Chan Kwai-fong v. Luk Kwai-mui
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CACV000161/1980
----------------- Coram: Huggins, Leonard and Cons, JJ.A. Date of Judgment: 8 December 1980 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. This case has given us some difficulty and the difficulty stems in large measure from the form of the Statement of Claim, in which there is still an error. There are in fact two errors. In one place in paragraph 5 it is clear that there should have been an amendment, similar to that which was made to paragraph 2, by the substitution of the words "the said Luk Loy" for the "Defendant" where that word first appears. Secondly, although there are facts alleged in the body of the pleading, the prayer does not cover what, in fact, is one of the allegations. 2. The claim arose in this way. A Madam Luk Loy became the registered owner of premises which included the fifth floor and the roof of a building in Kowloon. The Plaintiff agreed with Madam Luk Loy to purchase the exclusive right and privilege of using the roof. Subsequently, the Plaintiff erected a superstructure on the roof at considerable expense. The Plaintiff then discovered that Luk Loy was proposing to sell Luk Loy's entire interest, which, of course, would impinge upon the Plaintiff's right of user. The proposed sale was apparently to the Defendant and, therefore, the Plaintiff went to see the Defendant and informed the Defendant of her interest. According to the Statement of Claim, the Defendant promised that she would recognise the Plaintiff's interest in the property. Luk Loy then, according to the Statement of Claim but not according to the allegation as put before us today by the Plaintiff, assigned the whole of the fifth floor and roof to the Defendant. We have not seen the assignment, but this is how it is pleaded in the Statement of Claim. This is clearly how the Defendant understood the situation and I think that we are bound by that. There was an assignment by Luk Loy to the Defendant of the whole of the fifth floor and roof and it seems to be clear that the consideration for that assignment was $50,000. The Statement of Claim proceeded to allege that as regards the roof the Defendant became a trustee. There was then a further allegation that the Defendant was in breach of her promise to assign the title to the roof to the Plaintiff and a further allegation that the Defendant agreed to give the balance of the proceeds of sale to the Plaintiff when the Defendant sold the property to somebody else, after deducting her investment of $50,000 and the stamp duty and disbursements she had incurred. The property was subsequently sold to Madam Chan Yin Ping. 3. Quite clearly there were two main issues in the case: one was whether the Defendant took as a trustee and the second whether, in any event, there was an agreement of compromise under which the Plaintiff was to receive the difference between the sale price to Chan Yin Ping and the price which the Defendant had paid to Luk Loy. The judge in his judgment nowhere sets out the causes of action and I think, with respect to him, that he has in part been misled by the manner in which the case was pleaded and presented. His judgment deals almost entirely with the issue whether the Defendant was a trustee of the roof in favour of the Plaintiff and he held that there was no trust because the document under which the Plaintiff claimed her interest had never been registered. The learned judge does not appear to have considered the question of the compromise. Miss Mok has argued that, even if he had considered that aspect of the case, he must have come to the conclusion that there was no compromise as alleged by the Plaintiff. The reason for this is that the judge found that, when the Plaintiff and Chan Yin Ping went to see the Defendant in order to complete the arrangement for the sale to Chan Yin Ping, the Defendant only then, for the first time, appreciated that the sale which had been suggested to her was to Chan Yin Ping and not to the Plaintiff. Why the Defendant should have been under any such misunderstanding is a little difficult to appreciate: if there was a misunderstanding, the Defendant must have thought that the Plaintiff was going to pay a substantial sum of money for something which clearly she was already claiming to be hers. Had the learned judge approached this case in full recognition of the second issue, it seems to me that he might very well have come to a different conclusion as to the understanding of the Defendant on this matter and I am by no means satisfied that the claim of the Plaintiff has been considered as fully as it should have been and that justice has been done to her. I think that the only way in which justice can be done is to set aside this judgment and to remit the case to the lower court for a new trial, and I would so order. Leonard, J.A.: 4. I do not wish to add anything. I agree. Cons, J.A.: 5. I also agree. 8th December 1980. |