Re The Remaining Portion of Shaukiwan Lot No 132

HCMP 1814/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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D E C I S I O N

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1.The captioned property was first assigned to the applicants’ predecessor in title in 1987. By an assignment in 2013, the applicants became the owners of the property. They are now concerned about what is said to be discrepancy between the description of the property in the assignment and its identification in the assignment plans. Hence the present application.

THE APPLICATION

2.In the assignment to the applicant’s predecessor in title dated 30 November 1987 (“the 1^st Assignment”), the property was described as follows:

“ALL THOSE 2 equal undivided 18^th parts or shares of and in ALL THOSE pieces or parcels of ground respectively registered in the Land Registry as THE REMAINING PORTION OF SHAUKIWAN LOT NO. 132 and THE REMAINING PORTION OF SECTION A OF SHAUKIWAN LOT NO.132 and of and in the messuages erections and buildings thereon now known as NAM ON COURT (南安閣) (“the Building”) No.95 Nam On Street, Hong Kong TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT SHOP C on the GROUND FLOOR and the Yard adjoining such Floor and STORAGE C on the STORAGE FLOOR and the external walls of such shop of the Building (which said Shop and the said Storage are shown on the Plans hereto annexed and thereon respectively coloured Pink.”         (emphasis added)

3.In the Ground Floor and Storage Floor plans annexed to the 1^st Assignment, the shop and the storage were respectively coloured pink.

4.The description of the property in the assignment (dated 25 February 2013), whereby the applicants acquired the property, followed exactly that in the 1^st Assignment.  The same assignment plans were referred to.

5.The applicants took out the present ex parte application seeking rectification of both the property description in the 1^st Assignment and the assignment plans.  The effect of the rectification sought would be that the shop and the yard adjoining the shop on the Ground Floor, the storage on the Storage Floor, as well as the external walls of the shop of the building would be shown and coloured in the new plans.

DISCUSSION

6.In Swainland Builders Ltd v Freehold Properties Ltd [2002] EXCA Civ 560, the following elements of a case for rectification were set out:

(1) The parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified.

(2) There was an outward expression of accord.

(3) The intention continued at the time of the execution of the instrument sought to be rectified.

(4) By mistake, the instrument did not reflect that common intention.

7.The applicants have the following concern:

(1) The yard adjoining the shop on the Ground Floor was not identified by description or colour in the Ground Floor plan.

(2) The external walls of the shop were not identified or coloured in the plans.

8.The alleged discrepancy or mistake is premised on the presupposition that the assignment plans should have identified by colour all that are covered by the property described in the body of the 1^st Assignment.

9.I find this difficult to accept.  Properly read, the description of what the property consists of in the 1^st Assignment is actually clear.  It is also clear in that only the shop and the storage (of the property) are singled out to be shown and coloured in the plans.

10.Reference is made to Yam Yun Fai v Yip Siu Hung [1992] 1 HKLR 346 and Fan Tony v Incorporated Owners of Kung Lok Building, HCMP 1861/2004 (17 February 2006).  But the circumstances of those cases differ materially from the present one.

11.Counsel for the applicants now confirms that his clients are not proceeding with the application for rectification in relation to the identification of the external walls of the shop in the assignment plans.  The application is therefore reduced to a single aspect, namely, the identification of the yard adjoining the shop on the Ground Floor.

12.Indeed, the yard adjoining the shop on the Ground Floor is not identified, whether by description or colour, in the Ground Floor plan.  In the Storage Floor plan, an area is identified by the description “yard”, but that is probably the loft above the yard.

13.It makes no sense for the description of the yard to appear on the Storage Floor plan but not the Ground Floor plan.  It seems to me that the description of the yard serves its purpose more, and more accurately, by appearing in the Ground Floor plan instead of the Storage Floor plan.  That accords with the description of the property in the body of the 1^st Assignment and thus the clear intention of the parties to it.

14.Whilst one may argue that the yard on the Ground Floor can still be identified by reading the Ground Floor and the Storage Floor plans together, I can see the concern of the applicants to avoid potential litigation in the future conveyancing of the property.

15.I accept the applicants’ affirmation evidence that at the conveyancing stage, their vendor refused their request for a confirmatory assignment to address their concern.  I also accept their evidence that the vendor under the 1^st Assignment was already dissolved in August 1990.  Rectification by deed executed by the first vendor has thus become impossible.

16.I am therefore satisfied that justice will be served by allowing the applicant to proceed with the application ex parte.

CONCLUSION AND ORDER

17.In the premises, the property description in the 1^st Assignment remains intact.  The only rectification required is to add the description of yard at where it is in the Ground Floor plan.

18.I make the following order (as per draft submitted):

(1) The Assignment dated 30 November 1987 and registered in the Land Registry by Memorial No UB3581898 (“the Assignment”) be rectified by substituting the Ground Floor plan annexed to it by one new linen plan for the Ground Floor plan[1] to be submitted in 14 days to be annexed to this order;

(2) A declaration that the Assignment as so rectified as aforesaid ought to take effect in like manner (a) as if the Assignment had been executed by the vendor at the time of execution thereof; and (b) as if the said new linen plan of the Ground Floor had been attached to the Assignment at the time of execution thereof;

(3) No order as to costs.

Mr Gary LEUNG instructed by Mike So, Joseph Lau & Co for the applicants