Read the full judgment text of CACV 195A/2010, CACV 195/2010, CACV 205/2010 & CACV 206/2010 on BabelCite. This Court of Appeal judgment was delivered on 15 April 2011 before Tang Ag CJHC, Kwan JA, Chu J.
Civil law – joint venture agreement – construction of indigenous villagers' houses – whether plaintiffs have any claim over 1st Land and 1st Houses – whether registration of JV agreement and lis pendens at Land Registry should be vacated – whether proposed amendment pleading 1st defendant as agent of co-defendants should be allowed. Joint Venture Agreement dated 31 January 2005 between 1st Plaintiff and 1st Defendant for the 2nd Plaintiff to build 6 indigenous villagers' houses on the 1st Land for 6 named villagers (2nd-7th Defendants) and 11 houses on the 2nd Land for 11 named villagers (8th-18th Defendants), subject to a 5-year non-alienation restriction unless a premium assessed by the District Land Officer is paid. The 1st Defendant claimed the 1st Plaintiff failed to pay the premium for the 2nd Houses and terminated the JV Agreement, while the 1st Plaintiff treated the termination as a wrongful repudiation and claimed damages for loss of profits. HCMP 1760/2009 was an interpleader summons by the depositing solicitors (HLLY) over title documents, and HCA 1902/2009 was the main action registered as a lis pendens. The 2nd to 7th defendants undertook to vest the 1st Land and 1st Houses in Lau Shau Wo Tso, whose application to be joined as 19th Defendant was refused. Held, on the issue of whether the Plaintiffs have any claim over the 1st Land and 1st Houses: No. Under clause 2.06 of the JV Agreement, the 1st Plaintiff was obliged to cause the 2nd Plaintiff to deliver vacant possession of the 1st Houses to the 1st Defendant within 14 days of letters of compliance. The recitals and provisions relied on by the Plaintiffs merely facilitated development and did not confer any post-completion interest in the 1st Houses or 1st Land. Even absent any breach, the Plaintiffs would have no claim to the 1st Land, the 1st Houses, or their title documents. Held, on the issue of whether the proposed amendment pleading the 1st Defendant as agent or attorney of the 2nd to 18th Defendants should be allowed: No. The recitals and terms of the JV Agreement make clear the 1st Defendant entered the agreement for his own purposes to discharge his own obligations to the villagers, and clause 6.13 stipulated the agreement is personal to the parties. It would be illogical for the 2nd to 18th defendants to enter the JV Agreement through the 1st Defendant since they owe no obligations to the 1st Plaintiff. Plaintiffs seeking leave to amend must plead with sufficient particularity, and no supporting evidence was available. The Deputy Judge properly vacated the registration of the JV Agreement against both the 1st and 2nd Lands and the lis pendens against the 1st Land and 1st Houses, while leaving the lis pendens in respect of the 2nd Land and Houses undisturbed. Appeal dismissed with costs to be taxed unless agreed.
Legal issues: Whether Plaintiffs have any claim over the 1st Land or 1st Houses · Whether the proposed amendment pleading 1st Defendant as agent of 2nd-7th Defendants should be allowed
Outcome: Appeal dismissed
Cites 2 cases