823 Investment Ltd v. Richly Bright International Ltd

HCA1452/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1452 OF 2010

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BETWEEN

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Before: Hon McWalters J in Chambers (Open to public)

Date of Hearing:  22 February 2011

Date of Decision:  22 February 2011

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J U D G M E N T

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1.This is an application by the plaintiff for summary judgment pursuant to Order 86 of the High Court Rules. 

2.There is no disagreement as to the principles to be applied in adjudicating this application.  Summary judgment should only be given where it is a clear and obvious case and ought, therefore, not to be tried.

3.It is not the function of this court at this stage of the proceedings to assess if the defendant’s defence will succeed at trial.

4.On factual matters, I only have to determine whether what is asserted by the defendant is believable, not whether it will be believed, and if so, whether what the defendant says amounts to an arguable defence in law.

5.On legal issues, I only have to be satisfied that there are arguable defences or serious disputes of law.

6.This case concerns what has come to be known as the Hong Kong style of completion in respect of conveyancing transactions.  This involves the use of undertakings by solicitors to provide documents at a future date.  Such a practice has apparently become common, especially in respect of confirmor transactions.

7.The plaintiff claims, in respect of the conveyance that is the subject of his action, that it was the intention of the parties that such a practice should apply in respect of two documents which the plaintiff would otherwise have had a legal obligation to produce at completion in order to give title.  The plaintiff asserts that the intention of the parties is not embodied as an explicit term in any agreement but can be implied from the correspondence.

8.The defendant denies that this was the intention of the parties and argues that as a matter of conveyancing practice the use of undertakings does not extend to documents of title and, furthermore, that as a matter of law it cannot, unless there is an express and unequivocal term to that effect in the sale and purchase agreement.

9.On the evidence that is before me, I cannot say that the defendant’s claim as to the intentions of the parties is not believable.  Moreover, the legal issues that have been raised are clearly serious disputes of law and would provide the defendant with an arguable defence.

10.I therefore refuse the application and grant unconditional leave to the defendant to defend.  I order that the costs of the Plaintiff’s summons be costs in the cause.

Mr Kent Yee, instructed by Messrs Alfred Lam, Keung & Ko, for the Plaintiff

Ms Josephine Tjia, instructed by Messrs Tsangs, for the Defendant