Ng Yuk Pui v. Chiu Kam Tong and Another

HCA005223/1979

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

-----------------

-----------------

Coram: Mr. Commissioner Mayo in Chambers.

Date of Judgment: 31st July, 1980.

-----------------

DECISION

-----------------

1. I am considering two applications under Order 14. The application by the Plaintiff also seeks an Order pursuant to Order 86 for specific performance. As the two applications refer to the same situation I have heard them both together.

2. It may be of some assistance for me to refer to the background of this matter.

3. The Plaintiff entered into a sale and purchase agreement with the 1st Plaintiff for the purchase of a flat at 6 Tai Hang Road (hereinafter referred to as the suit premises) on the 8th November 1978. This agreement was not registered at the Land Office within 30 days. The 1st Defendant was the vendor of the suit premises under the said agreement and purported to enter into the agreement as the sole urviving Administrator of the estate of Lai Sau Chun his mother.

4. Lai Sau Chun who was of the Chinese race died intestate on the 18th July 1966 and letters of administration were granted to her husband Chiu Shiu Huen on the 10th October 1966 together with the 1st Defendant. Chiu Shiu Huen died on the 18th October 1978 thus leaving the 1st Defendant as the sole surviving Administrator of Lai Sau Chun.

5. Prior to his death Chiu Shiu Huen married the 2nd Defendant and left a will leaving all his estate to the 2nd Defendant.

6. The 2nd Defendant issued a writ against the 1st Defendant in High Court Action 4433 of 1978 on the 9th December 1978 just over one month after the date of the sale and purchase agreement I have referred to and registered a lis pendens at the Land Office. The statement of claim in these proceedings was filed on the 10th May 1979 and the 2nd Defendant sought various declarations and relief including a declaration that the suit premises should be conveyed to her.

7. Mr. Litton who represented the Plaintiff argued forcibly that the 1st Defendant had a title as sole surviving Administrator to enter into the sale and purchase agreement and that the 2nd Defendant had no such right. The registration of the lis pendens took matters no further. He did, however, concede that the 2nd Defendant may have some claim on the proceeds of sale under the lis pendens but this was not a matter which affected the Plaintiff. Mr. Litton also referred to Section 66(4) of the Probate & Administration Ordinance which provides that a conveyance of a legal estate by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice of some liability relation to the estate.

8. Also Mr. Litton argued that the effect of the registration of the lis pendens did not create an incumbrance on the property but only fixes the purchaser with notice of an adverse claim.

9. Miss Le Pichon who represented the 2nd Defendant argued that the essence of the case was the order of priorities recorded at Land Office and she submitted that because the lis pendens was registered prior to the sale and purchase agreement it should be accorded priority. She also argued that as the litigation referred to in the lis pendens had been successful by virtue of the consent order made by Mr. Commissioner Mills-Owens dated the 6th May 1980, the terms of the settlement should be considered as being effectual at the date of the original registration of the lis pendens.

10. Miss Le Pichon argued that the 1st Defendant had completed the administration of his mother's estate and thereby became a bare Trustee. In support of this proposition she cited the case of Re Ponder.⁽¹⁾ I do not think that this argument can be sustained. Re Ponder was decided on the basis that all of the debts and expenses of the estate had been paid and the estate had been cleared. This was not the situation in the present case as the 1st Defendant had not yet disposed of the suit premises. Even more important than this it is clear from the pleadings that both Defendants accept that the administration of the estate of Lai Sau Chun has not been completed. It is therefore not open to the Defendants to argue that it has been completed and that the 1st Defendant has become a bare Trustee.

11. Also I do not accept for one moment Miss Le Pichon's argument that the settlement in High Court Action 4433/78 has any binding effect upon the Plaintiff. He was not a party to the litigation and I consider that it is only realistic to regard the settlement as being an accommodation to suit the convenience of the 1st and 2nd Defendants.

12. Mr. Edward Chan who represented the 1st Defendant argued that it was open to his client to invoke clause 7 of the Sale and Purohase Agreement which provided that where the Purchaser insists on any requisition in respect of the title which the vendor is unable or unwilling to remove or comply with the vendor is at liberty to give the Purchaser 14 days notice to withdraw the requisition failing which the sale is annulled. The simple answer to this argument is that the Plaintiff has never raised any such requisition and all he is seeking to do is to obtain an order for specific performance of the contract.

13. Mr. Chan also argued that failure to register the sale and purchase agreement within 30 days rendered it null and void. An examination of Section 3(2) of the Land Registration Ordinance Cap. 128 reveals that this consequence arises only against a subsequent bona fide purchaser for value.

14. Mr. Edward Chan also adopted Miss Le Pichon's submissions. For the reasons I have indicated above, I do think that there is any way in which these arguments can succeed. The simple fact of the matter is that the 2nd Defendant cannot establish any proprietary claim to the suit premises and in these circumstances I order that the Plaintiff's summons dated the 27th March which inter alia seeks specific performance must succeed. By the same token the 2nd Defendant's counterclaim must fail. Just in case practical problems arise in obtaining the 2nd Defendant's execution to any instrument of assignment which may be prepared I order that in default of either Defendant executing the assignment the Registrar shall execute the same. The Defendants indicated a desire to appeal against this decision and accordingly there will be a stay of execution for 14 days and thereafter if a notice of appeal has been lodged until the determination of the appeal. There shall also be liberty to apply. Costs shall be to the Plaintiff and there will be a certificate for leading Counsel.

Representation:

Mr. Henry Litton, Q.C. & Mr. K.H. Woo instructed by C.P. Lai & Co. for the Plaintiff.

Mr. Edward Chan instructed by P.C. Woo & Co. for the 1st Defendant.

Miss Doren Le Pichon instructed by Della Chan & Jeoffrey Hui for the 2nd Defendant.

(1) 1921 7 Ch. 59