Pac-ocean Investments Ltd v. Forband Development Ltd

Case No.HCMP 1366/2007

Court

High Court CFI

Date13 Sep 2007

Judge—

Case Document

100%

HCMP 1366/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1366 OF 2007

______________________

	IN THE MATTER of a Provisional Agreement for Sale and Purchase dated 22^nd March 2007 made between Forband Development Limited as vendor and Pac-Ocean Investments Limited as purchaser for the sale and purchase of the property known as Apartment on 10^th Floor and Car Parking Spaces Nos. 7 and 8 on the Lower Ground Floor, Royal Garden, Nos. 122-124 Boundary Street, Kowloon, Hong Kong
	and
	IN THE MATTER of section 12 of the Conveyancing and Property Ordinance, Cap. 219

______________________

BETWEEN

	PAC-OCEAN INVESTMENTS LIMITED	Plaintiff
	and
	FORBAND DEVELOPMENT LIMITED	Defendant

______________________

Before : Hon Lam J in Chambers

Date of Application by way of Consent Summons : 11 September 2007

Date of Ruling : 13 September 2007

______________________

R U L I N G

______________________

1.I have before me a consent summons inviting this court to grant declaratory relief in the context of a vendor and purchaser summons.

2.Before the court grants a declaration, whether by consent or otherwise, it must be satisfied with the merits of the declaration. For that purpose, a hearing is usually required.

3.Further, if the matter is not contested, the court will usually decline to grant declaratory relief. However, if the circumstances of the case is that justice will not be fully served if such relief is withheld, the court may grant such relief, see Hong Kong Civil Procedure 2007, Para. 19/7/20.

4.In the present case, if the Defendant accepts that it is obliged to bear the share of the renovation works, I see no reason why there cannot be a consent order that the Defendant shall pay the Plaintiff the sum of $281,000.00. Even though this is a vendor and purchaser summons, I am of the view that in appropriate cases, the court can grant relief by way of ordering a liquidated sum to be paid by one party to another. This is particularly so if the proposed relief is granted by consent.

5.In the alternative, the Defendant can give an undertaking to the same effect.

6.Hence, I fail to see the need for any declaratory relief in the present case. That being so, I decline to make an order as per the consent summons.

7.If the parties still intend to settle the matter by consent, they should submit another consent summons seeking the appropriate relief.

8.I shall give the parties an opportunity to reflect on what I said in this ruling. In order to save costs, I shall vacate the hearing on 18 September 2007 and the matter is adjourned with liberty to restore.

(M H Lam)
Judge of the Court of First Instance
High Court

Messrs Tang, Wong & Cheung, Solicitors for the Plaintiff

Messrs Tai, Tang & Chong, Solicitors for the Defendant