KAN WING YAU AND ANOTHER v. HONG KONG HOUSING SOCIETY

HCMP002436/1987

IN THE HIGH COURT OF HONG KONG

1987, No. M.P. 2436

HEADNOTE

An assignment dated 18th January 1973 was executed in the name of the assignor by the donee of a power of attorney made on 7th December1974. There was no suggestion that the power had been revoked before the assignment was executed, but the requirements of section 5(4) of the Powers of Attorney Ordinance were not satisfied and it would not be conclusively presumed that the power had not been revoked before the assignment was executed.

HELD :

Declaring that a good title had been shown, the risk that the power of attorney might have been revoked between 1964 and 1973 was,on the facts of this case, “a purely theoretical and not a practical blot” on the title (In re Heaysman’s and Tweedy’s Contract (1893) 69 LT 89 applied).

OBSERVATIONS

(l) In the general run of cases where the power of’ attorney was of comparatively recent date the court might not beprepared to ignore the risk : see Xiamen International Finance Company Limited v. Tsui Tai Tan (8th May 1987, unreported);

(2) When the Conveyancing and Property Ordinance (Amendment) Bill has been enacted, execution over 15 years ago under a power of attorneywill be presumed good and that will then be the critical period.

1987, No. M.P. 2436

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

_____________________

IN THE MATTER of All Those 48 equal undivided 2321st parts or shares of and in Inland Lots Nos. 4884, 4885, 4886and 4887 together with the messuages erections and building thereon known as Ka Fai Court, No. 18, 20 and 22 Clarence Terrace, HongKong (“the building”) and All That Flat B on the 18th Floor of the building.

and

IN THE MATTER of Section 12 of the Conveyancing and Property Ordinance, Cap. 219, Laws of Hong Kong.

_____________________

BMIEEN

KAN WING YAU Plaintiffs
IP KIN WAH SANDY

and

HONG KONG HOUSING SOCIETY Defendants

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Coram: The Hon. Mr. Justice Godfrey in Chambers

Date of Hearing: 1st December 1987.

Date of Delivery of Judgment: 1st December 1987.

1. This is a vendor and purchaser summons.

2. On 25th September 1987, the Plaintiffs agreed to purchase the above-mentioned property from the Defendants.

3. The Defendants are obliged under their contract with the Plaintiffs to show a good title to the property.

4. The Plaintiffs appear to have accepted the Defendants’ title to the property, subject to three objections which they claim the Defendantshave not satisfactorily answered.

5. The first objection relates to the Crown Lease of Inland Lots 4884 and 4885. This was made on 22nd November 1938. The grantee wasone Leung Sui. She executed the Lease by an attorney. The Defendants cannot produce the power of attorney under which the attorneyexecuted the Lease. But the execution of the Lease by the grantee was not necessary for the vesting in the grantee of the term of999 years from 30th June 1862 granted by the Lease. And the property has been held in accordance with the title for almost 40 years.

6. There is no substance in this objection.

7. The second and third objections relate to Inland Lot 4887. This lot was the subject of an assignment dated 18th January 1973 by ChengShu Cheung to Hop Lee Shing Limited. Cheng Shu Cheung executed the assignment by an attorney, Tsoi Kam Sok. She was appointed attorneyby a power of attorney dated 7th December 1964. In this instrument the donor of the power, Cheng Shu Cheung, was described as WinstonShu Cheung Cheng. The solicitors who acted in 1973 state that the attorney was the donor’s mother, and (in effect) that they hadno reason to doubt that Chang Shu Cheung and Winston Shu Cheung Cheng were one and the same. The address given for this gentlemanin the 1964 appointment and the 1973 assignment are again one and the same. There is no suggestion that, between 1964 and 1973, thedonor of the power revoked it; but the Defendants cannot produce conclusive evidence that he did not.

8. The second objection is that the disparity between the names of the person executing the 1964 appointment and the 1973 assignmentamounts to a defect in the title. In my judgment there is ample evidence that they are one and the same person and there is no moresubstance in this objection than in the first objection.

9. The third objection is that the absence of conclusive evidence of non-revocation of the power also amounts to a defect in title.In my judgment, there is no more substance in this objection than there was in the other two. It is true, as I pointed out in Xiamen International Finance Company Limited v. Tsui Tai Yan (8th May 1987, unreported) that there is in theory a risk in such cases of a successful challenge to a purchaser’s title on the groundthat the power of attorney on which the title depends had been revoked. But if in a particular case the facts and circumstances areso compelling that, beyond any reasonable doubt, the risk is, for all practical purposes, illusory, then the Court can and shouldbe prepared to ignore it, and accordingly to dismiss any objection to title founded on it. This is such a case. The risk, in 1987,of a challenge by the donor of the 1964 power to the execution by his mother of the 1973 assignment, is a “purely theoretical andnot a practical blot” on the title (cp. In re Heaysman’s and Tweedy’s Contract (1893) 69 LT 89, per Lindley LJ at p. 91). It may safely be ignored. I should make it clear that, in the general run of cases where the power ofattorney is of recent date and the requirements of Section 5(4) of Powers of Attorney Ordinance are not satisfied, I would not be prepared to dismiss such an objection to the title. I should add that the position will changeafter the provisions of the Conveyancing and Property Ordinance (Amendment) Bill are enacted; execution under a power effected over15 years before will then be presumed good. Thereafter, 15 years will be the critical period. But on the facts of the present case,I have no hesitation in declaring that a good title has been shown to the property.

Signed
(G. M. Godfrey)
Judge of the High Court

Representation:

Mr. S. H. Chan of Messrs. Chan, Lau & Wai for the Plaintiffs.

Miss Maria Yuen instructed by Messrs. C.Y. Kwan & Co. for the Defendants.