1997, M.P. No. 1947
IN THE HIGH COURT OF HONG KONG
COURT OF FIRST INSTANCE
And IN THE MATTER OF S. 12 of Conveyancing and Property Ordinance Cap 219. ______________
IN THE MATTER OF S. 12 of Conveyancing and Property Ordinance Cap 219.
Coram: Hon. Mr Justice Cheung in Court
Dates of hearing: 18 and 19 November 1997
Date of delivery of judgment: 19 November 1997
J U D G M E N T
1. By an Agreement dated 5th May 1997 (“the Agreement”) the Plaintiffs (“Purchasers”) agreed to buy from the Defendant (“Vendor”) the property known as Flat H,10th Floor, Block 12, Kenswood Court, Kingswood Villas.
2. Completion was to be held on 20th May 1997 at 11.30 am. Clause 11 of the Agreement imposed an obligation on the Vendor to show and prove title. Clause 12 of the Agreementprovided that requisition of title shall be delivered in writing by the Purchasers within seven working days after receipt of titledeeds.
3. On 15th May the Vendor’s solicitors supplied title deeds to the Purchasers’ solicitors. The Purchasers’ solicitors by a letter dated 17th May stated, among other things, “We have seven working days to peruse and approve the title deeds after receive the same from you.The date for completion will be extended after our written acceptance of your client’s title to the above property.”
4. On 19th May 1997, by a letter dated 18th May 1997, the Purchasers’ solicitors raised requisitions on title. On 20th May 1997 the Vendor’s solicitors replied to the requisition and supplied a further title document to the Purchasers’ solicitors.The Vendor said that the reply was sent by fax at 10.47 am. Later that day, the Vendor’s solicitors wrote to the Purchasers’ solicitorsstating that the Purchasers had failed to complete and the deposit paid by the Purchasers was forfeited.
Vendor not entitled to forfeit the deposit
5. The first question to be asked is : “Was the Vendor entitled to forfeit the deposit?” The answer in my view must be “No”. Under theAgreement the Purchasers had seven days to raise requisitions upon receipt of title deeds. They may, of course, choose to raise requisitionearlier if they wanted to upon the receipt of the title deeds. The title deeds were delivered on 15th May and requisitions were raisedon 19th May. The reply from the Vendor came on 20th May. The Purchasers argued that they must have seven days to consider the reply. I think all that can be said is that the Purchasersmust be given a reasonable time to consider the Vendor’s reply. This is in accordance with what Litton, J. A. said in Active Keen Industries Ltd. v. Fok Chi Keong  2 HKC 67 : –
6. If the reply from the Vendor only came at 10.47 am on the date of completion, certainly the Purchasers could not be expected to respondbefore the deadline at 11.30 am.
7. Furthermore, Godfrey, J.A. in Yeung Sau-chuen, Sammy v. Chung Chun-ting and Cheung Sai-mui High Court MP No. 4080/1992 stated that : –
8. In the present case, as further document of title was only delivered on 20th May, the Purchasers must have another seven days to raise requisitions.
Obligation of the Purchasers
9. Mr Tse, Counsel for the Vendor, relied on Ng Chek-kok v. Kiu Wai-ming  1 HKLR where Clough J.A. at p.13 stated that : –
10. It is clear from the facts of the case that, unlike the present application, the purchase money was required to be paid on a dateearlier than the date of completion. In that case the obligation of the vendor to prove title could still be performed after thedate of the payment of the purchase price. Hence what Clough J.A. said in the passage cited must be read in the context of that case.It is not meant to be a general proposition that if the vendor has not performed on the date of completion its primary obligationof proving and showing title, the purchaser is still required to tender the balance of the purchase price.
11. Again Hero Profit Enterprises Ltd. v. Kadesy Development Ltd. & Ors  3 HKC 193 is another example where a vendor’s obligation to prove and show title had not arrived at the time when the purchaser was requiredto make payment of the purchase price which was to be paid by instalments. That case concerns a building under construction.
12. Ng Chek-kok further stated that the vendor’s obligation to show a good title by production of the title deeds must be done within a reasonabletime. This obligation was not discharged by the Vendor by producing the title deeds on the date of completion. Furthermore, therewere mortgage documents which were not produced on the date fixed for completion. It is not argued by the Vendor that these documentswere not required to be produced, the only point taken is that these documents were lodged with the mortgagee bank.
Time ceased to be the essence
13. The Vendor also argued that paragraph 8 of the Purchasers’ affirmation showed that they were not ready and willing to complete. Thisparagraph referred to the situation on 17th May 1997 and was made in response to the late delivery of the title deeds which, in the circumstances, must be considered as beingnot made within a reasonable time. The period of completion was 15 days and it had taken the Vendor 10 days before the documentswere supplied. The Vendor was selling as a confirmor, all the more he should ensure that he would be in a position to discharge hisobligations towards the Purchasers. The further delay by the Vendor to provide all the documents at the time of completion clearlymeans that the Vendor could not have insisted on the date of completion. Time ceased to be the essence : see Wong Wai Chi Ann & Anor v. Cheung Kwok Fung Wilson & Ors  3 HKC 287 and Lord Energy Ltd v. Paul Chan & Ors High Court MP. No. 714 of 1991.
14. In the circumstances the Vendor clearly had failed to show good title and had repudiated the Agreement by forfeiting the depositwithout giving the Purchasers an opportunity to raise further requisition. The Purchasers are therefore entitled to a declarationthat the deposit of $320,000 was wrongly forfeited. I will further grant a declaration that good title had not been shown by theVendor on 20th May 1997. The Purchasers are not pursuing the claim for specific performance. In the circumstances, I will order that the damages,if any, sustained by the Purchasers are to be assessed by the Master.
[Submission on costs]
15. The Vendor was clearly in breach of the terms of the Agreement. It had behaved oppressively in forfeiting the deposit. Notwithstandingthe clear authorities in this area of law, the Vendor still resisted the Purchasers’ application right to the very end. The appropriateorder for costs is that the Vendor is to pay the Purchasers the costs of the application, to be taxed on the common fund basis.
Mr Simon H.W. Lam, inst’d by M/s Yip & Partners, for the Plaintiff
Mr Peter Tse, inst’d by M/s C.L. Chow & Lam, for the Defendant