Chu Kim-leung and Another v. Wong Suk-yee
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CACV000010/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 10 OF 1973 -----------------
----------------- Coram: Full Court (Hon. Blair-Kerr, S.P.J., Briggs and Pickering, JJ.) Date of Judgment: 11 May 1973 ----------------- JUDGMENT ----------------- Blair-Kerr, S.P.J.: 1. The 1st and 2nd plaintiffs are husband and wife. Their claim was for a declaration that there was a valid agreement binding upon the defendant for the sale by her of a flat on the 14th floor of Han Palace Building, King's Road, to the plaintiffs for $73,000 upon the terms of an agreement for sale and purchase executed by the plaintiffs in the office of the defendant's solicitors. On 13th February, 1973, Cons J. made the following order:
This is an appeal from the learned judge's decision. 2. It appears that during the negotiations for the sale of the flat, the 1st plaintiff had the assistance of his brother, CHU Gay-leung. The substance of Chu's evidence (which was accepted by the judge) might be paraphrased thus:
3. The plaintiffs gave evidence; and they also called Mr. Hwang of Hwang & Co., Solicitors; and the effect of his evidence might be paraphrased thus:-
4. The receipt issued by the defendant's solicitors in respect of the deposit reads:-
5. Hwang & Co. made a note (partly in Chinese) of LO Leung-ka's instructions to them; and he signed it. A translation of the note reads:-
6. The defendant did not give evidence or call any witness on her behalf; and the plaintiffs' evidence was therefore uncontradicted. As I have said, the learned judge found that on 21st June 1972 there was an oral agreement for the sale of the flat; and I see no reason to interfere with that finding. Clearly, by 26th June, the defendant had changed her mind (having, in all probability, obtained a better offer). She, therefore, decided to renegue on her agreement; and, both in the court below and here, she put up this highly technical defence of "no memorandum" based on s.5(1) of the Law Amendment and Reform (Consolidation) Ordinance, which is the modern equivalent of s.4 of the old Statute of Frauds. The section reads:-
As stated in Megarry's Law of Real Property 3rd Ed. at p.554, the object of the Statute of Frauds was "to prevent fraud and perjury"; and there is not the slightest cuggestion of that in this case. 7. The plaintiffs say that there is a sufficient "memorandum ... in writing" if the receipt for the deposit dated 22nd June and the note dated 21st June signed by Lo are read together. Hwang & Co.'s receipt is not sufficient taken by itself because it does not state the full purchase price. But it identifies the property, the vendor (i.e. the defendant), and the 1st plaintiff. 8. It would appear that the note signed by Lo was executed in order to comply with s.5 of the Ordinance; and, as the learned judge said, it does so except in one particular namely that the name of the purchaser is not stated. But, obviously, the receipt and the note containing Lo's instructions may be read together; and the contrary was not argued before this Court. 9. The defendant's first complaint is that Mr. Hwang, her solicitor, had no authority to sign the deposit receipt; that her instructions to him (through Lo) were that an agreement for sale and purchase should be prepared; and that Lo, as her agent, had no power to delegate to Mr. Hwang any powers which she may have given to Lo. 10. I do not propose to waste much time on this ground of appeal. True, Mr. Hwang's evidence was somewhat equivocal; and in "the agreed bundle" there was a letter dated 29th June 1972 from him to the plaintiffs' solicitors in which he said:
The truth of the contents of this letter was not gone into at the trial; and Mr. Hwang was not asked by counsel for the defendant what his (Mr. Hwang's) instructions were. The learned judge saw and heard Mr. Hwang testify. He heard him say that he was acting for the defendant in respect of the sale of several flats in the building; and that during May and June 1972 he had seen the defendant on nany occasions in relation to the suit premises. In my view, there was ample evidence to warrant the judge coming to the conclusion that "the defendant gave instructions to Mr. Hwang to act for her in regard to all the flats in that building that she was then selling, and to accept deposits and issue receipts on her behalf." 11. The main ground of appeal is that the words "CHU Kim-leung and another" on the deposit receipt do not sufficiently identify the parties to the contract. The learned judge appreciated this difficulty because he said:-
12. The defendant's submission is that cases such as Higgins v. Senior(2), Smith-Bird v. Blower(3), Basma v. Weekes(4) and Davies v. Sweet(1) are of no assistance to us in this case because the contract was not between the defendant and the "agent", CHU Gay-leung, and Chu's name does not appear on the memorandum. 13. Of course, the crux of the matter is: who were the parties to the oral agreement? In deciding this question, I do not think it is correct to describe CHU Gay-leung as an "agent" in the sense in which this term is understood in the law of agency. If one reads his evidence carefully, it is clear that he was a spokesman for the 1st and 2nd plaintiffs; but no more. He was not contractually bound as a result of the negotiations conducted by him. Indeed, as counsel for the plaintiffs said, the plaintiffs' instructions could have been conveyed to the defendant equally well by the 1st plaintiff's secretary. 14. I agree with the submission of counsel for the plaintiffs that the oral agreement was between the defendant and the 1st plaintiff. The latter may, or may not, have disclosed that he was acting for himself and also as agent for his wife. But, clearly, he was in fact acting as agent for his wife; and it matters not whether the defendant was aware of this. Therefore, having regard to the fact that it was agreed between the defendant and the 1st plaintiff that the latter would pay the deposit to the defendant's solicitors, it matters not whether the receipt for that deposit, which was issued by the defendant's solicitors, included the words "and another". The point is: The name of the 1st plaintiff appears on the receipt. He is contractually bound both personally and as agent for his wife; and on the authority of Basma(4) she could have been sued as a principal; and in these proceedings as a principal she is entitled to enforce the oral agreement made on her behalf by her husband. 15. The defendant's last complaint is that a material term of the oral agreement was that vacant possession of the premises would be given within one month after payment of the deposit; that there is nothing in the memorandum to indicate when vacant possession would be given; and that therefore the memorandum does not comply with s.5 of the Ordinance. 16. I entirely agree with the learned judge that there is no substance in this complaint. The note made by Hwang & Co. and signed by Lo states that there would be "completion within one month." As Roxburgh J. says in Johnson v. Humphrey(5) (p.463):-
When CHU Gay-leung said in evidence that it was agreed that a deposit of 10% of the purchase price would be paid first "and balance within one month when vacant possession would be given", he was saying no more than that the balance of the purchase price would be paid on completion when vacant possession would be given. 17. Of course, it is open to the parties to a contract for the sale of land to make some special arrangement in regard vacant possession. An example of this occurred in the case of Hawkins v. Price(6). But, as the learned judge said, there was no special, or particular, agreement in regard to vacant possession in the instant case; and, in my view, it matters not that in the memorandum there is no reference to vacant possession. 18. For these reasons, I would dismiss the appeal with costs.
Representation: William Waung (Tong & Ip) for appellant. R. Tang (Hastings & Co.) for respondents. (1) [1962] 2 Q.B. 300 (2) 8 M. and W. 834; 151 E.R. 1278 (3) [1939] 2 A.E.R. 406 (4) [1950] A.C. 441 (5) [1946] 1 A.E.R. 460 (6) [1947] Ch. 645 |