Chu Wai Ming Alexander and Another v. Ng Yau Yee Connie

DCMP 2449/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2449 OF 2007

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BETWEEN :

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Coram : H.H. Judge Chow

Date of Hearing : 2^nd October 2007

Date of handing down Decision : 14^th November 2007

DECISION

1.This is the Plaintiff’s application for a declaration to be made that the Plaintiff has proven a good title to all that piece or parcel of ground registered in the Land Registry as The Remaining Portion of Lot No. 5052 in Demarcation District No. 116 together with all messuages sections and buildings thereon (the Property).

2.The Plaintiff as the Vendor and the Defendant as the Purchaser entered into an agreement for sale and purchase dated 23 February 2007 (“the Agreement”) under which the Plaintiff agreed to sell and the Defendant agreed to purchase the Property.

3.After signing the Agreement, the Defendant’s solicitors wrote a letter dated 28 February 2007 to raise requisitions on the title of the Property.  The requisitions in dispute involve:-

“	(3)	An agreement for distribution has been referred to in Assignment Memorial No. YL 157144.  Please let us have a certified copy of the same for our perusal.
	(4)	We note that in Assignment Memorial No. YL 157144, the Assignors as co-administrators assigned the above property to a Wong Sou Lim, who should have been one of the beneficiaries.  Please let us have a certified copy Deed of Family Arrangement made by all beneficiaries approving such transfer to the Assignee.”

4.By a letter dated 10 March 2007, the Plaintiff’s Solicitors wrote to the Defendant’s solicitors and replied to their said requisitions as follows:-

“	(3)	The agreement for distribution was made over 15 years not later than 1965, so that it is not necessary to produce it for proof of title to the above property under Section 13 of the Conveyancing & Property Ordinance.  Section 13 (4A) of the Conveyancing & Property Ordinance applies to presume the truthfulness and correctness of what was described in the said Assignment’s recital that such agreement for distribution of the residuary estate of the deceased resulted into allotment of the premises (Lot No. 5052 in DD 116) unto the Assignee (Wong Sou Lim).
	(4)	The agreement for distribution of the residuary estate of the deceased recited in the Assignment Memorial No. YL 157144 was obviously something equivalent to Deed of Family Arrangement.  For the same reason mentioned in 3 above, it is not necessary to produce it for proof of good title to the above property.”

5.By a letter dated 14 March 2007 the Defendant’s solicitors wrote in response and were still not satisfied by the reply to their said requisitions Nos. (3) and (4).  The Defendant’s solicitors insisted that:- (a) the agreement for distribution had the effect of a Deed of Family Arrangement so that it was a crucial document to prove that all beneficiaries have agreed to such distribution, otherwise the beneficiaries might have a potential claim on the Property, and the Vendor could not rely on Section 13 (4) and they insisted production of a certified copy of the said agreement for distribution; and (b) without a Deed of Family Arrangement, it could not be ascertained as to whether all beneficiaries had agreed to the vesting of the Property to the Assignee Wong Sou Lim, and there remains a potential claim by those beneficiaries on the Property and so good little could not be shown, so that they insisted on the production of a certified copy of the relevant Deed of Family Arrangement/agreement for distribution made by all beneficiaries approving such transfer.

6.The Assignment of the Property was made on 20 December 1965 between Chan Pui Chun and Wong Sou Kan (“the Assignors) and Wong Sou Lim (“the Assignee”).  The relevant part of the Assignment reads:-

“

AND WHEREAS in pursuance of an agreement for distribution of the residuary estate of the said deceased the Assignee was allotted the said premises as part of his share thereof NOW THIS DEED WITNESSETH in pursuance of such agreement and in consideration of the premises the Assignors as such co-administrators as aforesaid DO and each of them DOTH HEREBY ASSIGN AND RELEASE unto the Assignee ALL THAT piece of parcel of ground situate at ……”

7.Section 13 (4) of the Conveyancing and Property Ordinance (“the Ordinance”) stipulates:-

“

(4)

A recital, statement, and description of any fact, matter or party contained in any document of title, mortgage, declaration or power of attorney relating to any land and dated or made not less than 15 years before the contract of sale of that land shall, for the purpose of any question as to proof of title concerning the parties to that contract and unless the contrary is proved, be sufficient evidence of the truth of that recital, statement and description.”

8.It is clearly stated in the Assignment of the Property that in pursuance of the agreement the Assignee was alotted the premises (“the Property”), and the Property was assigned and released to the Assignee in pursuance of the agreement.  The Assignment was made in 1965, more than 15 years before the sale agreement for sale of the Property dated 23 February 2007.  This is sufficient evidence of the truth of what is cited in the Assignment.  No evidence was adduced to show that there has been disagreement to the Assignment from any beneficiary.  Hence there is no evidence to prove to the contrary under section 13 (4) of the Ordinance.   The Plaintiff has proven a good title to the Property.  I therefore grant an order in terms of the Plaintiff’s application.

9.The parties agreed that there be no order as to costs for this application, and I so order.

The Plaintiff represents by Mr. Naresh L. Daryani, instructed by Messrs. Raymond Chan, Kenneth Yeun & Co., Solicitors.

The Defendant represents by Ms. Isabella Lam, instructed by Messrs. Ken Chiu & Co., Solicitors.