Wise Think Global Ltd v. Finance Worldwide Ltd
Read the full judgment text of CACV 10/2011 on BabelCite. This Court of Appeal judgment was delivered on 24 October 2012.
1. By a Provisional Agreement for Sale and Purchase in a printed form and in both English and Chinese ("the Provisional SPA") [1] , the Plaintiff ("the Purchaser") agreed to buy from the Defendant ("the Vendor") the Ground Floor of Block C, Nos. 301 and 301A-C, Prince Edward Road West, Kowloon, Hong Kong (the "Property"). The purchase price was HK$18,000,000 of which an initial deposit of HK$500,000 was paid upon the signing of the Provisional SPA.
Cited by 4 cases · Cites 7 cases
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CACV 10/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 10 OF 2011 (ON APPEAL FROM HCMP NO. 571 OF 2010) ____________
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____________ Before: Hon Tang VP, Yuen JA and Kwan JA in Court Date of Hearing: 12 June 2012 Date of Judgment: 24 October 2012 _______________ JUDGMENT _______________ Hon Tang VP: Introduction 1.By a Provisional Agreement for Sale and Purchase in a printed form and in both English and Chinese ("the Provisional SPA")[1], the Plaintiff ("the Purchaser") agreed to buy from the Defendant ("the Vendor") the Ground Floor of Block C, Nos. 301 and 301A-C, Prince Edward Road West, Kowloon, Hong Kong (the "Property"). The purchase price was HK$18,000,000 of which an initial deposit of HK$500,000 was paid upon the signing of the Provisional SPA. 2.Several clauses in the Provisional SPA are important and are set out below:
3.It will be noted that in Clause 14, the parties have struck out the Chinese character “英”and the English word "English", so that it reads:
4.Clause 15 was added and was in Chinese only. The translation reads:
Correspondence 5.As is usual in this kind of cases, the solicitors for the parties, Messrs Gallant Y T Ho & Co ("GYTH") (for the Vendor) and Messrs Edward Ko & Co ("EK") (for the Purchaser) entered into correspondence relating to the Formal Agreement for Sale and Purchase ("Formal SPA"). 6.By letter dated 11 January 2010 GYTH enclosed a draft Formal SPA for approval and asked that if approved, it should be treated as engrossment and be returned duly signed by the Purchaser together with the further deposit. It ended with a standard statement:
7.By letter dated 12 January 2010, GYTH sent to EK:
8.By letter of 13 January 2010, EK returned the re-engrossed Formal SPA together with a cheque for $3,100,000 and stated:
9.On 14 January 2010, GYTH enclosed a copy of a draft power of attorney[2] for the comments of EK. On 15 January 2010, the draft power of attorney, after slight amendment, was returned to them for their further action. 10.On 21 and 26 January 2010, EK wrote to record that more than 3 working days had passed and that they had not received the duly signed Formal SPA and that they would hold GYTH:
11.On 26 January 2010, EK again wrote to record that GYTH had breached their undertaking and they:
12.GYTH replied by letter dated 28 January 2010 as follows:
13.On the same day EK replied and stated:
14.By letter dated 1 February 2010 GYTH explained:
15.EK replied on 5 February 2010:
16.The last letter I need to refer to is dated 10 February 2010 from GYTH, which insisted that Clause 6(a) was not applicable but Clause 7 was and:
The Trial 17.On the basis of such evidence the matter went to trial before Recorder Anderson Chow, SC, who agreed with the Purchaser's contention that under Clause 7 the Vendor was obliged to pay a sum equivalent to the initial deposit of $500,000 as well as the further deposit of $3,100,000 and that since the Vendor had failed to do so, the Vendor could not rely on Clause 7. The learned Recorder ordered specific performance in favour of the Purchaser. The Appeal 18.On appeal, the Vendor was represented by Mr Johnny Mok, SC (together with Mr Jenkin Suen) and the Purchaser by Mr Edward Chan, SC and Mr Allen Lam. 19.As the correspondence[3] show the Vendor purported to invoke Clause 7 by paying a compensation equivalent to the initial deposit. The only issue on appeal is whether the learned Recorded was right that the Vendor was obliged also to pay the equivalent of the further deposit. 20.In order to decide whether Clause 7 required compensation which included the further deposit, it will be necessary to consider whether, and if so, when the further deposit was payable under the Provisional SPA. And in any event, whether the further deposit had been paid under the Provisional SPA. Were the parties obliged to sign a formal SPA? 21.Clause 2(c) is relevant. It does not in terms require the parties to sign a formal SPA. It provides that "Upon signing (a formal SPA) … on or before 13/1/2010" a further deposit of $3,100,000 "shall be paid". 22.In New Champion (Hong Kong) Ltd v Treble & Triple Ltd, HCA 2691/2008 (unreported, dated 21 July 2010), Fok J (as he then was), was concerned with a similar provision. There, the purchase price was HK$45,600,000 of which HK$2,219,000 was to be paid upon the signing of the provisional SPA, and
23.Fok J said:
24.In Man Wing Fun Stephen and Anor v Ho Ching Yee Susanna¸ HCA 3724/1997 (unreported, dated 25 February 1999), Recorder Edward Chan, SC was concerned with a provisional SPA which had similar provisions. The learned Recorder said:
25.With respect, I agree with Fok J and Recorder Edward Chan. I am of the view that the parties were not obliged under the Provisional Agreement to enter into a Formal SPA. When or upon what event was the further deposit payable. 26.The language of Clause 2(c) is clear. The further deposit was to be paid "Upon signing" of the Formal SPA. This view is amply supported by the following authorities. 27.In Yiu Yau-ping v Fong Yee-lan [1992] 2 HKLR 167 this Court was concerned with a provisional agreement which provided:
28.Nazareth JA (as he then was), giving the judgment of the Court, said at page 175:
29.Mr Chan has referred us to See To Keung v Sunny Way Ltd [2009] 5 HKLRD 300, another decision of this Court. But See To Keung turned on the special wording of a clause, and where
30.On the basis of the language of that clause, Yuen JA[4] said:
31.The observations of Yuen JA made earlier in her judgment are also relevant. She said:
32.In Link Brain Ltd v Fujian Finance Co Ltd [1990] 2 HKLR 353, the provisional agreement expressly required the signing of a formal sale and purchase agreement:
and that an installment of 14% of the purchase price was by clause 4 payable to the vendor's solicitors "upon signing the Sale and Purchase Agreement". 33.Clough JA, giving the judgment of the court, said at page 364E:
34.Health Link Investment Ltd v Pacific Hawk Investment Ltd [1995] 1 HKC 249, another decision of this court, was to similar effect[5]. The Construction of Clause 7 35.The English version reads:
36.The Chinese version:
37.Whilst the English version uses the expression "the initial deposit", the Chinese version of Clause 7 uses the expression "the total amount of deposit paid". 38.The English version of Clause 7 presents no difficulty. It states clearly that the Vendor could avoid e.g. specific performance by paying the equivalent of the initial deposit as compensation. 39.It is useful to compare Clause 6[7] which covers the situation where it was the purchaser who fails to complete. Normally, one would expect these clauses to be mirror images. But the English version of Clause 6 is clearly different from the English version of Clause 7. It provides that in the event of the purchaser's failure to complete "all the deposit paid pursuant to clause 2 hereof shall be forfeited to the Vendor" (my emphasis). 40.The Chinese version of Clause 6 is identical in meaning and effect and equally explicit. It provides for the forfeiture of
41.As I have said the English version of Clause 7 is clear. It refers to the initial deposit, and that is the measure of the compensation payable. The Chinese version does not in terms refer to the initial deposit. It uses the expression "the total amount of deposit paid". Unlike the Chinese version of Clause 6, it does not mention Clause 2. I do not believe that is a critical difference. 42.Mr Chan submitted that since the parties had agreed that in case of ambiguity the Provisional SPA should be interpreted in its Chinese version, the Vendor was liable to refund all the deposits paid and not merely the initial deposit. 43.I agree. The expression “所付之定金全數” clearly meant all the deposits paid. In my view although the parties were not obliged to enter into a Formal SPA, and that the further deposit was only payable upon the signing of the Formal SPA, if the further deposit had actually been paid, it would be covered by the Chinese version of Clause 7, and the compensation payable under Clause 7 must include the further deposit as well. 44.In New Champion (Hong Kong) Ltd, it was the purchaser who had failed to complete. There too, the parties had not entered into a formal SPA. But as Fok J noted:
45.There, Clauses 7 and 8 of the provisional SPA covered default by the purchaser and the vendor respectively. They expressly provided for the forfeiture or refund of the initial deposit. The vendor's argument that under Clause 8, it was entitled to forfeit not just the initial deposit but also the further deposit was rejected by Fok J because of the language of the relevant clause. Moreover, Fok J went on to say:
46.With respect, I agree. Had the further deposit been paid? 47.The critical question in the present appeal is whether the further deposit had been paid. New Champion (Hong Kong) Ltd provided an example where a further deposit was actually paid although it might not have been payable. So here, if the further deposit had been paid, then under Clause 7, the compensation payable by the Vendor would have to include the further deposit. 48.Mr Edward Chan submitted that it had been paid. He relied on the EK's letter of 13 January 2010[9], which sent a cheque for HK$3,100,000 together with the engrossed Formal SPA to GYTH
49.Mr Edward Chan rightly did not contend that payment was made on 13 January 2010, nor when the cheque was cashed. Plainly no undertaking had been given. Nor could it be deemed to have been given. 50.However, he submitted that payment must be deemed to have taken place upon the expiration of 3 working days, in the absence of any indication from GYTH that the required undertaking would not be forthcoming. 51.Mr Chan also relied on Clause 2 which provided that the further deposit
52.Mr Chan submitted this clause shows that payment to GYTH as stakeholder could be a payment to the Vendor. I do not believe this clause helps. The question is not whether payment to GYTH as stakeholders could amount to payment to the Vendors. It could. The question is whether the payment was conditional and the condition had been satisfied. 53.Mr Chan submitted that payment was made in terms of the undertaking spelled out in the letter of 13 January 2010. He relied on the language of the letter of 13 January 2010. He accepted that the payment was not unconditional. Nor had it become unconditional upon receipt by GYTH, or when the cheque was cashed by GYTH. Mr Chan accepted that GYTH could cash the cheque, contact their clients with a view to the signing of the Formal SPA, and when they realized their client would not do so, they could inform EK that they were not in a position to give an undertaking. However, Mr Chan added, provided that all these took place within 3 working days. 54.According to his submission, the expiration of 3 working days was the earliest time at which the undertaking could be deemed to be given. He also submitted that immediately after the deemed giving of the undertaking the undertaking could be said to have been broken. That is because the undertaking was to return the duly signed and attested documents within 3 days. 55.The artificiality of this submission is obvious. With respect, I reject it. 56.Mr Chan also submitted that the payment should be regarded as having been made against GYTH giving the undertaking sought, and the undertaking must be deemed to have given on the expiration of the 3 working days, and it was not a condition of the payment that the Formal SPA be duly signed, attested, and returned. The payment was made merely upon GYTH's undertaking to do so. 57.It is obvious that on 13 January 2010 when the cheque for HK$3,100,000 was sent it was sent pursuant to Clause 2(c). In other words, it was meant to be payment "upon signing …". The undertaking sought was a result of the Hong Kong conveyancing practice designed to avoid the physical and simultaneous exchange of the cheque and the signed and attested Formal SPA. The payment was never meant to be independent of the delivery of the signed and attested document. I do not believe, for example, that the Vendor could refuse to sign the Formal SPA but treated the further deposit as having been paid. Mr Chan submitted that the Purchaser could waive the execution of the Formal SPA. But he agreed that a unilateral payment would not suffice. The submission was made in passing and not properly developed. I will not deal with it since the correspondence show that there was no waiver at any material time[10]. 58.Furthermore, although the language of the undertaking could be improved, I believe that it was its essence that the Formal SPA should be signed, attested and returned. A mere undertaking by solicitors to do so, for which the solicitor responsible might be subject to disciplinary action was not sufficient. 59.For the above reasons, I would allow the appeal and make an cost order nisi in favour of the Defendant with certificate for 2 counsel. Hon Yuen JA: 60.With great respect to the other members of this court, I would dismiss this appeal. Overview 61.1As I shall seek to explain below, the issue in this case is not whether the further deposit of $3.1m was payable. In my view, the crux of the matter isthat the Vendor through its solicitors accepted payment of the further deposit (having called for it and having agreed the terms of the Formal SPA). 61.2The parties having contracted that the further deposit was to be paid “upon signing of the Formal Agreement for Sale and Purchase”, once the Vendor decided to accept payment, it was bound to sign the Formal SPA. And since the Formal SPA superseded the Provisional SPA (see cl.27), the “escape route” provided by cl. 7 of the latter document was no longer available to the Vendor. The Vendor was therefore bound to sell the property. 61.3Even if that view was not correct and the “escape route” in the Provisional SPA was still available, on the construction of the prevailing Chinese version, the Vendor could only have availed itself of it by paying double “the total amount of deposit paid by the Purchaser” (“買方所付之定金全數”). The Purchaser having paid the total amount of $3.6m as deposit, the Vendor would have to pay double this sum if it wished to resale from the sale. The Vendor did not do so. 61.4I would therefore agree with the learned Recorder that the Purchaser is entitled to specific performance. Provisional SPA 62.1I would first like to say a word about provisional SPA’s. The courts have over the years construed various forms of provisional SPA’s written in English, and the way in which certain standard provisions should be construed has been settled by the courts in a number of authorities. 62.2However in recent years, bilingual forms of provisional SPA’s have been adopted by estate agents. Sometimes the Chinese wording is different from the English wording. Sometimes the positioning of the blanks for sums to be filled in may make the meaning of the clause in the English and Chinese versions quite different. 62.3Where the English version is said to prevail, there should be little difficulty with construction by reason of the authorities. 62.4However where the Chinese version is said to prevail, the parties and the courts must be careful before adopting a construction which is based on authorities on the English version only. Cases such as See To Keung and the present appeal have shown that standard provisions in English have been “translated” in different ways in Chinese, to different effect. 62.5With more and more bilingual versions being used, I hope the estate agent industry would consider promoting a standard form where the English and Chinese versions would bear the same meaning so that unnecessary problems over language would no longer arise. 63.As for the Provisional SPA in the present case, the intention of the parties as expressed in cl.14 is that in the event of any conflict between the two versions, the Chinese version should prevail. I note that that was common ground between the parties and was also the view of the learned Recorder (see para.11 of his judgment). Construction of cl.2(c) 64.1The next question is whether there were any conflicts between the English and Chinese versions. I shall deal first with cl.2(c). 64.2The learned Recorder held that cl.2(c) should be construed in the same way as cl.2(b) in See To Keung. With great respect to the learned Recorder, I do not agree. 64.3In See To Keung, the prevailing Chinese version of cl.2(b) provided:
This court held, construing the words above, that the purchaser was obliged to pay the further deposit on 8 November 2004, whether that was the date on which the Formal SPA was signed, or before that document was signed. 64.4However, cl.2(c) in the present case is different from cl.2(b) in See To Keung. The positioning of 即 (“that is”) and 或之前 (“or before”) in our case makes it clear that whether in the English or Chinese versions, the payment of further deposit was intended to be done simultaneously with the signing of the Formal SPA. 65.1Where the parties have signed a clause in a provisional SPA stating that “upon signing the formal sale and purchase agreement on or before [date], the further deposit of [$X] shall be paid”, this court has held in a number of judgments that the two obligations were “linked”, to be “simultaneously performed”, and “mutually dependent on each other” (Link Brain Ltd v Fujian Finance Co Ltd [1990] 2 HKLR 353; Yiu Yau-ping v Fong Yee-lan [1992] 2 HKLR 167; Health Link Investment Ltd v Pacific Hawk Investment Ltd [1995] 1 HKC 249). 65.2Thus, as there is no obligation on either party to sign the formal SPA, the further deposit would not be payable if the Formal SPA is not executed. 65.3In my view, it follows as night follows day, that where the terms of the formal SPA are agreed and a vendor accepts payment of the further deposit, he has placed himself under an obligation to sign the formal SPA, as that was what the parties had agreed as reciprocal obligations. 65.4Put another way, the options open to the parties to a provisional SPA would generally be these:
65.5This is the choice that was referred to at the hearing of the appeal as “the fork in the road”. Once the parties have gone down the formal SPA route, there is no turning back. Facts of this case 66.In the present case,
In my view, it is clear from these 4 steps that the parties had gone down the “Formal SPA route”, and the Vendor was bound to sign the Formal SPA as the reciprocal obligation for accepting payment of the further deposit. 67.11 Step (1) cannot be disputed. The parties through their respective solicitors had agreed the terms of the Formal SPA. 67.2I think Step (2) is similarly clear. The Vendor had (by its solicitors’ letter of 12 January 2010) called for payment of the further deposit. 67.3As part of the Vendor’s arguments before us, leading counsel referred to the usual sentence at the end of that letter, that the terms of the Formal SPA would not be binding until it was signed by the Vendor. However that does not detract from the point I shall discuss later - that the Vendor was bound to sign the Formal SPA when it accepted payment as these were agreed to be reciprocal, simultaneous events. Purchaser’s tender of the further deposit 68.1As for Step (3), it is not disputed that the Purchaser executed the Formal SPA. 68.2Further I think it cannot be disputed that the Purchaser had also tendered payment in accordance with the terms of the Provisional SPA. 68.3It is true that the further deposit was tendered by way of a solicitors’ cheque drawn in favour of the Vendor’s solicitors as “stakeholder”, but this was in accordance with what the parties had agreed in the contract, as follows (cl.2):
68.4The sum was not tendered as earnest money, nor was it payable under any separate arrangement between the Purchaser and the Vendor’s solicitors. It was payable only in exchange for execution of the Formal SPA. It was referable only to the Vendor’s demand (made through its solicitors the previous day) for “further deposit”, and it was expressly tendered as such. 68.5It should be noted that no undertaking was sought from the Vendor’s solicitors to return the further deposit. 68.6It is clear also that for its part, the Vendor clearly understood and accepted that the sum had been paid as “further deposit”. Thus in its letter dated 28 January 2010, the Vendor’s solicitors sent to the Purchaser’s solicitors a cheque in the same sum “being the further deposit”. Vendor’s acceptance of the further deposit 69.Step (4) is also clear, that the Vendor through its solicitors accepted payment of the further deposit. The cheque was cleared and funds transferred the next day. It was only 15 days later that the Vendor sought to renege from the transaction, saying that it had not signed the Formal SPA, and seeking simply to return the funds. The undertaking 70.1There was much argument before us about the undertaking sought from the Vendor’s solicitors, in exchange for which the Formal SPA was delivered to the Vendor’s solicitors and the cheque for the further deposit was tendered. 70.2Before considering the undertaking in this case, one must first go back to general principles. It has been said by the Privy Council that, in the context of a contract for the sale of land, it is a
That was of course said in the context of completion, but the same common-sense principle must apply where a substantial further deposit is paid by a purchaser in exchange for the vendor’s signed Formal SPA. As all the authorities referred to in para. 64.1 have held, the signing of the Formal SPA and the payment of the further deposit are intended to be reciprocal (“linked”, “simultaneous”, “mutually dependent”) acts. 70.3The original English style of conveyancing required a simultaneous handing over by the purchaser’s solicitors of the purchase price (or in our case, the further deposit), in return for the handing over by the vendor’s solicitors of the documents of title (or in our case, the Formal SPA signed by the vendor). See Edward Wong p.305A 70.4The Hong Kong style of conveyancing relies on the use of undertakings between solicitors, whereby the purchaser’s solicitors send the purchase price to the vendor’s solicitors, on the latter’s undertaking to send within a specified period of time documents executed by the vendor . As the Privy Council said in Edward Wong, the Hong Kong style of conveyancing “is peculiarly well adapted to the conditions in Hong Kong. It has obvious advantages to both solicitors and their clients. Their Lordships intend to say nothing to discourage its continuance” (p.306E). 70.5It is not necessary to examine why on the particular facts of Edward Wong, the embezzlement of the purchase price by the vendor’s rogue solicitor led to a successful claim in negligence against the mortgagee’s solicitors. What is relevant to our case is that their lordships held that if the solicitor giving the undertaking had authority from his client to receive the purchase price (or in our case, the further deposit), the purchaser would be in the “favourable position which he ought to occupy when he parts with his money, that is to say, he would have an unanswerable claim against the other side for specific performance of that party’s obligation to execute the appropriate assurances” (p.308 A-B, emphasis added). 70.6As pointed out earlier, the Vendor’s solicitors here did have authority to receive the deposits, albeit under the condition stipulated in the “stakeholder” part of cl.2. 71.1I have referred to Edward Wong to show that when a vendor’s solicitor is authorized by his client to receive funds, the undertaking the solicitor gives to send documents duly executed by his client binds his client to execute them. At risk of repeating myself, it gave the Purchaser “an unanswerable claim against the other side for specific performance of that party’s obligation to execute the appropriate assurances” (p.308 A-B). 71.2In my view that accords with common sense and justice. Where there is an agreement where the Purchaser’s payment of money and the Vendor’s execution of documents are intended to be reciprocal acts, the Purchaser is entitled to be handed the Vendor’s executed Formal SPA when he parts with his money. The Purchaser parted with his money to acquire a property, not for an opportunity to complain to the Law Society against the Vendor’s solicitors for breach of undertaking. 71.3Further in my view, cl.2(c) having stipulated that the payment of the further deposit is simultaneous with the signing of the Formal SPA, the time specified in the undertaking does not extend the time for the Vendor to sign the Formal SPA. It is simply an indulgence given to the Vendor’s solicitors to deliver the signed Formal SPA. 71.4The Purchaser’s solicitors’ letter of 13 January 2010 supports this understanding. It said:
The 3 working days refer to the return of the signed and attested Formal SPA. 72.1On receipt of this letter the Vendor’s solicitors did not reply in so many words “we give the undertaking”, but that is clear from their acceptance and retention of the Purchaser’s signed Formal SPA and the cheque for the further deposit. Those items were delivered to them “against” the undertaking, meaning one act in exchange for another. The Vendor’s solicitors had apparent authority to act for the Vendor. If they had no instructions to give the undertaking binding their client to sign the Formal SPA, they should not have taken delivery of those documents, or should have returned them immediately. 72.2In my view, it would not do for them even to hold on to the Formal SPA and the cheque, and then only return them at the expiry of 3 days. The common-sense principle is that, even for the purchase of a loaf of bread, money is not handed over except in exchange for the delivery of the goods. There is no reason why the Purchaser should have parted with its money and - having signed the Formal SPA - bound itself to the purchase of the property for a period of time, whilst the Vendor kept the Purchaser in suspense and kept its own options open (over a period of 3 days, 15 days, or even all the way till completion) by not signing the Formal SPA. There is simply no provision in the agreement that permitted that. On the contrary, the parties had agreed in cl.2(c) that the obligations of payment and execution were to be “simultaneously performed”. 72.3In the present case, once the cheque was deposited, there could not have been any doubt at all but that the Vendor was obliged to specifically perform its part of the reciprocal obligations, i.e. sign the Formal SPA. 73.1Even if the view I have expressed above was incorrect, and that somehow the Formal SPA did not supercede the Provisional SPA (despite the express provision in cl.27), in my view the Vendor could not resile from the agreement except upon paying double the “買方所付之定金全數” (“total amount of deposit paid by the Purchaser”). 73.2Unlike the English version of cl.7, it is not limited to the “initial deposit”. That sum ($500,000) paid at the signing of the Provisional SPA was referred to as “臨時定金” (cl.2(a)). 73.3There is therefore a clear difference in the terms used in cl.2(a) and cl.7 of the Chinese version when referring to the “initial deposit” and the “total amount of deposit paid”. Applying generally applicable canons of construction, the Vendor could only have used cl.7 to avoid specific performance if it paid the Purchaser double the sum of $3.6m, being the total amount of deposit paid. The Vendor did not do so. Accordingly even on that scenario, cl.7 had not been engaged. 74.I would dismiss the appeal with costs to the Purchaser (Respondent). Hon Kwan JA: 75.I have had the benefit of reading in draft the judgment of the Acting Chief Judge and agree with him the appeal should be allowed for the reasons given by him. I wish to add a few words of my own. 76.The learned recorder held that on a proper construction of clause 2(c) of the Chinese version of the Provisional Agreement, the purchaser was required to pay the further deposit either upon the signing of the formal agreement for sale and purchase, which was scheduled to take place on 13 January 2010, or before that date, so that the further deposit was payable at the latest on 13 January 2010 independently of the signing of the formal agreement. He regarded this provision as similar to clause 2(b) considered in See To Keung v Sunny Way Ltd [2009] 5 HKLRD 300. 77.I do not agree with this interpretation of the Chinese version of clause 2(c), which appears to be a literal reading of the provision. In my view, the whole of the phrase “即13/1/2010或以前” [translated as “that is 13/1/2010 or before”] should be read as referring to the time for the signing of the formal agreement. In other words, there is no difference in meaning between the Chinese version and the English version, which reads: “Upon signing of the Formal Agreement for Sale and Purchase on or before 13/1/2010 further deposit shall be paid in the sum of HK$3,100,000.” 78.For the above reason, See To Keung v Sunny Way Ltd is distinguishable. 79.The recorder further held that the further deposit was actually paid and received, even if it were only payable as a matter of contract upon the signing of the formal agreement. The arguments advanced by the purchaser in this court that payment of the further deposit should be regarded as having been made against the undertaking deemed to have been given and broken by the vendor’s solicitors were not made in the court below. 80.I agree with the reasoning of the Acting Chief Judge that the plaintiff’s arguments should be rejected. The undertaking sought by the purchaser’s solicitors could not be regarded as having the effect of unilaterally altering the contractual provision that the further deposit was payable upon the signing of the formal agreement.
Mr Edward Chan, SC and Mr Allen M Y Lam, instructed by Messrs Edward Ko & Company, for the Plaintiff Mr Johnny Mok, SC and Mr Jenkin Suen, instructed by Messrs Gallant Y T Ho & Co, for the Defendant [1] The parties could not agree a translation of the Chinese version. The translation used in this judgment is my own. [2] This is the subject of clause 15. See para 4 above. Mr Chan at one time relied on the fact that on 14 January 2010 (see para 5 above) GYTH sent along a copy of a draft power of attorney as support for the giving of an undertaking. By the end of his submission I believe he no longer relied on it. [3] Letter of 10 February 2010 at para 16 above. [4] With the concurrence of the other members of the court. [5] See the judgment of Nazareth VP at page 256. [6] This can be translated as "the Vendor apart from refunding the total amount of the deposit paid, (shall) compensate the Purchaser by a payment of an equivalent amount". [7] See para 2 above. [8] The provisional SPA was dated 9 November 2009 and an initial deposit of $2,219,000 was paid upon signing. [9] See para 8 above. [10] See letter of 21 January 2010 at para 10, letter of 26 January 2010 at para 11, letter of 28 January 2010 at para 13, where the complaint was that GYTH was in breach of their undertaking and had failed to return the Formal SPA signed and attested, and not that the Purchaser was prepared to waiver the return of the Formal SPA. Please refer to FACV3/2013 for the relevant appeal(s) to the Court of Final Appeal. | |||||||||||||||||||||||||||||||||||||
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