Read the full judgment text of CACV 000104/1989 on BabelCite. This Court of Appeal judgment was delivered on 20 February 1990 before Cons, V.-P., Clough JA, Penlington JA.
Land law – contract for sale of land – preliminary agreement – whether legally binding – whether failure to agree formal Sale and Purchase Agreement discharges the preliminary agreement – whether vendor entitled to withdraw – whether 'on or before' completion date makes time of the essence – Conveyancing and Property Ordinance (Cap 219) s.13 – root of title – 1962 assignment vs 1982 assignment – implied term that purchaser's requisitions be raised within reasonable time – anticipatory breach – repudiation – whether innocent party affirmed contract – whether acceptance of refund of deposit signifies acceptance of repudiation – specific performance – readiness and willingness – whether purchaser required to raise requisitions and tender balance after vendor's repudiation – Fry on Specific Performance – Fercometal v Mediterranean Shipping Co – Frost v Knight – Hasham v Zenab – preliminary agreement held binding open contract – vendor's withdrawal held wrongful – specific performance ordered with inquiry as to title – appeal dismissed with costs.
Legal issues: Whether 'on or before 21st February 1989' in clause 6(b) made time of the essence of the preliminary agreement · Whether the 14% deposit under clause 4(b) was a concurrent obligation payable independently of signing the Sale and Purchase Agreement · Whether the purchaser accepted the vendor's repudiation by failing to sue before the completion date or by accepting the 1% refund · Whether the purchaser was obliged to raise requisitions on the vendor's title between repudiation and completion date · Whether the vendor was entitled to withdraw from the preliminary agreement because the parties failed to agree the formal Sale and Purchase Agreement
Outcome: Vendor's appeal dismissed with costs; Mortimer J.'s order for specific performance in favour of the purchaser upheld.
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