying the call on the 13th from the husband defendant, but she simply claimed to have no recollection of it. She also claimed to have no memory of the husband defendant's request for the assignment to be executed "at six like before" and of her alleged response : "It is alright." Whilst she claimed to have received another call shortly after 2:00 p.m. giving notice of the defendants' possible delay and discussed this call with the director of the plaintiff then Miss Ng and Mr Yau upon their arrival at about 4 o'clock, Mr & Mrs Yau did not corroborate her version. Her evidence left much to be desired, but I would not agree with counsel that she must have been partial on account of Miss Ng's connection with Messrs. Edward Wong and Ng which would waive substantial conveyancing fees payable by the plaintiff company. 10. The wife defendant's evidence is predominently hearsay of what she had been told by her husband. She spoke direct, at about five, to Miss Wong who impressed upon her that Mr Yau would not complete beyond six. She explained that she took half day off for 16th June but she denied that there was any real significance in her effort. She further explained that she did not take leave for the 19th May when the formal Sale and Purchase Agreement was to be signed because it had been too late for her to apply. But at the resumption of this trial for the continuation of her evidence after the weekend, she was under the erroneous impression that she was no longer required but nevertheless managed to stay home on leave for keeping the company of her sick child. She agreed that she was "very worried" as there had been a promise for six. She described the appointment as if it had been one made with a friend in terms of "a promise at six". In their evidence, both defendants lapsed often into a time frame of merely "6 o'clock". The wife defendant was driven to concede that "may be it could be said that (she) was a bit late" but that she would expect anyone to "give (one's) friend some allowance". 11. The husband defendant was trying his level best to make it to the Un Long office in time. Anxiety was felt when he was caught in heavy traffic. The time for completion was at least specific and prominent enough to trouble him and his wife so that they felt the need for wasting crucial time by calling Miss Wong at about 5 o'clock. He was shown in cross-examination to have been imprecise. He gave the extension requested for signing documents outside office hours as 5 to 6 but in his August 1989 affirmation, he put it down as 6 to 7. In his evidence, he explained to this Court that the formal Agreement for Sale and Purchase was arranged to be signed on 19th May at 5:30 p.m., but in his August affirmation, his assertion was that it was for 6 o'clock. His estimate of the travelling time from Sai Ying Pun to Tsuen Wan and from Tsuen Wan to Un Long on 19th May was less than satisfactory. He recalled his stop, en route to Un Long on 16th June, at a petrol station in Tai Kok Tsui but he described it as a shop in his August affirmation. He is a Christian taking an oath as a witness in this trial but he was unperturbed by the making of his affirmation in August 1989. He told the Court that he did not remember if the hour for completion was mentioned on 19th May, but later in his evidence and re-examination he maintained that he did raise the necessity for arranging a time for completion outside his office hours on the 19th as he did on the 14th. However, I accept that the parties had arranged for the formal Agreement for Sale and Purchase to be signed after office hours. 12. It may well be that up to 6 o'clock on 16th June was needed for finalising the bank mortgage and preparing all the requisite legal documentation and that such was behind the plaintiff's ready concession through Mr Yau to extend to "before six". I must not speculate why the plaintiff, for whatever reason, extended the time but only up to six. 13. There are three basic questions for my consideration:
14. If the plaintiff had, in contract, the advantage of a fixed time, its unreasonableness or harshness in exacting strict observance of the stipulated hour would be immaterial. If the defendants' version were correct, the question of unreasonableness or harshness could not arise. The de minimus rule would not spring into operation by reason only of unreasonableness or harshness on the part of the plaintiff. The Court is also not called upon to consider sharp practice but triviality. 15. It is possible, for logistic or other reasons, that Miss Wong had chosen not to consult the defendants on the proposed earlier completion on the 15th. It is also possible that Miss Wong feigned her forgetfulness of the 13th June telephone conversation with the husband defendant. However, the formal Agreement for Sale and Purchase set a time and a date for completion i.e. before3 p.m. on 16th June. It would be more natural for Miss Wong to have extended or postponed the time from "before 3" to "before 6". In making an appointment outside office hours, it would also be more sensible to specify the exact time. The solicitors' office simply could not have been kept open forever. It would have been ludicrous for Miss Wong to put it as vaguely as "come around six, after six or about six". It would be more probable for Miss Wong to invite a client to come outside office hours for completion at a fixed time. 16. If "about six" had been agreed to, the wife defendant would have been expected to complain, in the strongest possible terms, of Mr Yau's reneging on his words. She took leave especially for the appointment, and she was "very worried" that she and her husband might not make it to Un Long in time. She would not have put it, as she did in her evidence, that "she was a bit late" but would expect to be given "some allowance" in the arrangement made in this case. The husband defendant virtually conceded in cross-examination : "At that time, I said 6 o'clock. It is a very common expression when a friend arranges to meet someone at such a time". 17. It is quite unnecessary to sift all the evidence adduced for finding my bearings, on probabilities, in a sea of imponderables. There is no doubt in my mind that the plaintiff and the defendants agreed to an extension of the hour up to 6 p.m., and I so find. 18. If time for completion, originally expressed to be of the essence of the contract, is extended to a fixed date, time would continue to be regarded as essential and each of the parties to the bargain may treat the contract as at an end for non-completion on the extended date. See Buckland v. Farmar & Moody, [1979] 1 W.L.R. 221 at p.231 Letters C-D, where the settled principle was not even argued. I can find no real difference between a fixed date and a fixed hour. 19. Much play was made of the ratio decidendi of the Privy Council in Kilmer v. British Columbia Orchard Lands, Limited, [1913] A.C. 319. Suffice it for me to immediately take issue with Mr Chung's contention advanced on the force of an observation of a differently constituted Judicial Committee in Steedman v. Drinkle, [1916] A.C. 275 at p.280 that in Kilmer "their Lordships (appeared) to have adopted (the view that the very time extension itself had given rise to a waiver of the impunctuality as a breach), and on that footing alone to have decreed specific performance as counterclaimed". Steedman v. Drinkle, supra. was followed by Brickles v. Snell, [1916] 2 A.C. 599. Dissertations on other equitable principles need not be examined. I am gratefully assisted by an Australian High Court decision on appeal from the Supreme Court of Victoria in Legione v. Hateley, [1982 - 1983] 152 C.L.R. 406. The Australian High Court sat in a panel of five judges, presided by Gibbs C.J. Deliberation spanned over a period of 9 1/2 months. Of the aforesaid analysis of the Board in Steedman v. Drinkle supra. at p.280, Gibbs C.J. and Murphy J. said at p.p. 427 - 428:
20. In England, the core proposition advanced in Steedman v. Drinkle, supra. was rejected in the dicta of Somervell and Denning L.JJ. but affirmed obiter by Romer L.J. in Stockloser v. Johnson, [1954] 1 QB 476 at pp.487, 488 & 492 (per Somervell and Denning L.JJ.) and p.501 (per Romer L.J.). The dictum of Romer L.J. was applied in B.I.C.C. Plc. v. Burndy Corporation, [1985] Ch. 232. See also an article by W.F. Ryan in The Canadian Bar Review (1954) Vol. 32 p.568 at pp.571, 572, 574 - 577. Broadly speaking, Romer L.J. would not grant equitable relief against a forfeiture clause penal in nature after rescission, even if the buyer was able, ready and willing to proceed, unless there were special circumstances such as fraud, sharp practice or other unconscionable conduct of the seller. Somervell and Denning L.JJ. would relieve the buyer of the consequences of a penal forfeiture clause if it was wholly unconscionable for the seller to retain the money and recover the property, whether or not the buyer would or could not remedy the default. I need not concern myself with these aspects, and therefore it would not be profitable to dwell upon their views so expressed on a forfeiture clause penal in nature. The plaintiff as purchaser is seeking no equitable relief. The plaintiff's claim at law is for the return of the deposit. 21. Mr Chung, counsel for the defendants, leaned heavily on the time extension as a waiver. Specific performance could not have been, so it was maintained in Steedman, granted in Kilmer unless the purchaser's breach had been waived. Since only the act of extending time could have founded waiver in Kilmer, it was postulated in Steedman that the extension in Kilmer must have been held to have waived the breach. This forms the basis of Mr Chung's argument. But the in-depth deliberation of the five Australian judges, over 9 months in the highest court of Australia, has sufficiently demonstrated that it was not held in Kilmer, by necessary implication or otherwise, that an extension of time would per se constitute a waiver. 22. Moreover, in Vol. 44, Halsbury's Laws of England, 4th edn. para.499, footnote 6 also refers to a fairly old case of Barclay v. Messenger, (1874)43 LJ Ch 449 (cited in the Australian decision) with the following annotation:
23. Barclay v. Messenger is indeed a direct authority in support of that statement in footnote 6, for which the 1991 Halsbury Supplement carries no qualification. Kilmer is not even included. The defendants' pleaded waiver founded on the extension from 3 to 6 p.m. must therefore fail. I need not consider further that the alleged premise for the defendants' pleaded waiver is in fact an extension to "at or about 6 p.m.", which they have failed to substantiate. Estoppel is not a live issue. 24. That leaves the remaining questions as to whether the de minimus rule can apply to punctuality in the performance of a contractual obligation when time has been made essence of the contract. If the maxim is applicable, then whether it can be invoked in the circumstances of this case. 25. Cases on a trifling or minute deviation in contract are more often concerned with description, quality or quantity. See Chitty on Contract, 26th edn. Vol. l, para. 1513 footnote 14; vol. 2, para. 4849. In criminal law, application of the maximum to trifling irregularities and infractions of the strict letter of the law or harsh and pedantic statutes are not unknown. Examples are commonly found in nuisance (R. v. Charlesworth 16 Q.B. 1012) and breathalyser offences (Delaroy-Hall v. Tadman, [1969] 2 Q.B. 208 at p.p. 215 Letter H to 216 Letter A). Also see Broom's Legal Maxims, 10th edn. p. 89; A Dictionary of Modern Legal Usage (for U.S.A.) p. 176. 26. The de minimus rule applies to a great variety of subject-matters e.g. construction of a legacy, exacting of tithes and rates, trespass etc. See Broom's Legal Maxims p.88 et seq. The doctrine admits of no known limit. Sellers L.J. succinctly summed it up in these terms: "It seems to me that in all cases the court is called upon to consider the substance of the matters and will not regard or give effect to what are undoubtedly, in the view of the court, trivialities, matters of little moment, of a trifling and negligible nature. It would be, in my view, difficult and perhaps undesirable to define the limits of the de minimus rule; certainly I have no desire to do so." Margaronis Navagation Agency Ltd. v Henry W. Peabody & Co. of London Ltd., [1965] 2 Q.B. 432 at p. 444 Letters B/C - D/E. At p.447 Letter G, Pearson L.J. seemed to spare no contractual obligations from the operation of the maxim : “Once it is appreciated what the test is, namely, whether the de minimus rule applies or not, whether the departure from the precise terms of the obligations is so trivial as to be negligible or whether it has some significance, then the rest becomes a pure question of fact". (Emphasis added). It would be more accurate to describe it as "a judge's decision on mixed fact and law" as uttered in the earlier injection of Diplock L.J. at p.441 Letter B/C. In applying the rule, each case must be judged on its own degree, measure or extent in the particular circumstances. It is really a common sense judgment as to whether the act or omission is of a trifling nature against the given background. The magnitude of the alleged deviation and its consequence are not themselves relevant except as part of the scenario. I also derive much comfort from one of the statements in Halsbury's Laws of England, 4th edn., which are highly regarded as an accurate source of elementary information. Nothing is added in the 1991 Supplement to its Vol.9, the last sentence of para.472 reads : "In all cases (of performance), however, the requirement of exact performance is qualified by the de minimus rule, that is that minute and unimportant deviations from exact performance will be ignored." 27. Miss Lau, counsel for the plaintiff, reminded this Court of the sanctity of a contract and the inelasticity of punctuality in its performance even in the absence of any express provision for making time of the essence. Raineri v. Miles, [1981] A.C.1050 at p.1080 Letters G-H; Maclaine v. Gatty, [1921] 1 A.C. 376; Mardorf Peach & Co. Ltd. v. Attica Sea Carriers Corporation of Liberia, [1977] A.C. 850. The Court was also invited to ignore the magnitude of a breach and its consequences. Lombard North Central Plc. v. Butterworth, [1986] 1 Q.B. 527 at p.535 Letter G. "No doubt there may be microscopic deviations which business men and therefore lawyers will ignore" (Arcos, Limited v. E.A. Ronaasen & Son, [1933] A.C. 470 at p.479 per Lord Atkin), but counsel laid great stress on the inherent narrow ambit of "microscopic deviations". The Court was urged to note that the de minimus rule had not been known to apply to stipulations as to time. But none of the many cases alluded to in the course of both counsel's submissions contains any reference to limitation on the liberal application of the maxim. In fact, at least in three decisions, the rule was suggested to operate on a time clause. In A/S Awilco of OsPa v. Fulvia S.p.A. Di Navigazione of Cagliari, "The Chikuma", [1981] 1 W.L.R. 314 at p.320 Letter H to p.321 Letter B, Lord Denning's observation on the trifling consequence of a failure to make punctual payment in cash drew the following comment from Lord Bridge:-
In Grandwide Limited v. Bonaventure Textiles Limited, Civil Appeal No. 27 of 1990, the judgment (unreported) of which was handed down on 17th July 1990, despite counsel's concession that the maxim did not apply to a time lapse from noon to 3 p.m., at p.4 the Court of Appeal recognised the reality, "looked at with common sense", of a "delay of perhaps a few minutes (which) might not entitle a party to repudiate a contract". In Kong Yik-hang v. Polypak Limited, [1974] HKLR 253, where a clause making time the essence of the contract was found on the facts not to have been waived by an extension of time for delivering vacant possession to 12 noon some 3 days later. Li V.P., then a judge of the High Court, readily held that with vacant possession of one-sixth of the floor area not having been vacated until 7 p.m. on the extended date, the case did not come within the de minimus rule. The purchaser himself was some10-15 minutes late in arriving with his cashier order for payment, but the vendor then raised no objection. However, at the trial, the vendor sought to complain of the purchaser's alleged failure to pay on account of such10-15 minutes' delay. At p.268, the judge observed : "If the de minimus rule is to be applied I would have applied it in favour of the (purchaser) for being ten to fifteen minutes late." The true significance of these Cases lies in the fact that the maxim has never been shown to have been displaced from its expansive application to every conceivable obligation in contract. In my opinion, a time clause made essence of the contract is susceptible to the operation of the rule. 28. The defendants were on their way to Un Long for completion. Mr and Mrs Yau were aware of that fact. The Yaus had no cause to suspect that the defendants' intention to complete was other than firm. Miss Wong also kept them informed of the predicament in which the defendants unexpectedly found themselves. The likelihood of a traffic delay in the New Territories is a common place. The slight delay beyond 6 p.m. brought about by traffic congestion must be minimal in a setting evolved from an already agreed postponement for 3 hours from 3 to 6 and a yet earlier deferment for as long as 7-8 days for the accommodation of the plaintiff. Time was not expressly made essence for the signing of the formal Agreement for Sale and Purchase, but the agreement was arranged to be signed after office hours. The Yaus were late. It was simply accepted by both parties as a way of life. Naturally, the past events are not to be regarded as a quid pro quo, but in considering "the substance of the matter" these circumstances serve to illustrate what must be so trivial as to be negligible. There was no real anxiety or misgiving that the transaction would not be finalised that evening. 16th June was to be more of an appointment for the plaintiff as buyer to produce the balance of the purchase price. The defendants had already irretrievably bound themselves to sell by the formal Agreement for Sale and Purchase. The wife defendant made her appearance at 6:15 - 6:20 p.m. If completion procedure had thereupon commenced, the husband defendant himself would have been in attendance some 5-10 minutes later at 6:25 - 6:30 p.m., probably even before the wife defendant could acquaint herself with the documents she was to sign or execute. This issue is not to be decided by reference only or independently to the magnitude or otherwise of the delay or its consequences, but against the scene I have set for this analysis, in my judgment, the late arrival was a matter of no moment and the de minimus rule applied. The defendants were, therefore, entitled to forfeit the deposit and resell the suit premises after the plaintiff company had wrongfully failed to complete or take advantage of the further time offered by the defendants to complete. I so order and declare in terms of paragraphs (1) and (2) of the Counterclaim with costs of these proceedings, claim and counterclaim, be costs for the defendants against the plaintiff.
Representation: Ms. S. Lau (Rene Hout & Co.) for the Plaintiff Mr A. Chung (B.C. Chow & Co.) for the Defendants |