Read the full judgment text of CACV 000113/1998 on BabelCite. This Court of Appeal judgment was delivered on 17 March 1999 before Nazareth V-P, Liu JA, Stock J.
Conveyancing and property law – sale of land – vendor and purchaser summons – requisitions on title – height restriction covenant – Government lease – Rural Building Lot No. 168 – 35-foot height restriction – Repulse Bay Mansions Block C 6-storey block exceeding 35 feet – no modification of height restriction for Block C – whether vendor's reply to purchaser's requisition was satisfactory – whether vendor showed and proved good title – real (not fanciful) risk of Government enforcement – test from Kok Chong Ho Wong Mui v Double Value Developments Ltd H.C.M.P 2857 of 1990 – burden on vendor to establish absence of real risk beyond reasonable doubt – proof of Government knowledge of breach essential before waiver or abandonment can be inferred – Attorney General of Hong Kong v Fairfax [1997] HKLRD 243 (PC) applied – bare assertion of 40 years' inactivity insufficient – inferences cannot be drawn from mere assertion – conveyance practice geared to uphold bargains but not to force title on unwilling purchaser – clause 8 of Sale and Purchase Agreement seven-working-day requisition time limit – whether purchaser precluded for not raising further requisition on answer – requisition on suspected encumbrance once raised within time remains extant – no contractual requirement to make further requisitions on answers to earlier requisitions – appeal allowed by majority (Nazareth V-P and Stock J; Liu JA dissenting) – declarations sought by purchaser granted – costs of appeal and below to appellant – further appeal to Court of Final Appeal (FACV 000009/1999).
Legal issues: Whether the vendor's reply satisfactorily answered the purchaser's requisition on the height restriction covenant · Whether the vendor has shown and proved good title in light of the height restriction breach · Whether the purchaser was precluded from challenging the vendor's response for not specifying when the building exceeded 35 feet
Outcome: Appeal allowed by majority (Nazareth V-P and Stock J; Liu JA dissenting). Declarations sought by the purchaser made. Order nisi that the respondents pay the appellant's costs of the appeal and below.