Yee Pui Pui Anna v. Lam Mei Lin and Another
Read the full judgment text of DCMP 1377/2007 on BabelCite. This District Court judgment was delivered on 20 September 2007.
1. This is the Plaintiff’s application by Originating Summons for declarations that the Defendants were in breach of an agreement for the sale and purchase of a property by failing to complete on the contractual completion date, that the Plaintiff is entitled to terminate the agreement by reason of the wrongful breach on the part of the Defendants, and that the Plaintiff is entitled to a refund of the deposits paid by them under the agreement.
Cited by 1 case · Cites 3 cases
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DCMP 1377/2007 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 2969 OF 2007 -------------------- BETWEEN
------------------- Coram : Her Honour Judge Mimmie Chan Dates of hearing : 29 August 2007 Date of handing down Judgment : 20 September 2007 JUDGMENT 1.This is the Plaintiff’s application by Originating Summons for declarations that the Defendants were in breach of an agreement for the sale and purchase of a property by failing to complete on the contractual completion date, that the Plaintiff is entitled to terminate the agreement by reason of the wrongful breach on the part of the Defendants, and that the Plaintiff is entitled to a refund of the deposits paid by them under the agreement. The Facts 2.By a provisional sale and purchase agreement in Chinese dated 13 March 2007 ("Agreement"), the Plaintiff agreed to purchase and the Defendants agreed to sell the property known as Flat C, 15th floor, Wah Fai Mansion, Nos. 38-40 Granville Road, Kowloon, Hong Kong ("Property") at the price of HK $1.43 million. A deposit of HK $50,000 was paid by the Plaintiff upon signing the Agreement. 3.Clause 5 of the Agreement provides for the manner of payment of the purchase price. Upon signing the Agreement, a sum of HK $50,000 was payable, a further deposit of HK $93,000 was payable on or before 26 March 2007, and the balance of the price in the sum of HK $1,287,000 was payable on or before 20 April 2007. 4.Clause 6 of the Agreement provides that a formal sale and purchase agreement was to be signed by the parties on or before 26 March 2007. Under clause 7, completion was scheduled to take place on or before 20 April 2007, and time was expressed to be of the essence of the Agreement under clause 22. 5.Under clause 21, the further deposit of HK $93,000 to be paid by the Plaintiff as purchaser was to be kept by the vendor's solicitors in custody until the solicitors for the Plaintiff as purchaser confirm acceptance of the title of the Property. 6.On 19 March 2007, the Defendants' solicitors sent a draft of the proposed formal agreement for sale and purchase to the Plaintiff's solicitors for approval. The draft agreement contained a clause (clause 3) to the effect that completion was to take place by way of solicitors' undertaking in accordance with the Law Society's Circular prevailing from time to time, at the offices of the Defendant's solicitors. On 20 March 2007, the Plaintiff's solicitors wrote to the Defendants' solicitors and proposed various amendments to the draft formal agreement. The amendments included the deletion of clause 3 and its reference to completion by solicitors' undertaking. In their reply dated 19 March 2007 (which for some reason the Plaintiff's solicitors only received by fax on 23 March 2007), the Defendants' solicitors responded that the amendments made by the Plaintiff to, inter alia, clause 3 of the draft formal agreement was unacceptable. The Plaintiff's solicitors replied on 24 March 2007 to say that their amendments, including the amendments to clause 3, are reasonable, and asked the Defendants' solicitors to reconsider their stance. By a letter dated 26 March 2007, the Defendants' solicitors again intimated that the proposed amendments to, inter alia, clause 3 were not acceptable. 7.The parties were therefore unable to agree on the terms of the formal agreement for sale and purchase, and none was eventually signed. In the interim, the time for payment of the further deposit having fallen due, the Plaintiff made payment of the sum of HK $93,000 to the Defendants' solicitors by way of a cheque drawn in favour of the solicitors for the Defendants and expressly stating that the payment was to be held by the Defendants' solicitors as stakeholder and should not be released otherwise than in accordance with the provisions of the Agreement, in particular clause 5.2 and clause 21 thereof. This payment was accepted by the Defendants. 8.On 19 April 2007, the Plaintiff's solicitors sent a draft assignment of the Property to the Defendants' solicitors for approval, and asked for the specific time for the formal completion of the sale and purchase on 20 April 2007. On the same day, in response to the letter of 19 April 2007 from the Plaintiff's solicitors, the Defendants' solicitors wrote to say that the draft assignment was approved without amendments, and asked for the draft of the "Undertaking Letter" from the Plaintiff’s solicitors for their approval, to comply with the Law Society's Circular No. 3/92. The Defendants' solicitors also reminded the Plaintiff that completion was scheduled to take place at or before 5 p.m. on 20 April 2007, and asked for payment of the sum of HK $1,287,000 by three split cheques (HK $942,275.81 in favour of the mortgagee, HK $340,729.19 in favour of the Defendants, and HK $4,000 in favour of the Defendants’ solicitors). This letter was faxed at 5:13pm on 19 April 2007. 9.At about 6:02pm on 19 April 2007, the Plaintiff's solicitors responded to the letter, reiterating that the Plaintiff required formal completion of the sale and purchase. In the same letter, the Plaintiff's solicitors asked for the executed discharge or release of the mortgage which was then registered against the Property to be delivered upon completion by the Plaintiff with a bank cashier order for the balance of the purchase price drawn in favor of the Defendants. The Plaintiff's solicitors further informed the Defendants' solicitors that the Plaintiff would be attending at the offices of the Defendants' solicitors at 4 p.m. on 20 April 2007 for completion. 10.At about 7:50 p.m. on 19 April 2007, the Defendants' solicitors wrote back in response, referring to the Law Society's Circular No. 91/82, and complained that the "unreasonable short notice of formal completion" was not acceptable, and that they were unable to secure the attendance of the mortgagee's representatives to sign the discharge on 20 April 2007 despite their attempts to do so. They required at least three working days' notice if formal completion was to be insisted upon. They also asked for payment of the balance of the purchase price by way of cashier orders in accordance with their split cheque instructions, and stated that otherwise, completion would take place as scheduled on 20 April 2007 "by way of the usual undertaking". 11.In the morning of 20 April 2007, the day scheduled for completion, the Plaintiff's solicitors replied to the letter of 19 April 2007 from the Defendants' solicitors the evening before, to point out that they had already rejected the proposal for completion by undertaking in March 2007, that it is the Plaintiff's right to demand the delivery of the release against payment of the balance of the purchase price, and that a bank cashier order for the balance of the purchase price drawn in favor of the Defendants had been arranged. The Plaintiff's solicitors informed the Defendants' solicitors that their representatives would attend the offices of the Defendants' solicitors at 4 p.m. for completion. Notice was also given to the Defendants' solicitors that if the Defendants refused to compete the sale as scheduled, and to deliver to the Plaintiff the release of the current mortgage, such refusal would be treated by the Plaintiff as a repudiation of the Agreement. 12.On the evidence, it is not disputed that the Plaintiff attended the offices of the Defendants' solicitors with her legal representatives at 3:55 p.m. on 20 April 2007. They brought with them the approved assignment and a cashier order in the sum of HK $1,287,000 which was issued in favor of the Defendants, and asked for completion to take place. They were informed by the Defendants' solicitors that the Defendants were not in their office, and that the Defendants had never accepted formal completion to be held on that day. According to the evidence of the Defendants, the Plaintiff's solicitor, Mr. Tang, produced to Mr. Tsang, the legal executive of the Defendants' solicitors handling the transaction, a cashier order for payment of the balance of the purchase price. Having noted that the sum of HK $1,287,000 was not made payable in accordance with the split cheque instructions given by the Defendants' solicitors, Mr. Tsang informed Mr. Tang that there was "no basis for formal completion". The Plaintiffs and Mr. Tang then left. 13.By a letter dated 20 April 2007, the Plaintiff's solicitors informed the solicitors for the Defendants that the Defendants' refusal to complete the sale by their absence at the time of completion and their refusal or failure to deliver the release against the Plaintiff's tender of the balance of the purchase price constituted a repudiation of the Agreement, and further gave notice that the repudiation was accepted by the Plaintiff. Demand was made for the return of the deposits paid under the Agreement. 14.Further negotiations failed to resolve the matter, and the solicitors for the Defendants wrote to the Plaintiff's solicitors on 2 May 2007, purporting to accept the Plaintiff's repudiation of the Agreement by reason of her refusal to complete the sale and purchase as scheduled. Plaintiff’s case 15.The Plaintiff's case against the Defendant is that completion was contractually agreed to take place before 5 p.m. on 20 April 2007. The Plaintiff is entitled to require formal completion in the absence of any agreement to the contrary. On completion, the Defendants were obliged to hand over all documents of title to the Property including the release/discharge in relation to the mortgage registered against the Property, against the Plaintiff's payment of the balance of the purchase price to the Defendants. The Plaintiff’s case is that the Defendants had been in repudiatory breach of the Agreement when they failed or refused to attend at the office of the Defendants' solicitors on 20 April 2007, and by clearly indicating through their solicitors that the Defendants would not complete the sale and purchase in the formal manner on that day. Such repudiation was, on the Plaintiff's case, accepted by the Plaintiff after 5 p.m. on 20 April 2007. Defendants’ case 16.In answer to the Plaintiff's claims, the Defendants allege that it was the Plaintiff, and not the Defendants, who was in breach of the Agreement. They claim that :
Formal completion or completion by undertakings 17.On the authority of the decisions of the Privy Council in Chong Kai Tai Ringo & Another v. Lee Gee Kee & Another [1977] HKLRD 461 and Edward Wong Finance Co. Ltd v. Johnson Stokes & Master ( a firm) [1984] 1 A.C. 296, it is clear that a party to a sale and purchase agreement of land is entitled to require formal completion unless there is agreement to the contrary. Paragraph 12 of the Law Society's circular 91/82 issued on 28 December 1982 reads that "it will be assumed that completion will take place by way of undertaking unless the solicitors concerned notified the other side in good time that standard undertakings will not apply and that formal completion is required". Notwithstanding that, the Privy Council decisions have well established that save for cases where the contract provides expressly to the contrary, a purchaser is entitled to refuse to pay the purchase price due on completion except against delivery to him of the duly executed assignment and, where the vendor has mortgaged the property, also the duly executed release or discharge of the mortgage. The obligations of the purchaser to pay and the vendor to complete by giving an executed assignment are to be carried out simultaneously unless there was an express or implied term to the contrary. 18.On the evidence, the Plaintiff's solicitors had, as early as on 20 March 2007 indicated that the Plaintiff as purchaser elected formal completion by making amendments to clause 3 of the draft formal agreement. The reference to completion to take place by way of solicitors' undertaking in accordance with the Law Society's relevant circular was deleted in the draft. The Defendants' solicitors informed the Plaintiff's solicitors that the amendments to, inter alia, clause 3 were not acceptable, but the Plaintiff's solicitors maintained their stance as was made clear in their letter of 24 March 2007. It is therefore not correct for the Defendants' solicitors to say in their letter of 19 April 2007 that it was only by the Plaintiff's solicitors' letter faxed at about 6:02 p.m. on 19 April 2007 that they were notified of the Plaintiff's request for formal completion. 19.The Defendants seek to rely on the correspondence exchanged between the solicitors from 28 March 2007 to 10 April 2007 when requisitions were raised, to claim that the Plaintiff's solicitors had resiled from their earlier request for formal completion. In this chain of correspondence, the Plaintiff's solicitors first sought an undertaking from the Defendants' solicitors on 28 March 2007 that the first legal charge registered against the Property would be discharged before or upon completion. In response, the Defendants' solicitors undertook in their letter of 3 April 2007 to provide the said first legal charge with its receipt on discharge duly executed within 21 days from the date of completion by way of the usual undertaking upon completion. In answer to this, the Plaintiff's solicitors responded in writing on 10 April 2007 by saying : "Noted." 20.Ideally, the Plaintiff's solicitors should have reiterated or reminded the Defendants' solicitors that they had in two earlier letters maintained the Plaintiff's right to proceed by formal completion. In view of the deadlock reached with regard to the manner of completion, and instead of repeating the Plaintiff's stance again, counsel for the Plaintiff argued that the comment "noted" was a neutral response to simply note the Defendants' stance as to the delivery of a release or discharge should completion proceed by way of undertaking in the manner maintained by the Defendants. Counsel argued that the response "Noted" does not and should not be taken to mean that the Plaintiff had agreed to proceed by way of completion by undertaking. He referred to the fact that the correspondence in which the requisitions were raised was marked "Subject to contract but without prejudice to the provisional agreement for sale and purchase". The provisional Agreement did not provide for completion by way of undertaking, only that completion should take place on or before 20 April 2007. 21.I accept the submissions made on behalf of the Plaintiff that on the face of the correspondence, the parties had not agreed to proceed by way of completion by undertaking. As against the clear indications made in the letters from the Plaintiff's solicitors of 20 March 2007 (when the draft formal agreement was sent with amendments to clause 3), 24 March 2007, 19 April 2007 (the first and the second letter), that the Plaintiff elected a formal completion to take place on 20 April 2007, the "Noted" remark is not a sufficient or unequivocal indication of the Plaintiff changing her mind to agree to a completion by way of undertakings. 22.Chong Kai Tai's case makes it clear that "the question is not whether the circumstances require the implication of a term that payment and completion were to be simultaneous, but whether the circumstances require the implication of a term that there would be a departure from the normal rule that they would be simultaneous" (Chong Kai Tai v. Lee Gee Kee [1997] HKLRD 461, 467G-H). Since it is the Plaintiff's right to require formal completion, whether formal completion is necessary or reasonable is not relevant. 23.It is clear from the decision of Recorder Edward Chan, S.C. in Cheng Jui Lung Kris v. Perfect Best Ltd. HCA 1347 of 1998 that the rights of a purchaser under the contract to formal completion cannot be varied by the Law Society circular which requires three working days’ notice to be given "as a matter of professional courtesy" before formal completion. In the light of the clear authorities binding this court, I am not persuaded that a term has to be implied in the Agreement that reasonable notification for formal completion has to be given before the Plaintiff can insist on her right to formal completion. In any event, the Plaintiff's solicitors had indicated on 20 March 2007 that the Plaintiff wished to have formal completion. On that basis, the Plaintiff had given reasonable and adequate notice. 24.I can deal with the Defendants’ argument of estoppel by convention very briefly. Counsel for the Defendants claim that estoppel by convention applies because the parties in this case entered into the Agreement on the basis of a "common assumption" "that they shall complete the transaction of sale and purchase unless there are circumstances which require otherwise, such as the Defendants failing to show good title to the Property". Even assuming (and I do not so find) that the Defendants are right that there was a common assumption that the parties would complete the sale and purchase as alleged, I am not persuaded that the alleged common assumption was manifested by words or conduct of the Plaintiff (or her solicitors acting on her behalf), when it had been made clear that the Plaintiff would only proceed with the purchase by a formal completion. Nor am I persuaded that the Defendants were entitled to assume, on the facts of this case, that the Plaintiff had not departed from her position that she would complete the transaction. Given that it was the Plaintiff's right to require formal completion, it was open to her not to proceed with the purchase if the Defendants should refuse her this right. I am not satisfied that the Defendants were entitled to assume, from the correspondence exchanged between the solicitors from 20 March 2007 to 20 April 2007, that the Plaintiff did not require a formal completion. In the circumstances of this case, there is no basis for me to find that it would be unjust for the Plaintiff to depart from the alleged common assumption that the parties would complete the sale and purchase. In my judgment, the essential elements of estoppel by convention are not established, even if applicable. 25.To conclude on the issue of whether the Plaintiff was entitled to insist on formal completion, she clearly has such right as there was no agreement to complete by way of undertaking. As she is vested with such a right, whether formal completion was necessary or reasonable is not relevant, and it was not unconscionable or unjust in any way for the Plaintiff to insist upon formal completion. On the facts, adequate notice had been given by the Plaintiff's solicitors to proceed with formal completion. Whether proper tender of payment 26.The Defendants' complaint on 20 April 2007 was that the Plaintiff had, at the scheduled time of completion, tendered payment of the balance of the purchase price by way of a cashier order issued in one lump sum in favor of the Defendants as vendors, and had not followed their split cheque instructions. 27.The Plaintiff's answer is that she was not obliged to follow the instructions given for the split cheque arrangement. The formal sale and purchase agreement was never agreed upon and hence not signed. It is in the usual form of the formal sale and purchase agreement that provisions are made with regard to the payment of the purchase price of the property by cashier order or by cheque in favor of the vendor, or as the vendor may direct, for the relevant amount. The formal sale and purchase agreement would also provide that where the purchase price is required to be applied by the vendor to discharge an existing mortgage or encumbrance, the vendor or his solicitors will be entitled to require the purchaser or his solicitors on notice to split such payment. Since the parties did not sign a formal sale and purchase agreement in this case, none of these provisions apply to bind the Plaintiff as purchaser. The Agreement only provides for the balance of the purchase price to be paid on or before 20 April 2007. 28.The decision of the Court of Final Appeal in Kensland Realty Ltd. v. Whale View Investment Ltd. (FACV No. 10 of 2001) deals with, inter alia, a term being implied into an agreement for the sale and purchase of land, where the land is subject to an existing mortgage, for split payment, and the time to be implied for giving split payment instructions. However, that decision relates to completion of such an agreement by way of undertaking, and is not directly applicable to the facts of the present case. 29.Counsel for the Defendants relied on the decision of the Court of Final Appeal in Ma So So v. Chin Yuk Lun [2004] 3 HKLRD 294, and the observation made by Ribeiro PJ that the vendors in the case "were contractually entitled" to require the balance of the purchase monies to be split. However, the parties in the case of Ma So So had signed a formal sale and purchase agreement, with the standard provision to which I referred in paragraph 27 above which confers on the vendor the right to require the purchaser to split the payment of the purchase price or any part thereof in accordance with the split cheque instructions given by the vendor. There is no such formal agreement signed in the present case to give the "contractual entitlement " to the Defendants. Nor does the Agreement confer such a right on the Defendants. In the absence of any agreement to make "split payment" of the purchase price, the Plaintiff is not in breach by virtue of her failure to comply with the request of the Defendants' solicitors to make payment by split cheques. 30.Notwithstanding the Plaintiff's tender of payment of the balance of the purchase price by way of a cashier order issued in favor of the Defendants (which was so notified to the Defendants' solicitors by the Plaintiff's solicitors on 19 April 2007), it would still have been possible for the Defendants and their solicitors to make the necessary arrangements with the mortgagee bank to have the release executed in escrow and ready for delivery to the Plaintiff upon receipt of the cashier order, and for safeguards to be made to ensure the bank's receipt of the amount outstanding under the mortgage from the purchase price tendered on completion. The Defendants and their solicitors simply refused to make the necessary arrangements and refused to proceed with a formal completion. 31.On the question of whether there was proper tender of payment, counsel for the Defendants raised two other points at the hearing. First, it is argued that under clause 5.3 of the Agreement, the balance of the purchase price is to be paid "to the solicitors for the vendor" on or before 20 April 2007, whereas in tendering payment, the Plaintiff had given a cashier order in favor of the Defendants. This argument depends on the construction to be given to the following words in Chinese which appear in clause 5.3 :
Translated, they read:
32.Clause 5.3 of the Agreement can be interpreted to mean simply that payment of the sum of HK $1,287,000 should be made to the vendor's solicitors. Or it can be construed to mean literally that the cashier order or any cheque issued for the sum of HK $1,287,000 should be issued in favor and in the name of the vendor's solicitors. Counsel for the Plaintiff argues that clause 5.3 means that payment is to be made at the offices of the vendor's solicitors. In my judgment, if the parties had intended clause 5.3 to mean that payment is to be made at the offices of the solicitors, then clause 5.3 should have used exactly that language, and it did not. 33.The Agreement has to be objectively interpreted, the question being what a reasonable person would have understood the parties to mean by the words used in clause 5.3. The court should have regard not only to the individual words used, but to the agreement as a whole, the factual and legal background against which it was concluded, and the practical objects which it was intended to achieve ( Jumbo King Ltd. v. Faithful Properties Ltd. [1999] 3HKLRD 757, at 773-774B). 34.The Agreement is a relatively simple document, containing the bare and essential conditions required to bind the parties to the sale and purchase of the Property. Clause 5 sets out the manner of the purchaser's payment of the purchase price and the time for such payment. Objectively construed, and considering the Agreement as a whole and the practical object which it was intended to achieve, being the sale and purchase of the Property, clause 5 was intended and aimed to set out the dates when the installments of the purchase price are to be paid by the purchaser and to be received by the vendor. A reasonable person would have understood clause 5.3 of the Agreement, considered as a whole, to mean that it requires the purchaser to pay a sum of HK $1,287,000 for the vendor's benefit on or before 20 April 2007. Whether the payment is made in cash delivered, or by cheque issued in favor of the vendor or the vendor's solicitors, was not specified in, nor in my judgment intended to be addressed by, clause 5.3. 35.I am satisfied, on a balance of probabilities, that tender of payment of the balance of the purchase price by a cashier order issued in favor of the Defendants as vendor is good and sufficient tender under the Agreement, when clause 5.3 is objectively construed as what reasonable persons would have had in mind. It would be unreal to consider that a reasonable person in the Defendants’ circumstances under the Agreement would regard the purchaser to be in breach of clause 5.3 simply because the cashier order tendered by the purchaser on 20 April 2007 was issued, not in favour of the vendor’s solicitors, but in favour of the vendor. That cannot have been the intended meaning of clause 5.3. 36.Counsel for the Plaintiff referred to the fact that clause 5.2 of the Agreement is couched in similar language when it refers to payment of the further deposit of HK $93,000, by providing that such deposit shall be paid to the vendor's solicitors on or before 26 March 2007. Counsel for the Plaintiff pointed out that the Defendants and their solicitors had demanded payment of the further deposit of HK $93,000 to be made by a cheque or a cashier order made payable to the Defendants personally and directly, and not to their solicitors. Counsel argues that this lends support to the argument that clause 5.2 and clause 5.3 should be construed to mean that payment has to be made to the Defendants' solicitors, but not necessarily by a cheque or cashier order issued in the name of the Defendants' solicitors. However, the court should not look at the subsequent conduct of the parties to interpret a written agreement, and I have not taken such conduct of the Defendants into consideration. 37.The second point raised by counsel for the Defendants on the question of tender of payment at completion on 20 April 2007 was that the Defendants or their solicitors were not given an opportunity to examine the cashier order brought by the Plaintiff at 4 p.m. on 20 April 2007. On the Defendants' evidence, Mr. Tang acting for the Plaintiff showed to Mr. Tsang acting for the Defendants at the time scheduled for formal completion a cashier order for payment of the balance of the purchase price for the Property, and Mr.Tsang was able to note from the cashier order that the amount was in a lump sum without splitting the payment in accordance with the split cheque instructions given by the Defendants' solicitors. On the face of such evidence, I do not accept that having shown the cashier order to Mr. Tsang, and Mr. Tsang having had the opportunity to note that the amount of the balance of the purchase price was in a lump sum, the Plaintiff should be faulted for not giving Mr. Tsang more time to "inspect" the cashier order. 38.Counsel for the Plaintiff referred to the case of Cheung Jui Lung Kris v. Perfect Best Limited, unreported, HCA 1437/1998, where there was a dispute as to whether the purchasers had shown to the vendor the cheques which they had brought along for the completion, and it was held in the case that the purchasers would not be prevented from treating the vendor's refusal to complete as an act of repudiation. Recorder Edward Chan, S.C. observed in his judgment :
39.On the facts of the present case, it is not in dispute that the Plaintiff and Mr. Tang were informed by Mr. Tsang that the Defendants had not attended the offices of the Defendants' solicitors as they had never accepted formal completion to be held on the day, that Mr. Tang had shown the cashier order to Mr. Tsang, and that Mr. Tsang had informed Mr. Tang that there was "simply no basis for formal completion" on the day. Having attended the offices of the Defendants' solicitors at the scheduled time for completion, having come with the cashier order and having shown the cashier order to Mr. Tsang acting on behalf of the Defendants, I am satisfied that there was a sufficient tender of the balance of the purchase price by the Plaintiff. 40.I am satisfied, on the evidence, that the conduct of the Defendants and their solicitors on 20 April 2007 had made it plain that the Defendants were not prepared to complete the sale and purchase at the scheduled time, notwithstanding the Plaintiff's ability and readiness to proceed, and that the Plaintiff is entitled to treat the Defendants' conduct as a repudiation of the Agreement. Award 41.I will therefore give the following relief sought by the Plaintiff :
Mr. Simon K. C. Lam instructed by Fung Wong Ng & Lam, solicitors for the Plaintiff Mr. Tommy K. K. Ho instructed by Kevin Li & Co, solicitors for the Defendants |
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