KWOK SIU WING v. MODERN PARK LTD AND ANOTHER

HCA11920 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11920 OF 1998

——————–

BETWEEN

WONG YAN YAN, AMY
and
MODERN PARK LIMITED
CHAN SAI KIT
Plaintiff

1st Defendant
2nd Defendant

——————–

HCA11921 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11921 OF 1998

——————–

BETWEEN

CHEUNG KA FUNG, REBECCA
and
MODERN PARK LIMITED
CHAN SAI KIT
Plaintiff

1st Defendant
2nd Defendant

——————–

HCA11922 of 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11922 OF 1998

——————–

BETWEEN

KWOK SIU WING
and
MODERN PARK LIMITED
CHAN SAI KIT
Plaintiff

1st Defendant
2nd Defendant

——————–

Coram : The Hon. Mr. Justice Waung in Chambers

Date of Hearing: 25th June 1999

Date of Delivery of Judgment: 25th June 1999

————————

J U D G M E N T

————————

1. There are three actions before me in relation to three property transactions where the Plaintiff purchaser had paid deposits to the1st Defendant as vendor under three Sale and Purchase Agreements. The dispute arose over the refusal by the vendor 1st Defendantto return the deposit to the Plaintiff purchaser. Instead the 1st Defendant vendor had forfeited the deposit on the basis that thePlaintiff purchaser had failed to complete on the due date.

2. Before the Master, the summary judgment was given to the Plaintiff for the return of the deposit. On appeal to me, the issue wasnarrowed down to two:

(1) whether the requisition of the Plaintiff purchaser had been properly answered; and

(2) whether there was a premature termination by the vendor.

The first issue is a crucial issue.

3. The argument of Miss Chui on the first issue is that the two relevant requisitions of the Plaintiff had been properly answered. Thefirst relevant requisition is in relation to the opening of side windows at the premises. Under Condition 7 of the relevant conditionsat p.206 of the bundle, it provided that

“the Licensee shall not make or permit to be made any window or other opening in any building erected or to be erected on the lotwithout the prior written consent and approval of the District Lands Officer provided that a window or windows, opening or openingsmay be made in the front or rear of such building without such written consent and approval.”

4. I think it is agreed that there was side window opening It is also admitted that in answer to the requisition, the 1st Defendantdid not produce any written consent. What was, however, produced was a document in answer to requisition, a document dated 17th May1996 being a Certificate of Compliance. Is that sufficient? Obviously not. The reason is first the date of that document is not thedate close to the contract or completion. Secondly, it does not answer the question of the written consent. In my view, clearly inrelation to the first matter of requisition, the requisitions had not been properly answered.

5. The second matter under the requisition is the mortgage in the form of a legal charge registered against the property. The requisitionsought either original or a certified copy of that legal charge. I think it is admitted that the answer to requisition did not produceit. There is a telling letter at p.196 of the bundle from the solicitors for the Plaintiff to the solicitors for the 1st Defendantwhich reads thus:

“With regard to Legal Charge Memorial No. 786573 which forms part of the title document, your client is obliged to produce for ourperusal the certified true copy although the original is to be retained by the solicitors acting for the chargee. The fact that theoriginal is being kept by the chargee (or its solicitors) does not negateyour client’s obligation to produce its certified truecopy for our perusal in accordance with section 13 of the Conveyancing & Property Ordinance, Cap. 219. We therefore insist yourclient to produce the certified true copy document without delay.”

It is to be noted that this is a letter dated 30th June 1998, the date fixed for completion. I have therefore no doubt that the Plaintiffis correct. This aspect of the requisition has not been properly answered.

6. I conclude therefore on the first Issue in favour of the Plaintiff. It seems to me unnecessary to go on to deal with the second Issue.In fact, I have not called upon Mr. Chan. The appeal against the Master’s order is dismissed with costs to the Plaintiff.

7. So far as the amendment is concerned, it is a technical amendment on the matter of interest and it is not opposed.

(William Waung)
Judge of the Court of First Instance, High Court

Miss Ivy Chui instructed by Messrs. Han Lau Li & Yeung for the Appellant/ 1st Defendant

Mr. Louis Chan K.Y. instructed by Messrs. Yeung Law & Co for the Respondent/Plaintiff